DLR Volume- 75
IN THE SUPREME COURT OF BANGLADESH
(APPELLATE DIVISION)
Criminal Review Petition Nos. 66, 67 and 69 of 2022
Decided On: 02.03.2023
Zahangir Alam (Md.) and Ors. Vs. State
Hon'ble Judges/Coram:
Hasan Foez Siddique, C.J., Md. Nuruzzaman, Obaidul Hassan, Borhanuddin, M. Enayetur Rahim, Md. Ashfaqul Islam, Md. Abu Zafor Siddique and Jahangir Hossain, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: S.N. Goswami, Senior Advocate and N.K. Saha, Senior Advocate instructed by Zainul Abedin, Advocate-on-Record
For Respondents/Defendant: A.M. Aminuddin, Attorney General, Sk. Md. Morshed, Additional Attorney General, Mohammad Saiful Alam, Sayem Mohammad Murad, Tamanna Ferdous, AAGs and Abantee Nurul, AAG instructed by Sufia Khatun, Advocate-on-Record
Acts/Rules/Orders:
Code of Civil Procedure, 1908 (CPC) - Order XLVII Rule 1; Code of Criminal Procedure, 1898 (CrPC) - Section 164; Code of Criminal Procedure, 1898 (CrPC) - Section 164(3); Constitution Of The People's Republic Of Bangladesh - Article 105; Penal Code, 1860 - Section 201, Penal Code, 1860 - Section 300, Penal Code, 1860 - Section 302, Penal Code, 1860 - Section 34
Prior History:
From the Judgment and Order dated 05.04.2022 passed by this Division in Criminal Appeal No. 90 of 2013 with Criminal Appeal No. 108 of 2013 with Criminal Petition Nos. 257, 260 of 2022 and 322-323 of 2019 and Jail Petition Nos. 27-28 of 2014
Result:
In Favour of State
JUDGMENT
Md. Ashfaqul Islam, J.
1. All the review petitions are directed against a judgment of this court in its appellate forum maintaining the death sentence awarded to the petitioners Md. Zahangir Alam, Dr. Mian Mohammad Mohiuddin and commutation of sentence from death to imprisonment for life awarded to Md. Abdus Salam.
2. The prosecution case, in short, was that, Dr. S. Taher Ahmed was the senior most Professor of the Department of Geology and Mining, University of Rajshahi. He was a Member of both the Departmental Planning Committee and the Expert Committee of the University. Pursuant to the pre-concerted plan, Dr. Taher was brutally killed at his Quarters (Pa-23/B) by all the accused in furtherance of their common intention 1-2-2006 after 10-00 pm or thereabout on his arrival thereat from Dhaka. After the killing of Dr. Taher, his dead body was dumped into a manhole behind the place of occurrence house. In the morning of 3-2-2006, his dead body was recovered from the manhole. Thereafter, the son of the victim, namely, Mr. Sanjid Alvi Ahmed alias Himel (PW 1), lodged an ejahar with Motihar Police Station, Rajshahi.
3. The Investigating Officers PW 47 Md. Omar Faruk, PW 48 Md. Golam Mahfiz and PW 49 Achanul Kabir investigated the case. Accused Zahangir Alam, Abdus Salam and Nazmul made confessional statements before PW 46 Magistrate Jobeda Khatun recorded under section 164 of the Code of Criminal Procedure. Finding prima facie case, the last Investigating Officer submitted a charge-sheet against all the accused including the acquitted accused Md. Azim Uddin Munshi and Md. Mahbub Alam @ Saleheen for committing offence punishable under section 302/201/34 of the Penal Code.
4. The Tribunal charged all the accused except Azim Uddin Munshi under section 302/34 of the Penal Code and the co-accused Azim Uddin Munshi was charged under section 201 of the Penal Code. They pleaded not guilty thereto and claimed to be tried.
5. The defence version of the case, as it appears from the trend of cross-examination of the prosecution witnesses, was that the accused are innocent and have been falsely implicated in the case and the alleged confessional statements of the accused Zahangir, Salam and Nazmul are the products of police torture, oppression and maltreatment and the PW 25 Dr. Md. Sultan-ul-Islam Tipu and PW 29 Golam Sabbir Sattar Tapu are responsible for the death of Dr. Taher.
6. After hearing both the parties and upon perusing the materials on record and having regard to the attending facts and circumstances of the case, the Tribunal came to the conclusion that the prosecution brought the charge home against the appellants and petitioners, and accordingly, it convicted and sentenced them. The Tribunal also found the co-accused Saleheen and Azim Uddin Munshi not guilty and accordingly acquitted them.
7. Against the said judgment and order of the Tribunal, the convicts preferred criminal appeals and jail appeals. The Tribunal transmitted the record to the High Court Division for confirmation of the sentence of death which was registered as Death Reference No. 57 of 2008. The High Court Division by the impugned judgment and order, dismissed the Criminal Appeal Nos. 3455 and 4058 and Jail Appeal Nos. 631-634 of 2008. However, the High Court Division commuted the sentence of death to imprisonment for life awarded to convict Md. Abdus Salam and Md. Nazmul. It confirmed the sentence of death awarded to the appellant Dr. Mian Md. Mohiuddin and Md. Zahangir Alam. Against which, they preferred criminal appeals, criminal petitions and jail petitions and the state preferred Criminal Petitions. By a judgment and order dated 5-4-2022 this Division dismissed all those cases and affirmed the death sentence awarded to the petitioners Md. Zahangir Alam, Dr. Mian Mohammad Mohiuddin and commutation of sentence from death to imprisonment for life awarded to Md. Abdus Salam. Against which the present review petitions have been filed by the convicts.
8. In the judgment the charges and evidence of the witnesses both oral and documentary have been meticulously considered and after evaluation of the same this court affirmed the sentence of death awarded to the two petitioners and commutation of sentence from death to imprisonment for life awarded to the another petitioner as mentioned above. In a review matter this court cannot re-assess the evidence afresh and re-hear the case. This court disposes of the points so far as it is relevant for the disposal of the matter. Learned Counsel argued on various points as if he were arguing an appeal and accordingly we refrained from discussing those points on reassessment of the evidence.
9. Mr. SN Goswami, the learned Senior Advocate appearing for the petitioners in Review petition Nos. 66 and 69 of 2022 has submitted a written argument. His contention is that this court committed error of law in believing the confessional statements made by the accused petitioners without considering the following points:
- Confessional statement of accused Jahangir was not voluntary in nature.
- Confession recorded by Magistrate in violation of section 164(3), Code of the Criminal Procedure cannot be used to convict the Appellant
- Confessional statement of accused Jahangir was not true.
- Retracted confession should be corroborated in material particular by other evidence.
10. The points raised by the learned counsel as above have already been answered by this Division in the appeal. This court has thoroughly assessed the evidence of the witnesses both oral and documentary and on a careful evaluation of the confessional statements, found that their statements are consistent with one another and corroborates the version given by each other and opined that confessing accused were speaking the truth. Therefore, those points are beyond the ambit of review and there is no scope for reconsideration of those facts.
11. The learned Senior Advocate further submits that the accused petitioner is in the condemn cell for more than 14 1/2 years suffering the pangs of death and it may be a good ground for commutation of sentence of death.
12. Mr. SM Shahjahan, the learned Senior Advocate appearing for the petitioner in Review petition No. 67 of 2022 has adopted the same argument advanced by the learned Senior Advocate Mr. SN Goswami.
13. On the other hand Mr. AM Aminuddin, the learned Attorney-General appearing for the State, submits that this Division elaborately discussed the evidence and answered those points raised by the learned Senior Counsel in the judgment sought to be reviewed. Since the points have already been considered by this Division in the judgment and the learned Counsel failed to show any error of law apparent on the face of the record in the conclusion arrived at by this Division, the points raised by the learned Counsel do not call for any interference.
14. Let us first discuss the relevant law, rules and decisions of the apex courts of home and abroad to maintain a petition for review in a criminal proceeding.
15. Provision of Article 105 of the Constitution empowers this Division to review its judgment pronounced or Order made "subject to the provisions of any Act of Parliament or of any Rules made by the division". This Division has made Rules for the review of criminal proceeding.
16. Rule 1 of Order XXVI in part IV of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988 provides:-
"Subject to the law and the practice of the Court, the Court may, either of its own motion or on the application of a party to a proceeding, review its judgment or order in a Civil proceeding on grounds similar to those mentioned in Order XLVII, rule 1 of the Code of Civil Procedure and in a Criminal Proceeding on the ground of an error apparent on the face of the record."
17. In the case of Zobaida Naher @ Jharna vs. Khairunnessa being dead her heirs Md. Feroz Alam and others 3 BLC (AD) 170 it has been observed:
"A review cannot be granted to urge fresh grounds when the judgment itself does not reveal an error apparent on the face of the record. To allow such a prayer for review is to allow re-hearing of the appeal on points not urged by a parry".
18. For better understanding let us now discuss what is an error apparent on the face of the record. This has been explained in the case of AHM Mustain Billah vs. Bangladesh 57 DLR (AD) 41. The concept of error apparent on the face of the record has been explained by his lordship Md. Fazlul Karim, J. at paragraphs 27-28:
"Mere error of fact or law is no error on the face of the record. It is such obvious error of law, which has either crept through Court's oversight or Counsel's mistake and failure to explain the legal position by the learned Counsel for the party. The error must be such which at a glance can be detected without advancing elaborate argument.
Though there is no hard and fast rule as to what is an error apparent on the face of the record but the same depends on the facts and circumstances of each case. But there could not be an error apparent on the face of the record merely because two possible views as to the interpretation or application of law vis-a-vis the particular facts of a case, one view accepted by the Court though may be erroneous but could not be the ground of review even if a decision or order is erroneous in law or on merits, the same shall not amount to an error apparent on the face of the record."
19. In the case of Zulfikar Ali Bhutto vs. Suite reported in PLD 1979 SC 741 as to scope of review and what is error apparent it has been observed:
"In Order that an error may be a ground for review, it is necessary that it must be one which is apparent on the face of the record, that is, it must be so manifest, so clear that no Court could permit such an error to remain on the record. It may be an error of fact or of Law, but it must be an error which is self-evident and floating on the surface, and does not require any elaborate discussion or process of ratiocination. The contention mat the exposition of the Law is incorrect or erroneous, or mat the Court has gone wrong in the application of the Law to the facts of the particular case: or that erroneous inferences have been drawn as a result of appraisal or appreciation of evidence, does not constitute a valid ground for review. However, an Order based on an erroneous assumption of material fact, or without adverting to a provision of Law, or a departure from an undisputed construction of the Law and the Constitution may amount to an error apparent on the face of the record. At the same time if the judgment under review or a finding contained therein, although suffering from an erroneous assumption of facts, is sustainable on other grounds available on the record then although the error may be apparent on the face of the record, it would not justify a review of the judgment or the finding in question. In other words, the error must not only be apparent, but must also have a material bearing on the fate of the case. Errors of inconsequential import do not call for review."
20. In a good number of cases of this Division including the case of Mazdar Hossain vs. Ministry of Finance 7 BLC (AD) 92 it has been held:
"A review is no means an appeal in disguise whereby an erroneous decision is reheard and corrected. A review lies where an error apparent on the face of the record exists. It is not a rehearing of the main appeal. Review is not intended to empower the Court to correct the mistaken view of law, if any, taken in the main judgment. It is only a clerical mistake or mistake apparent on the face of the record that can be corrected by leave but does not include the correction of any erroneous view of law taken by the Court."
21. In the case of Sow Chandra Kanta and another vs. Sheik Habib reported in MANU/SC/0064/1975 : AIR 1975 SC 1500 where Krishna Iyer, J. observed as follows:
"A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition through different counsel of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these footers is the rationale behind the insistence of counsel's certificate which should not be a routine affair or a habitual step."
22. A review cannot be granted to urge fresh grounds when the judgment itself does not reveal an error apparent on the face of the record. To allow such a prayer for review is to allow a rehearing of the appeal on points not urged by a party. We find support for this view from the following observation of Hamoodur Rahman, CJ in Mohd. Hussain vs. Ahmad Khan, 1971 SCMR 296 (297):
"A review cannot be granted on the ground that the Counsel appearing at the original hearing did not argue or press a particular point which was available to him then and could have been found out with a little amount of diligence. This would really amount to granting a re-hearing of a matter merely to make good the failure on the part of Counsel to argue all the points that could have been argued. This cannot furnish an adequate ground for review."
23. The core question for consideration is whether there is error apparent on the face of the record which calls for interference of the impugned judgment. It is an established jurisprudence that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only against patent error of law. Where without any elaborate argument one could point to the error and say that here is a substantial point of law which stares one in the face, and mere could reasonably be no two opinions to be entertained about it, a clear case of error apparent on the face of the record would be made out. It is only a clerical mistake or mistake apparent on the face of the record that can be corrected but does not include the correction of any erroneous view of law taken by the Court.
24. Further, it has now been settled that an error is necessary to be a ground for review but it must be one which is so obvious that keeping it on the record will be legally wrong. The moot point is, a party to a litigation is not entitled to seek a review of judgment merely for the purpose of rehearing or a fresh decision of the case. The power can be extended in a case where something obvious has been overlooked-some important aspects of the matter has not been considered, the court can reconsider the matter. There are exceptional cases where the court can remedy its judgment. In the alternative, it may be said that the error must also have a material real ground on the face of the case.
25. This Division has repeatedly held that the court should not be oblivious of the theme that when the finality is attached to the judgment delivered by a court, particularly the judgments at the apex level of the judicial hierarchy, upon a full-fledged hearing of the parties, a review petition being neither in the nature of a rehearing of the whole case nor being an appeal against judgment, review is not permissible only to embark upon a reiteration of the same contention which were advanced at the time of hearing of the appeal, but were considered and repelled in the judgment under review. It was also expressed that while dispensing justice, it is the duty of the court to resolve the issue of law properly brought before it and once it is done, the finality is reached and then a review cannot be made on any grounds whatsoever. It is because of the fact that an opinion pronounced by this Division which stands at the apex of the judicial hierarchy should be given finality and any departure from that opinion will be justified only when circumstances of a substantial and compelling character make it necessary to do so.
26. Thus, the powers of review can be exercised sparingly within the limits of the statute. In the realm of law the courts and even the statues lean strongly in favour of finality of decisions legally and properly made. If the cases are reopened on flimsy grounds which have already been addressed by the courts then mere will be no end to the litigation. That is why, the power of review is restricted by given guidelines of the apex courts of the sub-continent.
27. Another vital aspect in respect of sentence of death for the offence of murder has been spelt out in the case of Rasedul Islam vs. State 68 DLR (AD) 114 which is as under:--
"Predictably the exceptions to section 300 of the Penal Code have no application in this case and the accused persons have also not taken any plea in this regard. When such an act which is eminently dangerous and must in all probability cause death is committed with knowledge mat death might be the probable result without any excuse,' the offence is murder. This clause applies only to a case of dangerous actions without intention to cause specific bodily injury to any person. The knowledge which accompanies the acts must be death. The act was so eminently dangerous that it must in all probability cause death. The sentence provided for the offence of murder is death and only in extraneous circumstances, life sentence may be awarded. On consideration of the brutality of the incident, the High Court Division has rightly confirmed the sentence of death to the petitioners. No special reason is required to be assigned in awarding the death sentence if the offence attracts section 302. Since the sentence of death is the legal sentence for murder particularly if the murder is perpetrated cold-bloodedly and in the absence of any extenuating circumstances to commute the sentence, this Division has committed 'no error of law in maintaining' the petitioners' sentence. The accused petitioners were involved in heinous crime which was committed with inhuman brutality and the very nature of the incident called for no other than the extreme penalty provided in law. The enormity of the crimes and the gravity of the situation in which it was committed outweigh the consideration of other factors to consider the commutation of the sentence. As regards delay, it is now settled that mere delay is not a legal ground for commutation of the sentence."
28. But in the instant case, the learned Counsel for the petitioners argued the case, as if treating the case one as a regular appeal without attempting to make out a case one of error in the decision apparent on the face of the record or that the judgment is liable to be reviewed for any substantial reasons or any statutory provision was unnoticed in the impugned judgment.
29. From the nature of the offence it appears to us that the petitioner is in no way entitled to get any sympathy. We do not find any mitigating or extenuating circumstances on record for commutation of the sentence of death. Delay in the disposal of this case cannot by itself be a ground for commuting the sentence of death to one of imprisonment for life since the crime committed by the petitioner was premeditated senseless, dastardly and beyond all human reasonings.
30. On the question of confessional statements, this court has discussed the evidence thoroughly in support of the plea and disbelieved the defence plea. All points agitated by the learned counsels on behalf of the petitioners are not relevant for disposal of the review petition. The points raised by the learned counsels are reiteration of the points agitated at the time of hearing of the appeal.
31. In a recent decision of Md. Shukur Ali vs. the State 74 DLR (AD) 11 of this Division his lordship Mr. Obaidul Hassan, J. observed:
"We hold that confessional statement of a co-accused can be used against others non-confessing accused if there is corroboration of that statement by other direct or circumstantial evidence. In the instant case, the makers of the confessional statements vividly have stated the role played by other co-accused in the rape incident and murder of the deceased which is also supported/corroborated by the inquest report, postmortem report and by the depositions of the witnesses particularly the deposition of P.Ws. 1, 2, 3, 10, 11, 12, 14 and 18 regarding the marks of injury on the body of the deceased. Every case should be considered in the facts and circumstances of that particular case. In light of the facts and circumstances of the present case, we are of the view that the confessional statement of a co-accused can be used for the purpose of crime control against other accused persons even if there is a little bit of corroboration of that confessional statement by any sort of evidence either direct or circumstantial. (Emphasis added). Thus, the accused namely Shukur and Sentu are equally liable like Azanur and Mamun for murdering the deceased after committing rape."
32. Further in the instant case his Lordship Mr. Hasan Foez Siddique, CJ maintained:
"There was no provocation and the manner in which the crime was committed was brutal. It is the legal obligation of the Court to award a punishment that is just and fair by administering justice tempered with such mercy not only as the criminal may justly deserve but also the right of the victim of the crime to have the assailant appropriately punished is protected. It also needs to meet the society's reasonable expectation from court for appropriate deterrent punishment conforming to the gravity of offence and consistent with the public abhorrence for the heinous offence committed by the convicts. It is unfortunate but a hard fact that appellants and petitioners have committed such a heinous and inhumane offence. The murder of a genius professor of the University has shocked the collective conscience of the Bangladeshi people. It has a magnitude of unprecedented enormity."
33. Culture of impunity and magnanimity in no way can over shadow the fathomless detestable offence that has been committed in this ill-fated ugly case. Mercy cannot be an option in such type of case.
34. We insist on accountability for gruesome violations of our penal law because that is how we defend the law and demonstrate our insistence on respect for the law going forward in a progressive legal system. If we tail to ensure accountability across the legal system by ending impunity, we risk undermining the very beneficial effects to which the nascent accountability drive that has built over the past decades. That is the final message we would wish to propel in adjudicating this significant criminal review espousing incidents that were horrendous and vile.
35. Fortified with the decisions and discussions as made above we are of the view that there is hardly any scope of rehearing of the matter afresh as a court of appeal in a review petition Further in the instant petition the learned counsel fails to point out any error in the judgment apparent on the face of the record. Therefore, all the review petitions merit no consideration and accordingly those are dismissed.
Appellate Division (Civil)
Mr. Justice Hasan Foez Siddique, Chief Justice
Mr. Justice Borhanuddin
Mr. Justice M. Enayetur Rahim
Mr. Justice Krishna Debnath
Civil Review Petition No. 08 of 2020.
(Arising out of civil petition for leave to appeal Nos. 971 of 2014)
(From the order dated the 24th day of November, 2016 passed by this Division in Civil Petition No. 971 of 2014)
Durnity Daman Commission
... Petitioner
VS
Md Ashraful Haque and others
... Respondents
Judgement Date: June 30, 2022
Counsels:
Md. Khurshid Alam Khan, Senior Advocate instructed by M. Soyeb Khan, Advocate-on-Record
- For the Petitioner
Md SM Shajahan, Senior Advocate instructed by Shadhun Kumar Banik Advocate-on-Record
— For the Respondent No. 1.
None Represented
--- For the Responden Nos. 2-3.
Judgment
M. Enayetur Rahim, J: This review application under Article 105 of the Constitution of the People's Republic of Bangladesh is directed against the order dated 24-11-2016 passed by this Division in civil petition for leave to appeal No. 971 of 2014 disposing the same with observations.
2. Facts, relevant for disposal of the review petition are as follows:
The present Respondent No. 1 (herein-after referred to as writ petitioner-respondent) filed writ petition No. 7314 of 2011 under article 102 of the Constitution of the People's Republic of Bangladesh before the High Court Division challenging the proceedings contain in Memo No. দুদক/সেকজা/ঢাকা-১/২৬০৫ dated 7-8-2011 issued by the writ respondent No. 3 directing the writ petitioner-respondent to submit records in connection of his wealth statement.
3. In the writ petition it is contended that the writ respondent No: 3 as an inquiry officer issued a notice being Memo No. দুদক/সেকজা/ঢাকা-১/১৭৪৬ dated 19-10-2010 to the writ petitioner-respondent asking for submitting some records of wealth of the writ petitioner-respondent and to make appearance before him on 26-10-2010 at 10-00 am.
4.In response to the said notice/memo dated 19-10-2010 the writ petitioner-respondent submitted the written wealth statement before the writ respondent No. 3 on 7-11-2010 and accordingly the writ respondent No. 3 accepted the said written statement of wealth.
5.Thereafter, the writ respondent No. 2 issued a notice being Memo No. দুদক/সেকজা/ঢাকা-১/৬৫১ dated 24-4-2011 to the writ petitioner-respondent by exercising power under section 26(1) of the Anti-Corruption Commission Act, 2004 asking him to submit his wealth statement.
6.Thereafter, the writ petitioner-respondent prayed time for submitting the statements of wealth on 23-5-2011 and 25-5-2011 respectively and the writ respondent No. 2 allowed 7 (seven) days time for submitting the same by his memo dated 31-5-2011.
7. Thereafter, the writ petitioner-respondent on 31-5-2011 submitted wealth statement before the writ respondent No. 2 along with his family members statements of wealth on prescribed form.
8. Eventually, the writ respondent No. 3 as an inquiry officer issued a notice being Memo No. দুদক/সেকজা/ঢাকা-১/২৬০৫ dated 7-8-2011 to the writ petitioner-respondent asking him to submit some records of wealth and to make appearance before him on 16-8-2011 at 10-00 am.
9. Having received the above notice the writ petitioner-respondent challenged the same before the High Court Division by filing the above writ petition.
10. A Division Bench of the High Court Division initially issued a Rule Nisi and after hearing the Rule by its judgment and order dated 13-6-2013 discharged the Rule relying on the case of Md Shahidullah Mia vs Government of Bangladesh and others in connection with writ petition No. 940 of 2011.
11. Against the said judgment and order the writ petitioner-respondent filed civil petition for leave to appeal No. 971 of 2014 before this Division and this Division after hearing disposed of the same with the observations as under:
"The matter relates to issuance of notice upon the writ petition for submitting wealth statement. We noticed from the record that 3 (three) successive notices have been served upon the writ petitioner, of them, 2 notices were issued by the same officer of the Commission. If the Commission is not satisfied with the wealth statement, there is provision for filling case against the writ petitioner, but the Commission cannot issue repeated notice upon any person for submitting wealth statement. This is a malafide act on the part of Durnity Daman Commission. We direct the Chairman of Durnity Daman Commission to take legal action against the officers who intentionally issue such notices. The judgment of the High Court Division is quashed."
12. Feeling aggrieved by the above findings and observations, the writ respondent-Durnity Daman Commission (hereinafter referred. to as the Commission) has filed this review petition.
13. Mr Md Khurshid Alam Khan, learned Senior Advocate, appearing for the present petitioner submits that the issuance of notice for gathering information regarding the wealth statements is necessary for conducting the inquiry/investigation and, as such, issuance of successive notices do not mean harassment; hence, question of malafide act on the part of the Commission does not arise at all.
14. Mr Khan further submits that the impugned notice has been issued in view of section 19/20 of the Anti-Corruption Commission Ain, 2004 (hereinafter referred to as Ain, 2004) read with rule 20 of the Anti-Corruption Commission Rules, 2007 (hereinafter referred to as Rules, 2007) and section 160 of the Code of Criminal Procedure. There is no legal bar to issue successive notices for collecting information regarding the allegations made in the complaint and it is not possible for the Commission to ascertain whether the wealth is disproportionate to know source of the writ petitioner-respondent's income or not. and, as such, question of malafide act of the issuance of successive notices by the Commission does not arise at all and, as such, the impugned order is required to be reviewed.
15. However, Mr SM Shahjahan, learned Senior Advocate, appearing for the writ petitioner-respondent having supported the impugned order passed by this Division has submitted that in guise of inquiry or investigation, as the case may be a citizen cannot be harassed by the investigating agency i.e., the Commission.
16. We have heard the learned Advocates for the respective parties, perused the impugned order and notice as well as the relevant provision of law and Rules.
17. In the instant case the petitioner Commission served a notice on 7-8-2011 upon the writ petitioner-respondent, which was as under:
“দুর্নীতি দমন কমিশন
সমন্বিত জেলা কার্যালয় ঢাকা-১
(দুর্নীতি দমন কমিশন আইন-২০০৪ ও দুর্নীতি দমন কমিশন বিধিমালা, ২০০৭!)
স্মারক নং-দুদক/সেজকা/ঢাকা-১/২৬০৫ তারিখ-৭/৮/১১
প্রাপক,
জনাব মোঃ আশরাফুল হক
বাড়ী নং-৯, রোড নং-২৩এ,
সেকশন-১২বি, বনানী, ঢাকা-১২১৩
বিষয়: অনুসন্ধানের স্বার্থে তথ্যাদি সরবরাহ প্রসঙ্গে
সূত্র: দুর্নীতি দমন কমিশন, সমন্বিত জেলা কার্যালয়, ঢাকা-১ এর ই/আর নং-৪৬/১১
অনুসন্ধানাধীন ব্যক্তি/ব্যক্তিবর্গের পরিচিতি এবং অভিযোগের সংক্ষিপ্ত বিবরণঃ
জনাব মোঃ আশরাফুল হক এর বিরুদ্ধে জ্ঞাত আয় বহির্ভূত সম্পদ অর্জনের অভিযোগ।
সূত্রে উল্লিখিত অভিযোগের সুষ্ঠু অনুসন্ধানের স্বার্থে নিম্নবর্ণিত রেকর্ডপত্র/কাগজপত্র পর্যালোচনা করা একান্ত প্রয়োজন।
অতএব, আগামী ১৬-৮-২০১১ খ্রিঃ তারিখ ১০-০০ ঘটিকায় ঢাকা-১, এর নিকট নিম্নবর্ণিত রেকর্ডপত্র/কাগজপত্র সরবরাহের জন্য আপনাকে বিশেষভাবে অনুরোধ করা হলো।
উল্লেখ্য যে, সংশ্লিষ্ট রেকর্ডপত্র/কাগজপত্র যথাসময়ে আপনার নিকট/দপ্তরে ফেরত দেওয়া হবে। রেকর্ডপত্র হস্তান্তরের সময় উহার ছায়ালিপি আপনার নিকট/দপ্তরে রাখা যেতে পারে।
সংশ্লিষ্ট রেকর্ডপত্রের বিবরণঃ
গত ৩১-৫-২০১১ খ্রিঃ তারিখে সচিব, দুর্নীতি দমন কমিশন, প্রধান কার্যালয়, ঢাকা বরাবর আপনার দাখিলকৃত সম্পদ বিবরণীতে বর্ণিত স্থাবর-অস্থাবর সম্পদের অর্জন ও উৎস সংক্রান্ত রেকর্ডপত্র।
মোঃ আনোয়ারুল হক
অনুসন্ধানকারী কর্মকর্তা ও সহকারী পরিচালক
দুর্নীতি দমন কমিশন
সমন্বিত জেলা কার্যালয়, ঢাকা-১
মোবাঃ ০১৯১৮৯২৩৯০১”
18. Though High Court Division held that the Commission has got the power to issue such a notice but this Division by the impugned order did not endorse the said view, rather disposed of the same holding that if the Commission is not satisfied with the wealth statement there is provision of filing case against the writ petitioner, but the Commission cannot issue repeated notices upon any person for submitting wealth statement. This is a malafide act on the part of the Commission.
19. This Division further directed the Chairman of the Commission to take legal action against the officers who intentionally issued such notices and also quashed the judgment of the High Court Division.
20. To decide the issue involved in the case it is necessary to examine rule-8 & 11 of the Rules, 2007 which run as follows:
“৮। অনুসন্ধান কার্য চলাকালে অভিযুক্ত ব্যক্তির শুনানী গ্রহণ-
(১) দুর্নীতি বিষয়ক কোন অভিযোগের অনুসন্ধান চলাকালে কমিশন বা কমিশন কর্তৃক ক্ষমতা প্রাপ্ত কোন কমিশনার বা কর্মকর্তা যদি মনে করে যে, অভিযোগের সহিত সংশ্লিষ্ট ব্যক্তির বক্তব্য শ্রবণ করা প্রয়োজন তাহা হইলে অভিযুক্ত ব্যক্তিকে লিখিত নোটিশ প্রদান করিয়া নোটিশে উল্লিখিত সময়সীমার মধ্যে মৌখিক বা লিখিত বক্তব্য পেশ করিবার সুযোগ প্রদান করিতে পারিবে।
(২) উপ-বিধি (১) এর অধীন নোটিশ প্রাপ্ত ব্যক্তি তাহার বিরুদ্ধে আনীত অভিযোগ খণ্ডন করিয়া নোটিশে নির্দেশিত সময়সীমার মধ্যে ব্যক্তিগতভাবে বা তাহার নিয়োজিত আইনজীবীসহ মৌখিক বা লিখিত বক্তব্য পেশ করিতে পারিবে এবং উক্তরূপে বক্তব্য পেশ করা হইলে সংশ্লিষ্ট কমিশনার বা কর্মকর্তা উহা সংশ্লিষ্ট নথিতে অন্তর্ভুক্ত করিবেন।”
...
“১১। তদন্ত কার্য চলাকালে অভিযুক্ত ব্যক্তির শুনানী গ্রহণ-
(১) দুর্নীতি বিষয়ক কোন অভিযোগের অনুসন্ধান শেষ হওয়ার পর অভিযোগ প্রাথমিকভাবে প্রতিষ্ঠিত হইলে তদন্ত চলাকালে কমিশন যদি মনে করে যে, অভিযোগের সহিত সংশ্লিষ্ট ব্যক্তির বক্তব্য লিখিত নোটিশ প্রদান করিয়া নোটিশে উল্লিখিত সময়সীমার মধ্যে মৌখিক বা লিখিত বক্তব্য পেশ করিবার সুযোগ প্রদান করিতে পারিবে।
(২) উপ-বিধি (১) এর অধীন নোটিশ প্রাপ্ত ব্যক্তি তাহার বিরুদ্ধে আনীত অভিযোগ খণ্ডন করিয়া নোটিশে নির্দেশিত সময়সীমার মধ্যে ব্যক্তিগতভাবে বা তাহার নিয়োজিত আইনজীবীসহ মৌখিক বা লিখিত বক্তব্য পেশ করিতে পারিবে এবং উক্তরূপে বক্তব্য পেশ করা হইলে সংশ্লিষ্ট কমিশনার বা কর্মকর্তা উহা সংশ্লিষ্ট নথিতে অন্তর্ভুক্ত করিবেন।”
21. From the above rules it is abundantly clear that in course of inquiry or investigation, as the case may be, the Commission has got the power to issue notice upon the person(s) against whom an inquiry or investigation is going on to appear before the Commission for giving him a chance to hear and to place or submit his written or verbal statement and connecting documents with regard to the allegation brought against him.
22. The provision of section 26 of the Ain, 2004 is as follows:
"Declaration of assets.—
(1) Whenever the Commission, on any information and after conducting such [inquiry] as it may deem necessary, is satisfied that any person or any other person on his behalf is in possession or has acquired any property disproportionate to his legal source of income, the Commission may, by order in writing, direct that person to furnish statement of his assets and liabilities including any other information specified in that order in the manner prescribed by the Commission.
(2) If any person—
(a) fails to submit a written statement or an information in compliance with the order mentioned under sub-section (1) after receipt of the same or submits any written statement or any information which for sufficient reasons is considered false or baseless, or
(b) submits any book, accounts, record, declaration, return or any document under sub-section (1) or gives any statement which, for sufficient reasons, is considered false or baseless,
he shall be punished with imprisonment for a term which may extend to 3 (three) years, or with fine, or with both."
23. If, we meticulously examine the above provision, then it will be crystal clear that prior giving notice under section 26 of the Ain, 2004 the commission has got the power to make an inquiry. Further, the Commission, if after receiving the statement furnished by the concerned person(s) pursuant to the notice under section 26 of the Ain, 2004 is not satisfied, then as per rule 6 of the Rules, 2007 the Commission for the purpose of holding inquiry is empowered to appoint an inquiry officer, and in course of inquiry the Commission or concerned officer as authorized to do so is also empowered to issue notice as per provision of rule 8 of the Rules, 2007 upon the concerned person(s) for the purpose of inquiry asking him to submit or place his written or verbal submissions and the relevant documents.
24. Thus, notice under section 26 of the Ain, 2004 and notice for the purpose of inquiry in view of rule 8 of the Rules, 2007 is quite different and distinguishable.
25. Upon perusal of the notice, impugned before the High Court Division, Annexure-F to the writ petition it reveals that in the notice subject matter of the notice (বিষয়) has been described as ‘বিষয়: অনুসন্ধানের স্বার্থে তথ্যাদি সরবরাহ প্রসঙ্গে’ And in the said notice the writ petitioner-respondent was asked to provide the documents in support of his wealth statement submitted pursuant to the notice under section 26 of the Ain, 2004.
26. So, it is clear that the notice has been issued upon the writ petitioner-respondent for the purpose of proper and effective inquiry and the writ petitioner-respondent was asked to submit/provide the documents in support of his wealth statement submitted before the commission in pursuant to the notice under section 26 of the Act, 2004.
27. We have no hesitation to hold that this procedure of inquiry by the Commission is very fair, transparent and accountable and this procedure is for the benefit of the person(s) against whom an inquiry is going on. In course of inquiry the concerned person(s) is getting chance of being heard before the inquiry officer to defend himself. Similarly, after filling of the case during investigation period Rule 11 of the Rules, 2007 provides similar provision for defending an accused in an investigation process.
28. Further, section 19 of the Act, 2004 has empowered the Commission to do anything prescribed for carrying out of purpose of the Ain, 2004.
29. Section 19 of the Ain, 2004 runs as follows:
"19. Special Powers of the Commission in respect of inquiry or investigation.—
(1) The Commission shall have the following powers in respect of inquiry and investigation, namely:—
(a) to issue [notice to witnesses] and ensure attendance thereof and to examine witnesses;
(b) to detect and produce any document;
(c) to take evidence;
(d) to call for public records or copy thereof from any court or office;
(e) to issue [notice] for examination of witnesses and documents; and
(f) to do anything prescribed for carrying out the purposes of this Act.
(2) The Commission may require any person to furnish any information regarding a matter of inquiry or investigation and the person so required shall be bound to furnish such information kept under his custody.
(3) if any person causes resistance to any officer legally empowered by the Commission or a Commissioner in exercise of his powers under sub-section (1), or deliberately disobeys any direction given under that sub-section, it shall be a punishable offence and for such offence he shall be punished with imprisonment for a term not exceeding 3 (three) years, or with fine, or with both."
30. It is our considered view that the word `any person' used in section 19(2) includes the person(s) against whom inquiry or investigation as the case may he is going on.
31. Similar provision, like section 19 of the Ain, 2004 has also been made in rule 20 of the Rules, 2007 empowering the inquiry/investigating officer to take following measures—
| ক্রমিক নং | কমিশনের বিশেষ ক্ষমতা | ক্ষমতা প্রাপ্ত কর্মকর্তা |
|---|---|---|
| ১ (ক) | সাক্ষীর প্রতি নোটিশ জারি ও উপস্থিতি নিশ্চিতকরণ এবং জিজ্ঞাসাবাদ করা | অনুসন্ধান কার্যের দায়িত্ব প্রাপ্ত কর্মকর্তা, বা তদন্ত কার্যের দায়িত্ব প্রাপ্ত কর্মকর্তা, যে ক্ষেত্রে যাহা প্রযোজ্য |
| ২ (খ) | কোন দলিল উদঘাটন এবং উপস্থাপন করা | |
| ৩ (গ) | কোন অফিস হইতে পাবলিক রেকর্ড বা উহার অনুলিপি তলব করা | |
| ৪ (ঘ) | আইনের উদ্দেশ্য পূরণকল্পে নির্ধারিত অন্য যে কোন বিষয় |
32. If we meticulously examine the above two provisions i.e., section 19 of the Act, 2004 and 20 of Rules; 2007, coupled with rule 8 and 11 of the above Rules, then we have no hesitation to hold that those provisions have been made for the interest and benefit of a person(s) against whom an inquiry or investigation is going on as he is giving opportunity to defend himself in inquiry or investigation stage. Thus, there is no room to say that issuance of such notice by the Commission or its authorized officer is harassing, malafide and prejudiced to the concerned person(s).
33. Earlier, in disposing the leave petition this Division did not take into consideration the above provisions of law and Rules and thus, came to a erroneous decision, which is apparent on the face of the record.
34. Thus, impugned order is reviewed. Findings and observations made in the order are hereby expunged. The order of quashment of the proceedings and directing the Commission to take legal action against the officers who issued the notices are set-aside.
Accordingly, the review petition is disposed of.
End.
--- Journal: DLR Volume: 75 Division: AD Page: 278
IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Civil Appeal Nos. 53-54 of 2013
Decided On: 01.02.2023
The Chairman, Bangladesh Council of Scientific and Industrial Research and Ors.
... Vs. ...
Parvin and Ors.
Hon'ble Judges/Coram:
Hasan Foez Siddique, C.J., M. Enayetur Rahim and Jahangir Hossain, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Sheikh Reajul Hoque, Advocate instructed by Madhumalati Chowdhwy Barua, Advocate-on-Record
For Respondents/Defendant: Murad Reza, Senior Advocate instructed by Syed Mahbubar Rahman, Advocate-on-Record
Acts/Rules/Orders:
Specific Relief Act, 1877 - Section 42, Specific Relief Act, 1877 - Section 55, Specific Relief Act, 1877 - Section 56
Prior History:
From the Judgment and Decree dated the 01.12.2011 passed by the High Court Division in First Appeal Nos. 184 and 183 of 2008
Result:
Appeal Dismissed
JUDGMENT
Jahangir Hossain, J.
1. Both the appeals have arisen out of the common judgment and decree of the High Court Division. This Division has also heard both the appeals analogously and disposed of the same by a single judgment.
2. These two civil appeals, by leave, are directed against the judgment and decree dated the 1st day of December, 2011 passed by the High Court Division in First Appeal Nos. 183 and 184 of 2008 allowing the appeals.
3. The relevant facts for disposal of these civil appeals, in short, are that plaintiff-respondent, Dr. Md Abdul Malek filed Title Suit No. 39 of 2004 and plaintiff-respondent, Begum Parvin filed Title Suit No. 40 of 2004 both in the Court of Joint District Judge, 3rd Court, Dhaka, alleging, inter alia, that they had joined Bangladesh Council of Scientific and Industrial Research [BCSIR] on 27-12-1980 as Research Officer and on 13-11-1981 as Research Zoologist and the authority with satisfaction got them promoted as Senior Scientific Officers on 24-8-1990 and on 30-3-1988. They had been serving there for 23[twenty three] years and 22[twenty two] years respectively without violating any rules and regulations of BCSIR. Both the plaintiff-respondents applied to visit Canada from 1-2-2002 to 30-4-2002 at their own costs and they were accordingly granted permission by the authority to visit Canada. After going there, they became sick because of adverse cold weather prevailing in Canada. While sick, they had applied from Canada for extension of leave for further one year and the defendant-appellants had received their applications in due time. They sent the applications through registered mail. The pro-forma defendant Nos. 4 and 5 made assurance to the plaintiff-respondents for granting extension of leave by a fax message on 28-9-2003. Thereafter, on 19-11-2003, they came back to Dhaka in order to perform the ritual following the death of the mother of plaintiff-respondent, Dr. Md Abdul Malek and then went to the office of BCSIR and came to know that they were dismissed from their respective service on 23-9-2003 by a letter under reference Further case of the plaintiff-respondents is that no show cause notice was issued upon them by the defendant-appellants and in spite of knowing the fact that the respondents were staying in Canada, the defendant-appellants deliberately abstained from sending any letter or show cause notice to their address in Canada and had fabricated many documents with the intention to dismiss them from their respective service. They got no opportunity to defend their case and, as such, the order of dismissal is absolutely against the principle of natural justice and they have been dismissed under that law which is not applicable to their case. Hence, they filed the suits with prayer that the letter described in the schedule to the plaint to be declared illegal and also to declare that the respondents are still in the service of the appellants from 30-4-2002 and to pay them necessary costs and to grant any other reliefs as they are entitled to as per law and equity.
4. The defendant-appellants by filing written statement denying all the material allegations, contending, inter alia, that the suits are not maintainable in the present form. There were no causes of action for filing the suits. The suits are barred by limitation as well as by the principles of waiver and acquiescence. The main contention of the appellants is that in the letter dated 12-1-2002 by which the respondents were granted leave, there was a condition that under no circumstances the leave should be extended. The appellants further contend that they sent letters to the respondents in Canada and asked them to join their respective service and they had also issued notices and second show cause notice in the newspapers as per applicable rules, but in spite of expiry of the period of leave, the respondents were illegally staying in Canada and, as such, the order of dismissal was lawful and the respondents cannot get any relief in the suits.
5. During the trial in Title Suit No. 39 of 2004, the plaintiff-respondent examined him-self as PW 1 and produced some documents in support of his case which were marked as exhibit Nos. 1 to 9. The appellants examined one Md Shamsul Haque, Administrative Officer of BCSIR, as DW 1 to support their case and produced certain documents which were marked as exhibit Nos. Ka to Jha. While in Title Suit No. 40 of 2004, the plaintiff-respondent examined herself as PW 1 and produced some relevant papers in support of her case, which were marked as Exhibit Nos. 1 to 20. The appellants examined the aforesaid Administrative Officer, BCSIR, as DW 1 to support their case and produced certain documents which were marked as exhibit Nos. Ka to Jha.
6. The trial Court, after having heard the parties and assessed the evidence on record, dismissed the suits by its judgments and decrees dated 24-4-2008. Feeling aggrieved by the judgments and decrees of the trial Court, the present-respondents as appellants preferred First Appeal Nos. 183 of 2008 and 184 of 2008 before the High Court Division. The learned Judges of the High Court Division having heard the appeals analogously allowed them.
7. Being aggrieved by and dissatisfied with the judgment and decree of the High Court Division, the defendant-appellants preferred the aforesaid civil appeals arisen out of Civil Petition for Leave to Appeal Nos. 1187-88 of 2012 before this Division.
8. Mr. Sheikh Reajul Hoque, learned Advocate, appearing for the appellants, submits that plaintiff-respondent Nos. 1 and 2 have filed the suits for declaration that the order of dismissal from service is illegal and they are still in service but have not prayed for any direction for their reinstatement and thereby the suits are not maintainable. He further adds that the learned Judges of the High Court Division failed to appreciate that the plaintiff-respondents joined the BCSIR before enforcement of and the authority of BCSIR rightly dismissed plaintiff-respondent Nos. 1 and 2 after following all legal formalities as provided in the law.
9. On the contrary, Mr. Murad Reza, learned Senior Advocate, appearing on behalf of respondent Nos. 1 and 2, contends that without issuing any show cause notice, the appellants, BCSIR, most illegally dismissed them from service in violation of the principle of natural justice by depriving them from getting any opportunity to defend themselves against the allegations brought in. He further contends that the authority of BCSIR was fully aware of the address of the plaintiff-respondents in Canada, but they hopelessly failed to bring any evidence before the Court below to show that they issued the notices asking the plaintiff-respondents to join their respective services. He also contends that the impugned letter dated 29-3-2003 [Exhibit 8] was issued under section 3(b) of the Government Servants (Special Provisions) Ordinance, 1979 and the plaintiff-respondents were dismissed under 4(A) of the said Ordinance. The plaintiff-respondents were not Government Servants, rather employees of BCSIR, their dismissal from respective services under the provisions of Government Servants (Special Provision) Ordinance, 1979 is void ab-initio. He finally contends that while the plaintiff-respondents fell ill in Canada, they sent applications on 18-2-2002 to the defendant-appellants praying for extension of leave from 1-4-2002 to 30-4-2003 and the defendant-appellants, the then Chairman of BCSIR having received the same vide a fax message dated 28-9-2003 assured the plaintiff-respondents that their prayers for leave would be granted but the same was not subsequently considered by the authority and, as such, the instant appeals are liable to be dismissed.
10. Heard the contentions of the learned Advocates for both the parties and perused the materials along with other connected papers on record.
11. It reveals from the relevant documents on record that the plaintiff-respondents are husband and wife. Both of them were appointed in BCSIR on different dates. They went to Canada taking 3 [three] months' ex-Bangladesh leave from 1-2-2002 to 30-4-2002 to visit their relatives. In the approval letters of leave of the plaintiff-respondents, there were some conditions to the effect that under no circumstances, the leave should be extended. Admittedly, both the plaintiff-respondents after going there fell ill because of adverse cold weather in Canada and during their illness, they applied to defendant-appellants No. 2 to extend their leave from 1-5-2002 to 30-4-2003, i.e. for l[one] year. Thereafter, they applied for 2[two] years' medical leave from 1-5-2003 to 30-4-2005. In total, they prayed for 3[three] years' leave. Defendant-appellants No. 2 assured them to grant the prayers for leave. The trial Court opined that the plaintiff-respondents should have returned home making their leave short because of adverse cold weather in Canada. Here, the trial Court failed to realize the reason of their not coming back to Bangladesh and to resume their work in the office. They submitted medical report which was not satisfactory to the trial Court. It appears that the plaintiff-respondents participated in a project extended for 3 [three] months and consumed 3[three] months' leave in Canada involved themselves in different personal activities. They reiterated that they had been ill. It is also revealed from the findings of the trial Court that the defendant-appellants sent letters dated 29-7-2002 asking them to return home and join the service within 15[fifteen] days, otherwise, their service will be terminated as per Government Servants [Special Provisions] Ordinance, 1979. They sent two show cause notices first on 28-11-2002 and second on 8-1-2003. The show cause notices were also published in the daily newspapers. But the plaintiff-respondents as alleged did not respond to the notices. Thereafter, in the 154th Board Meeting of the Council held on 28-7-2003, the Board took decision to dismiss the plaintiff-respondents from their respective services. Therefore, the Council dismissed them from respective services on 23-9-2003. In overall observation of the trial Court, it is revealed that the plaintiff-respondents showed negligence in joining their respective services and disobedience to the letters of the defendant-appellants. Moreover, they did not show cogent grounds for extending their leave. They only prayed that they were ill for adverse cold weather. The trial Court further observed that as there was no cold weather in Bangladesh, they would have returned in Bangladesh shortening their leave and then they would come round. It is also observed that they first took ex-Bangladesh leave for visiting their relatives only.
12. It reveals that Bangladesh Council for Scientific and Industrial Research Ordinance, 1978 has been established under section 3(1) of the Ordinance as a statutory public body. According to the provisions of sub-section (2) of section 3, the Council shall be a body corporate. The Council is an entity distinct from the Government. It has been enshrined in section-3 of the Ordinance, 1978 that:
"3.(1) As soon as may be after the commencement of this Ordinance, the Government shall, by notification in the official Gazette, establish a Council to be called the Bangladesh Council of Scientific and Industrial Research, (2) The Council shall be a body corporate having perpetual succession and a common seal with power, subject to the provisions of this Ordinance, to acquire, hold and dispose of property, both movable and immovable, and shall be said name sue [sic] and be sued."
13. In section 18 of the Ordinance, 1978, the Council has been authorized to appoint its own officers and employees. It has been envisaged in section-18 that:
"The Council may, subject to such regulations as may be made in this behalf and the availability of budgetary provisions, create such posts and appoint, on such terms and conditions as it may determine such officers, consultants, advisers, auditors and other employees as it considers necessary for the efficient performance of its functions under this Ordinance:
Provided that no post carrying a monthly initial pay of Taka sixteen hundred or above shall be created without the approval of the Government."
14. The provisions of section 28 of the Ordinance, 1978 delegates to the Council powers, with previous approval of the Government to make regulations in order to provide for all matters for which provisions are necessary or expedient to give effect to the provisions of the Ordinance. BCSIR has accordingly framed a service Regulations, in 1989 for its employees which was published in Bangladesh Gazette dated Monday, January 9, 1989. It has been enunciated in section 28 that:
"(1) The Council may, with the previous approval of the Government, make regulations, not inconsistent with the provisions of this Ordinance and the rules, to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of this Ordinance.
(2) All regulations made under this section shall be published in the official Gazette and shall come into force on such publication."
15. In Chapter two, regulation No. 3 deals with the procedure of appointments; in Chapter four, regulation No. 16 deals with the procedure of various kinds of leave, regulation No. 29 deals with the procedure of returning from leave; in Chapter seven, regulation No. 37 deals with ordinary conduct and discipline, regulation No. 39 deals with the procedure of various sorts of penalties, regulation No. 42 deals with the procedure of inquiry of severe penalty, regulation No. 45 deals with the procedure of re-instatement, regulation No. 47 deals with the procedure of appeal against any order.
16. Having examined the impugned letters both dated 29-3-2003 marked as Exhibit 8, by which the plaintiff-respondents were dismissed, that these letters were issued under section 3(b) of Government Servants (Special Provisions) Ordinance, 1979 and they were dismissed under section 4(A) of the said Ordinance. It is apparent that the plaintiff-respondents were dismissed from their respective service by following the procedure and in exercise of the powers with reference to the Government Servants (Special Provisions) Ordinance, 1979. It appears that BCSIR is a statutory public body and is an entity different from government. As per provisions of section 18 of the above mentioned Ordinance, the Council shall appoint its own officers and employees. It is clear that these two plaintiff-respondents were employees of BCSIR and they were not government servants. Being distinct entity, BCSIR has adopted a regulation on 8-1-1989 with previous approval of the government and in exercise of the power delegated under section 28 of the above Ordinance, being Chapter-7, containing regulation Nos. 37 to 48, makes provisions regarding conduct and discipline of the employees of BCSIR. It is observed that at the time when the notices were published in the newspapers, the regulations, prescribing specific provisions regarding disciplinary action, were very much in force and were also applicable in respect of the plaintiff-respondents. Although the plaintiff-respondents were not government servants, rather admittedly, they were servants/employees of BCSIR. It is found that the disciplinary proceedings initiated with reference to the Government Servants (Special Provisions) Ordinance, 1979 along with issuance of the charge-sheets under section 3 of the said Ordinance and issuance of the letters of dismissal rendered with reference to section 4 of the said Ordinance are void ab-initio. But without resorting to the provisions of these regulations, the BCSIR authority has resorted to the procedure laid down in Government Servants (Special Provisions) Ordinance, 1979.
17. On perusal of the record, it is revealed that the relief prayed in the suit does not come within the scope of section 42 of the Specific Relief Act, 1877. The plaintiff-respondents did not ask for any direction in the form of mandatory injunction seeking re-instatement. Admittedly, plaintiff-respondent Nos. 1 and 2 have not prayed for their re-instatement in service with arrear rather the relief sought for being in declaratory form and the trial Court found that such relief is not available to the plaintiff-respondents even though they have a good case for directing reinstatement. In the contentions of the learned Advocate for the defendant-appellants, it appears that the result of the instant suit is a decree without any consequential relief, i.e. without reinstatement in the service and arrear though the consequential relief is a mandatory provision of law and since the principle of mandatory injunction settled by this Division in the case of Rupali Bank Ltd. vs Md Arab Ali and others, reported in 7 BLC (AD) 1 and Jahir Uddin (Md) vs Rupali Bank Ltd. and others reported in 12 BLC (AD) 114, and Bangladesh Tobacco Company Limited and another vs Md Azizul Huq and another, reported in 8 MLR (AD) 149 : 7 BLC (AD) 119. In the case of Osman Gani Mondal vs Mainuddin Ahmed and others, reported in 27 DLR (AD) 61 wherein this Division held that it is a cardinal rule of construction that where statutory restrictions are couched in negative terms, they are almost invariably held to be mandatory and in another decision of the case of Aminul Islam and others vs M/s. James Finlay and Company Limited, Khulna, reported in 26 DLR (SC) 33, this Court held that it is needless to say that difficulties are sometimes felt to determine whether a certain provision of statute is directory or mandatory, when the legislature itself expresses its opinion as to. the consequence of non-compliance with a certain direction, no difficulty arises and from the book namely 'Interpretation of Statutes and Documents' written by Mr. Mahmudul Islam [Page-238; Mandatory and directory provision] wherein it is stated, "where a statute requires something to be done or to be done in a particular manner and the consequences of failure to do so are also provided, no difficulty arises and the provision is construed as mandatory" and from above decision, it has been settled that the proviso of section 42 of Specific Relief Act is a mandatory provision by following the provision of section 55 of the Specific Relief Act.
18. It has been enshrined in section 42 of the Specific Relief Act that:
"Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Bar to such declaration-Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of tide, omits to do so.
19. It has been enumerated in section 55 of the Specific Relief Act that:
"When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may, in its discretion, grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts."
20. It is earlier discussed that BCSIR is a statutory body and it has its own individuality and separate entity which is to run following its own rules and regulations. It is found that the plaintiff-respondents had been dismissed from their services after taking decision of the Board of BCSIR upon recording the reasons thereon, but the proceeding drawn upon them and the notices published in the newspaper with the provisions of Government Servants (Special Provisions), Ordinance, 1979 is not concurrent with the rules and regulations of BCSIR.
21. The learned Advocate for the defendant-appellants in support of his contentions placed some references including the case of Osman Gani Mondal vs Mainuddin Ahmed and others, reported in 27 DLR (AD) 61, where it was held that:
"Thus the above contentions revolve round the question whether the second proviso to paragraph 7 of the Fourth Schedule of the Constitution is mandatory or directory. It could not be disputed that, in general, the provisions in a Constitution should be regarded as mandatory where such construction is possible; Seen in this connection, the observation of Wynes in his "Legislative, Executive and Judicial Powers in Australia," Fourth Edition, page 28. This observation, with which we are in complete agreement is based on Colley pp 154-155, Black's "Interpretation." pp. 21-22 Halsbury's Laws of England, 2nd Edn Vol. 31, pp-529 and following, and also a number of reported decisions. Seen also Sutherland's "Statutory Construction", 3rd Ed, Vol. 3, section 5807 which says that as a general proposition there is greater likelihood that constitutional provisions will be given mandatory effect, and that 'such a construction accords with the generally acknowledged import of constitutional fiat; that its character is such as to require absolute compliance in all cases without exception." It has been further explained that concepts of constitutional supremacy furnish reasonable grounds for "a presumption that the framers of a Constitution intended that just such efficacy be given to it."
Besides, the second proviso to the seventh paragraph of the Fourth Schedule has been cast in a negative or prohibitory form. It is a cardinal rule of construction that where statutory restrictions are couched in negative terms, they are almost invariably held to be mandatory: Sutherland, 3rd edition, Volume 3, p. 96, section 5814 which notes that "there is but one way to obey the command 'thou shall not,' and that is to refrain altogether from doing the forbidden act." This principle has been stated in Crawford's "Statutory Construction", page 516, section 261 in the following words:
"It is a rule of statutory construction that where a statute is framed in terms of command, and there is no indication from the nature of wording of the act or the surrounding circumstances that it is to receive a permissive interpretation, it will be construed as peremptory;" and again in section 263 at page 523 thereof it has been said: "Prohibitive or negative words can rarely, if ever, be directory, or, as it has been aptly stated, there is but one way to obey the command thou shall not', and that is to completely refrain from doing the forbidden Act. And this is so, even though the statute provides no penalty for disobedience. Accordingly, negative, prohibitory and exclusive words or terms are indicative of the legislative intent that the statute is to be mandatory,..."
22. In the case of Aminul Islam vs James Finlay and Company Limited, reported in 26 DLR (SC) 33 wherein it was held that:
"The moot question is whether the advice of the members of the Court is mandatory in making the award. Needless to say that difficulties are sometimes felt to determine whether a certain provision of statute is directory or mandatory. When the legislature itself expresses its opinion as to the consequence of non-compliance with a certain direction, no difficulty arises but in a case where the legislature does not indicate its mind as to the consequence of violation of such direction, the Court is to consider whether the direction is merely directory or mandatory and this is to be determined on the construction of the provision in question and the importance attached to the direction therein. As noticed earlier, rule 34 provides that the Chairman while giving an award shall consider the advice given to him the rule does not require the Chairman to follow the members to obtain their advice in any manner it is possible. It will be sufficient for the Chairman if he seeks the advice of the members. If any member intentionally refuses to give advice the Chairman has got no authority to impose any penalty upon him for his non-compliance with the rule. The question of consideration of the advice by the Chairman arises only when the advice is given. The rule is silent as regard the consequence of non-compliance. This clearly indicates that no special importance is attached to the direction as regards advice."
23. In the case of Jahir Uddin vs Rupali Bank Ltd. and others, reported in 12 BLC (AD) 115, it was held that:
"As it appears the High Court Division made the Rule absolute holding that admittedly, on and from 6-4-1984 the defendant bank, being denationalized, was converted into a private bank incorporated under the Companies Act, 1994 and, as such, the relationship between the plaintiff-petitioner and the defendant bank became that of master and servant from that date and therefore, the petitioner is not entitled to get a decree for declaration without consequential relief; in the instant case there is no prayer for mandatory injunction for consequential relief; even if there is a prayer for mandatory injunction but that too cannot be granted in view of legal bar under clause (e) of section 56 of the Specific Relief Act which provides that an order of mandatory injunction cannot be granted to prevent the breach of a contract the performance of which could not be specifically enforced; the breach of contract for personal service cannot be restrained by court ordering an employer to retain the employee in the service as it is the prerogative right of the employer to discharge his employee and the Court cannot compel a person against his will to employ any person and the employer bank is liable for damage and compensation in terms of Service Rules and Regulations; the suit is not maintainable as the plaintiff challenged the order of suspension and the final show cause notice but did not challenge the order of dismissal in which the impugned order of suspension and show cause merged and with the order of dismissal[sic] the orders of suspension and final show cause became infructuous and in the instant case this issue, which cuts the case at its root, has not been considered at all by the appellate Court below."
24. From the submission of the learned Counsel for the plaintiff-respondents, it is found that BCSIR was established under section 3(1) of the Bangladesh Council for Scientific and Industrial Research Ordinance, 1978 as statutory public body. BCSIR has framed a Service Regulations in 1989 which is known as Bangladesh Council for Scientific and Industrial Research Employees Service Regulations, 1989. Under regulation 1(2), it will be applied for its permanent employees. Regulation No. 55 of the above mentioned Regulation refers that "By Laws" regulating the service of the plaintiff-respondents was repealed by the said Regulation. It is found that the plaintiff-respondents joined as Research Officer on 27-12-1980 and as Research Zoologist on 13-11-1981. According to regulation 1(2) of the above said Regulations, the provisions of the Regulations are applicable for the plaintiff-respondents. Previously, the employees of the BCSIR were guided by "By Laws", which has been repealed by regulation No. 55 of the said Regulation, enacted in 1989. They are the employees of BCSIR. Regulation Nos. 37 to 48 of the Service Regulations, 1989 laid down the provisions regarding conduct and discipline of the employees of BCSIR but without following the same, the notices were published and charge-sheets were issued under section 3 of the Government Servants (Special Provisions) Ordinance, 1979. Hence, the said notices or charge-sheets are not valid in the eye of law. It is further appeared that the plaintiff-respondents were dismissed under section 4(A) of the Government Servants (Special Provisions) Ordinance, 1979 from their respective service by following the procedure and in exercise of the powers with reference to the said Ordinance, which is applicable for the government servants. The above mentioned Regulation of BCSIR has not been included to the schedule of the Administrative Tribunal Act and, as such, there is no bar to file the suits in the civil court.
25. The contentions of the learned Advocate on behalf of the plaintiff-respondents in the case of Bangladesh Water Development Board, represented by its Chairman vs Syed Moazzem Hossain and others, reported in 1995 BLD (AD) 239 : 1 BLC (AD) 13, in which it was held that:
"A Declaratory suit need not be confined within the terms of section 42 of the Specific Relief Act which is meant for obtaining a specific relief. A declaration can be sought for various other matters as well."
26. It is found from close reading of the aforesaid decision reported in 1995 BLD (AD) 239 : 1 BLC (AD) 13 and 7 BLT(AD) 361 that the suit for simple declaration is maintainable in respect of service matter without any prayer for consequential relief. It has been held therein that a declaratory suit need not be confined in the terms of section 42 of the Specific Relief Act.
27. In the case of Jiban Bima Corporation, Dhaka vs Mustafa Hussain and another, reported in : 50 DLR 411, it was held that:
"A declaratory decree passed in a case without any prayer for consequential relief is an "annuity". Such decree is a gain and its implementation is dependent on as to whom the decree is passed against. In the instant case, the defendant being a statutory Corporation, there is no reason to believe that such corporation will not implement the decision of the court"
28. Section 2(AA) of the Administrative Tribunal Act, 1980 defines statutory public authority in respect of which Administrative Tribunal Act will be applicable. Section 2(AA) of the Act reads as follows:
"statutory public authority" means an authority, corporation, or body specific in the schedule to this Act."
29. The main contentions of the learned Advocate for the plaintiff-respondents are that the respondents are not government servants, they are employees of a statutory body, BCSIR and, as such, the dismissal is illegal in the eye of law as contrary to the service regulations. Therefore, the High Court Division rightly allowed the appeals observing that the impugned letters of dismissal are void ab-initio because the plaintiff-respondents were not government servants, they are the permanent employees of BCSIR. They should have been notified by and proceedings should have been drawn according to the said Probidhimala. Admittedly, it is seen from section 1 of the Regulation titled.
30. Under the circumstances, it appears that the plaintiff-respondents are the permanent employees of BCSIR and in their case, the provisions of the above Regulations shall operate. The defendant-appellants without resorting the existing regulations of the BCSIR, they resorted to the Government Servants Ordinance, 1979.
31. The plaintiff-respondents claimed that before dismissal from their respective service, they were not served any show cause notices, though the defendant-appellants claimed that they served show cause notices and the notices were also duly published in the daily newspapers but the plaintiff-respondents refused any kind of service of notices. It appears from the record that the first show cause notice under section 3(B) of the Government Servants (Special Provisions), Ordinance, 1979 dated 28-11-2002 was served giving 5[five] days' time and the second show cause notice under section 5(2) of the Government Servants (Special Provisions), Ordinance, 1979 dated 21-1-2003 was served giving 3[three] days' time. As the plaintiff-respondents are the permanent employees of BCSIR, the procedure of serving notice shall be applied in accordance with the provisions of the Regulations and otherwise, the procedures are left to be followed illegally. Apart from this, Dw-1, in cross-examination, admitted that he had no knowledge whether the notices were served upon the plaintiff-respondents or not. It is revealed that the inquiry was held without having any knowledge of the plaintiff-respondents and the dismissal from service without affording opportunity of defence is illegal and arbitrary being violative of the principle of natural justice. It is also revealed that all the procedures of servicing notices, inquiry and dismissal had taken place under the Government Servants (Special Provisions), Ordinance, 1979 but it is obvious that the plaintiff-respondents are the employees of Bangladesh Council for Scientific and Industrial Research. It is our considered view that the defendant-appellants adopted wrong forum to dismiss the plaintiff-respondents from their services.
32. On consideration of the facts and circumstances of the case discussed above, we are of the view that the High Court Division is justified in allowing the appeals
Accordingly, both the appeals are dismissed without any order as to costs. However, for the period, the plaintiff-respondents were out of service shall be treated as leave without pay.
IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Civil Appeal Nos. 53-54 of 2013
Decided On: 01.02.2023
The Chairman, Bangladesh Council of Scientific and Industrial Research and Ors.
... Vs. ...
Parvin and Ors.
Hon'ble Judges/Coram:
Hasan Foez Siddique, C.J., M. Enayetur Rahim and Jahangir Hossain, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Sheikh Reajul Hoque, Advocate instructed by Madhumalati Chowdhwy Barua, Advocate-on-Record
For Respondents/Defendant: Murad Reza, Senior Advocate instructed by Syed Mahbubar Rahman, Advocate-on-Record
Acts/Rules/Orders:
Specific Relief Act, 1877 - Section 42, Specific Relief Act, 1877 - Section 55, Specific Relief Act, 1877 - Section 56
Prior History:
From the Judgment and Decree dated the 01.12.2011 passed by the High Court Division in First Appeal Nos. 184 and 183 of 2008
Result:
Appeal Dismissed
JUDGMENT
Jahangir Hossain, J.
1. Both the appeals have arisen out of the common judgment and decree of the High Court Division. This Division has also heard both the appeals analogously and disposed of the same by a single judgment.
2. These two civil appeals, by leave, are directed against the judgment and decree dated the 1st day of December, 2011 passed by the High Court Division in First Appeal Nos. 183 and 184 of 2008 allowing the appeals.
3. The relevant facts for disposal of these civil appeals, in short, are that plaintiff-respondent, Dr. Md Abdul Malek filed Title Suit No. 39 of 2004 and plaintiff-respondent, Begum Parvin filed Title Suit No. 40 of 2004 both in the Court of Joint District Judge, 3rd Court, Dhaka, alleging, inter alia, that they had joined Bangladesh Council of Scientific and Industrial Research [BCSIR] on 27-12-1980 as Research Officer and on 13-11-1981 as Research Zoologist and the authority with satisfaction got them promoted as Senior Scientific Officers on 24-8-1990 and on 30-3-1988. They had been serving there for 23[twenty three] years and 22[twenty two] years respectively without violating any rules and regulations of BCSIR. Both the plaintiff-respondents applied to visit Canada from 1-2-2002 to 30-4-2002 at their own costs and they were accordingly granted permission by the authority to visit Canada. After going there, they became sick because of adverse cold weather prevailing in Canada. While sick, they had applied from Canada for extension of leave for further one year and the defendant-appellants had received their applications in due time. They sent the applications through registered mail. The pro-forma defendant Nos. 4 and 5 made assurance to the plaintiff-respondents for granting extension of leave by a fax message on 28-9-2003. Thereafter, on 19-11-2003, they came back to Dhaka in order to perform the ritual following the death of the mother of plaintiff-respondent, Dr. Md Abdul Malek and then went to the office of BCSIR and came to know that they were dismissed from their respective service on 23-9-2003 by a letter under reference Further case of the plaintiff-respondents is that no show cause notice was issued upon them by the defendant-appellants and in spite of knowing the fact that the respondents were staying in Canada, the defendant-appellants deliberately abstained from sending any letter or show cause notice to their address in Canada and had fabricated many documents with the intention to dismiss them from their respective service. They got no opportunity to defend their case and, as such, the order of dismissal is absolutely against the principle of natural justice and they have been dismissed under that law which is not applicable to their case. Hence, they filed the suits with prayer that the letter described in the schedule to the plaint to be declared illegal and also to declare that the respondents are still in the service of the appellants from 30-4-2002 and to pay them necessary costs and to grant any other reliefs as they are entitled to as per law and equity.
4. The defendant-appellants by filing written statement denying all the material allegations, contending, inter alia, that the suits are not maintainable in the present form. There were no causes of action for filing the suits. The suits are barred by limitation as well as by the principles of waiver and acquiescence. The main contention of the appellants is that in the letter dated 12-1-2002 by which the respondents were granted leave, there was a condition that under no circumstances the leave should be extended. The appellants further contend that they sent letters to the respondents in Canada and asked them to join their respective service and they had also issued notices and second show cause notice in the newspapers as per applicable rules, but in spite of expiry of the period of leave, the respondents were illegally staying in Canada and, as such, the order of dismissal was lawful and the respondents cannot get any relief in the suits.
5. During the trial in Title Suit No. 39 of 2004, the plaintiff-respondent examined him-self as PW 1 and produced some documents in support of his case which were marked as exhibit Nos. 1 to 9. The appellants examined one Md Shamsul Haque, Administrative Officer of BCSIR, as DW 1 to support their case and produced certain documents which were marked as exhibit Nos. Ka to Jha. While in Title Suit No. 40 of 2004, the plaintiff-respondent examined herself as PW 1 and produced some relevant papers in support of her case, which were marked as Exhibit Nos. 1 to 20. The appellants examined the aforesaid Administrative Officer, BCSIR, as DW 1 to support their case and produced certain documents which were marked as exhibit Nos. Ka to Jha.
6. The trial Court, after having heard the parties and assessed the evidence on record, dismissed the suits by its judgments and decrees dated 24-4-2008. Feeling aggrieved by the judgments and decrees of the trial Court, the present-respondents as appellants preferred First Appeal Nos. 183 of 2008 and 184 of 2008 before the High Court Division. The learned Judges of the High Court Division having heard the appeals analogously allowed them.
7. Being aggrieved by and dissatisfied with the judgment and decree of the High Court Division, the defendant-appellants preferred the aforesaid civil appeals arisen out of Civil Petition for Leave to Appeal Nos. 1187-88 of 2012 before this Division.
8. Mr. Sheikh Reajul Hoque, learned Advocate, appearing for the appellants, submits that plaintiff-respondent Nos. 1 and 2 have filed the suits for declaration that the order of dismissal from service is illegal and they are still in service but have not prayed for any direction for their reinstatement and thereby the suits are not maintainable. He further adds that the learned Judges of the High Court Division failed to appreciate that the plaintiff-respondents joined the BCSIR before enforcement of and the authority of BCSIR rightly dismissed plaintiff-respondent Nos. 1 and 2 after following all legal formalities as provided in the law.
9. On the contrary, Mr. Murad Reza, learned Senior Advocate, appearing on behalf of respondent Nos. 1 and 2, contends that without issuing any show cause notice, the appellants, BCSIR, most illegally dismissed them from service in violation of the principle of natural justice by depriving them from getting any opportunity to defend themselves against the allegations brought in. He further contends that the authority of BCSIR was fully aware of the address of the plaintiff-respondents in Canada, but they hopelessly failed to bring any evidence before the Court below to show that they issued the notices asking the plaintiff-respondents to join their respective services. He also contends that the impugned letter dated 29-3-2003 [Exhibit 8] was issued under section 3(b) of the Government Servants (Special Provisions) Ordinance, 1979 and the plaintiff-respondents were dismissed under 4(A) of the said Ordinance. The plaintiff-respondents were not Government Servants, rather employees of BCSIR, their dismissal from respective services under the provisions of Government Servants (Special Provision) Ordinance, 1979 is void ab-initio. He finally contends that while the plaintiff-respondents fell ill in Canada, they sent applications on 18-2-2002 to the defendant-appellants praying for extension of leave from 1-4-2002 to 30-4-2003 and the defendant-appellants, the then Chairman of BCSIR having received the same vide a fax message dated 28-9-2003 assured the plaintiff-respondents that their prayers for leave would be granted but the same was not subsequently considered by the authority and, as such, the instant appeals are liable to be dismissed.
10. Heard the contentions of the learned Advocates for both the parties and perused the materials along with other connected papers on record.
11. It reveals from the relevant documents on record that the plaintiff-respondents are husband and wife. Both of them were appointed in BCSIR on different dates. They went to Canada taking 3 [three] months' ex-Bangladesh leave from 1-2-2002 to 30-4-2002 to visit their relatives. In the approval letters of leave of the plaintiff-respondents, there were some conditions to the effect that under no circumstances, the leave should be extended. Admittedly, both the plaintiff-respondents after going there fell ill because of adverse cold weather in Canada and during their illness, they applied to defendant-appellants No. 2 to extend their leave from 1-5-2002 to 30-4-2003, i.e. for l[one] year. Thereafter, they applied for 2[two] years' medical leave from 1-5-2003 to 30-4-2005. In total, they prayed for 3[three] years' leave. Defendant-appellants No. 2 assured them to grant the prayers for leave. The trial Court opined that the plaintiff-respondents should have returned home making their leave short because of adverse cold weather in Canada. Here, the trial Court failed to realize the reason of their not coming back to Bangladesh and to resume their work in the office. They submitted medical report which was not satisfactory to the trial Court. It appears that the plaintiff-respondents participated in a project extended for 3 [three] months and consumed 3[three] months' leave in Canada involved themselves in different personal activities. They reiterated that they had been ill. It is also revealed from the findings of the trial Court that the defendant-appellants sent letters dated 29-7-2002 asking them to return home and join the service within 15[fifteen] days, otherwise, their service will be terminated as per Government Servants [Special Provisions] Ordinance, 1979. They sent two show cause notices first on 28-11-2002 and second on 8-1-2003. The show cause notices were also published in the daily newspapers. But the plaintiff-respondents as alleged did not respond to the notices. Thereafter, in the 154th Board Meeting of the Council held on 28-7-2003, the Board took decision to dismiss the plaintiff-respondents from their respective services. Therefore, the Council dismissed them from respective services on 23-9-2003. In overall observation of the trial Court, it is revealed that the plaintiff-respondents showed negligence in joining their respective services and disobedience to the letters of the defendant-appellants. Moreover, they did not show cogent grounds for extending their leave. They only prayed that they were ill for adverse cold weather. The trial Court further observed that as there was no cold weather in Bangladesh, they would have returned in Bangladesh shortening their leave and then they would come round. It is also observed that they first took ex-Bangladesh leave for visiting their relatives only.
12. It reveals that Bangladesh Council for Scientific and Industrial Research Ordinance, 1978 has been established under section 3(1) of the Ordinance as a statutory public body. According to the provisions of sub-section (2) of section 3, the Council shall be a body corporate. The Council is an entity distinct from the Government. It has been enshrined in section-3 of the Ordinance, 1978 that:
"3.(1) As soon as may be after the commencement of this Ordinance, the Government shall, by notification in the official Gazette, establish a Council to be called the Bangladesh Council of Scientific and Industrial Research, (2) The Council shall be a body corporate having perpetual succession and a common seal with power, subject to the provisions of this Ordinance, to acquire, hold and dispose of property, both movable and immovable, and shall be said name sue [sic] and be sued."
13. In section 18 of the Ordinance, 1978, the Council has been authorized to appoint its own officers and employees. It has been envisaged in section-18 that:
"The Council may, subject to such regulations as may be made in this behalf and the availability of budgetary provisions, create such posts and appoint, on such terms and conditions as it may determine such officers, consultants, advisers, auditors and other employees as it considers necessary for the efficient performance of its functions under this Ordinance:
Provided that no post carrying a monthly initial pay of Taka sixteen hundred or above shall be created without the approval of the Government."
14. The provisions of section 28 of the Ordinance, 1978 delegates to the Council powers, with previous approval of the Government to make regulations in order to provide for all matters for which provisions are necessary or expedient to give effect to the provisions of the Ordinance. BCSIR has accordingly framed a service Regulations, in 1989 for its employees which was published in Bangladesh Gazette dated Monday, January 9, 1989. It has been enunciated in section 28 that:
"(1) The Council may, with the previous approval of the Government, make regulations, not inconsistent with the provisions of this Ordinance and the rules, to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provisions of this Ordinance.
(2) All regulations made under this section shall be published in the official Gazette and shall come into force on such publication."
15. In Chapter two, regulation No. 3 deals with the procedure of appointments; in Chapter four, regulation No. 16 deals with the procedure of various kinds of leave, regulation No. 29 deals with the procedure of returning from leave; in Chapter seven, regulation No. 37 deals with ordinary conduct and discipline, regulation No. 39 deals with the procedure of various sorts of penalties, regulation No. 42 deals with the procedure of inquiry of severe penalty, regulation No. 45 deals with the procedure of re-instatement, regulation No. 47 deals with the procedure of appeal against any order.
16. Having examined the impugned letters both dated 29-3-2003 marked as Exhibit 8, by which the plaintiff-respondents were dismissed, that these letters were issued under section 3(b) of Government Servants (Special Provisions) Ordinance, 1979 and they were dismissed under section 4(A) of the said Ordinance. It is apparent that the plaintiff-respondents were dismissed from their respective service by following the procedure and in exercise of the powers with reference to the Government Servants (Special Provisions) Ordinance, 1979. It appears that BCSIR is a statutory public body and is an entity different from government. As per provisions of section 18 of the above mentioned Ordinance, the Council shall appoint its own officers and employees. It is clear that these two plaintiff-respondents were employees of BCSIR and they were not government servants. Being distinct entity, BCSIR has adopted a regulation on 8-1-1989 with previous approval of the government and in exercise of the power delegated under section 28 of the above Ordinance, being Chapter-7, containing regulation Nos. 37 to 48, makes provisions regarding conduct and discipline of the employees of BCSIR. It is observed that at the time when the notices were published in the newspapers, the regulations, prescribing specific provisions regarding disciplinary action, were very much in force and were also applicable in respect of the plaintiff-respondents. Although the plaintiff-respondents were not government servants, rather admittedly, they were servants/employees of BCSIR. It is found that the disciplinary proceedings initiated with reference to the Government Servants (Special Provisions) Ordinance, 1979 along with issuance of the charge-sheets under section 3 of the said Ordinance and issuance of the letters of dismissal rendered with reference to section 4 of the said Ordinance are void ab-initio. But without resorting to the provisions of these regulations, the BCSIR authority has resorted to the procedure laid down in Government Servants (Special Provisions) Ordinance, 1979.
17. On perusal of the record, it is revealed that the relief prayed in the suit does not come within the scope of section 42 of the Specific Relief Act, 1877. The plaintiff-respondents did not ask for any direction in the form of mandatory injunction seeking re-instatement. Admittedly, plaintiff-respondent Nos. 1 and 2 have not prayed for their re-instatement in service with arrear rather the relief sought for being in declaratory form and the trial Court found that such relief is not available to the plaintiff-respondents even though they have a good case for directing reinstatement. In the contentions of the learned Advocate for the defendant-appellants, it appears that the result of the instant suit is a decree without any consequential relief, i.e. without reinstatement in the service and arrear though the consequential relief is a mandatory provision of law and since the principle of mandatory injunction settled by this Division in the case of Rupali Bank Ltd. vs Md Arab Ali and others, reported in 7 BLC (AD) 1 and Jahir Uddin (Md) vs Rupali Bank Ltd. and others reported in 12 BLC (AD) 114, and Bangladesh Tobacco Company Limited and another vs Md Azizul Huq and another, reported in 8 MLR (AD) 149 : 7 BLC (AD) 119. In the case of Osman Gani Mondal vs Mainuddin Ahmed and others, reported in 27 DLR (AD) 61 wherein this Division held that it is a cardinal rule of construction that where statutory restrictions are couched in negative terms, they are almost invariably held to be mandatory and in another decision of the case of Aminul Islam and others vs M/s. James Finlay and Company Limited, Khulna, reported in 26 DLR (SC) 33, this Court held that it is needless to say that difficulties are sometimes felt to determine whether a certain provision of statute is directory or mandatory, when the legislature itself expresses its opinion as to. the consequence of non-compliance with a certain direction, no difficulty arises and from the book namely 'Interpretation of Statutes and Documents' written by Mr. Mahmudul Islam [Page-238; Mandatory and directory provision] wherein it is stated, "where a statute requires something to be done or to be done in a particular manner and the consequences of failure to do so are also provided, no difficulty arises and the provision is construed as mandatory" and from above decision, it has been settled that the proviso of section 42 of Specific Relief Act is a mandatory provision by following the provision of section 55 of the Specific Relief Act.
18. It has been enshrined in section 42 of the Specific Relief Act that:
"Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Bar to such declaration-Provided that no Court shall make any such declaration where the plaintiff, being ableto seek further relief than a mere declaration of tide, omits to do so."
19. It has been enumerated in section 55 of the Specific Relief Act that:
"When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may, in its discretion, grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts."
20. It is earlier discussed that BCSIR is a statutory body and it has its own individuality and separate entity which is to run following its own rules and regulations. It is found that the plaintiff-respondents had been dismissed from their services after taking decision of the Board of BCSIR upon recording the reasons thereon, but the proceeding drawn upon them and the notices published in the newspaper with the provisions of Government Servants (Special Provisions), Ordinance, 1979 is not concurrent with the rules and regulations of BCSIR.
21. The learned Advocate for the defendant-appellants in support of his contentions placed some references including the case of Osman Gani Mondal vs Mainuddin Ahmed and others, reported in 27 DLR (AD) 61, where it was held that:
"Thus the above contentions revolve round the question whether the second proviso to paragraph 7 of the Fourth Schedule of the Constitution is mandatory or directory. It could not be disputed that, in general, the provisions in a Constitution should be regarded as mandatory where such construction is possible; Seen in this connection, the observation of Wynes in his "Legislative, Executive and Judicial Powers in Australia," Fourth Edition, page 28. This observation, with which we are in complete agreement is based on Colley pp 154-155, Black's "Interpretation." pp. 21-22 Halsbury's Laws of England, 2nd Edn Vol. 31, pp-529 and following, and also a number of reported decisions. Seen also Sutherland's "Statutory Construction", 3rd Ed, Vol. 3, section 5807 which says that as a general proposition there is greater likelihood that constitutional provisions will be given mandatory effect, and that 'such a construction accords with the generally acknowledged import of constitutional fiat; that its character is such as to require absolute compliance in all cases without exception." It has been further explained that concepts of constitutional supremacy furnish reasonable grounds for "a presumption that the framers of a Constitution intended that just such efficacy be given to it."
Besides, the second proviso to the seventh paragraph of the Fourth Schedule has been cast in a negative or prohibitory form. It is a cardinal rule of construction that where statutory restrictions are couched in negative terms, they are almost invariably held to be mandatory: Sutherland, 3rd edition, Volume 3, p. 96, section 5814 which notes that "there is but one way to obey the command 'thou shall not,' and that is to refrain altogether from doing the forbidden act." This principle has been stated in Crawford's "Statutory Construction", page 516, section 261 in the following words:
"It is a rule of statutory construction that where a statute is framed in terms of command, and there is no indication from the nature of wording of the act or the surrounding circumstances that it is to receive a permissive interpretation, it will be construed as peremptory;" and again in section 263 at page 523 thereof it has been said: "Prohibitive or negative words can rarely, if ever, be directory, or, as it has been aptly stated, there is but one way to obey the command thou shall not', and that is to completely refrain from doing the forbidden Act. And this is so, even though the statute provides no penalty for disobedience. Accordingly, negative, prohibitory and exclusive words or terms are indicative of the legislative intent that the statute is to be mandatory,..."
22. In the case of Aminul Islam vs James Finlay and Company Limited, reported in 26 DLR (SC) 33 wherein it was held that:
"The moot question is whether the advice of the members of the Court is mandatory in making the award. Needless to say that difficulties are sometimes felt to determine whether a certain provision of statute is directory or mandatory. When the legislature itself expresses its opinion as to the consequence of non-compliance with a certain direction, no difficulty arises but in a case where the legislature does not indicate its mind as to the consequence of violation of such direction, the Court is to consider whether the direction is merely directory or mandatory and this is to be determined on the construction of the provision in question and the importance attached to the direction therein. As noticed earlier, rule 34 provides that the Chairman while giving an award shall consider the advice given to him the rule does not require the Chairman to follow the members to obtain their advice in any manner it is possible. It will be sufficient for the Chairman if he seeks the advice of the members. If any member intentionally refuses to give advice the Chairman has got no authority to impose any penalty upon him for his non-compliance with the rule. The question of consideration of the advice by the Chairman arises only when the advice is given. The rule is silent as regard the consequence of non-compliance. This clearly indicates that no special importance is attached to the direction as regards advice."
23. In the case of Jahir Uddin vs Rupali Bank Ltd. and others, reported in 12 BLC (AD) 115, it was held that:
"As it appears the High Court Division made the Rule absolute holding that admittedly, on and from 6-4-1984 the defendant bank, being denationalized, was converted into a private bank incorporated under the Companies Act, 1994 and, as such, the relationship between the plaintiff-petitioner and the defendant bank became that of master and servant from that date and therefore, the petitioner is not entitled to get a decree for declaration without consequential relief; in the instant case there is no prayer for mandatory injunction for consequential relief; even if there is a prayer for mandatory injunction but that too cannot be granted in view of legal bar under clause (e) of section 56 of the Specific Relief Act which provides that an order of mandatory injunction cannot be granted to prevent the breach of a contract the performance of which could not be specifically enforced; the breach of contract for personal service cannot be restrained by court ordering an employer to retain the employee in the service as it is the prerogative right of the employer to discharge his employee and the Court cannot compel a person against his will to employ any person and the employer bank is liable for damage and compensation in terms of Service Rules and Regulations; the suit is not maintainable as the plaintiff challenged the order of suspension and the final show cause notice but did not challenge the order of dismissal in which the impugned order of suspension and show cause merged and with the order of dismissal[sic] the orders of suspension and final show cause became infructuous and in the instant case this issue, which cuts the case at its root, has not been considered at all by the appellate Court below."
24. From the submission of the learned Counsel for the plaintiff-respondents, it is found that BCSIR was established under section 3(1) of the Bangladesh Council for Scientific and Industrial Research Ordinance, 1978 as statutory public body. BCSIR has framed a Service Regulations in 1989 which is known as Bangladesh Council for Scientific and Industrial Research Employees Service Regulations, 1989. Under regulation 1(2), it will be applied for its permanent employees. Regulation No. 55 of the above mentioned Regulation refers that "By Laws" regulating the service of the plaintiff-respondents was repealed by the said Regulation. It is found that the plaintiff-respondents joined as Research Officer on 27-12-1980 and as Research Zoologist on 13-11-1981. According to regulation 1(2) of the above said Regulations, the provisions of the Regulations are applicable for the plaintiff-respondents. Previously, the employees of the BCSIR were guided by "By Laws", which has been repealed by regulation No. 55 of the said Regulation, enacted in 1989. They are the employees of BCSIR. Regulation Nos. 37 to 48 of the Service Regulations, 1989 laid down the provisions regarding conduct and discipline of the employees of BCSIR but without following the same, the notices were published and charge-sheets were issued under section 3 of the Government Servants (Special Provisions) Ordinance, 1979. Hence, the said notices or charge-sheets are not valid in the eye of law. It is further appeared that the plaintiff-respondents were dismissed under section 4(A) of the Government Servants (Special Provisions) Ordinance, 1979 from their respective service by following the procedure and in exercise of the powers with reference to the said Ordinance, which is applicable for the government servants. The above mentioned Regulation of BCSIR has not been included to the schedule of the Administrative Tribunal Act and, as such, there is no bar to file the suits in the civil court.
25. The contentions of the learned Advocate on behalf of the plaintiff-respondents in the case of Bangladesh Water Development Board, represented by its Chairman vs Syed Moazzem Hossain and others, reported in 1995 BLD (AD) 239 : 1 BLC (AD) 13, in which it was held that:
"A Declaratory suit need not be confined within the terms of section 42 of the Specific Relief Act which is meant for obtaining a specific relief. A declaration can be sought for various other matters as well."
26. It is found from close reading of the aforesaid decision reported in 1995 BLD (AD) 239 : 1 BLC (AD) 13 and 7 BLT(AD) 361 that the suit for simple declaration is maintainable in respect of service matter without any prayer for consequential relief. It has been held therein that a declaratory suit need not be confined in the terms of section 42 of the Specific Relief Act.
27. In the case of Jiban Bima Corporation, Dhaka vs Mustafa Hussain and another, reported in : 50 DLR 411, it was held that:
"A declaratory decree passed in a case without any prayer for consequential relief is an "annuity". Such decree is a gain and its implementation is dependent on as to whom the decree is passed against. In the instant case, the defendant being a statutory Corporation, there is no reason to believe that such corporation will not implement the decision of the court"
28. Section 2(AA) of the Administrative Tribunal Act, 1980 defines statutory public authority in respect of which Administrative Tribunal Act will be applicable. Section 2(AA) of the Act reads as follows:
"statutory public authority" means an authority, corporation, or body specific in the schedule to this Act."
29. The main contentions of the learned Advocate for the plaintiff-respondents are that the respondents are not government servants, they are employees of a statutory body, BCSIR and, as such, the dismissal is illegal in the eye of law as contrary to the service regulations. Therefore, the High Court Division rightly allowed the appeals observing that the impugned letters of dismissal are void ab-initio because the plaintiff-respondents were not government servants, they are the permanent employees of BCSIR. They should have been notified by and proceedings should have been drawn according to the said Probidhimala. Admittedly, it is seen from section 1 of the Regulation titled.
30. Under the circumstances, it appears that the plaintiff-respondents are the permanent employees of BCSIR and in their case, the provisions of the above Regulations shall operate. The defendant-appellants without resorting the existing regulations of the BCSIR, they resorted to the Government Servants Ordinance, 1979.
31. The plaintiff-respondents claimed that before dismissal from their respective service, they were not served any show cause notices, though the defendant-appellants claimed that they served show cause notices and the notices were also duly published in the daily newspapers but the plaintiff-respondents refused any kind of service of notices. It appears from the record that the first show cause notice under section 3(B) of the Government Servants (Special Provisions), Ordinance, 1979 dated 28-11-2002 was served giving 5[five] days' time and the second show cause notice under section 5(2) of the Government Servants (Special Provisions), Ordinance, 1979 dated 21-1-2003 was served giving 3[three] days' time. As the plaintiff-respondents are the permanent employees of BCSIR, the procedure of serving notice shall be applied in accordance with the provisions of the Regulations and otherwise, the procedures are left to be followed illegally. Apart from this, Dw-1, in cross-examination, admitted that he had no knowledge whether the notices were served upon the plaintiff-respondents or not. It is revealed that the inquiry was held without having any knowledge of the plaintiff-respondents and the dismissal from service without affording opportunity of defence is illegal and arbitrary being violative of the principle of natural justice. It is also revealed that all the procedures of servicing notices, inquiry and dismissal had taken place under the Government Servants (Special Provisions), Ordinance, 1979 but it is obvious that the plaintiff-respondents are the employees of Bangladesh Council for Scientific and Industrial Research. It is our considered view that the defendant-appellants adopted wrong forum to dismiss the plaintiff-respondents from their services.
32. On consideration of the facts and circumstances of the case discussed above, we are of the view that the High Court Division is justified in allowing the appeals
Accordingly, both the appeals are dismissed without any order as to costs. However, for the period, the plaintiff-respondents were out of service shall be treated as leave without pay.
APPELLATE DIVISION (CIVIL)
Present:
Mr. Justice Hasan Foez Siddique, C. J.
Mr. Justice M. Enayetur Rahim
Mr. Justice Jahangir Hossain
CIVIL APPEAL NO. 446 OF 2019
(From the judgement and order dated the 17 day of July, 2018 passed by the High Court Division in Writ Petition No. 5549 of 2018).
The Office of the Controller General of Accounts, CGA Building, Shegunbagicha, Dhaka- 1000 and others
... Appellants
- V-
Omar Faruque and others
... Respondents
Result:
Appeal is allowed.
ADVOCATES WHO APPEARED IN THIS CASE:
For the Appellants: Mr. Tabarak Hossain, Senior Advocate, instructed by Mr. Mohammad Ali Azam, Advocate-on-Record
For Respondent Nos. 1-140: Mr. Md. Nurul Amin, Senior Advocate, with Mr. M. Sayed Ahmed, Senior Advocate and Mr. Shah Monjurul Haque, Advocate, instructed by Mr. M. Ashrafuzzaman Khan, Advocate-on-Record
Respondent Nos. 141-142: Not represented
JUDGEMENT
M. Enayetur Rahim, J. The civil appeal, by leave, is directed against the judgment and order dated 17.07.2018 passed by the High Court Division in Writ Petition No. 5549 of 2018 disposing of the Rule with direction.
02. The relevant facts, for disposal of this civil appeal in brief, are that the writ petitioners- respondents herein after obtaining graduation from different Public Universities had applied for the post of Auditor in the Office of the Controller General of Accounts in response of a Recruitment Circular dated 10.04.2011 vide memo No. সিজিএ/প্রশা- ২/নিয়োগ/২০১০/৭১১/৩৩২২ by writ respondent No. 5 seeking application from eligible candidates to fill up ঘোষিত কর্মচারীগণের শূন্য পদ সমূহ (declared vacant posts of employees) for the post of Auditor in the office of the Controller General of Accounts. The writ-petitioners having requisite qualifications applied for the abovementioned post and after scrutiny of the applications they were given admit cards to sit for the written examination. The writ-petitioners have successfully passed in the said written examination and the result was also published on 07.12.2017 and as many as 3478 candidates passed in the written examination including the writ-petitioners.
03. The viva-voce examination was held and final result of the candidates who appeared in the viva- voce examination was also published on 29.03.2019. Among the candidates who passed in the viva-voce, 615 candidates were selected for direct recruitment in the post of Auditor in the office of the Controller General of Accounts. It has been stated in the application that one of the writ-petitioners Subrata Chakroborti on 01.04.2018 applied to writ respondent No. 5, the Deputy Controller General of Accounts (Administration) for getting the information and relevant documents of the list of candidates who have successfully passed viva-voce. The writ-respondents orally stated that the information would not be provided since the matter is of secrecy and accordingly did not provide the information as asked for.
04. On 18.06.2017, writ-respondent No. 5 published a list of manpower in the office of writ respondent No. 3 as on 01.01.2016 to 31.12.2016, The number of sanctioned post for Auditor is 3539 and the total number of existing manpower in the post of Auditor is 2193 (Male 1864 + Female 329) and the vacant posts remained 3539-2193-1346 as on 31.12.2016. Although 1346 posts remained vacant, writ-respondent No. 5 recommended only 615 candidates in violation of the appointment circular dated 10.04.2011. It has also been stated in the writ petition that some of the writ-petitioners who are the sons of freedom fighters were not recommended for the post of Auditor in the office of the Controller General of Accounts and the writ- respondents did not comply with the "Quota" and thereby violated the provisions. Some of the writ petitioners have also filed representation to the Minister and the Secretary of the Ministry of Liberation War Affairs, It has been further stated that the writ-respondents have recommended more persons in some Districts compared to other Districts for the post of Auditor in the office of the Controller General of Accounts in violation of principles of equality. Some of the writ-petitioners have crossed their age of 30 years and are not qualified to apply for any Government job.
05. Being aggrieved by and dissatisfied with the inaction and failure of the writ-respondents to recruit the writ-petitioners who have successfully passed for the post of Auditor in the Office of the Controller General of Accounts, the writ-petitioners filed Writ Petition No. 5549 of 2018 before the High Court Division and obtained Rule Nisi.
06. Writ-respondent Nos. 3-5 entered appearance in the Rule and contested the Rule by filing affidavit-in-opposition controverting the material statements made in the writ petition. The case of writ-respondent Nos. 3-5, in short, is that both the written and viva-voce tests are competitive examinations. Getting pass marks in the written test cannot be considered to be the only criteria for recruitment. The circular was issued for recruitment of 689 candidates but in the written test total 3478 candidates were passed. Marks of all the candidates were not similar. Some got very high marks and some got only minimum pass marks. Viva-voce examination was necessary and was also held and the candidates who got higher marks than others were selected for recruitments against the said posts and as such there was no irregularity/illegality in selection of the candidates. It has also been stated in the affidavit-in-opposition that a significant number of candidates had applied against one post and as such the candidates who got highest marks were selected for the post or appointed in the said post and as such the authority was not at fault.
07. It has further been stated that it is evident from the circular dated 05.05.2013, issued by the Ministry of Public Administration that none of the candidates can be selected or appointed against the posts unless they are recommended by the Departmental Selection Committee and the Committee is formed by 5 members 3 of whom came from outside. The advertisement for recruitment of the candidates contained some conditional clauses, wherein, one of the conditions was that decision of the authority is final and the writ-petitioners herein upon accepting the aforesaid conditions applied for the post.
08. It has also been mentioned that under clause 3(Chha) of the advertisement the authority has the power to increase or decrease the number of posts and the candidates upon accepting that clause had applied for the posts and as such, they are stopped to invoke the writ jurisdiction under article 102 of the Constitution.
09. A Division Bench of the High Court Division upon hearing the Rule Nisi by the judgment and order dated 17.07.2018 disposed of Rule with direction.
10. Feeling aggrieved by and dissatisfied with judgment and order passed by the High Court Division, the writ-respondents filed Civil Petition for Leave to Appeal No. 4258 of 2018 before this Division and leave was granted on 22.07.2019.
11. Hence the present appeal.
12. Mr. Tabarak Hossain, learned Senior Advocate appearing on behalf of the appellants (writ respondent Nos. 3-5) submits that the High Court Division failed to consider that writ-respondent Nos. 3-5 have no authority to appoint additional candidates violating the clearance letter dated 26.10.2010 issued by the Ministry of Finance in which definite number of post was permitted to be filled up and it should be further mentioned that the decision of giving clearance by the controlling Ministry is binding upon the CGA Office and the same was done accordingly. He further submits that writ-respondent Nos. 3-5 have acted legally and in accordance with law in selecting the successful candidates against the vacant posts and the writ petitioners-respondents herein got lower marks in both the written and viva-voce tests than the successful candidates who were given appointment and thus they cannot claim to be appointed in the posts that became vacant after the advertisement has been issued as a matter of course and that the appellants appointed successful candidates in the selected posts and as such it is not possible to comply with the direction given by the impugned judgment. Mr. Hossain lastly submits that in order to give appointment to the posts of Auditors a clearance for recruitment in the vacant posts is required to be obtained from the Ministry of Finance and the clearance obtained by the office of Controller General of Accounts in respect of vacant posts of 689 Auditors and that the posts having been filled up, there is no scope to fill up the posts with the writ-petitioners who participated in the written test but obtained very low marks and as such, they could not succeed in getting appointment.
13. Mr. Md. Nurul Amin and Mr. M. Sayed Ahmed, learned Senior Advocates appearing for the writ petitioners respondents submit that the recruitment circular dated 10.04.2011 was issued stating "ঘোষিত কর্মচারীগণের শূন্য পদ সমূহ পূরণের নিমিত্ত", as on 21.12.2016 the total number of existing manpower in the post of Auditor is 2193 (Male 1864 + Female 329) and the vacant posts remained 3539-2193 = 1346 and the office of the appellants issued a letter to the Secretary, Ministry of Finance, Bangladesh Secretariat wherein it is stated that the vacant posts remained in 3rd Class posts are 2010 as on 10.09.2018 thus there are available posts vacant remained in the posts of Auditor, but the appellants did not recruit the respondents (writ petitioners) even though they have successfully passed in written and viva voce examination, as such they are entitled to get appointment in service and the appeal is liable to be dismissed. They have further submitted that despite having sufficient numbers of successful passed and eligible candidates for the position of Auditor in the Office of the Controller General Account and despite having sufficient vacant post, the inaction of the appellants in not recruiting the writ petitioners would result in creating frustration among them. But the appellants are not recruiting them, rather the appellants are trying to appoint in the vacant posts afresh instead of the respondents (writ petitioners), as such the appeal is liable to be dismissed. It has also submitted that the Ministry of Finance issued clearance certificate by letter dated 26.10.2010 to fill up/appoint 689 vacant post of auditors and after recruitment advertisement and after taking written and viva-voce examination the authority concem filled up 615 vacant posts out of 689 vacant posts as per clearance letter without appointing successful and suitable candidates (writ petitioners) though vacant post of auditors are available, rest 74 vacant posts are not filled up as per clearance circular which is a discrimination to the writ petitioners and it is also against the violation of the fundamental rights of the petitioners. It has been submitted that as per mark list two candidates got same marks in the examination but one candidate has been appointed and another candidate namely Md. Rejedul Islam bearing Roll No. 111601 has not been appointed though both the candidates are in same position, even as per merit list the writ petitioners (present respondents) who obtained higher marks than the appointed candidates, have not been appointed thus the authority-appellants did not follow the merit list, as such the appellants illegally and arbitrarily did not appoint the writ petitioners and as such the appeal is liable to be dismissed. Lastly it has been submitted that freedom fighter quota and District quota have not been filled up in following the provision of Service Rule.
14. We have considered the submissions of the learned Advocates for the respective parties, perused the impugned judgments and order of the High Court Division and other materials as placed before us.
15. From the submissions of the learned Advocates for the respective parties as well as the materials placed before us the following facts have been emerged:
- Ministry of Finance issued a clearance letter on 26.10.2010 for recruitment of 689 Auditors;
- CGA office published a notification on 10.04.2011 for inviting application from deserving candidates;
- a written test was taken on 30.12.2011 but due to allegation of irregularities that was cancelled by order dated 19.11.2015;
- clearance order was alive for one year and then it was renewed up to 30 June, 2018;
- fresh written test was held for 70 marks on 03.11.2017 and the said examination was conducted by the Institute of Business Administration, Dhaka University;
- comparative statement of the candidates list prepared by the CGA office according to the serial number of the successful candidate and 689 posts have been filled up.
16. It is the contention of the appellants that the Ministry of Finance issued a clearance letter for recruitment of 689 Auditors on 26.10.2010; however, in the advertisement for the alleged recruitment published on 10.04.2011 nothing has been mentioned how many posts will be filled up and it also emerged that after completion of the written and viva-voce examination no final result was published by the writ respondents-appellants.
17. It is the positive case of the appellants that they having complied all the legal requirements gave appointment of 689 persons as Auditor pursuant to the clearance letter of recruitment issued by the Ministry of Finance. From annexure-1 to the affidavit-in-opposition filed by the writ respondent- appellants we find support of the submission of the learned Advocate for the appellants that Ministry of Finance issued a clearance letter for recruitment of 689 Auditors and, accordingly, the writ respondent- appellants observing all legal formalities appointed 689 Auditors as per the recommendation of the selection committee.
18. After holding written and viva-voce examination the selection committee recommended for appointment of 689 posts of Auditor and the authority duly appointed them. It is true that no formal list of selected candidates has been published to know who have passed in the viva-voce examination, but on perusal of the record as placed before us we are convinced that no illegality has been committed in appointing said 689 persons.
19. Merit list as well as different quotas, ie. Muktijoddha, District and female quota have been filled up in due course. It is the positive case of the appellants that since there were no available posts; there is no scope to appoint the writ-petitioners. Moreover, selection process has already been completed long before and in the meantime about 05 (five) years have been already elapsed.
20. In the case of Managing Director, Rupali Bank Limited, Head Office, Dhaka vs. Md. Shahrier Perves and others reported in 25 BLC (AD) 136 it has been held that:
"There may be vacancies but, for financial constraints (wrongly typed as constrains), the appointing authority may not in a position to initiate the selection process for making appointments. It is left at the discretion and wisdom of the employer. Looking to the need, administrative exigency, financial capability, availability of infrastructure for the post, in question, and/or such other relative aspects, the appointing authority may not think it fit to fill up all the vacancies, if any, vacancy of the post is one thing and advertisement to fill up the vacancy is altogether another thing. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is not obligatory on the part of the appointing authority that whatever is the vacancy of the post, must be filed up and correspondingly there is no right, vested in the writ petitioners that even they are in waiting list, they can recalculate the vacancies and transgress waiting listed candidates into the list of the selected candidates.
The Constitutional discipline requires that the High Court Division should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates.
From the materials produced before us it is fully established that there was no arbitrariness whatsoever on the part of the banks in filling up the posts which were made from the waiting list as referred by the learned Counsel for the respondents. Since the advertised vacancies had been filled up according to merit and following the quota system, therefore, selection process in that respect stood exhausted. The waiting list does not survive.
Moreover, in absence of any statutory provision one year can be considered as reasonable period for validity (wrongly typed as validly) of a waiting list. Since the validity of the select penal has come to an end of the affix of time, therefore, there cannot be any order to appoint the persons from such select list prepared about 4/5 years ago.
The writ petitioners-respondents have not acquired any enforceable right to be appointed. It is settled principle that a mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a mandamus could not be issued in favour of the writ petitioners directing the Bank is to appoint the writ petitioners since they failed to establish that they have acquired an enforceable legal right to be appointed in the Banks since their names were empanelled and that the Banks have legal duty to appoint them."
21. In the case of S.S. BALU AND ANOTHER versus STATE OF KERALA AND OTHERS reported in (2009) 2 SCC 479 the Supreme Court of India has held that:
"A person does not acquire a legal right to be appointed only because his name appears in the select list. The State as an employer has a right to fill up all the posts or not to fill them up. Unless a discrimination is made in regard to filling up of vacancies or arbitrariness is committed, the candidate concerned will have no legal right for obtaining a writ of mandamus. Even selected candidates do not have legal right in this behalf."
22. If we consider the present case in the light of the above proposition of law then we have no hesitation to come to a definite conclusion that no legal right has been created in favour of the writ petitioners to get appointment though they are the successful candidates.
23. In the case of GUJARAT STATE DY. EXECUTIVE ENGINEERS ASSOCIATION versus STATE OF GUJARAT AND OTHERS reported in (1994) Supp (2) Supreme Court Cases 591 it has been held that:
"A waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound."
24. In the case of 'Public Service Commission vs Ripon Chandra Shil and others reported in 72 DLR (AD) 225 it has been held by this Division to the effect that:
"If a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do not acquire any indefeasible right to be appointed against the existing vacancies. Ordinarily the notification merely amount to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the state is under no legal duty to fill up all or any of the vacancies. The aforesaid views have been expressed in the case of Shankarsan Dash vs. Union of India, reported in (1991) 3 SCC 47. The selection process by way of requisition an advertisement can be started for clear vacancy but not for future vacancy. In the instant case since the name of the writ petitioners were empanelled they had not acquired any vested right to get appointment. In the notification for employment there was no stipulation that any such panel was to be prepared for future appointment in future vacancies."
25. Mr. Nurul Amin, learned Advocate appearing on behalf of the writ petitioners-respondents has tried to convince us that there were some irregularities and arbitrariness in the result sheet. We have meticulously examined the result sheet as placed by the learned Advocate for the appellants, and upon examining the same we do not find any substance in the said submission of the learned Advocate for the writ petitioners-respondents.
26. Having considered and discussed as above, we find merit in the appeal. Accordingly, the appeal is allowed. The judgment and order of the High Court Division is hereby set aside. There will no order as to costs.
Ed.
IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Civil Appeal No. 413 of 2019
Decided On: 07.06.2023
Shuvash Chandra Dhar
... Vs. ...
Milon Chandra Banik and Ors.
Hon'ble Judges/Coram:
Md. Nuruzzaman, M. Enayetur Rahim and Md. Ashfaqul Islam, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Probir Neogi, Senior Advocate instructed by Taufique Hossain, Advocate-on-Record
For Respondents/Defendant: Subrata Chowdhury, Senior Advocate and M. Qumrul Hoque Siddique, Advocate instructed by Sufia Khatun, Advocate-on-Record
Relevant Section:
CODE OF CIVIL PROCEDURE, 1908 - Order XXIII Rule 1(3); CODE OF CIVIL PROCEDURE, 1908 - Order VII Rule 11(d), CODE OF CIVIL PROCEDURE, 1908 - Section 115; TRANSFER OF PROPERTY ACT, 1882 - Section 52
Acts/Rules/Orders:
Code of Civil Procedure, 1908 (CPC) - Order VII Rule 11; Code of Civil Procedure, 1908 (CPC) - Order VII Rule 11(d); Code of Civil Procedure, 1908 (CPC) - Order XXIII Rule 1; Code of Civil Procedure, 1908 (CPC) - Order XXIII Rule 1(3); Code of Civil Procedure, 1908 (CPC) - Section 11; Code of Civil Procedure, 1908 (CPC) - Section 115; Code of Civil Procedure, 1908 (CPC) - Section 150; Code of Civil Procedure, 1908 (CPC) - Section 151; Code of Criminal Procedure, 1898 (CrPC) - Section 145; Specific Relief Act, 1877 - Section 42; Transfer Of Property Act, 1882 - Section 52
Result:
Appeal Dismissed
JUDGMENT
Md. Ashfaqul Islam, J.
1. This civil appeal by leave is directed against the judgment and order dated 18-7-2017 passed by the High Court Division in Civil Revision No. 776 of 2016 making the Rule absolute and rejecting the plaint of Other Suit No. 450 of 2014 (hereinafter referred to as the present suit), after setting aside order No. 11 dated 13-3-2016 passed by the Joint District Judge of the 1st Court, Chattogram in the said Suit.
2. The present appellant Sree Suvash Chandra Dhar, as plaintiff on 1-12-2014 instituted Other Suit No. 450 of 2014 in the 1st Court- of Joint District Judge, Chattogram against the present respondent Nos. 1 and 2 and 11 others for (a) Determination of title, (b) Right to use pond under joint possession with other co-sharers, (c) Decree passed in Other Suit No. 41 of 1992 does not bar in possession of the suit land by the plaintiff and (d) the defendants are not entitled to take any action against the plaintiff in Execution Case No. 1 of 2014, contending, inter-alia that, 0.2150 acre of land described in the schedule to the plaint, including part of pond and homestead, belonged to two brothers named Kashi Mohon and Ananta Mohan, which was recorded in their names in RS Khatian. The said two brothers were members of Hindu Joint Family. Kashi Mohon died leaving behind Porikkhit Banik (Proforma defendant No. 3 in the suit) as his heir. Later on Ananta Mohon died child less leaving the said Porikkhit Banik. By peaceful possession on the suit land for a very long time Porikhhit Banik acquired a better title by adverse possession as well; that, PS and BS Khatian were correctly prepared in his name. Porikkhit Banik sold the suit land to the plaintiff Suvas Chandra Dhar by registered Kobala deed No. 1655 dated 24-8-1997. Since purchase the plaintiff is in possession of the suit land.
3. On 27-6-2014 the defendants No. 1 and 2 disclosed that they got decree in a suit for specific performance of contract, which has been affirmed by higher Court and asked the plaintiff to vacate the suit land else they will evict him through execution case.
4. To prevent them the plaintiff on 3-7-2014 filed case No. 1234 of 2014 under section 145 of the Code of Criminal Procedure. The plaintiff has come to know that the defendants No. 1 and 2 obtained decree in suit for specific performance of oral contract for sale of land and it transpires that the said decree was obtained by practicing fraud on Court. The plaintiff came to know about the fraudulent decree of the defendants 1 and 2 on 15-11-2014 and hence he filed the suit.
5. On 25-1-2015, the defendants No. 1 and 2 appeared by filing written statement and thereafter fired an application praying for rejection of the plaint of Other Suit No. 450 of 2014 contending, inter alia, that the suit property originally belonged to Mohendra Lal Dey who died leaving behind three sons namely, Kali Shankar Dey, Hari Shankar Dey and Narayan Chandra Dey as his heirs to inherit the property left behind by their father, Mohendra Lal Dey. Kali Shankar Dey and his two brothers on 7-12-1989 being in need of money, entered into an agreement for sale of the said property with Sudhir Chandra Banik (father of the defendants No. 1 and 2) but subsequently, when Kali Shankar Dey and his brothers having refused to execute the kabala, Sudhir Chandra Banik father of the defendant Nos. 1 and 2 instituted Other Suit No. 45 of 1990 against recorded tenants of the holding, which on successive transfer was lastly renumbered as Other Suit No. 41 of 1992 and was decreed. The said decree was reversed in other Appeal No. 521 of 1992 but the decree was restored in Civil Revision No. 4756 of 1995 and affirmed by the Appellate Division in Civil Petition for Leave to Appeal No. 81 of 2011. The decree has been put into execution in Other Execution Case No. 1 of 2014.
6. Porikkhit Banik predecessor in interest of the defendants No. 10 to 12 had instituted Other Suit No. 98 of 1992 for determination of title and confirmation of possession, which on transfer was re-numbered as Other Suit No. 91 of 1995 and was decreed. Sudhir Chandra Banik father of the defendants No. 1 and 2 preferred Other Appeal No. 153 of 1996, which was allowed and the decree was reversed. Porikkhit Banik preferred Civil Revision No. 4903 of 1999 against the said appellate decree but anticipating defeat later on he withdrew the said Civil Revision No. 4903 of 1999. The plaintiff of Other Suit No. 450 of 2014, Sree Suvash Chandra Dhar deposed as DW 2 in Other Suit No. 41 of 1992 but now he has instituted the suit suppressing all the past events.
7. The plaintiff contested the said application by filing written objection. By order No. 11 dated 13-3-2016 the trial Court was pleased to reject the application for rejection of plaint finding inter alia that the question of res judicata argued as a ground for rejection of plaint is a mixed question of fact and law, which can be decided only at trial on evidence.
8. The defendant Nos. 1 and 2 preferred Civil Revision No. 776 of 2016 before the High Court Division impugning the order No. 11 dated 13-3-2016 rejecting the application for rejection of plaint. Upon hearing the parties on contest, by the judgment and order dated 18-7-2017, the rule was made absolute and the plaint was rejected holding that, the plaintiff claims the suit land by purchase from Porikkhit Banik by Registered Kobala deed No. 1655 dated 24-8-1997. Porikkhit had instituted Other Suit No. 98 of 1992 in the 5th Court of Senior Assistant Judge, Chattogram for declaration of title, confirmation of possession and perpetual injunction and got decree, but on appeal in Other Appeal No. 153 of 1996 the decree was reversed against which Porikkhit Banik filed Civil Revision No. 4903 of 1999 in the High Court Division but later on he withdrew the Civil Revision on 11-5-2010 without any permission to sue afresh and as such the suit stands precluded under Order XXIII, rule 1(3) of the Code of Civil Procedure.
9. Impugning the judgment and order dated 18-7-2017 passed in Civil Revision No. 776 of 2016, rejecting the plaint of Other Suit No. 450 of 2014, the plaintiff filed Civil Petition for Leave to Appeal No. 3902 of 2018 and obtained leave which giving rise to this appeal.
10. Mr. Probir Neogi, the learned Senior Advocate appearing on behalf of the appellants submits that the High Court Division was wrong in making the Rule absolute relying on additional documents other than the plaint itself inasmuch as it is a settled principle that while disposing of an application under Order VII, rule 11 of the Code of Civil Procedure, the statements and averments made in the plaint only and nothing beyond the plaint are to be considered and relied upon.
11. He further submits that the decree in Other Suit No. 41 of 1992 in favour of the predecessor of the defendant respondents No. 1 and 2 having been obtained against Sree Kali Shankar and his two brothers for specific performance of contract, and the present plaintiff-petitioner/his predecessor was neither a party to the said suit nor having not claimed the suit property through those judgment debtors, the said decree cannot operate as resjudicata against the present plaintiff-appellant.
12. He further submits that the decree obtained by the predecessor of defendant-respondent No. 1 and 2 in Other Suit No. 41 of 1992 being a decree passed in a suit for specific performance of contract, and the present suit being one for declaration of title and other reliefs, the decree in Other Suit No. 41 of 1992 cannot operate as resjudicata inasmuch as it is settled in a long line of decisions including CQ MH Md Ayub Ali vs Bangladesh, 47 DLR (AD) 71 that the decree in a suit for specific performance of contract only decides the controversy between the vendor and the vendee as to the genuineness of contract and its enforceability, and such decree is not one deciding title to the suit property.
13. He further submits that the High Court Division was wrong in rejecting the plaint inasmuch as it is settled in many cases including Abdur Rahman and others vs Kheru Malitha and others, 50 DLR (AD) 71: 5 BLT (AD) 217 that the withdrawal of suit by necessary implication blots out the effect of the judgment and decrees prior to withdrawal, and as such by withdrawal of Title Suit No. 91 of 1995 by Porikkhit, the vendor of the plaintiff-appellant, both the judgments and decree of the trial Court and appellate Court were blotted out, and the present suit by the plaintiff-appellant on new causes of action is not barred.
14. Next he submits that the High Court Division was wrong in making the Rule absolute and rejecting the plaint inasmuch as the application filed by the defendants for rejection of plaint was on the ground of the suit being barred by resjudicata, and it is an elementary principle of law settled by a long line of decisions including Mahbubul Hague vs Md A. Kader Munshi, 52 DLR (AD) 49 and Sreemoti Pushpa Rani Das vs AkM Habibur Rhaman and others 1993 BLD (AD) 217 that the question of resjudicata being a mixed question of law and fact can only be resolved by taking evidence, and as such the plaint cannot be rejected on the defendants' plea of resjudicata.
15. On the other hand Mr. Subrata Chowdhury, the learned Senior Advocate appearing with Mr. M Qumrul Hoque Siddique, the learned Advocate for the respondent Nos. 1 and 2 submits that admittedly the plaintiff purchased the suit land from Prokshit Banik, the sole heir of the tenants recorded in concerned RS Khatians by registered Kobala deed No. 1655 dated 24-8-1997, during pendency of Civil Revision No. 4756 of 1995 in the High Court Division and as such his Kobala was hit by Lis Pendens under section 52 of the Transfer of Property Act, 1882.
16. He further submits that the Rule issued in Civil Revision No. 4756 of 1995 was made absolute by judgment dated 16-5-2010, which was affirmed in Civil Petition No. 81 of 2011 by judgment dated 12-6-2014 and Civil Review petition No. 97 of 2014 by judgment dated 6-4-2016 and thereby Sudhir Chandra Banik acquired title based on the decree for specific performance of contract for sale executed by the heirs of the tenants recorded in the RS Khatians and the present appellant Sree Suvash Chandra Dhar deposed as DW 2 in the said suit No. 41 of 1991.
17. He further submits that the appellant, knowing fully well that, father of Porikkhit i.e. Kashi Mohon and his brother Ananta Mohon had sold their land to Mohendra Lal Dey by registered Kobala deed dated 29-8-1934 and Porikkhit did not inherit any land, but still he created the collusive purchase deed dated 24-8-1997 with malafide intention to frustrate the decree passed in Other Suit No. 41 of 1992.
18. Next he submits that the present appeal, originating from the decree of Other Suit No. 450 of 2014, is merely a collusive and fraudulent attempt to frustrate the judgment and decree passed in Other Suit No. 41 of 1992, affirmed by this Division in Civil Review Petition No. 97 of 2014.
19. Mr. M. Qumrul Haque Siddique, the learned Advocate for the respondents in support of his contention has placed reliance in the decision of Abdul Jalil and others vs Islamic Bank Bangladesh Lid 53 DLR (AD) 12, Shahjahan Siraj vs Md Rafique Quoraishi and others 2 ALR (AD) 202 and so on.
20. We have heard the learned Advocates of both sides at length and perused the relevant laws and decisions together with the papers/documents contained in the paper book.
21. For better understanding let us first discuss the relevant provisions of laws on the issue.
22. Firstly, Order VII, rule 11 of the Code enjoins:
"Rule 11-Rejection of plaint-The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;"
23. With regards to the question of withdrawal of a suit Order XXIII, rule 1 of the Code is reproduced below:
"1. Withdrawal of suit or abandonment of part of claim.
(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim.
(2) Where the Court is satisfied,
(a) That a suit must fail by reason of some formal defect, or
(b) That there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim,
it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
(3) Where the plaintiff withdraws from a suit or part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and shall be preclude from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(4) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others."
24. Besides, section 52 of the Transfer of Property Act enjoins:
"52. During the pendency in any Court in Bangladesh, of any suit or proceeding which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose."
25. In the Case of Sumon Paul vs Binode Kumar Mali 5 LM (AD) 2018 139 his Lordship Mr. Muhammad Imman Ali, J observed:
"The High Court Division observed that it is true 'that a plaint of a suit should not be rejected under order 7 rule 11 of the Code of Civil Procedure only on point of res-judicata. But the facts of the present case are quite different. Apparently it shows that the predecessor of the plaintiffs-opposite parties lost their title up to Appellate Division and after settling dispute finally by the Appellate Division the present plaintiff-opposite parties purchased some lands in 2009 from the predecessor of the defendants of the former suit and they instituted present suit for declaration of title, confirmation of possession and for further declaration that the decree passed in previous Title Suit No. 235 of 1972 against the predecessor of the present plaintiffs are void and not binding upon them. The issue of present title suit was decided by the Court finally in previously instituted suit and that issue cannot be agitated in the subsequently suit.
The High Court Division concluded that the present plaintiffs-opposite parties having knowledge about the previous suit and having lost their title up to this Division, instituted the present suit which is nothing but a futile exercise.
Having considered the facts and circumstances discussed above, we are of the view that the High Court Division has properly considered the relevant law and facts involved in the case."
26. The same point has also been established in the case of Shahjahan Siraj vs Md Rafique Quoraishi and others reported in 2 ALR (AD) 202:
"What is important to note here is that the learned Additional District Judge rejected the plaints of both the suits as according to him those were barred under section 11 of the Code of Civil Procedure. This is not the correct exposition of law. The plea of res judicata is to be decided after framing an issue to that effect. There is no scope for application of section 11 of the Code of Civil Procedure for rejection of plaint.
Having gone through the plaints of both the suits, we are of the view that the plaints of both the suits were rightly rejected by the learned Additional District Judge but that should have been done by resorting to the provision of section 151 of the Code of Civil Procedure. Therefore, the plaints of both the suits shall be deemed to have been rejected under section 151 of the Code of Civil Procedure as the materials on record justify to do so. We are of the view that the ultimate decision made by learned Additional District Judge and the learned Single Judge are based on proper appreciation of materials on record."
27. In the decision of Abdul Jalil and others vs Islamic Bank Bangladesh Ltd. 53 DLR (AD) 12 it has been held:
"It is well settled now that a plaint may be rejected under Order 7 Rule 11 of the Code of Civil Procedure merely on a plain reading of the plaint but in exceptional circumstances the Court may invoke its inherent jurisdiction and can throw the plaint out in limini. It is also well settled that the plea of implied bar should be decided on evidence unless the fact disclosed in the plaint clearly indicate that the suit is not maintainable. In exceptional cases recourse may be taken even under section 151 of the Code of Civil Procedure. It is also well settled that in an application for rejection of plaint on the ground of undisclosed cause of action the Court should not dissect the plaintiffs case part by part. "
28. In the land mark decision of Chowmuhani College vs Md Ismail Hossain 26 DLR 10 it has also been observed on the question of maintainability with reference to Order VII, rule 11 of the Code as under:
"to my mind the intention of the legislature in making the provision under Order 7, rule 11 of the Code is very clear and if the same be considered properly with reference to given facts in a case much time of the Court may be saved, parties may be relieved of unnecessary wastage of energy and harassment and they may be directed towards getting proper remedy without having the connected pleasure of prolonged litigation. In this case I have already held that the suit as framed is not maintainable and the said view of mine is supported by the decisions of our Supreme Court as cited above. So it is better that the parties in the instant suit should be relieved of unnecessary harassment."
29. The provision of Order VII, rule 11 of the code mainly enjoins that if on a mere reading of the plaint it is found that the suit is not maintainable the Court has to decide the said point outright. It is also held that Order VII, rule 11 is not exhaustive and the High Court Division in the instant case in exercise of his jurisdiction under section 150 read with 151 of the Code of Civil Procedure can reject the paint. Reliance can be placed in the decisions of Burmah Eastern Ltd., vs Burmah Eastern Employees Union and others 18 DLR 709 wherein it has been observed:
"Coming back to the fact of this case, I would like to say that, on a perusal of the plaint, there can be no doubt that the suit is incompetent. The plaint should be rejected out-right even if it is held that the ground for its rejection is not fully covered by express language of Order VII, rule 11, of the Code of Civil Procedure. What useful purpose would be served by allowing the defendant to file a written statement and, thereafter, to dismiss the suit after raising a contested Issue to the effect that the suit is incompetent, when the plaint itself discloses a suit which is not countenanced by law? If the suit is prohibited and its incompetency is evident from a mere reading of the plaint, it (plaint) should be rejected. Under clause (d) of rule 11 of Order VII, the Court is required to reject a plaint where the suit appears, from the statements in the plaint, to be barred by any law. In the present case although the suit may not be expressly barred by section 42 of the Specific Relief Act, the contention is that is la barred under law having regard to the requirement of the said section, namely, section 42 of the Specific Relief Act. If as a result of the provisions of law, the suit is barred, it would be barred under law, although, strictly speaking, it may not be specifically barred by law in express terms. The Court should, in such a case, reject the plaint under its inherent power."
30. In Burmah Eastern case as referred to above it was further held that "a still born baby should be buried at once" a proverbial legal proposition governing this field.
31. Now if we go back at the beginning of the litigations we would see that Sudhir Chandra Banik father of the defendant Nos. 1 and 2 of the present suit being Other Suit No. 450 of 2014 instituted Other Suit No. 45 of 1990 against recorded tenants of the holding, which on successive transfer was lastly renumbered as Other Suit No. 41 of 1992 and was decreed. The said decree was reversed in Other Appeal No. 521 of 1992 but the decree was restored in Civil Revision No. 4756 of 1995 and affirmed by the Appellate Division in Civil Petition for Leave to Appeal No. 81 of 2011 and Civil Review petition No. 97 of 2014. The decree has been put into execution in other Execution Case No. 1 of 2014.
32. Admittedly, the plaintiff-appellant claimed to have purchased the suit land from Porkkhit Banik, the predecessor in interest of the defendant Nos. 10 to 12 of the present suit by a sale deed being No. 1655 dated 24-8-1997. Porikkhit Banik prior to sale of the suit land to the plaintiff of the present suit instituted Other Suit No. 98 of 1992 for determination of title and confirmation of possession, which on transfer was re-numbered as Other Suit No. 91 of 1995 and was decreed. Sudhir Chandra Banik father of the defendant Nos. 1 and 2 preferred Other Appeal No. 153 of 1996, which was allowed and the decree was reversed. Porikkhit Banik preferred Civil Revision No. 4903 of 1999 against the said appellate decree but anticipating defeat on 11-5-2010 he withdrew the said Civil Revision No. 4903 of 1999. While allowing the withdrawal, the High Court Division set-aside the judgment and decree of the Appellate Court as well as the Trial Court. The contents of the application for withdrawal was to the effect that on perusal of the record the plaintiff appellant have understood that they should not have filed the suit now on proper understating of overall situation have decided not to proceed with the suit. The transferor of the present plaintiff did not seek any permission to release the suit due to any formal defect or any other reasons, rather it has been mentioned in clearest terms that they should not have filed the suit and decided not to proceed with the same.
33. Now it is to be considered in the absence of any leave from the Court whether a fresh suit can be instituted by the same person against transferee claiming title in the suit since no permission was taken for instituting a fresh suit.
34. It appears that Porikkhit Banik who filed the earlier suit transferred the suit land in favour of the present plaintiff who after purchase again filed the suit seeking declaration of title, permanent injunction and other identical reliefs being made in the earlier suit. It is clear that the vendor of the plaintiff filed suit No. 41 of 1992. Since vendor of the present plaintiff withdrew Revisional application as well as his suit, the present plaintiff is not entitled to file the instant suit.
35. The High Court Division clearly observed that the plaintiff claimed the suit land by purchase from Porikkhit Banik by Registered Kabala deed No. 1655 dated 24-8-1997. Porikkhit instituted Other suit No. 98 of 1992 in the 5th Court of Senior Assistant Judge, Chattogram for declaration of title, confirmation of possession and perpetual injunction and got decree, but on appeal on Other appeal No. 153 of 1996 the decree was reversed against which Porkshit Banik filed Civil Revision No. 4903 of 1999 in the High Court Division but later on he withdrew the civil Revision on 11-5-2010 without any permission to sue afresh and as such the suit stands precluded under Order XXIII, rule 1(3) of the Code of Civil Procedure.
36. Since, no permission is accorded for instituting fresh suit, the present suit filed by the transferee of the previous plaintiff is not maintainable.
37. It is fairly established here that the parties indulged in various litigations in different Courts in respect of the suit property and all the proceedings, the present respondents got verdict in his favour. The present appellant is not claiming title otherwise from Porikkhit Banik whose predecessor lost up to the Appellate Division and after loosing in the appeal, Porikkhit Banik himself has withdrawn the revisional application.
38. It is evident that the present appellant Sree Suvash Chandra Dhar as plaintiff filed other suit No. 450 of 2014 against the defendant No. 1 and 2 for declaration of three things as mentioned above who deposed as DW 2 in other Suit No. 41 of 1992 but knowing everything regarding the suit and its fate up to the Appellate Division he instituted the present suit suppressing all the past events.
39. In that suit defendant No. 1 and 2 filed an application under Order VII, rule 11(d) of the code of Civil Procedure for rejection of plaint. The learned Joint District Judge by order No. 11 dated 13-3-2016 rejected the application for rejection of plaint on the ground that resjudicata is a mixed question of facts and law, which can only be decided after adducing evidence at the time of pre-emptory hearing. Against which the defendant Nos. 1 and 2 preferred Civil Revision before the High Court Division and the High Court Division upon hearing the parties made the Rule absolute and rejected the plaint of tide suit No. 450 of 2014.
40. Notably, in the suit being No. 41 of 1992 the present appellant deposed as DW 2 that means the plaintiff appellant knew everything regarding the suit and its fate up to the Appellate Division.
41. As we have already mentioned that Porikkhit Banik from whom the plaintiff appellant purchased the suit land vide deed No. 1655 dated 24-8-1997 filed title suit No. 98 of 1992 which was decreed but on appeal it was reversed against which he filed Civil Revision before the High Court Division, but fearing the fate of the Civil Revision he withdrew the Civil Revision case, therefore, the bar of the provisions of Order XXIII, rule 1(3) would operate, wherein it has been stated that the plaintiff will be precluded from placing any fresh suit if permission is not taken. The purchase of the suit land by the appellant plaintiff from Porikkhit is absolutely a sham transaction being hit by the provision of Lis Pendens enjoins under section 52 of the transfer of property Act as mentioned above.
42. Therefore, if the provisions of Order XXIII, rule 1(3) of the Code read with section 52 of the Transfer of Property Act be considered in juxtaposition with facts and circumstances of the instant case, our view is that it squarely attracts Order VII, rule 11(d) of the Code of Civil Procedure and hence High Court Division did not commit any error in the decision by rejecting the plaint in revisional jurisdiction under section 115 of the Code of Civil Procedure.
43. Further, the case in hand is indeed of such an impact which as we have discussed above manifestly maintained that the rejection of plaint by the High Court Division was absolutely justified and hence cannot be gainsaid that there is a denial of justice in any manner.
44. The High Court Division has rightly rejected the plaint of Title Suit No. 450 of 2014 pending in the Court of Joint District Judge, 1st Court, Chattogram. The judgment and order passed by the High Court Division is elaborate, speaking and well composed. We are not inclined to interfere with the same.
Accordingly, the appeal is dismissed Without any order as to costs.
IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Civil Appeal No. 413 of 2019
Decided On: 07.06.2023
Shuvash Chandra Dhar
... Vs. ...
Milon Chandra Banik and Ors.
Hon'ble Judges/Coram:
Md. Nuruzzaman, M. Enayetur Rahim and Md. Ashfaqul Islam, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Probir Neogi, Senior Advocate instructed by Taufique Hossain, Advocate-on-Record
For Respondents/Defendant: Subrata Chowdhury, Senior Advocate and M. Qumrul Hoque Siddique, Advocate instructed by Sufia Khatun, Advocate-on-Record
Relevant Section:
CODE OF CIVIL PROCEDURE, 1908 - Order XXIII Rule 1(3); CODE OF CIVIL PROCEDURE, 1908 - Order VII Rule 11(d), CODE OF CIVIL PROCEDURE, 1908 - Section 115; TRANSFER OF PROPERTY ACT, 1882 - Section 52
Acts/Rules/Orders:
Code of Civil Procedure, 1908 (CPC) - Order VII Rule 11; Code of Civil Procedure, 1908 (CPC) - Order VII Rule 11(d); Code of Civil Procedure, 1908 (CPC) - Order XXIII Rule 1; Code of Civil Procedure, 1908 (CPC) - Order XXIII Rule 1(3); Code of Civil Procedure, 1908 (CPC) - Section 11; Code of Civil Procedure, 1908 (CPC) - Section 115; Code of Civil Procedure, 1908 (CPC) - Section 150; Code of Civil Procedure, 1908 (CPC) - Section 151; Code of Criminal Procedure, 1898 (CrPC) - Section 145; Specific Relief Act, 1877 - Section 42; Transfer Of Property Act, 1882 - Section 52
Result:
Appeal Dismissed
JUDGMENT
Md. Ashfaqul Islam, J.
1. This civil appeal by leave is directed against the judgment and order dated 18-7-2017 passed by the High Court Division in Civil Revision No. 776 of 2016 making the Rule absolute and rejecting the plaint of Other Suit No. 450 of 2014 (hereinafter referred to as the present suit), after setting aside order No. 11 dated 13-3-2016 passed by the Joint District Judge of the 1st Court, Chattogram in the said Suit.
2. The present appellant Sree Suvash Chandra Dhar, as plaintiff on 1-12-2014 instituted Other Suit No. 450 of 2014 in the 1st Court- of Joint District Judge, Chattogram against the present respondent Nos. 1 and 2 and 11 others for (a) Determination of title, (b) Right to use pond under joint possession with other co-sharers, (c) Decree passed in Other Suit No. 41 of 1992 does not bar in possession of the suit land by the plaintiff and (d) the defendants are not entitled to take any action against the plaintiff in Execution Case No. 1 of 2014, contending, inter-alia that, 0.2150 acre of land described in the schedule to the plaint, including part of pond and homestead, belonged to two brothers named Kashi Mohon and Ananta Mohan, which was recorded in their names in RS Khatian. The said two brothers were members of Hindu Joint Family. Kashi Mohon died leaving behind Porikkhit Banik (Proforma defendant No. 3 in the suit) as his heir. Later on Ananta Mohon died child less leaving the said Porikkhit Banik. By peaceful possession on the suit land for a very long time Porikhhit Banik acquired a better title by adverse possession as well; that, PS and BS Khatian were correctly prepared in his name. Porikkhit Banik sold the suit land to the plaintiff Suvas Chandra Dhar by registered Kobala deed No. 1655 dated 24-8-1997. Since purchase the plaintiff is in possession of the suit land.
3. On 27-6-2014 the defendants No. 1 and 2 disclosed that they got decree in a suit for specific performance of contract, which has been affirmed by higher Court and asked the plaintiff to vacate the suit land else they will evict him through execution case.
4. To prevent them the plaintiff on 3-7-2014 filed case No. 1234 of 2014 under section 145 of the Code of Criminal Procedure. The plaintiff has come to know that the defendants No. 1 and 2 obtained decree in suit for specific performance of oral contract for sale of land and it transpires that the said decree was obtained by practicing fraud on Court. The plaintiff came to know about the fraudulent decree of the defendants 1 and 2 on 15-11-2014 and hence he filed the suit.
5. On 25-1-2015, the defendants No. 1 and 2 appeared by filing written statement and thereafter fired an application praying for rejection of the plaint of Other Suit No. 450 of 2014 contending, inter alia, that the suit property originally belonged to Mohendra Lal Dey who died leaving behind three sons namely, Kali Shankar Dey, Hari Shankar Dey and Narayan Chandra Dey as his heirs to inherit the property left behind by their father, Mohendra Lal Dey. Kali Shankar Dey and his two brothers on 7-12-1989 being in need of money, entered into an agreement for sale of the said property with Sudhir Chandra Banik (father of the defendants No. 1 and 2) but subsequently, when Kali Shankar Dey and his brothers having refused to execute the kabala, Sudhir Chandra Banik father of the defendant Nos. 1 and 2 instituted Other Suit No. 45 of 1990 against recorded tenants of the holding, which on successive transfer was lastly renumbered as Other Suit No. 41 of 1992 and was decreed. The said decree was reversed in other Appeal No. 521 of 1992 but the decree was restored in Civil Revision No. 4756 of 1995 and affirmed by the Appellate Division in Civil Petition for Leave to Appeal No. 81 of 2011. The decree has been put into execution in Other Execution Case No. 1 of 2014.
6. Porikkhit Banik predecessor in interest of the defendants No. 10 to 12 had instituted Other Suit No. 98 of 1992 for determination of title and confirmation of possession, which on transfer was re-numbered as Other Suit No. 91 of 1995 and was decreed. Sudhir Chandra Banik father of the defendants No. 1 and 2 preferred Other Appeal No. 153 of 1996, which was allowed and the decree was reversed. Porikkhit Banik preferred Civil Revision No. 4903 of 1999 against the said appellate decree but anticipating defeat later on he withdrew the said Civil Revision No. 4903 of 1999. The plaintiff of Other Suit No. 450 of 2014, Sree Suvash Chandra Dhar deposed as DW 2 in Other Suit No. 41 of 1992 but now he has instituted the suit suppressing all the past events.
7. The plaintiff contested the said application by filing written objection. By order No. 11 dated 13-3-2016 the trial Court was pleased to reject the application for rejection of plaint finding inter alia that the question of res judicata argued as a ground for rejection of plaint is a mixed question of fact and law, which can be decided only at trial on evidence.
8. The defendant Nos. 1 and 2 preferred Civil Revision No. 776 of 2016 before the High Court Division impugning the order No. 11 dated 13-3-2016 rejecting the application for rejection of plaint. Upon hearing the parties on contest, by the judgment and order dated 18-7-2017, the rule was made absolute and the plaint was rejected holding that, the plaintiff claims the suit land by purchase from Porikkhit Banik by Registered Kobala deed No. 1655 dated 24-8-1997. Porikkhit had instituted Other Suit No. 98 of 1992 in the 5th Court of Senior Assistant Judge, Chattogram for declaration of title, confirmation of possession and perpetual injunction and got decree, but on appeal in Other Appeal No. 153 of 1996 the decree was reversed against which Porikkhit Banik filed Civil Revision No. 4903 of 1999 in the High Court Division but later on he withdrew the Civil Revision on 11-5-2010 without any permission to sue afresh and as such the suit stands precluded under Order XXIII, rule 1(3) of the Code of Civil Procedure.
9. Impugning the judgment and order dated 18-7-2017 passed in Civil Revision No. 776 of 2016, rejecting the plaint of Other Suit No. 450 of 2014, the plaintiff filed Civil Petition for Leave to Appeal No. 3902 of 2018 and obtained leave which giving rise to this appeal.
10. Mr. Probir Neogi, the learned Senior Advocate appearing on behalf of the appellants submits that the High Court Division was wrong in making the Rule absolute relying on additional documents other than the plaint itself inasmuch as it is a settled principle that while disposing of an application under Order VII, rule 11 of the Code of Civil Procedure, the statements and averments made in the plaint only and nothing beyond the plaint are to be considered and relied upon.
11. He further submits that the decree in Other Suit No. 41 of 1992 in favour of the predecessor of the defendant respondents No. 1 and 2 having been obtained against Sree Kali Shankar and his two brothers for specific performance of contract, and the present plaintiff-petitioner/his predecessor was neither a party to the said suit nor having not claimed the suit property through those judgment debtors, the said decree cannot operate as resjudicata against the present plaintiff-appellant.
12. He further submits that the decree obtained by the predecessor of defendant-respondent No. 1 and 2 in Other Suit No. 41 of 1992 being a decree passed in a suit for specific performance of contract, and the present suit being one for declaration of title and other reliefs, the decree in Other Suit No. 41 of 1992 cannot operate as resjudicata inasmuch as it is settled in a long line of decisions including CQ MH Md Ayub Ali vs Bangladesh, 47 DLR (AD) 71 that the decree in a suit for specific performance of contract only decides the controversy between the vendor and the vendee as to the genuineness of contract and its enforceability, and such decree is not one deciding title to the suit property.
13. He further submits that the High Court Division was wrong in rejecting the plaint inasmuch as it is settled in many cases including Abdur Rahman and others vs Kheru Malitha and others, 50 DLR (AD) 71: 5 BLT (AD) 217 that the withdrawal of suit by necessary implication blots out the effect of the judgment and decrees prior to withdrawal, and as such by withdrawal of Title Suit No. 91 of 1995 by Porikkhit, the vendor of the plaintiff-appellant, both the judgments and decree of the trial Court and appellate Court were blotted out, and the present suit by the plaintiff-appellant on new causes of action is not barred.
14. Next he submits that the High Court Division was wrong in making the Rule absolute and rejecting the plaint inasmuch as the application filed by the defendants for rejection of plaint was on the ground of the suit being barred by resjudicata, and it is an elementary principle of law settled by a long line of decisions including Mahbubul Hague vs Md A. Kader Munshi, 52 DLR (AD) 49 and Sreemoti Pushpa Rani Das vs AkM Habibur Rhaman and others 1993 BLD (AD) 217 that the question of resjudicata being a mixed question of law and fact can only be resolved by taking evidence, and as such the plaint cannot be rejected on the defendants' plea of resjudicata.
15. On the other hand Mr. Subrata Chowdhury, the learned Senior Advocate appearing with Mr. M Qumrul Hoque Siddique, the learned Advocate for the respondent Nos. 1 and 2 submits that admittedly the plaintiff purchased the suit land from Prokshit Banik, the sole heir of the tenants recorded in concerned RS Khatians by registered Kobala deed No. 1655 dated 24-8-1997, during pendency of Civil Revision No. 4756 of 1995 in the High Court Division and as such his Kobala was hit by Lis Pendens under section 52 of the Transfer of Property Act, 1882.
16. He further submits that the Rule issued in Civil Revision No. 4756 of 1995 was made absolute by judgment dated 16-5-2010, which was affirmed in Civil Petition No. 81 of 2011 by judgment dated 12-6-2014 and Civil Review petition No. 97 of 2014 by judgment dated 6-4-2016 and thereby Sudhir Chandra Banik acquired title based on the decree for specific performance of contract for sale executed by the heirs of the tenants recorded in the RS Khatians and the present appellant Sree Suvash Chandra Dhar deposed as DW 2 in the said suit No. 41 of 1991.
17. He further submits that the appellant, knowing fully well that, father of Porikkhit i.e. Kashi Mohon and his brother Ananta Mohon had sold their land to Mohendra Lal Dey by registered Kobala deed dated 29-8-1934 and Porikkhit did not inherit any land, but still he created the collusive purchase deed dated 24-8-1997 with malafide intention to frustrate the decree passed in Other Suit No. 41 of 1992.
18. Next he submits that the present appeal, originating from the decree of Other Suit No. 450 of 2014, is merely a collusive and fraudulent attempt to frustrate the judgment and decree passed in Other Suit No. 41 of 1992, affirmed by this Division in Civil Review Petition No. 97 of 2014.
19. Mr. M. Qumrul Haque Siddique, the learned Advocate for the respondents in support of his contention has placed reliance in the decision of Abdul Jalil and others vs Islamic Bank Bangladesh Lid 53 DLR (AD) 12, Shahjahan Siraj vs Md Rafique Quoraishi and others 2 ALR (AD) 202 and so on.
20. We have heard the learned Advocates of both sides at length and perused the relevant laws and decisions together with the papers/documents contained in the paper book.
21. For better understanding let us first discuss the relevant provisions of laws on the issue.
22. Firstly, Order VII, rule 11 of the Code enjoins:
"Rule 11-Rejection of plaint-The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;"
23. With regards to the question of withdrawal of a suit Order XXIII, rule 1 of the Code is reproduced below:
"1. Withdrawal of suit or abandonment of part of claim.
(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim.
(2) Where the Court is satisfied,
(a) That a suit must fail by reason of some formal defect, or
(b) That there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim,
it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
(3) Where the plaintiff withdraws from a suit or part of a claim, without the permission referred to in sub-rule (2), he shall be liable for such costs as the Court may award and shall be preclude from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(4) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others."
24. Besides, section 52 of the Transfer of Property Act enjoins:
"52. During the pendency in any Court in Bangladesh, of any suit or proceeding which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose."
25. In the Case of Sumon Paul vs Binode Kumar Mali 5 LM (AD) 2018 139 his Lordship Mr. Muhammad Imman Ali, J observed:
"The High Court Division observed that it is true 'that a plaint of a suit should not be rejected under order 7 rule 11 of the Code of Civil Procedure only on point of res-judicata. But the facts of the present case are quite different. Apparently it shows that the predecessor of the plaintiffs-opposite parties lost their title up to Appellate Division and after settling dispute finally by the Appellate Division the present plaintiff-opposite parties purchased some lands in 2009 from the predecessor of the defendants of the former suit and they instituted present suit for declaration of title, confirmation of possession and for further declaration that the decree passed in previous Title Suit No. 235 of 1972 against the predecessor of the present plaintiffs are void and not binding upon them. The issue of present title suit was decided by the Court finally in previously instituted suit and that issue cannot be agitated in the subsequently suit.
The High Court Division concluded that the present plaintiffs-opposite parties having knowledge about the previous suit and having lost their title up to this Division, instituted the present suit which is nothing but a futile exercise.
Having considered the facts and circumstances discussed above, we are of the view that the High Court Division has properly considered the relevant law and facts involved in the case."
26. The same point has also been established in the case of Shahjahan Siraj vs Md Rafique Quoraishi and others reported in 2 ALR (AD) 202:
"What is important to note here is that the learned Additional District Judge rejected the plaints of both the suits as according to him those were barred under section 11 of the Code of Civil Procedure. This is not the correct exposition of law. The plea of res judicata is to be decided after framing an issue to that effect. There is no scope for application of section 11 of the Code of Civil Procedure for rejection of plaint.
Having gone through the plaints of both the suits, we are of the view that the plaints of both the suits were rightly rejected by the learned Additional District Judge but that should have been done by resorting to the provision of section 151 of the Code of Civil Procedure. Therefore, the plaints of both the suits shall be deemed to have been rejected under section 151 of the Code of Civil Procedure as the materials on record justify to do so. We are of the view that the ultimate decision made by learned Additional District Judge and the learned Single Judge are based on proper appreciation of materials on record."
27. In the decision of Abdul Jalil and others vs Islamic Bank Bangladesh Ltd. 53 DLR (AD) 12 it has been held:
"It is well settled now that a plaint may be rejected under Order 7 Rule 11 of the Code of Civil Procedure merely on a plain reading of the plaint but in exceptional circumstances the Court may invoke its inherent jurisdiction and can throw the plaint out in limini. It is also well settled that the plea of implied bar should be decided on evidence unless the fact disclosed in the plaint clearly indicate that the suit is not maintainable. In exceptional cases recourse may be taken even under section 151 of the Code of Civil Procedure. It is also well settled that in an application for rejection of plaint on the ground of undisclosed cause of action the Court should not dissect the plaintiffs case part by part. "
28. In the land mark decision of Chowmuhani College vs Md Ismail Hossain 26 DLR 10 it has also been observed on the question of maintainability with reference to Order VII, rule 11 of the Code as under:
"to my mind the intention of the legislature in making the provision under Order 7, rule 11 of the Code is very clear and if the same be considered properly with reference to given facts in a case much time of the Court may be saved, parties may be relieved of unnecessary wastage of energy and harassment and they may be directed towards getting proper remedy without having the connected pleasure of prolonged litigation. In this case I have already held that the suit as framed is not maintainable and the said view of mine is supported by the decisions of our Supreme Court as cited above. So it is better that the parties in the instant suit should be relieved of unnecessary harassment."
29. The provision of Order VII, rule 11 of the code mainly enjoins that if on a mere reading of the plaint it is found that the suit is not maintainable the Court has to decide the said point outright. It is also held that Order VII, rule 11 is not exhaustive and the High Court Division in the instant case in exercise of his jurisdiction under section 150 read with 151 of the Code of Civil Procedure can reject the paint. Reliance can be placed in the decisions of Burmah Eastern Ltd., vs Burmah Eastern Employees Union and others 18 DLR 709 wherein it has been observed:
"Coming back to the fact of this case, I would like to say that, on a perusal of the plaint, there can be no doubt that the suit is incompetent. The plaint should be rejected out-right even if it is held that the ground for its rejection is not fully covered by express language of Order VII, rule 11, of the Code of Civil Procedure. What useful purpose would be served by allowing the defendant to file a written statement and, thereafter, to dismiss the suit after raising a contested Issue to the effect that the suit is incompetent, when the plaint itself discloses a suit which is not countenanced by law? If the suit is prohibited and its incompetency is evident from a mere reading of the plaint, it (plaint) should be rejected. Under clause (d) of rule 11 of Order VII, the Court is required to reject a plaint where the suit appears, from the statements in the plaint, to be barred by any law. In the present case although the suit may not be expressly barred by section 42 of the Specific Relief Act, the contention is that is la barred under law having regard to the requirement of the said section, namely, section 42 of the Specific Relief Act. If as a result of the provisions of law, the suit is barred, it would be barred under law, although, strictly speaking, it may not be specifically barred by law in express terms. The Court should, in such a case, reject the plaint under its inherent power."
30. In Burmah Eastern case as referred to above it was further held that "a still born baby should be buried at once" a proverbial legal proposition governing this field.
31. Now if we go back at the beginning of the litigations we would see that Sudhir Chandra Banik father of the defendant Nos. 1 and 2 of the present suit being Other Suit No. 450 of 2014 instituted Other Suit No. 45 of 1990 against recorded tenants of the holding, which on successive transfer was lastly renumbered as Other Suit No. 41 of 1992 and was decreed. The said decree was reversed in Other Appeal No. 521 of 1992 but the decree was restored in Civil Revision No. 4756 of 1995 and affirmed by the Appellate Division in Civil Petition for Leave to Appeal No. 81 of 2011 and Civil Review petition No. 97 of 2014. The decree has been put into execution in other Execution Case No. 1 of 2014.
32. Admittedly, the plaintiff-appellant claimed to have purchased the suit land from Porkkhit Banik, the predecessor in interest of the defendant Nos. 10 to 12 of the present suit by a sale deed being No. 1655 dated 24-8-1997. Porikkhit Banik prior to sale of the suit land to the plaintiff of the present suit instituted Other Suit No. 98 of 1992 for determination of title and confirmation of possession, which on transfer was re-numbered as Other Suit No. 91 of 1995 and was decreed. Sudhir Chandra Banik father of the defendant Nos. 1 and 2 preferred Other Appeal No. 153 of 1996, which was allowed and the decree was reversed. Porikkhit Banik preferred Civil Revision No. 4903 of 1999 against the said appellate decree but anticipating defeat on 11-5-2010 he withdrew the said Civil Revision No. 4903 of 1999. While allowing the withdrawal, the High Court Division set-aside the judgment and decree of the Appellate Court as well as the Trial Court. The contents of the application for withdrawal was to the effect that on perusal of the record the plaintiff appellant have understood that they should not have filed the suit now on proper understating of overall situation have decided not to proceed with the suit. The transferor of the present plaintiff did not seek any permission to release the suit due to any formal defect or any other reasons, rather it has been mentioned in clearest terms that they should not have filed the suit and decided not to proceed with the same.
33. Now it is to be considered in the absence of any leave from the Court whether a fresh suit can be instituted by the same person against transferee claiming title in the suit since no permission was taken for instituting a fresh suit.
34. It appears that Porikkhit Banik who filed the earlier suit transferred the suit land in favour of the present plaintiff who after purchase again filed the suit seeking declaration of title, permanent injunction and other identical reliefs being made in the earlier suit. It is clear that the vendor of the plaintiff filed suit No. 41 of 1992. Since vendor of the present plaintiff withdrew Revisional application as well as his suit, the present plaintiff is not entitled to file the instant suit.
35. The High Court Division clearly observed that the plaintiff claimed the suit land by purchase from Porikkhit Banik by Registered Kabala deed No. 1655 dated 24-8-1997. Porikkhit instituted Other suit No. 98 of 1992 in the 5th Court of Senior Assistant Judge, Chattogram for declaration of title, confirmation of possession and perpetual injunction and got decree, but on appeal on Other appeal No. 153 of 1996 the decree was reversed against which Porkshit Banik filed Civil Revision No. 4903 of 1999 in the High Court Division but later on he withdrew the civil Revision on 11-5-2010 without any permission to sue afresh and as such the suit stands precluded under Order XXIII, rule 1(3) of the Code of Civil Procedure.
36. Since, no permission is accorded for instituting fresh suit, the present suit filed by the transferee of the previous plaintiff is not maintainable.
37. It is fairly established here that the parties indulged in various litigations in different Courts in respect of the suit property and all the proceedings, the present respondents got verdict in his favour. The present appellant is not claiming title otherwise from Porikkhit Banik whose predecessor lost up to the Appellate Division and after loosing in the appeal, Porikkhit Banik himself has withdrawn the revisional application.
38. It is evident that the present appellant Sree Suvash Chandra Dhar as plaintiff filed other suit No. 450 of 2014 against the defendant No. 1 and 2 for declaration of three things as mentioned above who deposed as DW 2 in other Suit No. 41 of 1992 but knowing everything regarding the suit and its fate up to the Appellate Division he instituted the present suit suppressing all the past events.
39. In that suit defendant No. 1 and 2 filed an application under Order VII, rule 11(d) of the code of Civil Procedure for rejection of plaint. The learned Joint District Judge by order No. 11 dated 13-3-2016 rejected the application for rejection of plaint on the ground that resjudicata is a mixed question of facts and law, which can only be decided after adducing evidence at the time of pre-emptory hearing. Against which the defendant Nos. 1 and 2 preferred Civil Revision before the High Court Division and the High Court Division upon hearing the parties made the Rule absolute and rejected the plaint of tide suit No. 450 of 2014.
40. Notably, in the suit being No. 41 of 1992 the present appellant deposed as DW 2 that means the plaintiff appellant knew everything regarding the suit and its fate up to the Appellate Division.
41. As we have already mentioned that Porikkhit Banik from whom the plaintiff appellant purchased the suit land vide deed No. 1655 dated 24-8-1997 filed title suit No. 98 of 1992 which was decreed but on appeal it was reversed against which he filed Civil Revision before the High Court Division, but fearing the fate of the Civil Revision he withdrew the Civil Revision case, therefore, the bar of the provisions of Order XXIII, rule 1(3) would operate, wherein it has been stated that the plaintiff will be precluded from placing any fresh suit if permission is not taken. The purchase of the suit land by the appellant plaintiff from Porikkhit is absolutely a sham transaction being hit by the provision of Lis Pendens enjoins under section 52 of the transfer of property Act as mentioned above.
42. Therefore, if the provisions of Order XXIII, rule 1(3) of the Code read with section 52 of the Transfer of Property Act be considered in juxtaposition with facts and circumstances of the instant case, our view is that it squarely attracts Order VII, rule 11(d) of the Code of Civil Procedure and hence High Court Division did not commit any error in the decision by rejecting the plaint in revisional jurisdiction under section 115 of the Code of Civil Procedure.
43. Further, the case in hand is indeed of such an impact which as we have discussed above manifestly maintained that the rejection of plaint by the High Court Division was absolutely justified and hence cannot be gainsaid that there is a denial of justice in any manner.
44. The High Court Division has rightly rejected the plaint of Title Suit No. 450 of 2014 pending in the Court of Joint District Judge, 1st Court, Chattogram. The judgment and order passed by the High Court Division is elaborate, speaking and well composed. We are not inclined to interfere with the same.
Accordingly, the appeal is dismissed Without any order as to costs.
IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Criminal Appeal No. 65 of 2015
Decided On: 15.01.2023
Milon and Ors.
... Vs. ...
The State
Hon'ble Judges/Coram:
Hasan Foez Siddique, C.J., M. Enayetur Rahim and Jahangir Hossain, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Md. Jahangir Kabir, Advocate instructed by Zainul Abedin, Advocate-on-Record
For Respondents/Defendant: Sayem Mohammad Murad, Assistant Attorney General instructed by Madhumalati Chy. Barua, Advocate-on-Record
Acts/Rules/Orders:
Code of Criminal Procedure, 1898 (CrPC) - Section 164; Code of Criminal Procedure, 1898 (CrPC) - Section 342; Code of Criminal Procedure, 1898 (CrPC) - Section 364; Code of Criminal Procedure, 1898 (CrPC) - Section 374; Constitution Of The People's Republic Of Bangladesh - Article 103(2); Evidence Act, 1872 - Section 25, Evidence Act, 1872 - Section 26, Evidence Act, 1872 - Section 30
Prior History:
From the Judgment and Order dated 08.01.2012 passed by a Division Bench of the High Court Division in Criminal Appeal No. 2185 of 2006 along with Death Reference No. 43 of 2006 with Jail Appeal Nos. 407, 408, 409, 410, 411 and 412 of 2006
Result:
In Favour of State
JUDGMENT
M. Enayetur Rahim, J.
1. This appeal, under Article 103(2)(b) of the Constitution of the People's Republic of Bangladesh is directed against the judgment and order dated 05.01.2012 and 08.01.2012 passed by a Division Bench of the High Court Division in Criminal Appeal No. 2185 of 2006 heard along with Death Reference No. 43 of 2006 and Jail Appeal Nos. 407, 408, 409, 410, 411 and 412 of 2006 dismissing the Criminal Appeal in part thereby affirmed the judgment and order dated 18.05.2006 passed by the Nari-O-Shishu Nirjatan Daman Tribunal No. 2, Bogura so far relates to present-appellants, who were convicted under section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and sentenced each of them to death by hanging until death and also to pay a fine of Taka 1,00,000/-, each.
2. The relevant facts for disposal of the present appeal are as follows:
The present appellants along with 04 others were put on trial before the Nari-O-Shishu Nirjatan Daman Tribunal No. 2, Bogura in Nari-O-Shishu Case No. 228 of 2004 and charge was framed against them under section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000.
3. The appellants and other accused pleaded not guilty to the charges brought against them and claimed to be treated.
4. The prosecution case, in a nutshell, are that on the night following 13.08.2000 victim Shahnaj Akhter Banu alias Sumi daughter of Abdus Satter (P.W-1) was in asleep in her father's dwelling hut. At about 11:00 p.m. the accused persons called her out of the house on a pretext to get meet with her paramour Alam. Later on she was raped and killed. Subsequently, the dead body was found by Rofiqul floating in the pond and it was brought to the courtyard of the informant. The body bore multiple injuries having marks of sexual violence. On 14.04.2000 the incident was informed to the father of the victim who was then Station Master at Adomdighi gate No. 4, over telephone by Md. Belayet Hossain alias Nantu (P.W-6). He, then rushed to his home and heard the occurrence from his wife Rowshan Ara Begum (P.W-2) to the effect that. Since 11.00 p.m. victim Sumi was found missing; Sumon son of domestic worker Md. Ashraful (P.W-7), neighbour Rafiqul, and Delower (P.W-4) unsuccessfully searched her and on the following morning her dead body was found inside the pond by Rafiqul.
5. The prosecution was launched by lodging a first information report by Abdus Sattar (P.W-1) as informant which was recorded as Adamdighi Police Station case No. 9 dated 14.08.2000 corresponding to G.R. No. 90 of 2000.
6. The police after conducting investigation submitted charge sheet against 06(six) persons including the present appellants under section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000.
7. At the trial the prosecution in all examined 13 (thirteen) witnesses to prove the case. The defence cross examined the said witnesses but did not adduce any defense witness.
8. On conclusion of the trial the learned judge of the Tribunal found the present appellants guilty along with 4(four) others under section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and sentenced each of them to hang till death and also fine of taka 1,00,000/-.
9. In view of the provision of section 374 of the Code of Criminal Procedure the learned Judge of the Tribunal made reference to the High Court Division for confirmation of the death sentence. The said reference was registered as Death Reference No. 43 of 2006. All the convicts had preferred Criminal Appeal No. 2185 of 2006 and present appellants also filed Jail Appeal Nos. 407 of 2006 and 409 of 2006 respectively. The other convicts also preferred separate Jail Appeals.
10. A Division Bench of the High Court Division heard the said Death Reference along with the above Criminal Appeal and Jail Appeals and by the impugned judgment and order dated 05.01.2012 and 08.11.2012 accepted the reference in part and maintained the sentence of death of the present appellants and acquitted the other convicts from the charges brought against them.
11. Accordingly, the Criminal Appeal No. 2185 of 2006 was allowed-in-part and Jail Appeal No. 407 of 2006 and 409 of 2006 were dismissed.
12. Being aggrieved by the said judgment and order the present appellants have prepared this appeal.
13. Mr. Md. Jahangir Kabir, learned Advocate appearing for the appellants having referred to the impugned judgment, evidence and other materials on record submits that the prosecution has failed to examine any independent and disinterested witnesses to support its case and thus, the trial court as well as the High Court Division committed serious error in relaying the evidence of the said partisan witnesses.
14. He further submits that no one saw the occurrence and the alleged confessional statement made by appellant-Milon cannot be said to be true and voluntary one. Moreover, at the time of the examination under section 342 of the Code of Criminal Procedure he categorically stated that the said confession was the outcome of torture and coercion; but the High Court Division failed to consider this aspect and maintained the conviction and sentence relaying on the said confessional statement which is not true and voluntary.
15. Mr. Kabir further submits that the trial Court and the High Court Division erred in law in relying on the alleged extra judicial confession made by appellant-Rabiul alias Habul, though such extra judicial confession has got no evidentiary value.
16. On the other hand, Mr. Sayem Mohammad Murad, learned Assistant Attorney General submits that the trial Court and the High Court Division on proper consideration of the evidence and materials on record rightly and legally found the present appellants guilty under section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and there is no illegal or infirmity in the impugned judgment and as such there is no scope to interfere with the same.
17. We have heard the learned Advocates for the respective parties, perused the impugned judgment as well as the evidence and other materials on record.
18. It is true that in the instant case there is no eye witness of the alleged occurrence.
19. The appellant-Milon made a statement under section 164 of the Code of Criminal Procedure before the Magistrate (exhibit-4) which runs as follows:
“আমি আপনার জিজ্ঞাসাবাদে জানাচ্ছি যে, গত ১৩-৮-২০০০ তারিখে দিবাগত রাতে রবিউল পিতা-হাবু, হেলাল পিতা-আলেফ, আসলাম পিতা-নজরুল ওরফে নজু, যুসাদ্দেক পিতা-মনসের, মান্নান পিতা-সামাদ এবং আমি রাত অনুমান ১১-০০ টার দিকে আমাদের প্রাননাথপুর গ্রামের সাত্তারের বাড়ির খোলানে যাই। হেলাল ও রবিউল সাত্তারের মেয়ে শাহনাজ যে ঘরে থাকে সেই ঘরের জানালায় দিয়ে টোকা মারে এবং শাহনাজকে বলে তার প্রেমিক আলম এসেছে। শাহনাজ তার ঘর থেকে বের হয় এবং মই দিয়ে বাড়ির প্রাচীরের উপরে উঠে এবং আসলাম শাহনাজকে হাত দিয়ে ধরে প্রাচীরের বাইরে নামায় । আমাদের সঙ্গে অল্প কিছু দূরে অনুমান ২০/২৫ হাত যাওয়ার পরে শাহনাজ আলমের কথা জিজ্ঞেস করে । আলম পুকুর পাড়ে বলে হেলাল জানায় । আসলাম কাপড় দিয়ে শাহনাজের মুখ চেপে ধরে এবং হেলাল শাহনাজকে পাজাকোলা করে শাহনাজ ওরফে সুমির পিতার বাড়ির পূর্ব দিকে অবস্থিত মান্নানের পিতার বনপাতির জমিতে নিয়ে যায়। আমি নিকটবর্তাঁ পুকুরের পাড়ে বসে পাহাড়ায় ছিলাম যাতে অন্য লোকজন টের না পায়। প্রথমে হেলাল, তারপর আসলাম, তারপর মুসাদ্দেক, তারপর রবিউল, তারপর মান্নান এবং সর্বশেষ আমি শাহনাজকে হাত পা জোর করে রেখে এবং মুখে কাপড় চেপে ধরে ধর্ষণ করা হয়। ধর্ষণের পরে আসলাম ও হেলাল শাহনাজের ওড়না দিয়ে ওখানেই শাহনাজের গলায় ফাস লাগায় গলায় পেঁচিয়ে ৷ মারার সময় মান্নান শাহনাজের পা ও রবিউল হাত ধরে ছিল। মুসাদ্দেক আমাকে এই ঘটনা প্রকাশ করতে নিষেধ করে । হেলাল আমাকে বলে যে এই ঘটনা ফাস করলে তোকে মারব। হেলাল, আসলাম ও রবিউল এই তিন জন শাহনাজের লাশ সাত্তারের পুকুরের পূর্ব পাড়ে নিয়ে আসে হাত দিয়ে তুলে ধরে। শাহনাজের লাশ তারা পুকুরের পূর্ব পাড়ে রাখে পানিতে, মাথাটির কিছু অংশ পানির উপরে পুকুরের পাড়ে মাটিতে ছিল। আমরা সবাই চলে গেলাম । আমি বাড়িতে গেলাম । পরদিন বিকেলে আমি বিরামপুরে যাই ।”
20. P.W-11, Md. Alamin, Magistrate, 1st Class recorded said confessional statement of appellant-Milon. P.W.-11 in his deposition categorically and consistently stated that he recorded the said statement after complying all the legal requirements as laid down under section 364 and 164 of the Code of Criminal Procedure. He proved said confessional statement of appellant-Milon, as exhibits-4 and his 10 signatures thereon, as exhibits-4/1-4/10. He also proved the thump impression of appellant-Milon thereon.
21. P.W-11 was duly cross-examined by the defense but nothing could be elicited to shake his credibility in any manner whatsoever. Moreover, at the time of recording the statement under section 164 of the Code of Criminal Procedure appellant-Milon did not say anything to the recoding magistrate about the alleged torture on him by the police before recording the said statement. Further, it emerges from the record that the appellant-Milon was arrested on 02.09.2000 and on the very same day he was produced before the Magistrate, P.W-11 and his confessional statement was recorded on the same day.
22. As such, the appellant-Milon's plea at the time of examination under section 342 of the Code of Criminal Procedure that his confessional statement was not true and voluntary and he was compelled to make such statement before the Magistrate is not at all tenable.
23. We have also scrutinized Exhibit 4 as well as the evidence of PW 11. The Magistrate after recording the confessional statement of appellant-Milon certified (স্মারক মন্তব্য) to the effect:
“আমি আসামী মিলনকে বুঝিয়ে দিয়েছি যে, তিনি দোষ স্বীকার করতে বাধ্য নন এবং যদি তিনি তা করেন তাহলে তা তার বিরুদ্ধে সাক্ষ্য হিসেবে ব্যবহৃত হতে পারে । আমি বিশ্বাস করি যে, এই দোষ স্বীকারোক্তি স্বেচ্ছা মূলকভাবে করা হয়েছে। তিনি তা নির্ভুল বলে স্বীকার করেছেন এবং তিনি তা বিবৃতি দিয়েছে, তাতে তার পূর্ণাঙ্গ ও সত্য বিবরণ রয়েছে ।”
24. Column 8 of the form has been filed by the PW 11 in following manner:
“যেহেতু আসামীকে বিকেল ৪ টা থেকে সন্ধ্যা দেয়া হয় এবং এই ফর্মের ৬ নং ক্রমিকে উল্লিখিত প্রশ্নগুলো করার পরও আসামী দোষ স্বীকারোক্তিমূলক জবানবন্দি প্রদান করেছেন । কাজেই আমি মনে করি যে, আসামী স্বেচ্ছায় এই দোষ স্বীকারোক্তিমূলক জবানবন্দি প্রদান করেছেন । আসামীর শরীরে কোনও প্রকার জখম ও আঘাতের চিহ দেখা যায়নি”
25. In view of the above, we have no doubt about the truth and voluntariness of the confessional statement (exhibit-4) of appellant-Milon.
26. It is now well settled principle of law that judicial confession if it is found to be true and voluntary can form the sole basis of conviction as against the maker of the same. [Reference: Islamuddin (Md) alias Din Islam Vs. The State, 13 BLC(AD) page-81, Hazrat Ali and others Vs. The State 44 DLR(AD), page-51].
27. In view of the above proposition, we have no hesitation to concur with the findings of the High Court Division as well as the trial Court that the confessional statement (exhibit-4) made by appellant-Milon is true and voluntarily and relying on the same conviction can be awarded safely.
28. In the case of State Vs. Abdul Kader alias Mobail Kader, 67 DLR (AD), 6, this Division has held that retraction of a confession has no bearing whatsoever if it was voluntarily made so far the maker is concerned.
29. At the time of examination under section 342 of the Code of Criminal Procedure the plea of appellant-Milon that the alleged confessional statement made by him is outcome of torture by the police has got no legal basis, rather in our opinion said plea is afterthought and brain child of the learned Advocate for the defence.
30. Moreover, immediate after the occurrence convict-Milon fled away from the village and he was arrested from another place. Form this circumstances we may also draw inference about his involvement in the Commission of offence.
31. In the instant case it is the prosecution case that victim-Shahnaj Akter Banu @ Shumi was killed after she had been being raped by the accused persons.
32. P.W-12 Dr. Nehar Ranjan Mozumder, held autopsy upon the cadaver of victim-Shahnaj Akter Banu. She proved the post mortem report and his signature thereon, exibits-5 and 5/1 respectively.
33. P.W-12 found the following injuries;
"1. One continuous, transverse ligature mark present below the thyroid cartilage, breadth 1/2"
2. One bruise on the tip of nose, size "3/4 X 1/2".
3. One bruise on the back of left elbow joint, size 1" X 1/2".
4. Multiple bruises on the upper and medial aspect of both thighs of various sizes.
5. Multiple seratch abrasions on the upper and medial aspect of both thighs and genitalia of various sizes.
6. Extensive bruise in the labia majora and minora of both side and vaginal canal.
On detailed dissection extravasations of clotted blood found present at the side of the injuries. The skin, soft tissue, muscles, trachea were found highly congested. Hyod bone both cornu was found fractured. Uterus empty. Stomach contains semi digested food. All the visceras were found highly congested. High vaginal swab was taken for pathological examination and sent to the department of pathology. S.Z.M.C. Bogra, as per memo. No. SZMC/PM/2000/265, dated 16.08.2000. Doctor opined that death was due to asphyxia as a result of strangulation by ligature following forceful sexual act on her which was ante mortem and homicidal in nature."
34. The above autopsy report manifests that the victim-Shahnaj was killed after she being raped. Thus, the prosecution has been successfully able to prove that manner of occurrence that the victim was murdered after she being raped.
35. P.Ws-3, 5, 6 and 7 in their respective depositions categorically stated that on the morning of 13.08.2000 Rafiqul found the dead body in the pond and thereafter her dead body was taken to the house of the informant. The witnesses found marks of violence on the body of victim. The said witnesses further deposed that Rabiul's father nabbed Rabiul and in presence of the village peoples said Rabiul disclosed that he along with the other accused committed the alleged occurrence.
36. P.W-7 Md. Ashraful in his deposition stated that when Rabiul made the said statement it was recorded by them in a tape recorder cassette and the said cassette was produced before the Tribunal and marked as material exhibit-VI.
37. In cross-examination, PW 3 Md Yar Ali asserted to the effect;
“রবিউলের স্বীকারোক্তির সময় আমি, বাদী সাত্তার সহ অন্যান্য লোক ছিল। আসামী রবিউল স্ব-ইচ্ছায় স্বীকারোক্তিমূলক জবানবন্দি দিয়েছে । রবিউলের দেওয়া জবানবন্দি আর লিখি নাই। তাহার জবানবন্দি ক্যাসেটবন্দী করা হয় ।”
38. PW 5 Md Ayub Hossain in his cross-examination also asserted to the effect;
“রবিউল ওরফে হবুলকে তাহার বাবা ধরিয়া আনে এই কথা পুলিশের নিকট বলিয়াছি। হবুলের বক্তব্য ক্যাসেট করার কথা পুলিশের নিকট সাক্ষ্য কালে বলিয়াছি।”
39. PW 6 Md Belayet Hossain alias Nantu also asserted his communication-in-chief in cross-examination to the effect:
“আমার সামনে হবুলের কথা রেকর্ড করা হয়। সেই সময় আমি উপস্থিত ছিলাম । এই সেই রেকর্ডিং ক্যাসেট যোহা শোনা হয়) এই ক্যাসেটটিতে যে কথা শোনা গেল তাহা আসামী হবুলের কণ্ঠ । এই ক্যাসেট (ফিতা) বন্ধু প্রদর্শনী-৬] (যাহাতে আসামী হবুলের কণ্ঠ রেকর্ড করা আছে ।)”
40. PW 7 Md Ashraful in his cross-examination also stated to the effect:
“হবুলের পিতা তাকে ধরিয়ে দেয়। হবুল ধরাপরার পর সে সকলের সামনে স্বীকারোক্তি দেয় যে, দে সহ অন্যরা সুমিকে ধর্ষণ করে খুন করেছে । হবুলের সেই স্বীকারোক্তি ক্যাসেট করা হয়। তখন আমি উপস্থিত ছিলাম ।”
41. The above evidence of the witnesses are very consistent and corroborative in nature and the defence has failed to shake their credibility of the said witness of the said witnesses. As such, it is proved beyond reasonable doubt by the prosecution that the father of the Habul alias Rabiul nabbed his son and in presence of the villagers Rabiul made extra judicial confession as to his involvement along with the other accused in commission of the offence. If we consider this aspect along with the confessional statement, exhibit-4 made by the appellant-Milon, then we have no hesitation to hold that the appellant-Milon and Rabiul were involved with the commission of the alleged offence of rape and murder.
42. Mr. Jahngir Kabir, learned Advocate appearing for the appellant submits that the alleged extra judicial confession made by the Rabiul alias Habul in presence of the villagers has got no evidentiary value and the trial court as well as the High Court Division have committed serious error in relying on such statement in finding the guilty of appellant Habul alias Rabiul.
43. In the case of Nausher Ali Sarder and others vs. The State, 39 DLR (AD), 194, this Division has observed that since the accused made extrajudicial confession to the witnesses before arrival of the 'Dafadar' this confessional statement is voluntary and true as it agrees with the established facts of the case.
44. In the said judgment (paragraph-8) this Division observers:
"Mr. Serajul Huq has tried to bring this confessional statement within the mischief of sections 25 and 26 of the Evidence Act which make any confession to, or in custody of, a police officer inadmissible. After Nausher was caught and detained in the shop of Toyeb Ali, local Dafadar (P.W. 13) appeared and also questioned him about the reason of his being present and caught there. Mr. Serajul Huq contends that this statement was made in presence of and during custody of a police officer, which expression includes a Chowkidar/Dafadar. This attempt by the learned Counsel is found to be an exercise in futility, for the evidence of Toyeb Ali and Akram Ali, read with evidence of Dafadar Hasen Ali, clearly shows, that the statement was made, first of all, to Toyeb Ali and Akram Ali before the arrival of the Dafadar. If any further statement had been made when the Dafadar arrived, the earlier statement would not be affected as it was made not in presence of, or while the accused was in custody of, the police. This confessional statement is voluntary and true as it agrees with the established facts of the case."
45. In this particular case, P.Ws-3, 5, 6 and 7 in their respective dispositions and cross-examinations categorically stated that in presence of the village peoples Rabiul alias Habul confessed his guilt in commission of the alleged offence. Further, statement of Rabiul was recorded in tape recorder cassette, material exhibit-VI. Defence did not put any suggestion to the said witnesses to the effect that at the time of making such statement by Rabiul, police personnel were also present.
46. If we consider the evidence of said P.Ws coupled with the proposition of law as enunciated in the case of Nausher Ali Sarder and others vs. The State, then we are of the opinion that the extra judicial confession made by appellant-Rabiul has got evidentiary value and we can safely rely on the same in awarding conviction of its maker.
47. In the case of State Vs. Abdul Kader @ Mobile Kader, 67 DLR(AD)6 this Division in interpreting section 30 of the Evidence Act has held that when more than one person are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other of such persons as well as against the person who makes such confession.
48. In this particular case confession of convict-Milon lends support to the extrajudicial confession of convict-Rabiul.
49. Having considered and discussed as above, we are of the view that in maintaining of conviction of the present appellants under section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 the High Court Division did not commit any error and illegality and as such there is no scope to set aside the order of conviction.
50. However, having considered the proposition of law settled in the case of Nalu Vs. The State, reported in 17 BLC(AD), 204 in regard to award sentence coupled with the attending facts and circumstances of the present case, in particular, at the time of the alleged occurrence the appellants were just attended in majority, and that Milon in his confession stated that he did not take part in murdering the victim rather other two accused namely Aslam and Helan, who were acquitted by the High Court Division and the State did not prefer any appeal against such acquittal, killed the victim by pressing her neck, and that the appellants are in death cell for about 17 years and during that period the appellants have suffered great mental agony, and that the father of Rabiul having nabbed him handed over to the villagers on coming to know about his involvement with the commission of the offence, we are of the view that justice would be best served if the sentence of death is commuted to one imprisonment for life.
51. Accordingly, the sentence of both the appellants is commuted from death to one imprisonment for life with a fine of Tk. 1,00,000 (one lac) each, in default to suffer imprisonment for 5(five) years more. The Jail Authority is directed to shift the appellants from death cell to normal cell.
52. Accordingly, with the above modification of sentence, the appeal is dismissed.
IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Criminal Appeal No. 65 of 2015
Decided On: 15.01.2023
Milon and Ors.
... Vs. ...
The State
Hon'ble Judges/Coram:
Hasan Foez Siddique, C.J., M. Enayetur Rahim and Jahangir Hossain, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Md. Jahangir Kabir, Advocate instructed by Zainul Abedin, Advocate-on-Record
For Respondents/Defendant: Sayem Mohammad Murad, Assistant Attorney General instructed by Madhumalati Chy. Barua, Advocate-on-Record
Acts/Rules/Orders:
Code of Criminal Procedure, 1898 (CrPC) - Section 164; Code of Criminal Procedure, 1898 (CrPC) - Section 342; Code of Criminal Procedure, 1898 (CrPC) - Section 364; Code of Criminal Procedure, 1898 (CrPC) - Section 374; Constitution Of The People's Republic Of Bangladesh - Article 103(2); Evidence Act, 1872 - Section 25, Evidence Act, 1872 - Section 26, Evidence Act, 1872 - Section 30
Prior History:
From the Judgment and Order dated 08.01.2012 passed by a Division Bench of the High Court Division in Criminal Appeal No. 2185 of 2006 along with Death Reference No. 43 of 2006 with Jail Appeal Nos. 407, 408, 409, 410, 411 and 412 of 2006
Result:
In Favour of State
JUDGMENT
M. Enayetur Rahim, J.
1. This appeal, under Article 103(2)(b) of the Constitution of the People's Republic of Bangladesh is directed against the judgment and order dated 05.01.2012 and 08.01.2012 passed by a Division Bench of the High Court Division in Criminal Appeal No. 2185 of 2006 heard along with Death Reference No. 43 of 2006 and Jail Appeal Nos. 407, 408, 409, 410, 411 and 412 of 2006 dismissing the Criminal Appeal in part thereby affirmed the judgment and order dated 18.05.2006 passed by the Nari-O-Shishu Nirjatan Daman Tribunal No. 2, Bogura so far relates to present-appellants, who were convicted under section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and sentenced each of them to death by hanging until death and also to pay a fine of Taka 1,00,000/-, each.
2. The relevant facts for disposal of the present appeal are as follows:
The present appellants along with 04 others were put on trial before the Nari-O-Shishu Nirjatan Daman Tribunal No. 2, Bogura in Nari-O-Shishu Case No. 228 of 2004 and charge was framed against them under section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000.
3. The appellants and other accused pleaded not guilty to the charges brought against them and claimed to be treated.
4. The prosecution case, in a nutshell, are that on the night following 13.08.2000 victim Shahnaj Akhter Banu alias Sumi daughter of Abdus Satter (P.W-1) was in asleep in her father's dwelling hut. At about 11:00 p.m. the accused persons called her out of the house on a pretext to get meet with her paramour Alam. Later on she was raped and killed. Subsequently, the dead body was found by Rofiqul floating in the pond and it was brought to the courtyard of the informant. The body bore multiple injuries having marks of sexual violence. On 14.04.2000 the incident was informed to the father of the victim who was then Station Master at Adomdighi gate No. 4, over telephone by Md. Belayet Hossain alias Nantu (P.W-6). He, then rushed to his home and heard the occurrence from his wife Rowshan Ara Begum (P.W-2) to the effect that. Since 11.00 p.m. victim Sumi was found missing; Sumon son of domestic worker Md. Ashraful (P.W-7), neighbour Rafiqul, and Delower (P.W-4) unsuccessfully searched her and on the following morning her dead body was found inside the pond by Rafiqul.
5. The prosecution was launched by lodging a first information report by Abdus Sattar (P.W-1) as informant which was recorded as Adamdighi Police Station case No. 9 dated 14.08.2000 corresponding to G.R. No. 90 of 2000.
6. The police after conducting investigation submitted charge sheet against 06(six) persons including the present appellants under section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000.
7. At the trial the prosecution in all examined 13 (thirteen) witnesses to prove the case. The defence cross examined the said witnesses but did not adduce any defense witness.
8. On conclusion of the trial the learned judge of the Tribunal found the present appellants guilty along with 4(four) others under section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and sentenced each of them to hang till death and also fine of taka 1,00,000/-.
9. In view of the provision of section 374 of the Code of Criminal Procedure the learned Judge of the Tribunal made reference to the High Court Division for confirmation of the death sentence. The said reference was registered as Death Reference No. 43 of 2006. All the convicts had preferred Criminal Appeal No. 2185 of 2006 and present appellants also filed Jail Appeal Nos. 407 of 2006 and 409 of 2006 respectively. The other convicts also preferred separate Jail Appeals.
10. A Division Bench of the High Court Division heard the said Death Reference along with the above Criminal Appeal and Jail Appeals and by the impugned judgment and order dated 05.01.2012 and 08.11.2012 accepted the reference in part and maintained the sentence of death of the present appellants and acquitted the other convicts from the charges brought against them.
11. Accordingly, the Criminal Appeal No. 2185 of 2006 was allowed-in-part and Jail Appeal No. 407 of 2006 and 409 of 2006 were dismissed.
12. Being aggrieved by the said judgment and order the present appellants have prepared this appeal.
13. Mr. Md. Jahangir Kabir, learned Advocate appearing for the appellants having referred to the impugned judgment, evidence and other materials on record submits that the prosecution has failed to examine any independent and disinterested witnesses to support its case and thus, the trial court as well as the High Court Division committed serious error in relaying the evidence of the said partisan witnesses.
14. He further submits that no one saw the occurrence and the alleged confessional statement made by appellant-Milon cannot be said to be true and voluntary one. Moreover, at the time of the examination under section 342 of the Code of Criminal Procedure he categorically stated that the said confession was the outcome of torture and coercion; but the High Court Division failed to consider this aspect and maintained the conviction and sentence relaying on the said confessional statement which is not true and voluntary.
15. Mr. Kabir further submits that the trial Court and the High Court Division erred in law in relying on the alleged extra judicial confession made by appellant-Rabiul alias Habul, though such extra judicial confession has got no evidentiary value.
16. On the other hand, Mr. Sayem Mohammad Murad, learned Assistant Attorney General submits that the trial Court and the High Court Division on proper consideration of the evidence and materials on record rightly and legally found the present appellants guilty under section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and there is no illegal or infirmity in the impugned judgment and as such there is no scope to interfere with the same.
17. We have heard the learned Advocates for the respective parties, perused the impugned judgment as well as the evidence and other materials on record.
18. It is true that in the instant case there is no eye witness of the alleged occurrence.
19. The appellant-Milon made a statement under section 164 of the Code of Criminal Procedure before the Magistrate (exhibit-4) which runs as follows:
“আমি আপনার জিজ্ঞাসাবাদে জানাচ্ছি যে, গত ১৩-৮-২০০০ তারিখে দিবাগত রাতে রবিউল পিতা-হাবু, হেলাল পিতা-আলেফ, আসলাম পিতা-নজরুল ওরফে নজু, যুসাদ্দেক পিতা-মনসের, মান্নান পিতা-সামাদ এবং আমি রাত অনুমান ১১-০০ টার দিকে আমাদের প্রাননাথপুর গ্রামের সাত্তারের বাড়ির খোলানে যাই। হেলাল ও রবিউল সাত্তারের মেয়ে শাহনাজ যে ঘরে থাকে সেই ঘরের জানালায় দিয়ে টোকা মারে এবং শাহনাজকে বলে তার প্রেমিক আলম এসেছে। শাহনাজ তার ঘর থেকে বের হয় এবং মই দিয়ে বাড়ির প্রাচীরের উপরে উঠে এবং আসলাম শাহনাজকে হাত দিয়ে ধরে প্রাচীরের বাইরে নামায় । আমাদের সঙ্গে অল্প কিছু দূরে অনুমান ২০/২৫ হাত যাওয়ার পরে শাহনাজ আলমের কথা জিজ্ঞেস করে । আলম পুকুর পাড়ে বলে হেলাল জানায় । আসলাম কাপড় দিয়ে শাহনাজের মুখ চেপে ধরে এবং হেলাল শাহনাজকে পাজাকোলা করে শাহনাজ ওরফে সুমির পিতার বাড়ির পূর্ব দিকে অবস্থিত মান্নানের পিতার বনপাতির জমিতে নিয়ে যায়। আমি নিকটবর্তাঁ পুকুরের পাড়ে বসে পাহাড়ায় ছিলাম যাতে অন্য লোকজন টের না পায়। প্রথমে হেলাল, তারপর আসলাম, তারপর মুসাদ্দেক, তারপর রবিউল, তারপর মান্নান এবং সর্বশেষ আমি শাহনাজকে হাত পা জোর করে রেখে এবং মুখে কাপড় চেপে ধরে ধর্ষণ করা হয়। ধর্ষণের পরে আসলাম ও হেলাল শাহনাজের ওড়না দিয়ে ওখানেই শাহনাজের গলায় ফাস লাগায় গলায় পেঁচিয়ে ৷ মারার সময় মান্নান শাহনাজের পা ও রবিউল হাত ধরে ছিল। মুসাদ্দেক আমাকে এই ঘটনা প্রকাশ করতে নিষেধ করে । হেলাল আমাকে বলে যে এই ঘটনা ফাস করলে তোকে মারব। হেলাল, আসলাম ও রবিউল এই তিন জন শাহনাজের লাশ সাত্তারের পুকুরের পূর্ব পাড়ে নিয়ে আসে হাত দিয়ে তুলে ধরে। শাহনাজের লাশ তারা পুকুরের পূর্ব পাড়ে রাখে পানিতে, মাথাটির কিছু অংশ পানির উপরে পুকুরের পাড়ে মাটিতে ছিল। আমরা সবাই চলে গেলাম । আমি বাড়িতে গেলাম । পরদিন বিকেলে আমি বিরামপুরে যাই ।”
20. P.W-11, Md. Alamin, Magistrate, 1st Class recorded said confessional statement of appellant-Milon. P.W.-11 in his deposition categorically and consistently stated that he recorded the said statement after complying all the legal requirements as laid down under section 364 and 164 of the Code of Criminal Procedure. He proved said confessional statement of appellant-Milon, as exhibits-4 and his 10 signatures thereon, as exhibits-4/1-4/10. He also proved the thump impression of appellant-Milon thereon.
21. P.W-11 was duly cross-examined by the defense but nothing could be elicited to shake his credibility in any manner whatsoever. Moreover, at the time of recording the statement under section 164 of the Code of Criminal Procedure appellant-Milon did not say anything to the recoding magistrate about the alleged torture on him by the police before recording the said statement. Further, it emerges from the record that the appellant-Milon was arrested on 02.09.2000 and on the very same day he was produced before the Magistrate, P.W-11 and his confessional statement was recorded on the same day.
22. As such, the appellant-Milon's plea at the time of examination under section 342 of the Code of Criminal Procedure that his confessional statement was not true and voluntary and he was compelled to make such statement before the Magistrate is not at all tenable.
23. We have also scrutinized Exhibit 4 as well as the evidence of PW 11. The Magistrate after recording the confessional statement of appellant-Milon certified (স্মারক মন্তব্য) to the effect:
“আমি আসামী মিলনকে বুঝিয়ে দিয়েছি যে, তিনি দোষ স্বীকার করতে বাধ্য নন এবং যদি তিনি তা করেন তাহলে তা তার বিরুদ্ধে সাক্ষ্য হিসেবে ব্যবহৃত হতে পারে । আমি বিশ্বাস করি যে, এই দোষ স্বীকারোক্তি স্বেচ্ছা মূলকভাবে করা হয়েছে। তিনি তা নির্ভুল বলে স্বীকার করেছেন এবং তিনি তা বিবৃতি দিয়েছে, তাতে তার পূর্ণাঙ্গ ও সত্য বিবরণ রয়েছে ।”
24. Column 8 of the form has been filed by the PW 11 in following manner:
“যেহেতু আসামীকে বিকেল ৪ টা থেকে সন্ধ্যা দেয়া হয় এবং এই ফর্মের ৬ নং ক্রমিকে উল্লিখিত প্রশ্নগুলো করার পরও আসামী দোষ স্বীকারোক্তিমূলক জবানবন্দি প্রদান করেছেন । কাজেই আমি মনে করি যে, আসামী স্বেচ্ছায় এই দোষ স্বীকারোক্তিমূলক জবানবন্দি প্রদান করেছেন । আসামীর শরীরে কোনও প্রকার জখম ও আঘাতের চিহ দেখা যায়নি”
25. In view of the above, we have no doubt about the truth and voluntariness of the confessional statement (exhibit-4) of appellant-Milon.
26. It is now well settled principle of law that judicial confession if it is found to be true and voluntary can form the sole basis of conviction as against the maker of the same. [Reference: Islamuddin (Md) alias Din Islam Vs. The State, 13 BLC(AD) page-81, Hazrat Ali and others Vs. The State 44 DLR(AD), page-51].
27. In view of the above proposition, we have no hesitation to concur with the findings of the High Court Division as well as the trial Court that the confessional statement (exhibit-4) made by appellant-Milon is true and voluntarily and relying on the same conviction can be awarded safely.
28. In the case of State Vs. Abdul Kader alias Mobail Kader, 67 DLR (AD), 6, this Division has held that retraction of a confession has no bearing whatsoever if it was voluntarily made so far the maker is concerned.
29. At the time of examination under section 342 of the Code of Criminal Procedure the plea of appellant-Milon that the alleged confessional statement made by him is outcome of torture by the police has got no legal basis, rather in our opinion said plea is afterthought and brain child of the learned Advocate for the defence.
30. Moreover, immediate after the occurrence convict-Milon fled away from the village and he was arrested from another place. Form this circumstances we may also draw inference about his involvement in the Commission of offence.
31. In the instant case it is the prosecution case that victim-Shahnaj Akter Banu @ Shumi was killed after she had been being raped by the accused persons.
32. P.W-12 Dr. Nehar Ranjan Mozumder, held autopsy upon the cadaver of victim-Shahnaj Akter Banu. She proved the post mortem report and his signature thereon, exibits-5 and 5/1 respectively.
33. P.W-12 found the following injuries;
- One continuous, transverse ligature mark present below the thyroid cartilage, breadth 1/2"
- One bruise on the tip of nose, size "3/4 X 1/2".
- One bruise on the back of left elbow joint, size 1" X 1/2".
- Multiple bruises on the upper and medial aspect of both thighs of various sizes.
- Multiple seratch abrasions on the upper and medial aspect of both thighs and genitalia of various sizes.
- Extensive bruise in the labia majora and minora of both side and vaginal canal.
On detailed dissection extravasations of clotted blood found present at the side of the injuries. The skin, soft tissue, muscles, trachea were found highly congested. Hyod bone both cornu was found fractured. Uterus empty. Stomach contains semi digested food. All the visceras were found highly congested. High vaginal swab was taken for pathological examination and sent to the department of pathology. S.Z.M.C. Bogra, as per memo. No. SZMC/PM/2000/265, dated 16.08.2000. Doctor opined that death was due to asphyxia as a result of strangulation by ligature following forceful sexual act on her which was ante mortem and homicidal in nature.
34. The above autopsy report manifests that the victim-Shahnaj was killed after she being raped. Thus, the prosecution has been successfully able to prove that manner of occurrence that the victim was murdered after she being raped.
35. P.Ws-3, 5, 6 and 7 in their respective depositions categorically stated that on the morning of 13.08.2000 Rafiqul found the dead body in the pond and thereafter her dead body was taken to the house of the informant. The witnesses found marks of violence on the body of victim. The said witnesses further deposed that Rabiul's father nabbed Rabiul and in presence of the village peoples said Rabiul disclosed that he along with the other accused committed the alleged occurrence.
36. P.W-7 Md. Ashraful in his deposition stated that when Rabiul made the said statement it was recorded by them in a tape recorder cassette and the said cassette was produced before the Tribunal and marked as material exhibit-VI.
37. In cross-examination, PW 3 Md Yar Ali asserted to the effect;
“রবিউলের স্বীকারোক্তির সময় আমি, বাদী সাত্তার সহ অন্যান্য লোক ছিল। আসামী রবিউল স্ব-ইচ্ছায় স্বীকারোক্তিমূলক জবানবন্দি দিয়েছে । রবিউলের দেওয়া জবানবন্দি আর লিখি নাই। তাহার জবানবন্দি ক্যাসেটবন্দী করা হয় ।”
38. PW 5 Md Ayub Hossain in his cross-examination also asserted to the effect;
“রবিউল ওরফে হবুলকে তাহার বাবা ধরিয়া আনে এই কথা পুলিশের নিকট বলিয়াছি। হবুলের বক্তব্য ক্যাসেট করার কথা পুলিশের নিকট সাক্ষ্য কালে বলিয়াছি।”
39. PW 6 Md Belayet Hossain alias Nantu also asserted his communication-in-chief in cross-examination to the effect:
“আমার সামনে হবুলের কথা রেকর্ড করা হয়। সেই সময় আমি উপস্থিত ছিলাম । এই সেই রেকর্ডিং ক্যাসেট যোহা শোনা হয়) এই ক্যাসেটটিতে যে কথা শোনা গেল তাহা আসামী হবুলের কণ্ঠ । এই ক্যাসেট (ফিতা) বন্ধু প্রদর্শনী-৬] (যাহাতে আসামী হবুলের কণ্ঠ রেকর্ড করা আছে ।)”
40. PW 7 Md Ashraful in his cross-examination also stated to the effect:
“হবুলের পিতা তাকে ধরিয়ে দেয়। হবুল ধরাপরার পর সে সকলের সামনে স্বীকারোক্তি দেয় যে, দে সহ অন্যরা সুমিকে ধর্ষণ করে খুন করেছে । হবুলের সেই স্বীকারোক্তি ক্যাসেট করা হয়। তখন আমি উপস্থিত ছিলাম ।”
41. The above evidence of the witnesses are very consistent and corroborative in nature and the defence has failed to shake their credibility of the said witness of the said witnesses. As such, it is proved beyond reasonable doubt by the prosecution that the father of the Habul alias Rabiul nabbed his son and in presence of the villagers Rabiul made extra judicial confession as to his involvement along with the other accused in commission of the offence. If we consider this aspect along with the confessional statement, exhibit-4 made by the appellant-Milon, then we have no hesitation to hold that the appellant-Milon and Rabiul were involved with the commission of the alleged offence of rape and murder.
42. Mr. Jahngir Kabir, learned Advocate appearing for the appellant submits that the alleged extra judicial confession made by the Rabiul alias Habul in presence of the villagers has got no evidentiary value and the trial court as well as the High Court Division have committed serious error in relying on such statement in finding the guilty of appellant Habul alias Rabiul.
43. In the case of Nausher Ali Sarder and others vs. The State, 39 DLR (AD), 194, this Division has observed that since the accused made extrajudicial confession to the witnesses before arrival of the 'Dafadar' this confessional statement is voluntary and true as it agrees with the established facts of the case.
44. In the said judgment (paragraph-8) this Division observers:
"Mr. Serajul Huq has tried to bring this confessional statement within the mischief of sections 25 and 26 of the Evidence Act which make any confession to, or in custody of, a police officer inadmissible. After Nausher was caught and detained in the shop of Toyeb Ali, local Dafadar (P.W. 13) appeared and also questioned him about the reason of his being present and caught there. Mr. Serajul Huq contends that this statement was made in presence of and during custody of a police officer, which expression includes a Chowkidar/Dafadar. This attempt by the learned Counsel is found to be an exercise in futility, for the evidence of Toyeb Ali and Akram Ali, read with evidence of Dafadar Hasen Ali, clearly shows, that the statement was made, first of all, to Toyeb Ali and Akram Ali before the arrival of the Dafadar. If any further statement had been made when the Dafadar arrived, the earlier statement would not be affected as it was made not in presence of, or while the accused was in custody of, the police. This confessional statement is voluntary and true as it agrees with the established facts of the case."
45. In this particular case, P.Ws-3, 5, 6 and 7 in their respective dispositions and cross-examinations categorically stated that in presence of the village peoples Rabiul alias Habul confessed his guilt in commission of the alleged offence. Further, statement of Rabiul was recorded in tape recorder cassette, material exhibit-VI. Defence did not put any suggestion to the said witnesses to the effect that at the time of making such statement by Rabiul, police personnel were also present.
46. If we consider the evidence of said P.Ws coupled with the proposition of law as enunciated in the case of Nausher Ali Sarder and others vs. The State, then we are of the opinion that the extra judicial confession made by appellant-Rabiul has got evidentiary value and we can safely rely on the same in awarding conviction of its maker.
47. In the case of State Vs. Abdul Kader @ Mobile Kader, 67 DLR(AD)6 this Division in interpreting section 30 of the Evidence Act has held that when more than one person are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other of such persons as well as against the person who makes such confession.
48. In this particular case confession of convict-Milon lends support to the extrajudicial confession of convict-Rabiul.
49. Having considered and discussed as above, we are of the view that in maintaining of conviction of the present appellants under section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 the High Court Division did not commit any error and illegality and as such there is no scope to set aside the order of conviction.
50. However, having considered the proposition of law settled in the case of Nalu Vs. The State, reported in 17 BLC(AD), 204 in regard to award sentence coupled with the attending facts and circumstances of the present case, in particular, at the time of the alleged occurrence the appellants were just attended in majority, and that Milon in his confession stated that he did not take part in murdering the victim rather other two accused namely Aslam and Helan, who were acquitted by the High Court Division and the State did not prefer any appeal against such acquittal, killed the victim by pressing her neck, and that the appellants are in death cell for about 17 years and during that period the appellants have suffered great mental agony, and that the father of Rabiul having nabbed him handed over to the villagers on coming to know about his involvement with the commission of the offence, we are of the view that justice would be best served if the sentence of death is commuted to one imprisonment for life.
51. Accordingly, the sentence of both the appellants is commuted from death to one imprisonment for life with a fine of Tk. 1,00,000 (one lac) each, in default to suffer imprisonment for 5(five) years more. The Jail Authority is directed to shift the appellants from death cell to normal cell.
52. Accordingly, with the above modification of sentence, the appeal is dismissed.
IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Criminal Appeal No. 65 of 2015
Decided On: 15.01.2023
Milon and Ors.
... Vs. ...
The State
Hon'ble Judges/Coram:
Hasan Foez Siddique, C.J., M. Enayetur Rahim and Jahangir Hossain, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Md. Jahangir Kabir, Advocate instructed by Zainul Abedin, Advocate-on-Record
For Respondents/Defendant: Sayem Mohammad Murad, Assistant Attorney General instructed by Madhumalati Chy. Barua, Advocate-on-Record
Acts/Rules/Orders:
Code of Criminal Procedure, 1898 (CrPC) - Section 164; Code of Criminal Procedure, 1898 (CrPC) - Section 342; Code of Criminal Procedure, 1898 (CrPC) - Section 364; Code of Criminal Procedure, 1898 (CrPC) - Section 374; Constitution Of The People's Republic Of Bangladesh - Article 103(2); Evidence Act, 1872 - Section 25, Evidence Act, 1872 - Section 26, Evidence Act, 1872 - Section 30
Prior History:
From the Judgment and Order dated 08.01.2012 passed by a Division Bench of the High Court Division in Criminal Appeal No. 2185 of 2006 along with Death Reference No. 43 of 2006 with Jail Appeal Nos. 407, 408, 409, 410, 411 and 412 of 2006
Result:
In Favour of State
JUDGMENT
M. Enayetur Rahim, J.
1. This appeal, under Article 103(2)(b) of the Constitution of the People's Republic of Bangladesh is directed against the judgment and order dated 05.01.2012 and 08.01.2012 passed by a Division Bench of the High Court Division in Criminal Appeal No. 2185 of 2006 heard along with Death Reference No. 43 of 2006 and Jail Appeal Nos. 407, 408, 409, 410, 411 and 412 of 2006 dismissing the Criminal Appeal in part thereby affirmed the judgment and order dated 18.05.2006 passed by the Nari-O-Shishu Nirjatan Daman Tribunal No. 2, Bogura so far relates to present-appellants, who were convicted under section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and sentenced each of them to death by hanging until death and also to pay a fine of Taka 1,00,000/-, each.
2. The relevant facts for disposal of the present appeal are as follows:
The present appellants along with 04 others were put on trial before the Nari-O-Shishu Nirjatan Daman Tribunal No. 2, Bogura in Nari-O-Shishu Case No. 228 of 2004 and charge was framed against them under section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000.
3. The appellants and other accused pleaded not guilty to the charges brought against them and claimed to be treated.
4. The prosecution case, in a nutshell, are that on the night following 13.08.2000 victim Shahnaj Akhter Banu alias Sumi daughter of Abdus Satter (P.W-1) was in asleep in her father's dwelling hut. At about 11:00 p.m. the accused persons called her out of the house on a pretext to get meet with her paramour Alam. Later on she was raped and killed. Subsequently, the dead body was found by Rofiqul floating in the pond and it was brought to the courtyard of the informant. The body bore multiple injuries having marks of sexual violence. On 14.04.2000 the incident was informed to the father of the victim who was then Station Master at Adomdighi gate No. 4, over telephone by Md. Belayet Hossain alias Nantu (P.W-6). He, then rushed to his home and heard the occurrence from his wife Rowshan Ara Begum (P.W-2) to the effect that. Since 11.00 p.m. victim Sumi was found missing; Sumon son of domestic worker Md. Ashraful (P.W-7), neighbour Rafiqul, and Delower (P.W-4) unsuccessfully searched her and on the following morning her dead body was found inside the pond by Rafiqul.
5. The prosecution was launched by lodging a first information report by Abdus Sattar (P.W-1) as informant which was recorded as Adamdighi Police Station case No. 9 dated 14.08.2000 corresponding to G.R. No. 90 of 2000.
6. The police after conducting investigation submitted charge sheet against 06(six) persons including the present appellants under section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000.
7. At the trial the prosecution in all examined 13 (thirteen) witnesses to prove the case. The defence cross examined the said witnesses but did not adduce any defense witness.
8. On conclusion of the trial the learned judge of the Tribunal found the present appellants guilty along with 4(four) others under section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and sentenced each of them to hang till death and also fine of taka 1,00,000/-.
9. In view of the provision of section 374 of the Code of Criminal Procedure the learned Judge of the Tribunal made reference to the High Court Division for confirmation of the death sentence. The said reference was registered as Death Reference No. 43 of 2006. All the convicts had preferred Criminal Appeal No. 2185 of 2006 and present appellants also filed Jail Appeal Nos. 407 of 2006 and 409 of 2006 respectively. The other convicts also preferred separate Jail Appeals.
10. A Division Bench of the High Court Division heard the said Death Reference along with the above Criminal Appeal and Jail Appeals and by the impugned judgment and order dated 05.01.2012 and 08.11.2012 accepted the reference in part and maintained the sentence of death of the present appellants and acquitted the other convicts from the charges brought against them.
11. Accordingly, the Criminal Appeal No. 2185 of 2006 was allowed-in-part and Jail Appeal No. 407 of 2006 and 409 of 2006 were dismissed.
12. Being aggrieved by the said judgment and order the present appellants have prepared this appeal.
13. Mr. Md. Jahangir Kabir, learned Advocate appearing for the appellants having referred to the impugned judgment, evidence and other materials on record submits that the prosecution has failed to examine any independent and disinterested witnesses to support its case and thus, the trial court as well as the High Court Division committed serious error in relaying the evidence of the said partisan witnesses.
14. He further submits that no one saw the occurrence and the alleged confessional statement made by appellant-Milon cannot be said to be true and voluntary one. Moreover, at the time of the examination under section 342 of the Code of Criminal Procedure he categorically stated that the said confession was the outcome of torture and coercion; but the High Court Division failed to consider this aspect and maintained the conviction and sentence relaying on the said confessional statement which is not true and voluntary.
15. Mr. Kabir further submits that the trial Court and the High Court Division erred in law in relying on the alleged extra judicial confession made by appellant-Rabiul alias Habul, though such extra judicial confession has got no evidentiary value.
16. On the other hand, Mr. Sayem Mohammad Murad, learned Assistant Attorney General submits that the trial Court and the High Court Division on proper consideration of the evidence and materials on record rightly and legally found the present appellants guilty under section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and there is no illegal or infirmity in the impugned judgment and as such there is no scope to interfere with the same.
17. We have heard the learned Advocates for the respective parties, perused the impugned judgment as well as the evidence and other materials on record.
18. It is true that in the instant case there is no eye witness of the alleged occurrence.
19. The appellant-Milon made a statement under section 164 of the Code of Criminal Procedure before the Magistrate (exhibit-4) which runs as follows:
“আমি আপনার জিজ্ঞাসাবাদে জানাচ্ছি যে, গত ১৩-৮-২০০০ তারিখে দিবাগত রাতে রবিউল পিতা-হাবু, হেলাল পিতা-আলেফ, আসলাম পিতা-নজরুল ওরফে নজু, মুসাদ্দেক পিতা-মনসের, মান্নান পিতা-সামাদ এবং আমি রাত অনুমান ১১-০০ টার দিকে আমাদের প্রাননাথপুর গ্রামের সাত্তারের বাড়ির খোলানে যাই। হেলাল ও রবিউল সাত্তারের মেয়ে শাহনাজ যে ঘরে থাকে সেই ঘরের জানালায় দিয়ে টোকা মারে এবং শাহনাজকে বলে তার প্রেমিক আলম এসেছে। শাহনাজ তার ঘর থেকে বের হয় এবং মই দিয়ে বাড়ির প্রাচীরের উপরে উঠে এবং আসলাম শাহনাজকে হাত দিয়ে ধরে প্রাচীরের বাইরে নামায়। আমাদের সঙ্গে অল্প কিছু দূরে অনুমান ২০/২৫ হাত যাওয়ার পরে শাহনাজ আলমের কথা জিজ্ঞেস করে। আলম পুকুর পাড়ে বলে হেলাল জানায়। আসলাম কাপড় দিয়ে শাহনাজের মুখ চেপে ধরে এবং হেলাল শাহনাজকে পাজাকোলা করে শাহনাজ ওরফে সুমির পিতার বাড়ির পূর্ব দিকে অবস্থিত মান্নানের পিতার বনপাতির জমিতে নিয়ে যায়। আমি নিকটবর্তাঁ পুকুরের পাড়ে বসে পাহাড়ায় ছিলাম যাতে অন্য লোকজন টের না পায়। প্রথমে হেলাল, তারপর আসলাম, তারপর মুসাদ্দেক, তারপর রবিউল, তারপর মান্নান এবং সর্বশেষ আমি শাহনাজকে হাত পা জোর করে রেখে এবং মুখে কাপড় চেপে ধরে ধর্ষণ করা হয়। ধর্ষণের পরে আসলাম ও হেলাল শাহনাজের ওড়না দিয়ে ওখানেই শাহনাজের গলায় ফাস লাগায় গলায় পেঁচিয়ে। মারার সময় মান্নান শাহনাজের পা ও রবিউল হাত ধরে ছিল। মুসাদ্দেক আমাকে এই ঘটনা প্রকাশ করতে নিষেধ করে। হেলাল আমাকে বলে যে এই ঘটনা ফাস করলে তোকে মারব। হেলাল, আসলাম ও রবিউল এই তিন জন শাহনাজের লাশ সাত্তারের পুকুরের পূর্ব পাড়ে নিয়ে আসে হাত দিয়ে তুলে ধরে। শাহনাজের লাশ তারা পুকুরের পূর্ব পাড়ে রাখে পানিতে, মাথাটির কিছু অংশ পানির উপরে পুকুরের পাড়ে মাটিতে ছিল। আমরা সবাই চলে গেলাম। আমি বাড়িতে গেলাম। পরদিন বিকেলে আমি বিরামপুরে যাই।”
20. P.W-11, Md. Alamin, Magistrate, 1st Class recorded said confessional statement of appellant-Milon. P.W.-11 in his deposition categorically and consistently stated that he recorded the said statement after complying all the legal requirements as laid down under section 364 and 164 of the Code of Criminal Procedure. He proved said confessional statement of appellant-Milon, as exhibits-4 and his 10 signatures thereon, as exhibits-4/1-4/10. He also proved the thump impression of appellant-Milon thereon.
21. P.W-11 was duly cross-examined by the defense but nothing could be elicited to shake his credibility in any manner whatsoever. Moreover, at the time of recording the statement under section 164 of the Code of Criminal Procedure appellant-Milon did not say anything to the recoding magistrate about the alleged torture on him by the police before recording the said statement. Further, it emerges from the record that the appellant-Milon was arrested on 02.09.2000 and on the very same day he was produced before the Magistrate, P.W-11 and his confessional statement was recorded on the same day.
22. As such, the appellant-Milon's plea at the time of examination under section 342 of the Code of Criminal Procedure that his confessional statement was not true and voluntary and he was compelled to make such statement before the Magistrate is not at all tenable.
23. We have also scrutinized Exhibit 4 as well as the evidence of PW 11. The Magistrate after recording the confessional statement of appellant-Milon certified (স্মারক মন্তব্য) to the effect:
“আমি আসামী মিলনকে বুঝিয়ে দিয়েছি যে, তিনি দোষ স্বীকার করতে বাধ্য নন এবং যদি তিনি তা করেন তাহলে তা তার বিরুদ্ধে সাক্ষ্য হিসেবে ব্যবহৃত হতে পারে। আমি বিশ্বাস করি যে, এই দোষ স্বীকারোক্তি স্বেচ্ছা মূলকভাবে করা হয়েছে। তিনি তা নির্ভুল বলে স্বীকার করেছেন এবং তিনি তা বিবৃতি দিয়েছে, তাতে তার পূর্ণাঙ্গ ও সত্য বিবরণ রয়েছে।”
24. Column 8 of the form has been filed by the PW 11 in following manner:
“যেহেতু আসামীকে বিকেল ৪ টা থেকে সন্ধ্যা দেয়া হয় এবং এই ফর্মের ৬ নং ক্রমিকে উল্লিখিত প্রশ্নগুলো করার পরও আসামী দোষ স্বীকারোক্তিমূলক জবানবন্দি প্রদান করেছেন। কাজেই আমি মনে করি যে, আসামী স্বেচ্ছায় এই দোষ স্বীকারোক্তিমূলক জবানবন্দি প্রদান করেছেন। আসামীর শরীরে কোনও প্রকার জখম ও আঘাতের চিহ দেখা যায়নি।”
25. In view of the above, we have no doubt about the truth and voluntariness of the confessional statement (exhibit-4) of appellant-Milon.
26. It is now well settled principle of law that judicial confession if it is found to be true and voluntary can form the sole basis of conviction as against the maker of the same. [Reference: Islamuddin (Md) alias Din Islam Vs. The State, 13 BLC(AD) page-81, Hazrat Ali and others Vs. The State 44 DLR(AD), page-51].
27. In view of the above proposition, we have no hesitation to concur with the findings of the High Court Division as well as the trial Court that the confessional statement (exhibit-4) made by appellant-Milon is true and voluntarily and relying on the same conviction can be awarded safely.
28. In the case of State Vs. Abdul Kader alias Mobail Kader, 67 DLR (AD), 6, this Division has held that retraction of a confession has no bearing whatsoever if it was voluntarily made so far the maker is concerned.
29. At the time of examination under section 342 of the Code of Criminal Procedure the plea of appellant-Milon that the alleged confessional statement made by him is outcome of torture by the police has got no legal basis, rather in our opinion said plea is afterthought and brain child of the learned Advocate for the defence.
30. Moreover, immediate after the occurrence convict-Milon fled away from the village and he was arrested from another place. Form this circumstances we may also draw inference about his involvement in the Commission of offence.
31. In the instant case it is the prosecution case that victim-Shahnaj Akter Banu @ Shumi was killed after she had been being raped by the accused persons.
32. P.W-12 Dr. Nehar Ranjan Mozumder, held autopsy upon the cadaver of victim-Shahnaj Akter Banu. She proved the post mortem report and his signature thereon, exibits-5 and 5/1 respectively.
33. P.W-12 found the following injuries;
- One continuous, transverse ligature mark present below the thyroid cartilage, breadth 1/2"
- One bruise on the tip of nose, size "3/4 X 1/2".
- One bruise on the back of left elbow joint, size 1" X 1/2".
- Multiple bruises on the upper and medial aspect of both thighs of various sizes.
- Multiple seratch abrasions on the upper and medial aspect of both thighs and genitalia of various sizes.
- Extensive bruise in the labia majora and minora of both side and vaginal canal.
On detailed dissection extravasations of clotted blood found present at the side of the injuries. The skin, soft tissue, muscles, trachea were found highly congested. Hyod bone both cornu was found fractured. Uterus empty. Stomach contains semi digested food. All the visceras were found highly congested. High vaginal swab was taken for pathological examination and sent to the department of pathology. S.Z.M.C. Bogra, as per memo. No. SZMC/PM/2000/265, dated 16.08.2000. Doctor opined that death was due to asphyxia as a result of strangulation by ligature following forceful sexual act on her which was ante mortem and homicidal in nature.
34. The above autopsy report manifests that the victim-Shahnaj was killed after she being raped. Thus, the prosecution has been successfully able to prove that manner of occurrence that the victim was murdered after she being raped.
35. P.Ws-3, 5, 6 and 7 in their respective depositions categorically stated that on the morning of 13.08.2000 Rafiqul found the dead body in the pond and thereafter her dead body was taken to the house of the informant. The witnesses found marks of violence on the body of victim. The said witnesses further deposed that Rabiul's father nabbed Rabiul and in presence of the village peoples said Rabiul disclosed that he along with the other accused committed the alleged occurrence.
36. P.W-7 Md. Ashraful in his deposition stated that when Rabiul made the said statement it was recorded by them in a tape recorder cassette and the said cassette was produced before the Tribunal and marked as material exhibit-VI.
37. In cross-examination, PW 3 Md Yar Ali asserted to the effect;
“রবিউলের স্বীকারোক্তির সময় আমি, বাদী সাত্তার সহ অন্যান্য লোক ছিল। আসামী রবিউল স্ব-ইচ্ছায় স্বীকারোক্তিমূলক জবানবন্দি দিয়েছে। রবিউলের দেওয়া জবানবন্দি আর লিখি নাই। তাহার জবানবন্দি ক্যাসেটবন্দী করা হয়।”
38. PW 5 Md Ayub Hossain in his cross-examination also asserted to the effect;
“রবিউল ওরফে হবুলকে তাহার বাবা ধরিয়া আনে এই কথা পুলিশের নিকট বলিয়াছি। হবুলের বক্তব্য ক্যাসেট করার কথা পুলিশের নিকট সাক্ষ্য কালে বলিয়াছি।”
39. PW 6 Md Belayet Hossain alias Nantu also asserted his communication-in-chief in cross-examination to the effect:
“আমার সামনে হবুলের কথা রেকর্ড করা হয়। সেই সময় আমি উপস্থিত ছিলাম। এই সেই রেকর্ডিং ক্যাসেট (যাহা শোনা হয়) এই ক্যাসেটটিতে যে কথা শোনা গেল তাহা আসামী হবুলের কণ্ঠ। এই ক্যাসেট (ফিতা) বস্তু প্রদর্শনী-৬] (যাহাতে আসামী হবুলের কণ্ঠ রেকর্ড করা আছে।)”
“হবুলের পিতা তাকে ধরিয়ে দেয়। হবুল ধরাপরার পর সে সকলের সামনে স্বীকারোক্তি দেয় যে, সে সহ অন্যরা সুমিকে ধর্ষণ করে খুন করেছে। হবুলের সেই স্বীকারোক্তি ক্যাসেট করা হয়। তখন আমি উপস্থিত ছিলাম।”
41. The above evidence of the witnesses are very consistent and corroborative in nature and the defence has failed to shake their credibility of the said witness of the said witnesses. As such, it is proved beyond reasonable doubt by the prosecution that the father of the Habul alias Rabiul nabbed his son and in presence of the villagers Rabiul made extra judicial confession as to his involvement along with the other accused in commission of the offence. If we consider this aspect along with the confessional statement, exhibit-4 made by the appellant-Milon, then we have no hesitation to hold that the appellant-Milon and Rabiul were involved with the commission of the alleged offence of rape and murder.
42. Mr. Jahngir Kabir, learned Advocate appearing for the appellant submits that the alleged extra judicial confession made by the Rabiul alias Habul in presence of the villagers has got no evidentiary value and the trial court as well as the High Court Division have committed serious error in relying on such statement in finding the guilty of appellant Habul alias Rabiul.
43. In the case of Nausher Ali Sarder and others vs. The State, 39 DLR (AD), 194, this Division has observed that since the accused made extrajudicial confession to the witnesses before arrival of the 'Dafadar' this confessional statement is voluntary and true as it agrees with the established facts of the case.
44. In the said judgment (paragraph-8) this Division observers:
"Mr. Serajul Huq has tried to bring this confessional statement within the mischief of sections 25 and 26 of the Evidence Act which make any confession to, or in custody of, a police officer inadmissible. After Nausher was caught and detained in the shop of Toyeb Ali, local Dafadar (P.W. 13) appeared and also questioned him about the reason of his being present and caught there. Mr. Serajul Huq contends that this statement was made in presence of and during custody of a police officer, which expression includes a Chowkidar/Dafadar. This attempt by the learned Counsel is found to be an exercise in futility, for the evidence of Toyeb Ali and Akram Ali, read with evidence of Dafadar Hasen Ali, clearly shows, that the statement was made, first of all, to Toyeb Ali and Akram Ali before the arrival of the Dafadar. If any further statement had been made when the Dafadar arrived, the earlier statement would not be affected as it was made not in presence of, or while the accused was in custody of, the police. This confessional statement is voluntary and true as it agrees with the established facts of the case."
45. In this particular case, P.Ws-3, 5, 6 and 7 in their respective dispositions and cross-examinations categorically stated that in presence of the village peoples Rabiul alias Habul confessed his guilt in commission of the alleged offence. Further, statement of Rabiul was recorded in tape recorder cassette, material exhibit-VI. Defence did not put any suggestion to the said witnesses to the effect that at the time of making such statement by Rabiul, police personnel were also present.
46. If we consider the evidence of said P.Ws coupled with the proposition of law as enunciated in the case of Nausher Ali Sarder and others vs. The State, then we are of the opinion that the extra judicial confession made by appellant-Rabiul has got evidentiary value and we can safely rely on the same in awarding conviction of its maker.
47. In the case of State Vs. Abdul Kader @ Mobile Kader, 67 DLR(AD)6 this Division in interpreting section 30 of the Evidence Act has held that when more than one person are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other of such persons as well as against the person who makes such confession.
48. In this particular case confession of convict-Milon lends support to the extrajudicial confession of convict-Rabiul.
49. Having considered and discussed as above, we are of the view that in maintaining of conviction of the present appellants under section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 the High Court Division did not commit any error and illegality and as such there is no scope to set aside the order of conviction.
50. However, having considered the proposition of law settled in the case of Nalu Vs. The State, reported in 17 BLC(AD), 204 in regard to award sentence coupled with the attending facts and circumstances of the present case, in particular, at the time of the alleged occurrence the appellants were just attended in majority, and that Milon in his confession stated that he did not take part in murdering the victim rather other two accused namely Aslam and Helan, who were acquitted by the High Court Division and the State did not prefer any appeal against such acquittal, killed the victim by pressing her neck, and that the appellants are in death cell for about 17 years and during that period the appellants have suffered great mental agony, and that the father of Rabiul having nabbed him handed over to the villagers on coming to know about his involvement with the commission of the offence, we are of the view that justice would be best served if the sentence of death is commuted to one imprisonment for life.
51. Accordingly, the sentence of both the appellants is commuted from death to one imprisonment for life with a fine of Tk. 1,00,000 (one lac) each, in default to suffer imprisonment for 5(five) years more. The Jail Authority is directed to shift the appellants from death cell to normal cell.
52. Accordingly, with the above modification of sentence, the appeal is dismissed.
IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Civil Petition for Leave to Appeal No. 210 of 2019
Decided On: 08.01.2023
Government of the People's Republic of Bangladesh and Ors.
... Vs. ...
Md. Abdul Jalil and Ors.
Hon'ble Judges/Coram:
Md. Nuruzzaman, Borhanuddin and Md. Abu Zafor Siddique, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Md. Zahangir Alam, Deputy Attorney General instructed by Haridas Paul, Advocate-on-Record
For Respondents/Defendant: Md. Moinul Islam, Advocate instructed by Mohammad Ali Azam, Advocate-on-Record
Acts/Rules/Orders:
Code of Civil Procedure, 1908 (CPC) - Section 115(1); Limitation Act, 1908 - Section 5
Prior History:
From the Judgment and Order dated 10.04.2017 passed by the High Court Division in Civil Rule No. 84(CON)/2015
Result:
Disposed of
JUDGMENT
Md. Abu Zafor Siddique, J.
1. Delay of 12 days in filing the civil petition for leave to appeal is hereby condoned.
2. This civil petition for leave to appeal is directed against the judgment and order dated 10-4-2017 passed by the High Court Division in Civil Rule No. 84(CON)/2015) thereby making the Civil Rule discharged.
3. Facts of the case, in brief, are that the respondents as plaintiffs, instituted Other Class Suit No. 92 of 2007 in the Court of Senior Assistant Judge, Sadar, Netrokona which on transfer was renumbered as Other Class Suit No. 120 of 2010 against the petitioners as defendants for mandatory injunction stating, inter alia, that one Abdul Motaleb and others instituted the Title Suit No. 5 of 1983 in the Court of Subordinate Judge, Netrokona, for declaration of the title of the suit property along with declaration that the RoR in the name of the Government is wrong and erroneous and ultimately got decree. Against which the Government preferred Other Class Appeal No. 100 of 1985, which was dismissed on contest Present respondent No. 3, Siraj Ali, one of the plaintiffs, on 5-6-1995 sold 1.32 acres land to plaintiff No. 1, Abdul Jalil. On 31-8-1996 Abdul Motaleb sold 12 1/2 decimals land to plaintiff No. 3 by registered deed, Suruz Ali sold 40 decimals land to plaintiff No. 1 on 18-7-2001 and on 20-2-2003 one Abdul Kadir sold 1.60 acres land to plaintiff Nos. 1 and 2 by registered deed and on 27-5-2003 Jamal Uddin sold his land to plaintiff No. 1. In this way, plaintiff No. 1 possessed 3.84 1/2 acres scheduled land and went to pay rent but the defendants refused to accept the same on the plea mat a case is pending in the High Court Division regarding the claim of the land and, as such, the plaintiffs instituted the instant suit.
4. Defendant Nos. 1-4 filed written statements denying all the material allegations made in the plaint contending, inter alia, that the suit is not maintainable as framed; there is no cause of action in the suit; the plaintiffs have no title, possession in the suit land and the suit is barred by limitation. They stated that the land was correctly recorded in the name of Government khas khatian in 1962 as bill category, and one Abdul Motaleb did not take any step to get the record amended and rather he filed Other Class Suit No. 53 of 1983 in the Court of Sub-ordinate Judge and illegally and fancy fully got decree of the suit Local people have been using the water of the suit property from long time and the plaintiffs filed this suit on false statement with intent to grab the Government properties and, as such, the suit is liable to be dismissed.
5. After hearing the parties and considering the materials on record, the Assistant Judge, Netrokona, by the judgment and decree dated 31-1-2011 dismissed the suit Being aggrieved, the plaintiffs preferred Other Appeal No. 99 of 2011 before the District Judge, Netrokona, which was heard by the Additional District Judge, Netrokona, who by his judgment and decree dated 18-6-2013 allowed the appeal, setting aside the judgment and decree passed by the trial Court.
6. Being aggrieved by and dissatisfied with the aforesaid judgment and decree of the appellate Court, the defendants as petitioners moved the High Court Division under section 115(1) of the Code of Civil Procedure causing a delay of 403 days and obtained Rule on delay, which upon hearing the parties was discharged. Hence, the defendants are now before us having filed the instant civil petition for leave to appeal for redress.
7. Mr. Md. Zahangir Alam, learned Deputy Attorney-General appeared on behalf of the leave-petitioners submitted that the defendant-petitioners being the Government machinery it had to move different offices for necessary opinion and directions for filing a revisional application/appeal before the appropriate Court, and for such reasons delay in filing the revisional application has been caused which is bona fide and unintentional but the High Court Division without considering this aspect discharged the Rule by the judgment which is liable to be and, as such,. He submitted that the land in question had been recorded in the khas khatian in 1962 as bill category and the water of the bill is being used by local people in general and the plaintiffs filed the suit only to grab the Government khas land and the trial Court rightly dismissed the suit but the appellate Court reversed the same without considering the case of the defendants Government which is not maintainable in law, and, as such, the High Court Division without considering the merit of the case discharged the Rule without condoning the delay. He submitted that even in the absence of any application for condonation of delay, the Court has the inherent power to condone the delay in an appropriate case for proper administration of justice and, as such, he prays for the sake of justice in condoning the delay by setting aside the judgment and order impugned in this civil petition.
8. Mr. Md. Moinul Islam, learned Advocate appeared on behalf of the respondents made submissions in support of the impugned judgment and order passed by the High Court Division.
9. We have considered the submissions of the learned Deputy Attorney-General for the leave-petitioners and the learned Advocate for the respondents, perused the impugned judgment and order along with other connected papers on record.
10. It appears that the scheduled land of the suit was recorded in khas khatian in the name of the Government in 1962. The present respondents instituted Other Class Suit No. 92 of 2007 in the Court of Senior Assistant Judge, Sadar, Netrokona for mandatory injunction on the suit land as described in schedules 1 and 2 of the plaint. Subsequently, the suit was transferred to the Assistant Judge, Khaliajuri, Netrokona and renumbered as Other Class Suit No. 120 of 2010. Present leave petitioners as defendant Nos. 1 to 4 filed written statements denying all the material allegations made in the plaint contending, inter alia, that the suit land has been recorded in khas khatian No. 1 since 1962. Subsequently, SA and RoR records were prepared in the name of the Government as bill category and, as such, the local people are using the water from the said bill for cultivating crops in the adjacent lands. However, the defendants prayed for dismissal of the suit.
11. After hearing the parties and on perusal of the materials on record, the learned Assistant Judge, Khaliajuri, Netrokona, by the judgment and decree dated 31-1-2011 dismissed the suit. Thereafter, the plaintiffs (respondents herein) preferred Other Class Appeal No. 99 of 2011 before the learned District Judge, Netrokona, which was ultimately heard and allowed by the learned Additional District Judge, Netrokona, by the judgment and decree dated 18-6-2013 upon reversing the judgment and decree so passed by the learned Assistant Judge and thereby decreeing the suit.
12. Being aggrieved by and dissatisfied with the judgment and decree of the appellate Court, the leave petitioners moved to the High Court Division under section 115(1) of the Code of Civil Procedure but in filing the same, there had been a delay of 403 days and, as such, an application under section 5 of the Limitation Act was filed along with the said revisional application.
13. It appears from the application under section 5 of the Limitation Act that on the day of passing the judgment and decree on 18-6-2013 the defendant petitioners applied for certified copies of the judgment and thereafter, they were notified for requisite on 21-8-2013. The defendant petitioners obtained the same on 22-8-2013.
14. Thereafter, the Additional Deputy Commissioner (Revenue), Netrokona, transmitted the file to the office of the Solicitor on 29-8-2013 and the learned Solicitor, after following the necessary formalities, sent the same to the office of the learned Attorney-General on 25-9-2013. Thereafter, an Assistant Attorney-General was entrusted with the file for drafting, who after exhausting the necessary formalities and preparing the draft, sworn in the affidavit on 30-11-2014 and, as such, in the meantime, delay of 403 days had occurred.
15. But the High Court Division upon hearing the learned Advocate dismissed the Rule without considering the explanation offered by the defendant petitioners in the application under section 5 of the Limitation Act and thereby, the High Court Division erred in law in not appreciating the cause for making the delay. Hence, the civil petition for leave to appeal has been filed for redress.
16. The facts and circumstances clearly indicate that the different offices of the Government are so connected that one cannot work without co-operation and assistance from the other. In the instant case, it appears mat the office of the Deputy Commissioner, Netrokona, initiated the proposal to file a revisional application before the High Court Division but it could not do so without obtaining the necessary papers and the opinion of the Government pleader and concerned authority.
17. However, it appears that the record was sent to the office of the Solicitor and thereafter, the record was sent to the office of the learned Attorney-General and then an Assistant Attorney-General was entrusted to take all necessary steps regarding filing of the same in the High Court Division under section 115(1) of the Code of Civil Procedure. In these circumstances, the reasons for delay of 403 days in filing the revisional application as stated in the application under section 5 of the Limitation Act by the defendant-petitioners cannot be disregarded and discarded simply because the individual would always be quick in taking the decision whether he would pursue the application for condonation of delay since he is a person legally injured. Whereas, the state being impersonal machinery has to work through different offices or servants and from one table to another table in different offices.
18. In view of the facts and circumstances of the case it appears that the delay caused in filing the revisional application was due to the exhaustion of the official formalities and, as such, the same is beyond the control of the defendant petitioners and moreover, the aforesaid delay of 403 days is not an inordinate one and, as such, if the same is not condoned the defendant leave petitioners shall be led to irreparable loss and injury.
19. Having gone through the application under section 5 of the Limitation Act, it appears that the petitioners have properly explained the reasons for which they could not prefer the instant revisional application before the High Court Division in time. And as such, we are of the view that there is no latches or negligence on the part of the petitioners and they have been able to explain the cause of delay in filing revisional application which in our view, fulfills the requirement as spelled out under section 5 of the Limitation Act upto the satisfaction of the Court and, as such, we are inclined to condone the delay.
20. In such view of the matter, the High Court Division erred in not condoning the delay and, as such, the impugned judgment is liable to be and, as such, disposing of the civil petition for leave to appeal.
21. Accordingly, the impugned judgment and order of the High Court Division is set-aside. The delay of 403 days in filing the revisional application before the High Court Division is condoned. The High Court Division is directed to hear the substantive revisional application under section 115(1) of the Code as In Re motion in accordance with law.
With the aforesaid directions, this civil petition for leave to appeal is disposed of. However, there will be no order as to costs.
Appellate Division (Civil)
Present:
Mr. Justice Syed Mahmud Hossain, Chief Justice
Mr. Justice Muhammad Imman Ali
Mr. Justice Hasan Foez Siddique
Mr. Justice Md. Nuruzzaman
Civil Petition for Leave to Appeal Nos.1340 of 2021
With
CP Nos. 1184, 1009 of 2021 & CP Nos. 605 of 2020, 1523 of 2021.
(From the judgment and order dated 2-5-2021, 5-5-2021, 16-3-2021, 26-1-2020 and 14-3-2021 passed by the High Court Division in Writ Petition Nos. 4162, 4437, 824 of 2021, 13300 of 2019 and 1046 of 2021 respectively.)
Durnity Daman Commission
... Petitioner [In all the cases]
VS
GB Hossain and other
... Respondents [In CP No.1340/21]
Tafsir Mohammad Awal and others
... Respondents [In CP No.1184/21]
Ariff Hass and another
... Respondents (In CP No.605/20)
Md Ataur Rahman alias Ataur Rahman
... Respondents [In CP No.1009/21]
Md Ahsan Habib and others
... Respondents [In CP No.1523/21]
Judgement Date : September 27, 2021
Counsels:
AM Amin Uddin, Attorney-General with Khurshid Alam Khan, Advocate, instructed by Md Zahirul Islam, Advocate-on-Record
— For the Petitioner. (In CP No. 1340 of 2021)
AM Ami Uddin, Attorney-General with Khurshid Alam Khan; Advocate instructed by Sufia Khatun Advocate-on-Record
— For the Petitioner (In CP No. 1184 of 2021)
AM Amin Uddin, Attorney General with Khurshid Alam Khan, Advocate instructed by Md Zahirul Islam, Advocate-on Record
— For the Petitioner. (In CP No. 1009 of 2021)
Khurshid Alam Khan, Advocate instructed by Md Zahirul Islam, Advocate-on-Record
— For the Petitioner. (In CP No.605 of 2020)
AM Ami Uddin, Attorney-General with AKM Fazlul Haque, Advocate instructed by Shahanara Begum Advocate-on-Record
— For the Petitioner. (In CP No.1523 of 2021)
Ruhul Quddus, Advocate instructed by Md Abdul Hye Bhuiyan, Advocate-on-Record
— For Respondent No. l. (In C No.1340 of 2021)
AM Mahbubuddin, Advocate instructed by Md Taufique Hossain, Advocate on-Record
— For Respondent No.1. (In CP No.1184 of 2021)
Probir Neogi, Senior Advocate (with Munshi Moniruzzaman, Advocate) instructed by Hasina Akther, Advocate-on-Record
— For Respondent No.1 (In CP No. 1009 of 2021)
Mohammad Arsadur Rouf Advocate instructed b Madhumaloti Chowdhury Barua, Advocate-on-Record
— For Respondent No. 1. (In CP No.60 of 2020)
Murad Reza, Advocate, instructed by Mohd. Abdul Hye, Advocate-on-Record
— For Respondent No. 1. (In CP No.1523 of 2021)
Biswajit Debnath, Deputy Attorney-General (appeared with the leave of the Court)
— For the Proforma respondents. (In all the cases)
Judgment
Hasan Foez Siddique, J: These Civil Petitions for Leave to Appeal Nos.605 of 2020, 1009, 1184, 1340 and 1523 of 2021 have been heard together and they are being disposed of by this common judgment and order since the issue involved in all these cases, is almost identical, therefore, we find it expedient to decide the titled cases together. In all the petitions Durnity Daman Commission (hereinafter referred to as Commission) are the petitioners.
2. Civil Petition for Leave to Appeal No.605 of 2020 is directed against the judgment and order dated 26-1-2020 passed by the High Court Division in Writ Petition No.13300 of 2019. Respondent Arif Hassan was the writ petitioner in that writ petition. He obtained Rule in the High Court Division calling upon the writ respondents (Government and others) to show cause as to why the action of the writ respondents in violation of the writ petitioner's fundamental right guaranteed under Articles 27, 31, 32 and 36 of the Constitution by preventing him and imposing embargo upon his leaving Bangladesh should not be declared to be without lawful authority and is of no legal effect and for, a direction upon the writ respondents to allow him to leave and re-enter Bangladesh. The High Court Division upon hearing the parties disposed of the Rule with the direction upon the writ respondents to allow the writ petitioner (bearing Passport No. BY0140253) to go abroad. The High Court Division also directed the writ petitioner-respondent to come back to Bangladesh within three months from the date of his departure for abroad and to inform the writ respondent No.7, Commission about his return to Bangladesh and to file an affidavit-in-compliance without fail.
3. Against the said judgment and order dated 26-1-2020 passed in Writ Petition No.13300 of 2019, the Commission has filed Civil Petition for Leave to Appeal No.605 of 2020.
4. Civil Petition for Leave to Appeal No.1009 of 2021 has been filed by the Commission against the judgment and order dated 16-3-2021 passed by the High Court Division in Writ Petition No.824 of 2021. The said writ petition was filed by one Md Ataur Rahman @ Ataur Rahman. He obtained Rule calling upon the writ respondents to show cause as to why the order communicated under Nathi No.00.01.0000.501. 01.113.19-31084/1(3) dated 20-12-2020 issued by an Assistant Director of the Commission asking the writ respondent No.5 (Special Police Super, Immigration) (Airport Special Branch, Bangladesh Police) imposing embargo upon the writ petitioner to leave Bangladesh should not be declared to have been passed without lawful authority and was of no legal effect.
5. The High Court Division by a judgment and order dated 16-3-2021 made the Rule absolute with following observations and directions:
“বিতর্কিত আদেশ, সংযুক্তি-এইচ যার দ্বারা কমিশন ইমিগ্রেশন কর্তৃপক্ষ, রেসপন্ডেন্ট নং ৫ কে আবেদনকারী যাতে দেশ ত্যাগ করতে না পারে সে মর্মে ব্যবস্থা গ্রহণের অনুরোধ জানিয়েছিল-তা আইনসঙ্গত কর্তৃপক্ষ ব্যতিরেকে করা হয়েছে এবং এর কোন আইনগত কার্যকারিতা নাই মর্মে ঘোষিত হলো।
তবে আবেদনকারী বিদেশ যেতে চাইলে তিনি কোন ফোন ও ই-মেইল নম্বর কমিশন-কে লিখিতভাবে জানাতে হবে। কমিশন প্রয়োজন মনে করলে অনুসন্ধানের স্বার্থে ই-মেইল ও মোবাইল ফোনে বার্তা দিয়ে যুক্তি সঙ্গত সময় দিয়ে আসামীকে অনুসন্ধান বা তদন্তের স্বার্থে কমিশনের সম্মুখে হাজির হওয়ার নির্দেশ দিতে পারবে। এ ক্ষেত্রে আবেদনকারীকে অবশ্যই কমিশনের সামনে উপস্থিত হতে হবে।”
6. Civil Petition for Leave to Appeal No.1184 of 2001 has been filed against the judgment and order dated 5-5-2021 passed in Writ Petition No.4437 of 2021. Respondent Tafsir Mohammad Awal filed the said Writ Petition in the High Court Division against the Government, Anti-Corruption Commission and others challenging the action of the writ respondents preventing him from going outside Bangladesh. He also challenged the legality of the letter communicated under Memo No.00.01.0000.502. 01.037.20.21479 dated 4-10-2020 issued by the Commission. Filing the aforesaid writ petition, the writ petitioner- respondent obtained Rule and ad-interim order directing the writ respondents to allow him to leave and re- enter Bangladesh for a period of 3(three) months from date subject to no order of restraint or warrant of arrest pending against him. The Commission, against the said ad-interim order dated 5-5-2021 passed in Writ Petition No.4437 of 2021, has filed this Civil Petition for Leave to Appeal.
7. Facts of Civil Petition for Leave to Appeal No.1340 of 2021, in short, are that respondent No.1, GB Hasan as writ petitioner filed Writ Petition No.4162 of 2021 in the High Court Division challenging the order communicated under Memo No. (১৫৬২৫ ঢাকা, প্রধান কার্যালয় ঢাকার নথি নং-দুদক/বিঃ তদন্ত-১/নাঃলঃ প্রঃ/৫৫-২০১৪ dated 18-4-2016 issued by the Commission asking the writ respondent No.5, Special Police Super, Immigration (Airport) Special Branch, Bangladesh Police Dhaka imposing embargo upon his leaving Bangladesh should not be declared unlawful. The High Court Division, by an order dated 2-5-2021, issued Rule and passed ad-interim direction upon the writ respondents to allow the writ petitioner-respondent to leave and re-enter Bangladesh for a period of 6(six) months from date subject to no order of restraint or warrant of arrest pending against him. Impugning the said ad-interim order, the Commission has filed this Civil Petition.
8. Facts, in a nutshell, of Civil Petition for Leave to Appeal No.1523 of 2021 are that respondent No.1 Md Ahsan Habib filed Writ Petition No.1046 of 2021 in the High Court Division challenging the letter communicated under memo No.28923 dated 21-7-2019 issued under the signature writ respondent No.7, Deputy Director of Anti-Corruption Commission so far the same relates to the writ petitioner-respondent imposing embargo upon him to leave and re-enter the country and retention/seizure of the writ petitioner's Passport No.BY0288904 by the office-in-charge (Immigration Police) Special Branch;Hazrat Shahjala International Airport, Dhaka and obtained Rule. The High Court Division, by the impugned judgment and order dated 14-3-2019, disposed of the Rule formulating following guidelines:
- That if any person/accused of the schedule offences of the Anti-Corruption Commission, 2004 during pendency of inquiry and/or investigating is debarred from leaving the country and the passport is impounded/seized in an emergency situation without showing any cause and hearing, the Anti-Corruption Commission and/or the investigating officer shall submit an application before the Court of Senior Special Judge/Special Judge for post-approval of the memo of the restraining order and the act of the seizure of the passport as early as possible preferably within 15(fifteen) days from the date of passing the impugned memo as well as from the date of seizing the passport as the case may be.
- That the Senior Special Judge/Special Judge having received the application from the Commission if any shall notify the person/accused of cognizable offences and upon hearing the parties may pass necessary order approving or disapproving the memo of restraining order and act of seizure of the passport.
- That the learned Special Judge will hear and dispose of the application of the Commission if any as early as possible preferably within 60(sixty) days from the date of receipt of such application providing a fair opportunity of being heard to the aggrieved/parties/persons/ accused.
- The aggrieved person/accused shall submit his address, mobile phone and e-mail number to the Commission so that the Commission can communicate with them for any assistance and co-operation if required for the purposes of inquiry and/or investigation and they may appear before the Commission following the reasonable timeframe given by the Commission.
- The aggrieved person/accused shall appear before the Commission if asked for to appear before it on the stipulated date fixed by the Commission failing which the matter will be dealt with in accordance with law."
9. The High Court Division also directed the writ respondents with whom the passport of the writ petitioner is lying to return the passport to him so that he can continue his studies going abroad and to allow him to go abroad without any hindrance. Against the said judgment and order, the Commission has preferred instant Civil Petition for Leave to Appeal No.1523 of 2021.
10. Mr AM Aminuddin, learned Attorney-General appeared on behalf of the petitioner in Civil Petitions for Leave to Appeal Nos.1009 of 2021, 1184 of 2021, 1340 of 2021 and 1523 of 2021 (He did not appear in Civil Petition for Leave to Appeal No.605 of 2020 since he appeared on behalf of the writ petitioner in Writ Petition No.13300 of 2019 in the High Court Division). Mr AM Fazlul Haque appeared on behalf of the petitioner in Civil Petition for Leave to Appeal No.1523 of 2021. Mr Khurshid Alam Khan, learned Advocate appeared for the petitioner in all the civil petitions.
11. On the other hand, Mr Mohammad Arsadur Rouf, learned Advocate appeared for the writ petitioner respondent in Civil Petition for Leave to Appeal No.605 of 2020, Mr Probir Neogi, learned Senior Counsel appeared for the writ petitioner-respondent No.1 in Civil Petition for Leave to Appeal No.1009 of 2021. Mr AM Mahbubuddin, learned Advocate appeared for the respondent No.1 in Civil Petition for Leave to Appeal No.1184 of 2021, Mr Ruhul Quddus, learned Advocate appeared for the respondent No.1 in Civil Petition for Leave to Appeal No.1340 of 2021 and Mr Murad Reza, learned Advocate appeared on behalf of the respondent No.1 in Civil Petition for Leave to Appeal No.1523 of 2021.
12. The submissions of the learned Attorney-General, Mr Khurshid Alam Khan and Mr AKM Fazlul Haque, learned Advocates are identical. They submit that the right of freedom of movement as guaranteed under Article 36 of the Constitution is not absolute right and said provision provides specifically that subject to any reasonable restriction imposed by law in the public interest, every citizen shall have the right to move freely throughout Bangladesh, to reside and settle in any place therein and to leave and re-enter Bangladesh. They submit that in view of the words, "subject to any reasonable restriction imposed by law in the public interest", clearly permitted the Government/Commission to impose some restrictions on the movement which are legitimate. In their submissions, learned Attorney-General and Advocates for the petitioner relied upon the preamble of Anti-Corruption Commission Act and Sections 17 and 19 of the Anti-Corruption Commission Act. They submit that in order to restrain/obstruct any citizen to leave and re-enter Bangladesh the Commission is authorized to pass necessary order or orders otherwise the object of the Act should be frustrated.
13. On the other hand, all the learned Counsel who appear for the writ petitioner-respondents submit that in view of the provision of Article 36 of the Constitution reasonable restrictions may be imposed to leave and re-enter Bangladesh but the same must be made by law and for public interest, which are absent in all the impugned orders. There is no provision in Anti-Corruption Commission Act authorising the Commission to impose any embargo to move freely throughout Bangladesh and to reside and settle in any place therein and to leave and re-enter in Bangladesh. In absence of specific law, imposition of impugned embargoes upon the writ petitioner respondents were bad in law. They drew our attention to Article 13(1) and (2) of the Universal Declaration of Human Rights adopted by the United Nations in December, 1948 which run as follows:
"Article 13(1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country including his own, and to return to his country."
14. They lastly submit that the impugned orders restraining the writ petitioners to leave Bangladesh were bad in law.
15. Freedom of movement, mobility right, or the right to travel is a human right concept encompassing the right of individuals to travel from place to place within the territory of a country and to leave the country and return to it (wikepedia). In 13th Century England, the Magna Carta guaranteed local and foreign merchants the right, subject to some exceptions, to go away from England, come to England, stay and go through England. In Australia O' Connor J. said in Potter vs Minahan [(1908) 7 CLR 277], that a citizen of Australia is entitled to 'depart from and re-enter Australia as he pleases without let or hindrnce unless some law of the Australian Community has in that respect decreed the contrary'. Freedom of movement is included in the compendious term "personal liberty". Freedom of movement is widely considered to be one of the most basic human rights and the same is in the last analysis the essence of personal liberty. However, this right is not absolute. Indeed, freedom is emancipatory in a number of senses. The concept is that the specified right of a citizen is controlled by necessary restrictions in the public interest. No extrinsic aid is needed to interpret the words used in Article 36 of the Constitution which, in our opinion, are not ambiguous. Expression to reasonable restrictions imposed by law must mean restrictions prescribed by the law of the State. The term law is the general sense means law enacted by the legislature. Article 36 of the Constitution provides that no person shall be deprived of his right to travel unless the same is restricted reasonably imposed by any law in the public interest. The executive instructions without having the sanction of any statutory power cannot be construed as law. An executive order without the support of valid law depriving a person of his personal liberty cannot be held valid. Learned Attorney-General and other Counsel for the leave petitioners relied upon the following provisions of the Anti-Corruption Commission Act. Section 17 runs as follows:
“১৭। কমিশনের কার্যাবলি - কমিশন নিম্নবর্ণিত সকল বা যে কোন কার্য সম্পাদন করিতে পারিবে, যথাঃ-
(ক) তফসিলে উল্লিখিত অপরাধসমূহের অনুসন্ধান ও তদন্ত পরিচালনা;
(খ) অনুচ্ছেদ (ক) এর অধীন অনুসন্ধান ও তদন্ত পরিচালনার ভিত্তিতে এই আইনের অধীন মামলা দায়ের ও পরিচালনা;
(গ) দুর্নীতি সম্পর্কিত কোন অভিযোগ স্বউদ্যোগে বা ক্ষতিগ্রস্ত ব্যক্তি বা তাহার পক্ষে অন্য কোন ব্যক্তি কর্তৃক দাখিলকৃত আবেদনের ভিত্তিতে অনুসন্ধান;
(ঘ) দুর্নীতি দমন বিষয়ে আইন দ্বারা কমিশনকে অর্পিত যে কোন দায়িত্ব পালন করা;
(ঙ) দুর্নীতি প্রতিরোধের জন্য কোন আইনের অধীন স্বীকৃত ব্যবস্থাদি পর্যালোচনা এবং কার্যকর বাস্তবায়নের জন্য রাষ্ট্রপতির নিকট সুপারিশ পেশ করা;
(চ) দুর্নীতি প্রতিরোধের বিষয়ে গবেষণা পরিকল্পনা তৈরি করা এবং গবেষণালব্ধ ফলাফলের ভিত্তিতে করণীয় সম্পর্কে রাষ্ট্রপতির নিকট সুপারিশ পেশ করা;
(ছ) দুর্নীতি প্রতিরোধের লক্ষ্যে সততা ও নিষ্ঠাবোধ সৃষ্টি করা এবং দুর্নীতির বিরুদ্ধে গণসচেতনতা গড়িয়া তোলার ব্যবস্থা করা;
(জ) কমিশনের কার্যাবলি বা দায়িত্বের মধ্যে পড়ে এমন সকল বিষয়ের উপর সেমিনার, সিম্পোজিয়াম, কর্মশালা, ইত্যাদির ব্যবস্থা করা;
(ঝ) আর্থ-সামাজিক অবস্থার প্রেক্ষিতে বাংলাদেশে বিদ্যমান বিভিন্ন প্রকার দুর্নীতির উৎস চিহ্নিত করা এবং তদনুসারে প্রয়োজনীয় ব্যবস্থা গ্রহণের জন্য রাষ্ট্রপতির নিকট সুপারিশ পেশ করা;
(ঞ) দুর্নীতির অনুসন্ধান, তদন্ত, মামলা দায়ের এবং উক্তরূপ অনুসন্ধান, তদন্ত ও মামলা দায়েরের ক্ষেত্রে কমিশনের অনুমোদন পদ্ধতি নির্ধারণ করা; এবং
(ট) দুর্নীতি প্রতিরোধের জন্য প্রয়োজনীয় বিবেচিত অন্য যে কোন কার্য সম্পাদন করা।”
Section 19 runs as follows:
“১৯। অনুসন্ধান বা তদন্তকার্যে কমিশনের বিশেষ ক্ষমতা –(১) দুর্নীতি সম্পর্কিত কোন অভিযোগের অনুসন্ধান বা তদন্তের ক্ষেত্রে, কমিশনের নিম্নরূপ ক্ষমতা থাকিবে, যথাঃ-
(ক) [সাক্ষীর প্রতি নোটিশ] জারি ও উপস্থিতি নিশ্চিতকরণ এবং [***] সাক্ষীকে জিজ্ঞাসাবাদ করা;
(খ) কোন দলিল উদঘাটন এবং উপস্থাপন করা;
(গ) সাক্ষ্য গ্রহণ;
(ঘ) কোন আদালত বা অফিস হইতে পাবলিক রেকর্ড বা উহার অনুলিপি তলব করা;
(ঙ) সাক্ষীর জিজ্ঞাসাবাদ এবং দলিল পরীক্ষা করার জন্য [নোটিশ] জারি করা; এবং
(চ) এই আইনের উদ্দেশ্য পূরণকল্পে, নির্ধারিত অন্য যে কোন বিষয়।
(২) কমিশন, যে কোন ব্যক্তিকে অনুসন্ধান বা তদন্ত সংশ্লিষ্ট বিষয়ে কোন তথ্য সরবরাহ করিবার জন্য নির্দেশ দিতে পারিবে এবং অনুরূপভাবে নির্দেশিত ব্যক্তি তাহার হেফাজতে রক্ষিত উক্ত তথ্য সরবরাহ করিতে বাধ্য থাকিবেন।
(৩) কোন কমিশনার বা কমিশন হইতে বৈধ ক্ষমতাপ্রাপ্ত কোন কর্মকর্তাকে উপ-ধারা (১) এর অধীন ক্ষমতা প্রয়োগে কোন ব্যক্তি বাধা প্রদান করিলে বা উক্ত উপ-ধারার অধীন প্রদত্ত কোন নির্দেশ ইচ্ছাকৃতভাবে কোন ব্যক্তি অমান্য করিলে উহা দণ্ডনীয় অপরাধ হইবে এবং উক্ত অপরাধের জন্য সংশ্লিষ্ট ব্যক্তি অনূর্ধ্ব ৩ (তিন) বৎসর পর্যন্ত যে কোন মেয়াদের কারাদণ্ডে বা অর্থদণ্ডে বা উভয় প্রকার দণ্ডে দণ্ডনীয় হইবেন।”
16. Learned Attorney-General specifically drawing our attention to the preamble and provisions of Section 17(Ta) and 19(Cha) of the Act, submits that object of the Act is to curb corruption in the country and to resist corrupt practice. With an object to implement the ultimate goal, the Commission can take steps so that corrupt people could not leave the country for avoiding legal action/actions brought or to be brought against him.
17. The freedom of movement is subject to reasonable restrictions owing to the rationale that for the society in an orderly manner, people cannot exercise their rights in such a manner which is injurious to the society as a whole because if it is done, it will lead to complete chaos and destroy the basic prerequisite needed for the enjoyment of civil liberties. The rationale behind incorporating reasonable restrictions has been discussed to a great extent in the case of AK Gopalan vs State of Madras (AIR 1950 SC 27). It was observed that reasonable restrictions are imposed on the enjoyment of fundamental rights due to the fact that in certain circumstances, individual liberty has to be subordinated to certain other larger interests of the society.
18. The freedom to travel, like all other freedom couched in universal terms, however, has never remained absolute untrammelled in any state or society. The right of free movement whether within the country or across its frontier, either in going out or coming in is a personal liberty and the same is not intended to bear the narrow interpretation of freedom from physical restrain. The right to travel abroad cannot be deprived unless reasonable restriction is imposed by law in the public interest. Such restriction must be by law and must be reasonably needed in the public interest [Shapiro vs Thompsos (1969) 394 US 618]. Freedom of movement is basic in our scheme of values. Freedom of travel is indeed an important aspect of the citizen's liberty. William Blackstone characterized the right to leave as part of the common law right to personal liberty. No person can be deprived of his right to go abroad unless appropriate authority exercising its lawful power imposed restriction upon him. If a person's fundamental right under Article 36 is infringed, the State can rely upon a law to sustain the action.
19. All rights in an organized society are relative rather than absolute. With respect to the ambit of reasonable restrictions, the legislative view of what constitute reasonable restriction shall not be conclusive and final and that it shall be subjected to supervision by the Court. It is the duty of the Court to see whether the individual crosses the "Lakshman Rekha" that is carved out by law is dealt appropriately (Dharmendra Kirthal vs State of UP AIR 2013 SC 2569). Most basic rule while testing whether a law falls within the ambit of reasonable restriction is that no general or abstract rule shall be adopted for .the application of all cases. Reasonable implies intelligent care and the deliberation. The legislation which arbitrarily or expressively invests the right cannot be set to contend the quality of reasonableness and unless it strikes a proper balance between the freedom guarantee. The restrictions imposed shall have a direct or proximate nexus with the object which the legislature seeks to achieve and the restriction so imposed must not be excessive of the said object.
20. Freedom of movement as envisaged in our Constitution is not absolute meaning thereby that the same is subject to certain limitation. Despite the long standing ideal of free movement, it has in practice always been subject to state restrictions. The right to leave one's country has never been considered as absolute right. The requirement of restriction to be reasonable means that the High Court Division has the power to Judge the reasonableness of restrictions in question. The reasonableness demands proper balancing of the fundamental rights of the people. It is the judiciary which has to finally judge the reasonableness of restriction. The restriction can be imposed by law only not an executive order (Chintanmon Rao vs State of Madhya Pradesh AIR 1951 SC 118).
21. Under Article 36 of the Constitution freedom of movement is one of the fundamental rights guaranteed to every citizen of the country which can not be abridged or denied arbitrarily on mere liking disliking without any specific law authorizing lawful justification for this purpose. The reasonableness is to be determined by an objective standard and not subjective one.
22. The extent to which this right would be exercised may be limited by the law promulgated by the legislatures. Parliament may by law impose restrictions on such freedom in the public interest and the said law can be made by virtue of any entry with respect whereof parliament has power to make a law. The right to freedom of movement includes the right to move freely within a country for those who are lawfully within the country. The right to leave any country and the right to enter a country of which he is a citizen such right may be restricted in certain circumstances. Considering the need to maintain a balance between the freedom of the individual and the general welfare of the community, reasonable restrictions may be imposed on the enjoyment of the right by or under the authority of law. Indian Supreme Court in the case of Maneka Gandhi vs Union of India reported in AIR 1978 (SC) 597 held, by majority, that it must be "right and just and fair and not arbitrary, fanciful or oppressive; otherwise, it should be no procedure at all and the requirement of Article 21 would not be satisfied." By a law a reasonable restriction may be put on the movement of a citizen or he may even be externed from one place of the country, but he can not be externed from the country. In the case of Razendrum vs RK Mishra reported in (2010) 1 SSC page 457 it was observed that detention by Airport intelligence authorities of an air passenger travelling with huge amount of cash is not violative of the freedom of movement as the right of any person to carry money is subject to verification or seizure by intelligence authority to ensure that the said money is not intended for illegal activities. The possession and enjoyment of all rights, as was observed by the Supreme Court of America in Jacobson vs Massachusetts, (1904)197 US 643 are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, general order and morals of the community.
23. In the case of MH Devendrappa vs The Karnataka SSI Corporation reported in AIR 1998 SC 1064; i was observed that fundamental freedom are not necessarily mutually supportive; some restrictions on one right may be necessary to protect other rights in a given situation and proper exercise of rights may have, implicit in them; certain restrictions. For this the rights must be harmoniously construed so that they are properly promoted with the minimum of such implied and necessary restrictions.
24. The provision provided in Article 36 safeguard the right to go abroad against executive interference which is not supported by law; and law here means ‘inacted law.' No person can be deprived of his right to go abroad unless there is a law made by the State for so depriving him and the deprivation is effected strictly in accordance with law. In the exercise of his rights and freedom, everyone shall be subject only to such limitations as are determined by law. In an organized society, there can be no absolute liberty without social control. Liberty is not unbridled licence. Some restrictions on freedom of movement are legitimate if imposed for limited purposes in a fair and non-discriminatory manner. Limitations on the freedom is justified but the limits must generally be reasonable, prescribed by law, and demonstrably justified in a free and democratic society. It was what Edmund Burke called ‘regulated Freedom'. Freedoms if absolute would always, be detrimental to the smooth functioning of the, society as the individual interests of all individuals would be priorised. The State can truncate the enjoyment of the freedoms through law. The protection of the collective is the bone marrow and that is why liberty in a civilized society, cannot be absolute. There cannot be any such thing as absolute or uncontrolled liberty wholly freed from restraint, for that would lead to anarchy and disorder. The language of Article 36, clearly indicates that the protection it secures is limited one. In no case may a person be arbitrarily deprived of the right to enter his or her own country, and that there are few, if any, circumstances in which deprivation of the right to enter a person's own country could be considered reasonable. Legislation which arbitrarily or excessively invades the right cannot be a proper balance between the freedom guaranteed and the general welfare.
25. With the discussion made above, it is observed:—
- The fundamental right guaranteed under Article 36 of the Constitution is non-absolute right. The right to leave one's country has therefore never been considered an absolute right. The right may be restricted in certain circumstances.
- Article 36 of the Constitution permits imposition of restrictions. However, such restrictions must be by way of the law enacted and must be reasonably needed in the public interest.
- Without backing of law imposition of restriction on the freedom of movement by an executive order will be unconstitutional.
- The legislative view of what constitute reasonable restriction shall not be conclusive and final and that it shall be subjected to supervision by the Court. B. A. restriction in order to be referred to as reasonable shall not be arbitrary and shall not be beyond what is required in the interest of the public. The restriction imposed shall have a direct or proximate nexus with the object sought to be achieved by the law.
With the observations made above, all the petitions are disposed of.
End.
IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Civil Appeals Nos. 21-24 of 2011
Decided On: 01.09.2022
Bangladesh
... Vs. ...
Md. Abdul Alim and Ors.
Hon'ble Judges/Coram:
Hasan Foez Siddique, C.J., Md. Nuruzzaman, Obaidul Hassan, Borhanuddin, M. Enayetur Rahim and Krishna Debnath, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: A.M. Amin Uddin, Attorney General and Abanti Nurul, Assistant Attorney General instructed by Sufia Khatun, Advocate-on-Record
For Respondents/Defendant: Probir Neogi, Senior Advocate, Anita Ghazi Rahman and Suvra Chowdhury, Advocates instructed by Zainul Abedin, Advocate-on-Record
Acts/Rules/Orders:
Constitution Of The People's Republic Of Bangladesh - Article 118(4), Constitution Of The People's Republic Of Bangladesh - Article 119, Constitution Of The People's Republic Of Bangladesh - Article 120, Constitution Of The People's Republic Of Bangladesh - Article 126
Prior History:
From the Judgment and Order dated 12.04.2010 passed by the Administrative Appellate Tribunal in Appeals No. 134, 139, 143 and 144 of 2009
Result:
Appeal Allowed
JUDGMENT
Obaidul Hassan, J.
1. All these Civil Appeals are being disposed of by this common judgment as all of those involve common questions of law and facts as well as all appeals have arisen out of a common judgment.
2. These Civil Appeals by leave granting order dated 12.12.2010 by this Division in Civil Petition for Leave to Appeals No. 1302-1305 of 2010 at the instance of the appellant has been directed against the judgment and order dated 12.04.2010 passed by the Administrative Appellate Tribunal, Dhaka in Administrative Appellate Tribunal Appeals No. 134, 139, 143 and 144 of 2009 allowing the appeals reversing the judgment and order dated 23.03.2009 passed by the Administrative Tribunal No. 1, Dhaka in Administrative Tribunal Case Nos. 166 of 2007 and 22 of 2008, disallowing the case.
3. The facts leading to the filing of these Civil Appeals in short are that, there was a public advertisement for recruitment of Upazilla/Thana Election Officer in the scale of Tk. 4300-7740/- published in the Daily Ittefaq on 23.09.2003, in response to which the respondents having the requisite qualifications aspiring to get appointment applied for the post. Later on being successful to pass in both the written and viva voce examinations 328 candidates including the respondents finally selected for appointment with a direction to join the said posts by 7th September, 2005. Applicants in serial Nos. 8,16,26,39,40,68 and 69 to the Administrative Tribunal Case No. 166 of 2007 joined on 29.12.2005 and 06.12.2006 while the rest of all joined on 07.09.2005. On being posted at different Upazillas/Thanas as Election Officers the respondents joined the respective posting places as per direction of the Election Commission and all of them had been discharging their duties with sincerity and honesty. According to the notification being No election commissioner/pra-1/1-0;/Tha:/Ni:-5/2005 533 dated 4th September, 2005 it was stipulated that the respondents would be on probation for two years subject to extension or curtailment by the authority. It was further stipulated that the probation officer would be provided with four months Foundation Training in BPATC or any other institution and the government may provide further training before or after the Foundation Training. In addition to Foundation Training the respondents would be given other training for professional skill and special skill as Election Officer. Due to rush of work for holding election in early 2006, the respondents were not given Foundation Training to impart basic understanding of working in a government office. The respondents, however, given two courses of training each of having three days duration, one on preparation of voter lists and the other on core training courses and on completion of training they were awarded Certificate of Achievement. The respondents had been discharging their duties to the satisfaction of the authority. There was neither any complaint nor any allegation that they were not doing their job properly. For their satisfactory performance many of the respondents were given the enhanced assignment of District Election Officer. The applicants No. 7 and 39 were given additional charge of District Election Officer, Bandarban and Nilphamari respectively. There was serious political agitation against the functioning of Election Commission under the then Chief Election Commissioner, Mr. Justice Aziz. The parliamentary election was scheduled for 22nd January, 2007 which was abandoned later. When State emergency was declared a new Caretaker Government took up the power and the Election Commission was thoroughly reconstituted. There was rampant allegation in the media that many Election Officers appointed in September, 2005 were selected with the grace of the leader of Jote-Sarker. The applicants had no political affiliation rather were selected on the basis of competitive examination held by the Bangladesh Public Service Commission. The reconstituted Election Commission being obliged to work objectively and independently above any political affiliation, took a noble initiative to weed out the appointees got appointment through political affiliation. But instead of verifying the political background of Upazilla/Thana Election Officers through members of intelligent service of the Government, the Election Commission committed wrong in entrusting the Institute of Business Administration (IBA), University of Dhaka to determine the fitness of the Election Officer. The test held by the IBA is neither authorized by law nor had the institute any such skill or resource to verify the political background of the Election Officers. Despite the said reason the applicants were notified to attend at a fitness test by the IBA and the allocation of marks was 20% on general knowledge; 10% on general math; 30% on language and 40% on election Rules and Regulations. The aforesaid allocation of marks had nothing to do with the performance of the applicants as probationary Election Officers. The test on the MCQ (Multiple Choice Questions) method was held on 18th May, 2007. The question paper was in English and the time allotted was only two hours. For most of the applicants the method was unknown and incomprehensible. However, all the applicants had excellent performance on election related laws, but they could not do well on language and communications. The said test had no real basis nor had any nexus with the political background of the applicants. Moreover, the IBA had neither access to Annual Confidential Reports (ACR) of the applicants nor had any scope to consult the superior officers of the applicants for their field works. Although the applicants came out successful in the fitness insofar as it relates to election laws and regulations, the Election Commission by its notification dated 03.09.2007 terminated the applicants-respondents from their service on false allegations that their performance during probation period was not satisfactory.
4. Being aggrieved the respondents served a notice of Demand for Justice to the Election Commission on 06.09.2007 and thereafter the order being passed by order of the President and having no appellate authority against the impugned order the petitioners-respondents filed the above applications before the Administrative Tribunal No. 1, Dhaka.
5. The opposite parties-appellants contested both the cases by filing separate written statements contending inter alia that the test of competency is confidential and the test of competency of the respondents was rightly tested on English Language, General Mathematics, Election Laws and Regulations. The respondents having failed in the competency test to meet the requirement for confirmation during two years' probation period. The Election Commission was legally authorized to test the competency of the respondents in the manner it prescribed.
6. Upon hearing all the parties both the cases were dismissed by the judgment and order dated 23.03.2009. Being aggrieved with judgment and order dated 23.03.2009 the petitioners-appellants-respondents preferred Appeals No. 134 of 2009, 139 of 2009, 143 of 2009 and 144 of 2009 before the Administrative Appellate Tribunal, Dhaka. On conclusion of hearing both sides the Administrative Appellate Tribunal allowed the appeals setting aside the termination order of the respondents from service and also directed to reinstate them in their service with arrear salary and other benefits by the impugned judgment and order dated 12.04.2010.
7. Feeling aggrieved with the judgment and order dated 12.04.2010 passed by the Administrative Appellate Tribunal, Dhaka in Administrative Appellate Tribunal Appeals No. 134, 139, 143 and 144 of 2009 the appellant filed the Civil Petition for Leave to Appeals No. 1302-1305 of 2010 before this Division. After hearing the parties this Division was pleased to grant leave by order dated 12.12.2010 and hence these Civil Appeals.
8. Leave was granted to consider two points such as:
- Whether the Administrative Appellate Tribunal was justified in not holding that all the Upazila Election Officers including the respondents having participated in the test conducted by the Institute of Business Administration, Dhaka University without any objection or protest and the respondents being unsuccessful in the test;
- Whether the Administrative Appellate Tribunal was justified in not holding that the respondents have joined in their service on 7th September, 2009 and there being a provision empowering the Election Commission terminating service of those employees if they are found lacking in efficiency and their service having been terminated on 3rd September, 2007 i.e. before completion of 2 (two) years, the Election Commission committed no illegality in terminating service of the Respondents;
- Whether the Administrative Appellate Tribunal was justified in not holding the efficiency, neutrality and impartiality of the Election Officers being necessary for holding a democratic and impartial election and allegations having been made against the respondents that they have allegiance to a certain political party and no denial having been made to the said allegations.
9. Mr. A.M. Amin Uddin, the learned Attorney General took the lead while producing his submissions on behalf of the appellant. Mr. Sk. Mohd. Murshid, the learned Additional Attorney General and Mr. Mehedi Hassan Chowdhury, the learned Additional Attorney General adopted the submissions produced by the learned Attorney General. The submissions on behalf of the learned Counsels for the appellant are shortly stated in the following. The learned Counsels on behalf of the appellant assailing the impugned judgment and order of the Administrative Appellate Tribunal submitted that the Administrative Appellate Tribunal committed illegality in not holding that the termination order of the respondents was termination simpliciter not stigmatic. To established their submissions they relied on several decisions of the Indian Supreme Court in Mathew P. Thomas Vs. Kerala State Civil Supply Corporation Ltd. (2003) 3 SCC 263; Progressive Education Society Vs. Rajendra (2008) 3 SCC 310; Chaitanya Prakash Vs. H. Omkarappa (2010) 2 SCC 623 and also a decision of this Division in the Federation of Pakistan Vs. Mrs. A.V. Issacs 9 DLR (1957) SC 16.
10. Per contra, Mr. Probir Neogi, the learned senior Advocate, Mr. Obaidur Rahman Mostafa, the learned Advocate, Mr. Qumrul Haque Siddique, the learned senior Advocate, Mr. Salahuddin Dolan, the learned senior Advocate and Mr. A.F. Hassan Ariff, the learned senior Advocate made their submissions on behalf of the respective respondents. All the learned aforesaid Counsels for the respondents except Mr. obaidur Rahman Mostafa at one echo vehemently contended that the respondents had been terminated during the probation period maliciously and their termination order was not termination simpliciter rather stigmatic or punitive and as such said termination order was illegal and liable to be set aside. Supporting the judgment and order of the Administrative Appellate Tribunal the learned Counsel for the respondents next contended that the Administrative Appellate Tribunal was correct to set aside the said termination order. In support of their submissions the learned Counsels for the respondents put reliance on a decision of the Indian Supreme Court in the case of Ajit Singh Vs. State of Punjab AIR 1983 SC 494. The discussion of the said decision will be made at the later part of this judgment.
11. We have considered the submissions of the learned advocates for the both sides, perused the judgment and order dated 12.04.2010 passed by the Administrative Appellate Tribunal, Dhaka in Appeals No. 134, 139, 143 and 144 of 2009 and the judgment and order dated 23.03.2009 passed by the Administrative Tribunal No. 1, Dhaka in Administrative Tribunal Case Nos. 166 of 2007 and 22 of 2008 and the materials on record.
12. It is on the record that an advertisement for the appointment in the post of Upazila/Thana Election Officers under the Election Commission Secretariat was published by Bangladesh Public Service Commission (shortly, BPSC) asking applications from the qualified candidates having either 1st class Masters degree or 1st class Masters degree along with 2nd class Honours degree. After holding both written and viva voce examinations as many as 328 candidates including the respondents were finally selected for the appointment in the said posts advertised for, by the BPSC. Accordingly the Election Commission appointed them by Gazette Notification dated 4th September, 2005 and subsequently upon their joining to the aforesaid posts their joining letters were accepted by the Election Commission through Gazette Notification dated 8th September, 2005. The respondents were appointed in the posts under certain terms and conditions. The relevant portion of their appointment notification is extracted below:
“(ক) নির্বাচন কমিশন সচিবালয়ের আদেশক্রমে তাহাকে লোক প্রশাসন প্রশিক্ষণ কেন্দ্রে অথবা অন্য কোন প্রশিক্ষণ প্রতিষ্ঠানে সরকার/কর্তৃপক্ষ কর্তৃক নির্ধারিত বিষয়ের উপর অন্যুন ৪ মাসের বুনিয়াদি প্রশিক্ষণ গ্রহণ করিতে হইবে; প্রয়োজেনবোধে সরকার/কর্তৃপক্ষ এই প্রশিক্ষণের সময়কাল বাড়াইতে বা কমাইতে পারিবেন; অথবা প্রয়োজনবোধে সরকার/কর্তৃপক্ষ বুনিয়াদি প্রশিক্ষণের পূর্বে বা পরে তাহাকে অন্য যে কোন প্রশিক্ষণের জন্য মনোনীত করিতে পারিবে ।
(খ) বুনিয়াদি প্রশিক্ষণ ছাড়াও কর্তৃপক্ষের অভিপ্রায় অনুযায়ী তাহাকে পেশাগত ও বিশেষ ধরণের প্রশিক্ষণ গ্রহণ করিতে হইবে।
(গ) তাহাকে ২ (দুই) বৎসর শিক্ষানবিস হিসাবে কাজ করিতে হইবে । শিক্ষানবিশ কালে যদি তিনি চাকুরী বহাল থাকিবার অনুপযোগী বলিয়া বিবেচিত হন, তবে কোন কারণ দর্শানো ছাড়াই এবং পাবলিক সার্ভিস কমিশনের পরামর্শ ব্যতিরেকে তাঁহাকে চাকুরী হইতে অপসারণ করা যাইবে ।
(ঘ) উপরের (ক) ও (খ) উপ-অনুচ্ছেদে উল্লিখিত প্রশিক্ষণ সাফল্যের সহিত সমাপনান্তে এবং যদি শিক্ষানবিসকাল সন্তোষজনকভাবে অতিক্রান্ত হয়, তাহা হইলে তাহাকে চাকুরীতে স্থায়ী করা হইবে।
...
(ঝ) এই প্রজ্ঞাপনে সুনির্দিষ্টভাবে বর্ণিত হয় নাই, এইরূপ ক্ষেত্রে তাহার চাকুরী সংক্রান্ত বিষয়ে সরকারের প্রচলিত বিধি-আদেশ এবং নির্বাচন কমিশন সচিবালয়/সরকার/কর্তৃপক্ষ কর্তৃক ভবিষ্যতে প্রণীতব্য বিধি ও বিধান দ্বারা তাহার চাকুরী নিয়ন্ত্রিত হইবে ।”
13. From the above it emanates that the respondents were appointed in the aforesaid posts with condition of undergoing probation period for two years and their appointment will be permanent on satisfactory completion of their probation period. It transpires from the record that during the probation period all the appointees including the respondents had been asked by the Election Commission Secretariat to sit for the suitability test held by the Institute of Business Administration, University of Dhaka. The test was held opting for MCQ method and the total marks of the test was allocated in the following way:
"General Knowledge (20%); General Math (10%); Language and Communication (30%) and Election Rules and Regulations (40%)."
14. All the appointees sat for the said test and all of them except the respondents became successful in the test. Thereafter, the Election Commission Secretariat terminated the appointment of the respondents with effect from 6th September 2007. The pertinent portion of the said notification is as follows:
“নির্বাচন কমিশন সচিবালয়ের অধীনস্থ মাঠ পর্যায়ে উপজেলা/থানা নির্বাচন অফিসার পদে কর্মরত নিম্নবর্ণিত কর্মকর্তাগণের শিক্ষানবিসকালে কর্ম সম্পাদন সন্তোষজনক না হওয়ায় নির্বাচন কমিশন সচিবালয়ের ২০ ভাদ্র ১৪১২ বাং/৪ সেপ্টেম্বর তারিখের নিকস/প্র-১/১-উ/থা:নি:অ:-৫/২০০৫/৫৩৩ নং প্রজ্ঞাপনের ১(গ) নং অনুচ্ছেদে বর্ণিত শর্তানুসারে তাহাদের চাকুরীতে বহাল রাখিবার অনুপযোগী বিবেচনা পূর্বক ৬-৯-২০০৭ তারিখ হইতে তাহাদের সরকারী চাকুরীর অবসান করা হইল।”
15. In view of the factual matrix of the instant case it is manifested that the respondents had been terminated from their service during the probation period. The main point of controversy between the appellants and the respondents is whether the Election Commission Secretariat committed illegality terminating the service of the respondents during the probation period.
16. The respondents being appointed in September, 2005 the provisions of the Election Commission (Officers and Staff) Rules, 1979 (in short, the Rules 1979) including its amendment made on 25th May 2005 is applicable regarding their appointment. The provision as to the period of probation of the respondents in their service as stated in the appointment notification shall be construed in conjunction with Rule 11 of the Rules 1979. In fact, the conditions of probation period stated in paragraph (Ga) of the appointment notification dated 4th September 2005 emanates its force from Rule 11 of the Rules 1979. For better understanding Rule 11 of the Rules 1979 is extracted below:
"11. Probation-(1) Persons selected for appointment to a specified post, otherwise than by transfer on deputation, against a substantive vacancy shall be on probation-
(a) in the case of direct recruitment, for a period of two years from the date of substantive appointment; and
(b) in the case of promotion, for a period of one year from the date of such appointment:
Provided that the appointing authority may, for reasons to be recorded in writing extend the period of probation by a period or periods so that the extended period does not exceed two years in the aggregate.
(2) Soon after the completion of the period of probation, including the extended period, if any, the appointing authority-
(a) if it is satisfied that the conduct and the work of the probationer during his period of probation has been satisfactory, shall confirm him; and
(b) if it is of opinion that the conduct and the work of the probationer during that period was not satisfactory, may-
(i) in the case of direct recruitment, terminate his service; and
(ii) in the case of promotion, revert him to the post from which he was promoted."
17. Thus, from the above provisions of law it is amply clear that persons selected for appointment to a specified post shall be on probation for a period of two years from the date of substantive appointment or for extended period not exceeding two years in the aggregate. Regarding the purpose of probation it has been observed very succinctly in the case of Khazia Mohammed Muzammil vs. The State of Karnataka and Ors. reported in (2010) 8 SCC 155 at paragraph No. 12 that-
"The purpose of any probation is to ensure that before the employee attains the status of confirmed regular employee, he should satisfactorily perform his duties and functions to enable the authorities to pass appropriate orders. In other words, the scheme of probation is to judge the ability, suitability and performance of an officer under probation."
18. From the above discussion it can easily be understood the object and purpose underlying the concept of probationary period. Admittedly during the probation period the respondents including the other employees numbering 328 in total had been required to sit for a suitability test held by the IBA, University of Dhaka and the respondents agreeing with the decision appeared in the examination but finally they became unsuccessful. However, all other employees succeeded in the examination. In the said backdrop the authority terminated the appointment of the respondents inasmuch as they could not pass in the suitability test during the period of probation.
19. From the bare reading of the termination notification as stated earlier it is evident that the respondents had been terminated from the service due to their dissatisfactory performance in the service during the probation period. But it is argued by the respondents that the said order was not termination simpliciter rather it was punitive for which the said termination order of the respondents was illegal. Mr. Salahuddin Dolon, the learned Counsel for the respondents contended that the respondents had been terminated during the probation period due to their appointment was made during the regime of another political government and as such the termination was not simpliciter rather punitive. To establish his submission he relied on the decision made in Ajit Singh vs. State of Punjab AIR 1983 SC 494 wherein it was held that if the government servants are terminated arbitrarily and not on the ground of unsuitability, unsatisfactory conduct or the like, the said termination is illegal.
20. At this juncture let us examine whether the termination of the Respondents from service was simpliciter or punitive. It is to be noted that the law as to the probation of an employee in our country is almost identical to that of India. The decisions of Indian Supreme Court are more categorical in this area and deals with the issue eloquently touching its every facet. More importantly, we may refer to the case of Chaitanya Prakash Vs. H. Omkarappa (2010) reported in 2 SCC 623 where it has been held by the Indian Supreme Court as under:
"It is no longer res integra that even if an order of termination refers to unsatisfactory service of the person concerned, the same cannot be said to be stigmatic. In this connection, we make a reference to the decision of the Supreme Court in Abhijit Gupta Vs. S.N.B. National Centre, Basic Sciences (2006) 4 SCC 469 wherein also a similar letter was issued to the employee concerned intimating him that his performance was unsatisfactory and, therefore, he is not suitable for confirmation. We have considered the ratio in light of the facts of the said case and we are of the considered opinion that the basic facts of the said case are almost similar to the one in hand. There also, letters were issued to the concerned employee to improve his performance in the areas of his duties and that despite such communications the service was found to be unsatisfactory. In the result, a letter was issued to him pointing out that his service was found to be unsatisfactory and that he was not suitable for confirmation, and, therefore, his probation period was not extended and his service was terminated, which was challenged on the ground that the same was stigmatic for alleged misconduct. The Supreme Court negatived the said contention and upheld the order of termination.
In Mathew P. Thomas v. Kerala State Civil Supply Corporation Ltd. (2003) 3 SCC 263 also the concerned employee was kept on probation for a period of two years. During the course of his employment he was also informed that despite being told to improve his performance time and again there is no such improvement. His shortfalls were brought to his notice and consequently by order dated 16.01.1997 his services were terminated, wherein also a reference was made to his unsatisfactory service. In the said decision, the Supreme Court has held that on the basis of long line of decisions it appears that whether an order of termination is simpliciter or punitive has ultimately to be decided having due regard to the facts and circumstances of each case.
In Pavanendra Narayan Verma v. Sanjay Gandhi PGI of Medical Sciences (2002) 1 SCC 520 this Court had the occasion to determine as to whether the impugned order therein was a letter of termination of services simpliciter or stigmatic termination. After considering various earlier decisions of this Court in paragraph 21 of the aforesaid decision it was observed by this Court as under:
"One of the judicially evolved tests to determine whether in substance an order of termination is punitive is to see whether prior to the termination there was (a) a full-scale formal enquiry (b) into allegations involving moral turpitude or misconduct which (c) culminated in a finding of guilt. If all three factors are present the termination has been held to be punitive irrespective of the form of the termination order. Conversely if any one of the three factors is missing, the termination has been upheld.
In Abhijit Gupta (Supra.), this Court considered as to what will be the real test to be applied in a situation where an employee is removed by an innocuous order of termination i.e. whether he is discharged as unsuitable or he is punished for his misconduct. In order to answer the said question, the Court relied and referred to the decision of this Court in Allahabad Bank Officers Assn. vs. Allahabad Bank (1996) 4 SCC 504 where it is stated thus:
"14............... As pointed out in this judgment, expressions like 'want of application', 'lack of potential' and 'found not dependable' when made in relation to the work of the employee would not be sufficient to attract the charge that they are stigmatic and intended to dismiss the employee from service."
21. Further it has been observed in the case of Chandra Prakash Shahi v. State of U.P. (2000) reported in 5 SCC 152 (paragraph-27) that-
"The important principles which are deducible on the concept of 'motive' and 'foundation', concerning a probationer, are that a probationer has no right to hold the post and his services can be terminated at any time during or at the end of the period of probation on account of general unsuitability for the post in question. If for the determination of suitability of the probationer for the post in question or for his further retention in service or for confirmation, an inquiry is held and it is on the basis of that inquiry that a decision is taken to terminate his service, the order will not be punitive in nature. But, if there are allegations of misconduct and an inquiry is held to find out the truth of that misconduct and an order terminating the service is passed on the basis of that inquiry, the order would be punitive in nature as the inquiry was held not for assessing the general suitability of the employee for the post in question, but to find out the truth of allegations of misconduct against that employee. In this situation, the order would be founded on misconduct and it will not be a mere matter of 'motive'.
'Motive' is the moving power which impels action for a definite result, or to put it differently, 'motive' is that which incites or stimulates a person to do an act. An order terminating the services of an employee is an act done by the employer. What is that factor which impelled the employer to take this action? If it was the factor of general unsuitability of the employee for the post held by him, the action would be upheld in law. If, however, there were allegations of serious misconduct against the employee and a preliminary inquiry is held behind his back to ascertain the truth of those allegations and a termination order is passed thereafter, the order, having regard to other circumstances, would be founded on the allegations of misconduct which were found to be true in the preliminary inquiry."
22. Having examined the aforesaid decisions of the Indian Supreme Court it is squarely evident that the employer is legally authorized to assess the competency of an employee during the period of probation. Simultaneously, the employer is entitled to terminate the service of the employee during the probation period due to unsatisfactory performance. We are also of the view that whether a termination order is simpliciter or stigmatic will be ascertained based on the factual matrix of each case. On plain reading of the termination order of the respondents it appears that the same is ex-facie not stigmatic. It simply terminates the service of the respondents as their service was found not satisfactory.
23. In the case in hand the Election Commission terminated the service of the Respondents during the probation period as they did not come out successful in a test arranged by the IBA. The said test was held to ascertain the general suitability and competence of the Respondents to remain in their service. Such test cannot be termed as 'not befitting' to examine the suitability of the employee. The said test was held through MCQ method which is a universally accepted method for suitability test. The IBA under the University of Dhaka was assigned to arrange the test. Indisputably, the IBA under the University of Dhaka is one of the top-notch educational institutions in our country and it is widely recognized for its transparency, accountability and genuineness in respect of the examination system. More so, the question pattern of the test was in commensurate with the qualifications of the respondents having either Masters degree with 1st class or 2nd class Honours with Master degree.
24. The respondents could not bring any materials on record from which it could be manifested that there was allegation of misconduct against them and an inquiry was held behind their back in pursuant to which they had been terminated from service during the probation period. Therefore, we are of the view that the Election Commission Secretariat was in right stand to arrange for a suitability test during the probation period of the respondents and on being unsuccessful in the suitability test the respondents had been terminated from service which we hold to termination simpliciter not stigmatic.
25. Again, the respondents did not challenge the decision of the Election Commission Secretariat for holding suitability test rather they accepting the decision of the Election Commission Secretariat appeared in the said test and in the said way the respondents also admitted the decision of the Election Commission Secretariat for holding the suitability test and as such they are barred by the principle of estoppel. Due to the aforesaid reason the respondents are estopped from denying that the said suitability test was not proper method of their assessment. Had the aforesaid test been unsuitable for assessing their ability during the probation period they should not have participated in the test.
26. The learned Advocate on behalf of the respondents argued that according to Rule 11 of the Rules 1979 the authority is entitled to terminate the service of a probationer during the probation period if it is found that the conduct and work of him is not satisfactory. In that case it was incumbent upon the Election Commission to assess the performance of the respondents on the basis of their ACR, integrity, efficiency, good conduct, character, sense of value and temperamental suitability, departmental training etc. The Election Commission assigned the responsibility of taking examination to the IBA, who has neither access to ACR nor has any report regarding the integrity and performance of the respondents. But the entire assessment was done on the basis of the result of an examination which was taken beyond the conditions stipulated in the appointment notification. In this regard, our considered view is that holding examination for the appointees while undergoing probation period is not restricted in law to assess their suitability in service. Rather the assessment of a probationer is not confined only to good conduct and character, but also their competency for service.
27. During hearing the learned Counsels for the respondents further contended that the Election Commission Secretariat purportedly terminated the service of the respondents resorting to pick and choose policy. It transpires from the record that all the 328 candidates sat for the suitability test in which all but the respondents did not come out successful and the Election Commission Secretariat terminated the appointment of the respondents based on the result of the suitability test. Thus, we find no substance in the aforesaid claim of the learned Counsel for the respondents.
28. The learned Counsels for the respondents also contended that the Election Commission in its plenary meeting No. 294/2010 held on 11.05.2010 perused the judgment and order of the Administrative Appellate Tribunal and decided to implement the said judgment and order by reinstating the respondents in service cancelling the notification dated 03.09.2007. Pursuant to the said decision of the Election Commission, reinstatement of the respondents in the service was notified on 13.05.2010 and the same was published in the official Gazette notification on 25.05.2010. The Election Commission also by an official letter dated 22.06.2010 communicated its decision not to prefer appeal against the judgment and order of the Administrative Appellate Tribunal to the office of the Prime Minister. But the Cabinet Secretary bypassing all the aforesaid decisions filed these Civil Appeals interfering with the independent functioning of the Election Commission as enunciated in Article 118(4) of the Constitution.
29. To address the above issue we need to have a glance at the decision of the Election Commission which is extracted below:
“প্রশাসনিক আপীল ট্রাইব্যুনালের এ.এ.টি ১০৪/২০০৯, ১৩৯/২০০৯, ১৪৩/২০০৯ ও ১৪৪/২০০৯ নং (এ. টি, কেস নং-১৬৬/২০০৭ ও ২২/২০০৮ নং হতে উদ্ভূত), মামলার রায় কমিশন সভায় গভীরভাবে পর্যালোচনা করা হয়। আপীল ট্রাইব্যুনাল তার রায়ে যথাযথ কারণ যুক্তি উল্লেখপূর্বক এ.টি মামলা নং-১৬৬/২০০৭ ও ২২/২০০৮-তে ঘোষিত রায় বাতিল করেন। আপীল ট্রাইব্যুনালের রায়ের বিরুদ্ধে সুপ্রীম কোর্টের আপীল বিভাগে আপীল দায়ের করার মত শক্তিশালী উপাদান নেই। এমতাবস্থায় প্রশাসনিক আপীল ট্রাইব্যুনালের রায়ের আলোকে নির্বাচন কমিশন সচিবালয়ের ৩ সেপ্টেম্বর ২০০৭ তারিখের নিকস/উ: স: (এ-২)/২০০৭/সেপ্টেম্বর-নিয়োগ/১৩৯ সংখ্যক প্রজ্ঞাপন বাতিল পূর্বক অবসানকৃত ৮৫ জন উপজেলা/থানা নির্বাচন কর্মকর্তাকে পুনর্বহালের সিদ্ধান্ত নেয়া যায়। রায় অনুযায়ী ৮৫ জন উপজেলা/থানা নির্বাচন কর্মকর্তা (পরিশিষ্ট-'খ' অনুযায়ী) বেতন-ভাতাদিসহ অন্যান্য সুযোগ-সুবিধাদি প্রাপ্য হবেন। তাদের দ্রুত পদায়ন ও সংক্ষিপ্ত প্রশিক্ষণের প্রয়োজনীয় কার্যক্রম গ্রহণ করা যেতে পারে।
২.৪ সিদ্ধান্ত: বিস্তারিত আলোচনার পর কমিশন নিম্নরুপ সিদ্ধান্ত গ্রহণ করেন।
(ক) প্রশাসনিক আপীল ট্রাইব্যুনালের রায় পর্যালোচনায় সুপ্রীম কোর্টের আপীল বিভাগে আপীল করার মত প্রয়োজনীয় গ্রাউন্ড নেই।
(খ) রায়ের আলোকে নির্বাচন কমিশন সচিবালয়ের ৩ সেপ্টেম্বর, ২০০৭ তারিখের নিকস/ভি:স(প্র-২)/২০০৭ সেপ্টেম্বর-নিয়োগ/১৩৯ নং প্রজ্ঞাপন বাতিল পূর্বক ৮৫ জন উপজেলা/থানা নির্বাচন কর্মকর্তাকে দ্রুত পদায়ন ও সংক্ষিপ্ত প্রশিক্ষণের প্রয়োজনীয় কার্যক্রম গ্রহণ করতে হবে।
(গ) রায় অনুযায়ী ৮৫ জন উপজেলা/থানা নির্বাচন কর্মকর্তা (পরিশিষ্ট-“খ” অনুযায়ী) বকেয়া বেতন-ভাতাদিসহ অন্যান্য সুযোগ-সুবিধাদি প্রাপ্য হবেন।”
30. But on perusal of the record it reveals that subsequently the Election Commission decided to contest the present appeals. The decision of the Election Commission is stated below:
“উপজেলা/থানা নির্বাচন অফিসার পদে চাকুরি অবসানকৃত ৮৫ জন কর্মকর্তার মামলার বিষয়ে প্রতিদ্বন্দিতা না করার জন্য বিগত নির্বাচন কমিশনের ১১-৫-২০১০ তারিখের ২৯৪/২০১০তম কমিশন সভার সিদ্ধান্ত হয়। সেই সময়ের প্রেক্ষাপট আর বর্তমান প্রেক্ষাপট সম্পূর্ণ ভিন্ন বলে মাননীয় নির্বাচন কমিশনারগণ মনে করেন। বর্তমান প্রেক্ষাপটে উল্লিখিত মামলায় নির্বাচন কমিশনের পক্ষ হয়ে প্রতিদ্বন্দিতা করার সিদ্ধান্ত যৌক্তিক বলে মাননীয় নির্বাচন কমিশনারগণ মতামত ব্যক্ত করেন।”
31. From the above it is transparent that the Election Commission reverted from their earlier decision of not contesting appeal and now it is contesting the appeal pursuant to its own decision, thereby there is no question of interference with the functions of the Election Commission.
32. The learned Counsels on behalf of the respondents referring to the provisions of Articles 118(4), 120 of the Constitution of Bangladesh, Sections 3 and 5 of the Election Commission Secretariat Act, 2009 argued that the respondents being the employees of the Election Commission only the Election Commission has the exclusive control and authority over them and the Election Commission is empowered to take decision in respect of their reinstatement in service but the Cabinet Secretary being the part of Executive Organ of the Government had no locus standi to file the Civil Petitions for Leave to Appeal leading to the present appeals against the judgment and order of the Administrative Appellate Tribunal. In this regard let us examine the provisions of law.
33. Article 118(4) of the Constitution enunciates that-
"The Election Commission shall be independent in the exercise of its functions and subject only to this Constitution and any other law"
34. Article 119 of the Constitution lays down the functions of the Election Commission which is as follows-
"119.(1) The superintendence, direction and control of the preparation of the electoral rolls for elections to the office of President and to Parliament and the conduct of such elections shall vest in the Election Commission which shall, in accordance with this Constitution and any other law-
(a) hold elections to the office of President;
(b) hold elections of members of Parliament;
(c) delimit the constituencies for the purpose of elections to Parliament; and
(d) prepare electoral rolls for the purpose of elections to the office of President and to Parliament."
(2) The Election Commission shall perform such functions, in addition to those specified in the foregoing clauses, as may be prescribed by this Constitution or by any other law."
35. Article 120 of the Constitution provides that-
"The President shall, when so requested by the Election Commission, make available to it such staff as may be necessary for the discharge of its functions under this part."
36. Article 126 of the Constitution lays down that-
"It shall be the duty of all executive authorities to assist the Election Commission in the discharge of its functions."
37. From examination of the aforesaid provisions of the Constitution the cumulative effect is that the Election Commission is independent while exercising its power under Article 119 of the Constitution which does not include the power of appointment and terms and conditions of service of the employee under the Election Commission Secretariat. According to Article 119 during the election all Deputy Commissioners, Superintendents of Police and other concerned officials are placed under the control of the Election Commission for the purpose of holding election. Undoubtedly, none of the organs of the Government including the executive can interfere with the functions of the Election Commission. It is also apparent from the record that the Cabinet Secretary did not challenge the decision of the Election Commission rather he preferred the present Appeals against the judgment and order of the Administrative Appellate Tribunal involving the termination of the respondent from service. Thus, no question arises as to the interference with the functions of the Election Commission.
38. Now let us see what are the legal provisions regarding the appointment and service of the employees of the Election Commission. The Election Commission (Officers and Staff) Rules, 1979 were applicable to the respondents at the relevant period of their appointment.
39. Section 2(a) of Rules 1979 provides that--
"(a) "Appointing Authority" means such authority as has been specified in column 6 of Schedule IV;"
40. Section 8(1) of the Rules 1979 says that-
"appointment to a direct recruitment shall not be made except upon the recommendation of the Bangladesh Public Service Commission:"
41. Again, Section 3 of নির্বাচন কমিশন সচিবালয় আইন, ২০০৯ states that-
“৩। নির্বাচন কমিশন সচিবালয় ।__(১) নির্বাচন কমিশনের একটি নিজস্ব সচিবালয় থাকিবে এবং উহা নির্বাচন কমিশন সচিবালয় নামে অভিহিত হইবে।
(২) নির্বাচন কমিশন সচিবালয় সরকারের কোন মন্ত্রণালয়, বিভাগ বা দপ্তরের প্রশাসনিক আওতাধীন থাকিবে না।
(৩) নির্বাচন কমিশনের পক্ষে আইন প্রণয়ন সম্পর্কিত বিষয়াদি আইন, বিচার ও সংসদ বিষয়ক মন্ত্রণালয় কর্তৃক সম্পাদিত হইবে।
(৪) নির্বাচন কমিশন সচিবালয় বিধি দ্বারা নির্ধারিত পদ্ধতিতে নিযুক্ত একজন সচিব এবং অন্যান্য কর্মকর্তা ও কর্মচারীগণের সমন্বয়ে গঠিত হইবে ।”
42. Section 5 of নির্বাচন কমিশন সচিবালয় আইন, 2009 provides that—
“৫ । নির্বাচন কমিশন সচিবালয়ের নিয়ন্ত্রণ ।__
(১) নির্বাচন কমিশন সচিবালয়ের সার্বিক নিয়ন্ত্রণ প্রধান নির্বাচন কমিশনারের উপর ন্যস্ত থাকিবে এবং সচিব নির্বাচন কমিশন সচিবালয়ের প্রশাসনিক প্রধান হইবেন।
(২) সচিব নির্বাচন কমিশন সচিবালয়ের প্রশাসন, শৃঙ্খলা বিধান এবং সচিবালয়ের উপর অর্পিত কার্যাদি যথাযথভাবে সম্পাদন করিবেন । তিনি এই আইন এবং তদধীন প্রণীত বিধিমালার অধীন বিধানাবলীর যথাযথ প্রতিপালন নিশ্চিত করিবেন এবং প্রধান নির্বাচন সময়ে অবহিত করিবেন।
(৩) প্রধান নির্বাচন কমিশনার নির্বাচন কমিশন সচিবালয়ের দায়িত্ব বিধি বা স্থায়ী আদেশ দ্বারা নির্ধারিত পদ্ধতিতে অন্য কোন কমিশনার কিংবা নির্বাচন কমিশন সচিবালয়ের কোন কর্মকর্তাকে অর্পণ করিতে পারিবেন ।”
43. Rule 2 of নির্বাচন কমিশন (কর্মকর্তা ও কর্মচারী) নিয়োগ বিধিমালা, 2008 states that-
“(গ) নিয়োগকারী কর্তৃপক্ষ অর্থ সরকার বা সরকার কর্তৃক ক্ষমতাপ্রাপ্ত যে কোন কর্মকর্তা;”
44. Rule 11 of নির্বাচন কমিশন (কর্মকর্তা ও কর্মচারী) নিয়োগ বিধিমালা, ২০০৮--
“কর্মকর্তা ও কর্মচারীগণের চাকুরীর সাধারণ শর্তাবলী__
এই আইনের বিধানাবলী সাপেক্ষে, প্রজাতন্ত্রের অসামরিক পদে নিযুক্ত সরকারী কর্মকর্তা ও কর্মচারীগণের ক্ষেত্রে প্রযোজ্য চাকুরীর শর্তাবলী নির্বাচন কমিশন সচিবালয়ে নিযুক্ত সকল কর্মকর্তা ও কর্মচারীগণের ক্ষেত্রে প্রযোজ্য হইবে ।”
45. On scrutiny of the aforesaid provisions of law we arrive at a decision that the employees of the Election Commission Secretariat are appointed by the government and the terms and conditions of government employees are equally applicable in respect of the employees of the Election Commission. We find that both Sections 3 and 5 of talk about the independence of Election Commission Secretariat while Rules 2 and 11 of categorically states about the appointment of the employees and their terms and conditions in service. Virtually, Sections 3 and 5 of the do not put any embargo on the applicability of the contemporary government service laws to the employees of the Election Commission Secretariat. Therefore, we are constrained to hold that the Cabinet Secretary on behalf of the Government has locus standi to file the present Appeals against the judgment and order of the Administrative Appellate Tribunal since it involves the issue of termination of service of the employee of Election Commission Secretariat. Moreover, it is seen from the record that the Cabinet Secretary was a party to the Administrative Tribunal cases.
46. In view of the elaborate discussion and the observations made above, we find merit in the submissions of the learned Counsels for the Appellant and therefore the impugned judgment and order dated 12.04.2010 passed by the Administrative Appellate Tribunal, Dhaka warrants interference.
47. Accordingly, all the appeals are allowed.
48. The judgment and order dated 12.04.2010 passed by the Administrative Appellate Tribunal, Dhaka in Appeals No. 134, 139, 143 and 144 of 2009 are hereby set aside.
IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Civil Petition for Leave to Appeal Nos. 3013 and 3045 of 2019
Decided On: 02.01.2023
Government of Bangladesh and Ors.
... Vs. ...
Sk. Md Abdullah Faruque and Ors.
Hon'ble Judges/Coram:
Md. Nuruzzaman, Borhanuddin and Md. Abu Zafor Siddique, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Abanti Nurul, Assistant Attorney General instructed by Haridas Paul, Advocate-on-Record
Acts/Rules/Orders:
Constitution Of The People's Republic Of Bangladesh - Article 102, Constitution Of The People's Republic Of Bangladesh - Article 102(2)
Prior History:
From the Judgment and Order dated 29-4-2019 passed by the High Court Division in Writ Petition Nos. 17372 and 16602 of 2017
Result:
Disposed of
JUDGMENT
Md. Abu Zafor Siddique, J.
1. Delay of 168 and 172 days in filing Civil Petitions for Leave to Appeal Nos. 3013 and 3045 of 2019 respectively are hereby condoned.
2. These civil petitions for leave to appeal are directed against the judgment and order dated 29-4-2019 passed by the High Court Division in Writ Petition Nos. 17372 and 16602 of 2017 thereby making both the Rules Nisi absolute.
3. The subject matter and the point of law involved in both the civil petition are same and similar and, as such, they are heard together and disposed of by this single judgment.
4. Facts relevant for disposal of Civil Petition for Leave to Appeal No. 3013 of 2019 in short are as follows:
That present respondent Nos. 1 to 4 as writ petitioners filed Writ Petition No. 17372 of 2017 stating inter alia that they were appointed with required qualifications as Lecturers in Bir Shreshtha Nur Mohammad Degree College at different times when the said College was non-government College; writ-petitioner No. 1, having qualification of BA (Hon's) and MSS (Social Science), joined as Lecturer on 25-11-1997 and since then has been serving as Lecturer of Economics in the said College; writ-petitioner No. 2, having educational qualifications of BA and MSS (Social Science), joined as Lecturer on 9-12-2002 and since then has been serving as Lecturer of Social Work; writ-petitioner No. 3, having educational qualifications of B.Com and M.Com, joined as Lecturer on 27-10-2002 and since then has been serving as Lecturer of Management; Writ-petitioner No. 4, having educational qualifications of BSS and MSS, joined as Lecturer on 10-6-2001 and since then has been serving as Lecturer of Political Science. It is stated by the writ-petitioners that two of the writ-petitioners have been enlisted as MPO teachers of the said College. Thereafter, because of good performance of the said College, the Government, vide Memo dated 21-5-2013, nationalized the said College and, accordingly, published gazette on 23-5-2013. Accordingly, the said College was renamed as Government Bir Sreshtha Nur Mohammad Degree College. Thereafter, the Ministry of Public Administration created 40 posts of teachers and some post of non-teaching staffs ignoring the recommendation of the Education Ministry to create 65 posts in total. Upon such nationalization, the Ministry of Education subsequently, on 29-5-2014, published the names of the teachers who were appointed on ad-hoc basis as per Rules 3 and 5 of the “জাতীয়করণকৃত কলেজ শিক্ষক ও অশিক্ষক কর্মচারী আত্মীকরণ বিধিমালা, ২০০০”. However in the said list, the names of the writ-petitioners were not included. It is further stated that since, at the relevant time under the said “আত্মীকরণ বিধিমালা, ২০০০”, the educational requirement for such absorption as Government teachers was the equivalent requirements applicable to the Government cadre posts, the writ-petitioners subsequently obtained such qualifications with prior approval from the College authority. Accordingly, a representation was made to the College authority for absorbing their service as Government teachers. Representation was made to the Director-General, Secondary and Higher Secondary Education as well for absorbing their services as Government teachers, but got no positive response. Under such circumstances writ petitioner respondent Nos. 1 to 4 have filed the writ petition and obtained the Rule Nisi.
5. Fact of Civil Petition for Leave to Appeal No.3045 of 2019 in short are as follows:
That respondent Nos.1 to 6 as writ petitioners have filed Writ Petition No.16602 of 2017 stating inter alia that they were appointed as Lecturers of Charfasson College with required qualifications applicable at the time of appointment. Writ-petitioner No.1, having BA and MA in Islamic Studies, was appointed as a Lecturer in Secretarial Education on 20-11-2002 and he joined on 21-11-2002. Thereafter, he was appointed as Lecturer of Islamic Studies, and since then he has been serving in the said College as Lecturer of Islamic Studies. Writ-petitioner No.2, having educational qualifications of B.Com (Honors) and M.Com (Accounting), was appointed as Lecturer in Accounting on 9-6-2012 and, accordingly, he joined in the said post on 12-6-2012. Since then he has been serving in the said College as such. Writ-petitioner No.3 was appointed as Lecturer of Philosophy on 22-2-2000 and he joined in the said post on 1-3-2000. Since then he has been serving as Lecturer of the said College. Writ-petitioner No.4, having BA and MA (Social Science), was appointed as Lecturer of Social Welfare on 8-5-2004 and she joined in the said post on 9-5-2004. Since then she has been serving as Lecturer of the said College. Writ-petitioner No.5, having B.Com and M.Com (Management), was appointed as Lecturer of Management on 9-6-2012 and joined in the said post on 12-6-2012. Since then she has been serving as such in the said College. Writ-petitioner No.6, having B.Com and Masters of Business Studies (Management), was appointed as Lecturer of Management on 9-6-2012 and he joined in the said post on 12-6-2012. Since then he has been serving as Lecturer in the said College. It is stated that because of the good, performances of the writ-petitioners, they were enlisted as MPO teachers of the said College. Thereafter, because of good performance of the said College, the Government, vide Memo dated 22-10-2013, nationalized the said College and, accordingly, published gazette on 31-10-2013. Accordingly, the said College was renamed as Charfasson Government College. Thereafter. Upon such nationalization, the Ministry of Education subsequently, on 16-4-2015, published name of the teachers who were appointed on ad-hoc basis as per Rules 3 and 5 of the “জাতীয়করণকৃত কলেজ শিক্ষক ও অশিক্ষক কর্মচারী আত্মীকরণ বিধিমালা, ২০০০” and gazette notification was published on 14-5-2015 by dropping the names of the writ-petitioners in the said list. It is further stated that since, at the relevant time under the said “আত্মীকরণ বিধিমালা, ২০০০”, the educational requirement for such absorption as Government teachers was the equivalent requirements applicable to the Government cadre posts, the writ-petitioners subsequently obtained such qualifications with prior approval from the Colleges authority., Accordingly, a representation was made to the College authority for absorbing their services as Government teachers. Representation was made to the Director General, Secondary and Higher Secondary Education as well for absorbing their services as Government teachers, but got no positive response. Under such circumstances writ petitioner respondent Nos. l to 6 have filed the writ petition and obtained the Rule Nisi.
6. The High Court Division took both the Rules Nisi together for hearing and ultimately, after hearing the parties and considering the materials on record, both the Rules Nisi were made absolute by the impugned judgment and order dated 29-4-2019. Hence, the writ-respondents are now before us having filed these two civil petitions for leave to appeal for redress.
7. Ms Abanti Nurul, learned Assistant Attorney-General appeared on behalf of the leave-petitioners in both the civil petitions for leave to appeal submits that the High Court Division erred in law in travelling beyond the scope of Rule Nisi in giving relief to the writ petitioner respondents under the absorption Rules, 2018 although no Rule Nisi was issued to that effect and, as such, the impugned judgment and order is liable to be set-aside. Moreover, she next submits that since the writ-petitioner respondents were appointed as Lecturer in Bir Sreshtha Nur Mohammad Degree College, Sarsha, Jessore and Charfasson Government College, Bhola, when they were the non-government Colleges in 1997, 2000, 2001, 2002, 2004 and 2012 respectively. But the said Colleges were nationalized by the Government vide gazette notification dated 14-5-2013 and 22-10-2013 and subsequently, the Ministry of Education by circular dated 15-7-2013, 22-10-2013. 29-5-2014 and 16-4-2015 published the names of the Lecturers who were appointed on ad-hoc basis on different subject for the Bir Sreshtha Nur Mohammad Degree College, Sarsha, Jessore and Charfassion College as per Rules 3 and 5 of the " জাতীয়করণকৃত কলেজ শিক্ষক ও অশিক্ষক কর্মচারী আত্মীকরণ বিধিমালা, ২০০০ " and accordingly, Gazette Notification was published on 5-6-2014 and 14-5-2015 excluding the names of the writ petitioner respondents since at that point of time they had no requisite qualifications for becoming absorbed in the nationalized Colleges and, as such, the impugned judgment is liable to be set-aside. She further submitted that as per Rules 1 in Clause (2) of the “জাতীয়করণকৃত কলেজ শিক্ষক ও অশিক্ষক কর্মচারী আত্মীকরণ বিধিমালা, ২০১৮” that " এই বিধিমালা জারির তারিখ বা তৎপরবর্তীতে সরকারিকৃত কলেজের ক্ষেত্রে এই বিধিমালা প্রযোজ্য হইবে।” the writ-petitioner respondents cannot claim any benefits for absorption in the nationalized Colleges under that provision of Rules and, as such, the High Court Division, without applying judicial mind, passed the judgment and order dated 29-4-2019 in clear violation of the provision of law. She lastly submitted that at the time of nationalization and post creation, the writ-petitioner respondents had no requisite qualifications and, as such, they have no right to get any remedy in the writ petition and thus impugned judgment and order is liable to be set-aside on disposing of the civil petitions. However, she submits that since some of the writ petitioners are already enjoying the Government portion of monthly salary (MPO) and other benefits they will be continuing to get the same in accordance with law.
8. Mr Md Imam Hasan, learned Advocate appeared on behalf of respondent in both the civil petitions for leave to appeal made submissions in support of the impugned judgment and order passed by the High Court Division. He submitted that although the writ-petitioners did not have the required qualification for being absorbed as Lecturers under the Nationalized Colleges as per the provision of the " জাতীয়করণকৃত কলেজ শিক্ষক ও অশিক্ষক কর্মচারী আত্মীকরণ বিধিমালা, ২০০০ " but they subsequently obtained their educational qualifications and, as such, the writ-petitioners are entitled to have their service absorbed under the Nationalized Colleges in view of " জাতীয়করণকৃত কলেজ শিক্ষক ও অশিক্ষক কর্মচারী আত্মীকরণ বিধিমালা, ২০১৮" by which the earlier Rules of 2000 has been repealed as evident from the saving clause of rule 15 sub-rule 2 Kha which provides that if any teacher or staffs of the concerned College was not absorbable under the bidhimala 2000 and if their services are absorbable under the Bidhimala, 2018 then they may be absorbed under the bidhimala 2018 considering which the High Court Division has rightly passed the impugned judgment and order in accordance with law and hence he submitted that these two civil petitions for leave to appeal are liable to be dismissed by affirming the impugned judgment and order passed by the High Court Division.
9. We have considered the submissions of the learned Assistant Attorney-General for the leave-petitioners in both the civil petitions and the learned Advocate for the writ petitioner-respondents, perused the impugned judgment and order along with other connected papers on record.
10. It is not disputed that the writ-petitioners had lack of qualification for being absorbed as Lecturers under the aforesaid Nationalized Colleges as per the provision of " জাতীয়করণকৃত কলেজ শিক্ষক ও অশিক্ষক কর্মচারী আত্মীকরণ বিধিমালা, ২০০০ ". The writ-petitioner respondents have stated in the additional paper book that subsequently they have upgraded their educational qualifications and, as such, they claimed that they are eligible to be absorbed as teachers in the Nationalized Colleges as per the provision of " জাতীয়করণকৃত কলেজ শিক্ষক ও অশিক্ষক কর্মচারী আত্মীকরণ বিধিমালা, ২০১৮ ". In support of their claim, the learned Advocate for the writ-petitioner respondents referred to rule 15(2)(Kha) of aforesaid Absorption Bidhimala, 2018 basing on which the High Court Division has delivered the impugned judgment and order in favour of the writ petitioner-respondents and, as such, according to the learned Advocate for the writ petitioner respondents the High Court Division did riot commit any illegality in passing the impugned judgment and order.
11. In this respect, the learned Advocate for the leave-petitioners emphatically raised a question that the High Court Division has travelled beyond the scope/terms of the Rule Nisi in giving relief to the writ petitioner respondents by the impugned judgment and order which is liable to be set-aside in accordance with law.
12. To answer on this point, let us go through the prayers formulated in the writ petitions which read as follows:
"A Rule Nisi calling upon the respondents to show cause as to why the refusal of the respondents in absorbing the service of the petitioners Lecturer of Government Bir Shreshtha Nur Mohammad Degree College and Charfasson Government College, Bhola upon considering the required academic qualifications of the petitioners to be absorbed as Lecturer of Government College while Nationalization of the same should not be declared to have been done without lawful authority and is of no legal effect and also to show cause as to why the respondents should not be directed to absorb the service of the petitioners as the Lecturer of Government Bir Shreshtha Nur Mohammad Degree College, Sharsha, Jessore and Charfasson Government College, Bhola upon considering the required academic qualification of the petitioners to be absorbed in the Government College while Nationalization of the same."
13. Now let us see the terms of the Rule Nisi issuing orders in both the writ petitions as appears from the impugned judgment and order which read as under:
"Rules in the aforesaid writ petitions were issuing in similar terms, namely calling upon the respondents to show cause as to why their refusal in absorbing the serviced of the petitioners as Lecturers of Government Colleges, namely Government Bir Shreshtha Nur Mohammad Degree College (Writ Petition No. 17372 of 2017) and Charfasson Government College (Writ Petition No. 16602 of 2017) after nationalization of the same upon considering the required academic qualifications of the petitioners, should not be declared to be without lawful authority and is of no legal effect and as to why they should not be directed to absorb the petitioners services as Lecturers of the said Colleges upon considering their such academic qualifications."
14. On perusal of the prayers made in the writ petitions as well as the terms of the Rule issued as per prayers as quoted above, we do not find that the writ petitioners have challenged the absorption Rules, 2000 or asked for any relief under the absorption Rules, 2018 by which the earlier absorption Rules of 2000 were repealed nor the Rule Nisi has been issued in that terms. So, the terms of the Rules Nisi in both the writ petitions are crystal clear, that the writ petitioners did not challenge the absorption Rules, 2000 or ask for any relief under the absorption Rules, 2018 by which the earlier absorption Rules of 2000 were repealed.
15. Having gone through the impugned judgment and order it appears that the High Court Division has relied on the absorption Rules of 2000 and 2018 in giving relief to the writ petitioner respondents. The High Court Division found that under the previous absorption Rules of 2000, the writ petitioners were not qualified to be absorbed as Government teachers as the minimum qualification for such absorption was the qualification applicable to a cadre post as provided in Rule 2(Chha) of the Absorption Rules of 2000. But, the new Absorption Rules of 2018 have obliterated the said requirement by Rule 5 which provides that the required qualification for absorption shall be the required qualifications for appointments in a non-government College. Therefore, the High Court Division came to a definite finding that there should not be any dispute as regards basic qualifications of the petitioners for absorption in the Government Colleges after promulgation of the new absorption Rules of 2018, which has recognized such entitlement of the petitioners for such absorption with the required qualifications for appointment in the non-government Colleges as well. So, it is clear that the High Court Division relying on the aforesaid absorption Rules of 2018 has passed the impugned judgment and order and gave relief to the writ petitioner respondents although the Rule Nisi has not been issued in that terms.
16. So, the High Court Division has travelled beyond the terms of the Rule Nisi issuing orders in both the writ petitions in giving relief to the writ petitioners by the judgment and order impugned in both the civil petitions for leave to appeal before this Division.
17. The relief under Article 102 of the Constitution being an equitable relief the High Court Division has to cautious while passing the judgment and order so that the relief which it is giving to the parties by the judgment and order is not beyond the terms of the Rule Nisi.
18. Reliance may be placed in the case of the Managing Director, Dhaka Electric Supply Company Limited and others vs Md Tamjid Uddin and others, reported in 5 LM (AD) 130, wherein the points for determination by this Division were asunder:
"I. For that the High Court Division passed the impugned judgment and order declaring the promotion of the petitioners to the post of Assistant Managers to be unlawful and without jurisdiction should be set-aside inasmuch that the terms of the Rule Nisi issued in Writ Petition No. 651 of 2012 did not entail/cover the lawfulness of the petitioner's promotions.
II. For that the High Court Division passed the impugned judgment and order in breach of the principles of natural justice inasmuch that the petitioners were never made parry to the Writ Petition No. 651 of 2012, no Rule Nisi was ever issued or served upon them and nor were they asked or given an opportunity to present then-case before passing of the impugned judgment.
III. Because the cancellation of departmental promotion after two and half years and direction to take necessary steps for promotion in making the Rule disposed of, the High Court Division went beyond the scope of Article 102 of the Constitution and thereby usurped the function of the executive and, as such, the judgment and order passed by the High Court Division is liable to be set-aside."
19. To answer the aforesaid points, this Division in the said case has gone through the Rule Nisi issuing order, prayer formulated in the writ petition basing on which the Rule Nisi was issued along with the judgment and order impugned in that including the provision of Article 102 of the Constitution, and thereby held in paragraph No. 16 as follows:
"On perusal of the materials on record it appears that the High Court Division, while passing the impugned judgment, found the first part of the Rule, relating to "publishing the advertisement" has become infructuous due to completion of appointment by direct recruitment in 67% of the vacant posts and, as such, in the name of consequential relief it declared the entire process of promotion to the post of Assistant Manager, illegal and without lawful authority, although Rule Nisi was not issued on the entire promotion process concerning promotion, dated 27-12-2011, of the appellants of CA No. 135 of 2015, or any such prayer being specifically made in the writ petition."
20. This Division in that case also held as under:
"In the present case, on perusal of the writ petition, the prayer portion and the terms of the Rule issuing order, it appears that the writ petitioner did not make such prayer challenging the promotion of the present appellants nor any relief has been sought against them making them parties. As such the finding and decision of the High Court Division, so far it relates to 'declaring the promotion of the present appellants to be illegal and without lawful authority', is not a correct finding and decision and rather it is beyond the prayer as sought for. The same could have been correct if the writ petitioners would have challenged the present appellants' 2½ years earlier promotion making them parties and Rule being issued to that effect."
21. Further, reliance may be placed in the case of West Bengal, Home Department and others vs Ram Chandra Choudhury reported in AIR 1973 Col 220, it has been held in paragraph-32 as follows:
"............Orders for recovery of money can be made by this Court in exercise of its writ jurisdiction, but only in a limited class of cases, namely, where the statutory provision under which money was paid was declared by this Court to be void or where money has been paid under orders which have been struck down. The third and the more formidable obstacle to the amendment of the petition, at this stage, is that an amendment relating to recovery of arrears of salary would be wholly beyond the terms of Rule Nisi which was made absolute by the trial Court This Court sitting in appeal over the judgment and order by which the Rule Nisi was made absolute, cannot, at this stage, enlarge the scope of the Rule Nisi to which a return has been filed by the appellants, so as to enable the respondent to agitate the question of recovery of his arrears of salary."
22. Thus, in the light of the aforesaid decision it is clear that granting of such relief beyond the terms of the Rule Nisi is not approved by this Division. The High Court Division should not have granted any relief different from the terms of the Rule Nisi issued as per prayer made in the writ petition.
23. Whether the High Court Division went beyond the scope of Article 102 of the Constitution, in giving relief beyond the terms of the Rule Nisi as in the present case, we need to see Article 102 of the Constitution as well as the High Court Division Rules which deal with writ petitions. Article 102(2) provides that 'the High Court Division on the application of any person aggrieved, may give such directions or orders to any person including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any of the fundamental right conferred by part III of this Constitution". So the person who wants to invoke Article 102 must be an aggrieved person and must specify the relief in his prayers. Chapter XIA of the Supreme Court (High Court Division) Rules, deals with preparing and tiling of writ petition under Article 102 of the Constitution. It provides that the aggrieved person must specifically set out the relief sought for. So, the writ petitioner must have specific claim in the form of prayer against such persons who are respondents, following which the Court can grant relief, if favourable, in accordance with law.
24. In the present cases, the High Court Division has delivered the impugned judgment and order basing on the " জাতীয়করণকৃত কলেজ শিক্ষক ও অশিক্ষক কর্মচারী আত্মীকরণ বিধিমালা, ২০১৮ " by which the earlier Rules of 2000 has been repealed and thereby directed the writ respondent-leave petitioner herein to absorb the writ petitioners-respondents herein as Lecturers in their concerned Government Colleges despite of the fact that the writ petitioners did not make any such claim in the form of prayer in the writ petition asking absorption under the aforesaid absorption Rules of 2018 nor the Rules Nisi were issued at that effect. As such, the High Court Division erred in law in travelling beyond the scope/terms of the Rules Nisi in both the writ petitions in giving relief to the writ petitioners while passing the impugned judgment and order. Thus, the finding of the High Court Division is not the correct reflection of the terms of the Rules Nisi and, as such, the same does not leg to stand in accordance with law.
25. In view of the aforesaid facts and circumstances we are of the view that the finding and decision arrived at by the High Court Division in both the civil petitions for leave to appeal being not based on proper appreciation of both the facts and law the same calls for interference by this Division. As such, we are inclined to set-aside the impugned judgment and order upon disposing of both the civil petitions for leave to appeal without granting any leave on the same.
In the result, these two civil petitions for leave to appeal are disposed of. The impugned judgment and orders of the High Court Division are set-aside.
Appellate Division (Criminal)
Present:
Mr. Justice Syed Mahmud Hossain, Chief Justice
Mr. Justice Muhammad Imman Ali
Mr. Justice Hasan Foez Siddique
Mr. Justice Md. Nuruzzaman
Mr. Justice Obaidul Hassan
Criminal Appeal No.127 of 2014
With
Jail Appeal No.26 of 2014
and
Jail Appeal No.29 of 2014.
(From the judgment and order dated 11-5-2014 passed by the High Court Division in Death Reference No.07 of 2009 with Criminal Appeal Nos.616, 670 and 698 of 2009 with Jail Appeal Nos.155-159 of 2009).
Shukur Ali (Md) and another
... Appellants [In Crl. A. No.127 of 2014]
Mamun
... Appellant [In Jail Appeal No.26 of 2014]
Sentu and another
... Appellants [In Jail Appeal No.29 of 2014]
VS
State
... Respondent [In all the appeals]
Judgement Date : August 18, 2021
Counsels:
SM Shahjahan, Advocate with Ragib Rouf Chowdhury, Advocate, instructed by Shahanara Begum, Advocate-on-Record
— For the appellants. (In Crl Appeal No.127 of 2014)
SM Aminul Islam, Advocate
— For the appellants. (In Jail Appeal Nos.26 & 29 of 2014)
Biswajit Debnath, Deputy Attorney-General, instructed by Madhu Malati Chowdhury Barua, Advocate-on-Record
— For the Respondent. (In all the appeals)
Judgment
Obaidul Hassan, J: This Criminal Appeal No.127 of 2014 with Jail Appeal Nos.26 and 29 of 2014 is directed against the judgment and order dated 11-5-2014 passed by a Division Bench of the High Court Division in Death Reference No.07 of 2009 with Criminal Appeal Nos.616, 670 and 698 of 2009 with Jail Appeal Nos.155- 159 of 2009 accepting the Death Reference while dismissing all the appeal and thereby upholding the judgment and order of conviction and sentence dated 4-2-2009 passed by the learned Nari-o-Shishu Nirjatan Daman Tribunal, Kushtia (hereinafter referred to as the Tribunal/trial Court) in Nari-o Shishu Nirjatan Case No.147 of 2004 arising out of Daulatpur Police Station Case No.26 dated 27-3- 2004 corresponding to GR No.69 of 2004 convicting the appellants under section 9(3) of the Nari-o- Shishu Nirjatan Daman Ain, 2000 (hereinafter referred to as the Ain, 2003) and sentenced them to death by hanging and to pay a fine of Taka 1,00,000 each.
2. The prosecution case, in short, is that one Md Abdul Aziz alias Jhunu, father of the deceased Sabina Khatun lodged First Information Report (shortly, the FIR) with Daulatpur Police Station. Alleging that on the evening of 25-3-2004 his daughter Sabina Khatun (13) went to the house of neighbour Muna Mondal to watch television. As she did not return home, the inmates of Sabina's house went to the said residence to search for Sabina. One Rubina, wife of Azanur told them that the victim went away from their residence just after evening. They also looked for Sabina in every house of the village, but could not trace her. On 27-3-2004 at about 05-30 pm the informant came to know that a dead body has been found in the field of Lalnagar. Being informed, the informant, his wife, Hasina; daughter, Bedana; son, Mulluk Chand; along with other villagers, went to the place of occurrence and saw the naked dead body of Sabina Khatun, her mouth was fastened with her orhna. They saw several injury marks on her chest, both the thighs and sharp cutting injury on her private organ. Her body was partially decomposed and spreading bad smell. Later on, they came to know that one Samad first saw the dead body at the place of occurrence where he went to pluck buds of tobacco flowers. The informant suspected that the accused Mamun, Azanur, Sentu and others had raped and killed his daughter. On the basis of the said first information lodged by the informant, Daulatpur Police Station Case No.26 dated 27-3-2004 corresponding to GR No.69 of 2004 under section 9(3) of the Ain, 2000 was started.
3. Officer-in-Charge Md Faruk Ahmmed started to investigate the case. On his transfer Sub-Inspector (SI), Md Nabir Hossen investigated the case and finally when SI Md Nabir Hossain was transferred SI Md Mosaddek Hossen Khan completed the investigation and submitted charge-sheet. The investigating officer visited the place of occurrence and prepared the Inquest Report of the dead body in the presence of witnesses, prepared the sketch map with index, seized the alamats and examined the witnesses under section 161 of the Code of Criminal Procedure, 1898. He duly sent the body of the deceased to the Kushtia General Hospital for Post-mortem. The post-mortem examination of the victim was done by a group of doctors, they were Dr. Ashok Kumar Saha, Dr. Arbinda Pal, Dr. Saleh Ahmmed and Dr. Abdus Salam. Ultimately, on conclusion of investigation of the case, the Investigating Officer submitted charge sheet being No.108 dated 25-7-2004 against the accused Azanur Rahman, Mamun, Shukur, Kamu (Kamrul) and Sentu under section 9(3) of the Ain, 2000.
4. Later, the case was duly sent to the Tribunal for trial. The learned Judge of the Tribunal on taking cognizance of the offence against the accused persons under section 9(3) of the Ain, 2000 framed charge against them. On being read over and explained the charge to the accused persons, they pleaded not guilty and asked for a trail.
5. On the closure of the evidence of the prosecution witnesses, the convict-appellants were examined under section 342 of the Code of Criminal Procedure, 1898 whereupon they pleaded innocence. They informed the Tribunal that they would not adduce any evidence on their behalf.
6. The defence case as it appears from the trend of cross-examination is that the appellants are innocent and have been falsely implicated in this case out of enmity and personal grudge and the accused appellants are not involved with the offence of committing rape on the deceased Sabina, and murdering her. The accused Sentu, son of Tizabuddin, is the brother of Montu. Sentu is not named in the FIR. It is also the case of the defence is that from the date of occurrence the accused persons were very much present in the locality and they did not flee-away. The victim was not at all subjected to the commission of rape by the appellants. The confessional statements of accused Mamun and Azanur are not true and voluntary. Owing to merciless torture and enticement of the police the accused persons were compelled to give involuntary confessional statements.
7. During the course of trial, the prosecution produced as many as 18 witnesses including the Medical Officer and the Investigating Officer. The trial Court after considering the evidence and materials on record found the accused persons Sentu, Mamun, Azanur Rahman, Shukur and Kamu (Kamrul) guilty under section 9(3) of the Ain, 2000 and sentenced them to death by its judgment and order dated 4-2- 2009.
8. Death sentence proceeding has been submitted to the High Court Division by way of Reference by the Tribunal and the Reference has been noted as Death Reference No.07 of 2009. Being aggrieved by the judgment and order of the Tribunal, the convicts Shukur, Kamu alias Kamrul and Sentu preferred Criminal Appeal No.616 of 2009, convict Azanur Rahman preferred Criminal Appeal No.670 of 2009, convict Mamun preferred Criminal Appeal No.698 of 2009 before the High Court Division. Convict Mamun, Azanur Rahman, Md Shukur Ali, Kamu alias Kamrul and Sentu presented petition of appeals from jail, which have been numbered as Jail Appeal Nos.155, 156, 157, 158 and 159 of 2009 and the same were heard with Death Reference No.07 of 2009.
9. The High Court Division by .its judgment and order dated 11-5-2014 accepted the Death Reference and dismissed all the Criminal Appeals and Jail Appeals affirming the judgment and order passed by the Nari-o-Shishu Nirjatan Daman Tribunal, Kushtia.
10. Being aggrieved by, and dissatisfied with the judgment and order of conviction and sentence passed by the High Court Division dated 11-5-2014, the convict-appellants, namely, Md Shukur Ali, Sentu, Mamun and Azanur Rahman preferred Criminal Appeal with Jail Appeal before this Division.
11. Mr SM Shahjahan, the learned advocate appearing along with Mr Raghib Rouf Chowdhury, the learned Advocate, appearing for the appellants in Criminal Appeal No.127 of 2014, Mr SM Aminul Islam, the learned advocate, appearing for the appellants in Jail Appeal Nos.26 and 29 of 2014, have taken us through the FIR, the inquest report, the post-mortem report, the charge-sheet, testimonies of the witnesses, the judgment and order passed by the Tribunal and the appellate Court (High Court Division), connected materials on record and submit that the High. Court Division failed to consider that the judgment and order of conviction is bad in law as well as in facts and, as such, the impugned judgment and order of conviction is liable to be set-aside. They further submit that the High Court Division failed to consider that the judgment and order of conviction is based on surmise and conjecture and not on legal evidence and, as such, the impugned judgment and order of conviction is liable to be set-aside. They also submit that the High Court Division failed to consider that the judgment and order of conviction has been passed by the Tribunal without applying its' judicial mind as the case was not proved by the prosecution witnesses beyond reasonable doubt and, as such, the impugned judgment and order of conviction is liable to be set-aside. They next submit that during trail the prosecution examined as many as 18 prosecution witnesses, but all the witnesses disowned the prosecution case and none of the witnesses witnessed the occurrence and, as such, the impugned judgment and order of conviction is liable to be set-aside. Moreover, they submit that there is no evidence against the appellants except inculpatory confessional statements made by co-accused, but the same cannot be used against the appellants without corroboration and cannot' be basis of conviction and it is not an evidence as per section 3 of the Evidence Act, 1872 and, as such, the impugned judgment and order of conviction is liable to be set-aside. They added that the High Court Division failed to consider that in the judgment and order of conviction passed by the learned Judge of the Nari-o-Shishu Nirjaton Daman Tribunal it was not considered that out of 18 witnesses PWs 10 and 11 deposed about the searching of the appellants, but their evidence was not supported by PWs 1, 11, 6, 13 and they deposed that at the time of occurrence three witnesses were present, but PWs 1, 2, 6 and PW 13 did not support this story. Rather those evidence were contradicted by PWs 6 and 13, PW 6 in his cross-examination stated that "আমি আসামীদের সন্দেহ করি না" and PW 13 in his cross-examination stated that "আসামীদের বাড়িতে আমরা কেহ যাই নাই।" So it appears that there is no circumstantial evidence against the appellants and, as such, the impugned judgment and order of conviction is liable to be set-aside. They also submit that the High Court Division failed to consider that in passing the judgment and order of conviction, the learned Judge of the Nari-o-Shishu Nirjaton Daman Tribunal did not consider that the confessional statement must be left out of consideration as it was contradicted by medical evidence. The absence of spermatozoa in the private organ of the deceased throws doubt on the prosecution story of rape. They also submitted that the doctor stated that the cause of death was strangulation, but confession do not disclose the same and, as such, the impugned judgment and order of conviction is liable to be set-aside. Besides, they submit that there is no evidence against the appellants except confession of co-accused which is not substantial evidence in convicting appellants without any other corroborative evidence, moreover it appears from the record that the victim went to watch television in a house, but the owner of that house was not examined and the witnesses Kanchan and Hasina and other witnesses did not disclose the name of the appellants in their evidence and the circumstantial evidence also did not prove the involvement of the appellants and, as such, the impugned judgment and order of conviction is liable to be set-aside. They again submitted that the confession of accused Mamun and Azanur Rahman were not made voluntarily and those are not true as no certificate was issued by the statement recording Magistrate in this regard and, as such, the said confession is a nullity in the eye of law and, as such, the impugned judgment and order of conviction is liable to be set aside.
12. They further submit that the allegation against the appellants does not come under section 9(3) of the Nari-o-Shishu Nirjaton Daman Ain, 2000 as the doctor opined that the death was due to asphyxia as a result of above mentioned injuries, caused by strangulation which was ante-mortem and homicidal in nature with rape, but the rape was not proved by any other evidence including medical certificate and, as such, the impugned judgment and order of conviction is liable to be set-aside. Finally, they submit that the learned Magistrate recorded confessional statement of the two accused, but did not follow the prescribed procedure as mentioned in section 364 of the Code of Criminal Procedure, 1898 and, as such, the confessional statements are not admissible evidence resulting a judgment invalid.
13. Mr Biswajit Debnath, the learned Deputy Attorney-General, appearing for the respondent-the State, made his submissions supporting the judgment and order passed by the High Court Division and prays for dismissal of the appeal.
14. Now, to ascertain whether the prosecution has been able to prove the charge against the appellant Md Shukur Ali, Mamun, Sentu and Azanur Rahman, let us examine and analyze the depositions of the witnesses adduced by the prosecution.
15. PW 1, the informant Abdul Aziz @ Jhunu deposed that they saw several injury marks on the body of the deceased and the dead body was partially decomposed. He further stated that they suspected the involvement of accused Azanur, Mamun, Sentu and others as they were missing since the occurrence of the crime.
16. During cross-examination he stated that he heard that deceased had gone to watch television. The occurrence took place in the evening of Thursday and they found the dead body on Saturday afternoon. The informant and others suspected that the accused Mamun, Azanur, Sentu and others had raped and killed his daughter. The police prepared the inquest report before filing of the case. He identified the FIR and his thump impression.
17. PW 2, Rokeya Khatun, wife of Nuna (Muna), a neighbour of the deceased, stated that around 8-00 pm Sabina's father told her that Sabina was missing. She heard that dead body of the deceased Sabina was found on Saturday afternoon and there were some marks of injury on her body.
18. The cross-examination of the witness was declined by the defence.
19. PW 3, Kanchon (Kazoli), stated that the dead body of the deceased was found from a Tobacco field of Dharonggari and there were injury marks on her body.
20. The cross-examination of the witness was declined by the defence.
21. PW 4, Hasina Khatun, the mother of deceased Sabina, stated that on the date of occurrence the deceased Sabina went to the house of Muna to watch television. They searched for her as she did not return home. Two days after the occurrence, they found the naked dead body of the deceased in a tobacco field. There were several injury marks on her body and her orhna was wrapped round her face over her mouth.
22. During cross-examination she stated that she heard from local people that accused Azanur and Mamun had been arrested.
23. PW 5, Md Fazlur Rahman, deposed that after returning home from Allardarga he heard hue and cry from the field and also heard a dead body was found, he informed the police and went to the place of occurrence with the police. He saw the dead body in the tobacco field. The police prepared the inquest report and his signature so endorsed thereon and marked as Exhibits-1 and 1/1 respectively.
24. The defence declined to cross-examine this witness.
25. PW 6, Rahidul Islam, deposed that he heard about the disappearance of Sabina and subsequently after two days the dead body was found from a tobacco field. He also heard that accused Azanur and Mamun were arrested. He heard that accused Kamrul, Shukur and Sentu were also with them.
26. PW 7, Bishoyot Ali, deposed that he heard about the disappearance of Sabina and subsequently her dead body was found. He stated that he went to place of occurrence with police and saw the dead body. His signature so endorsed in the inquest report, has been marked as Exh-1/2.
27. The cross-examination of the witness was declined by the defene.
28. PW 8, Helal Uddin, deposed that he went to the tobacco field and saw the dead body of deceased Sabina. He identified his signature on the inquest report which was marked as Exhibit. 1/3.
29. The defence had declined to cross-examine the witness.
30. PW 9, Abdul Goni, father of accused Kamrul, deposed that the inquest report was prepared in his presence and his signature so endorsed thereon has been marked as Exhibit-1/4.
31. The cross-examination of the witness was declined by the defence.
32. PW 10, Md Mulluk Chand, deposed regarding the date, time and place of occurrence. He stated that before the occurrence the deceased went to the dwelling house of neighbour Muna Mondal to watch Television and went missing. They searched for the deceased at different places. They suspected the involvement of the accused Azanur, Mamun; Shukur, Sentu and Kamrul. He identified the accused persons in the dock of the court. He deposed that they did not find the accused persons at their houses on that day and because of this reason they suspected their involvement with the occurrence. He deposed that on March 27, 2008 the dead body of the deceased was found from the tobacco field of Dharonggari. They saw the naked dead body having several injuries on it. He heard that .the accused Amur and Mamun had been arrested at Kushtia. Accused Mamun and Azanur made confessional statements.
33. During cross-examination, he stated that they had searched the respective houses of the five accused. He denied defence suggestion that out of enmity and grudge the accused persons had been implicated in the instant case.
34. PW 11, Alauddin, stated that the accused Azanur, Mamun, Sentu, Kamrul and Shukur were also missing. He stated that the five accused persons also went to watch television. They searched for the deceased from door to door. He stated that they saw the naked dead body of the deceased with several injuries which was found on March 27, 2004 at about 05-30 pm lying in the tobacco field of Dharonggari. He stated that after being arrested the accused' Manum and Azanur admitted their guilt to the police.
35. During cross-examination, he stated that his father-in-law told him that the accused had gone to watch television. He deposed that they searched for the deceased at many houses including the houses of the accused persons. He stated that the accused persons were inhabitants of the same village.
36. PW 12, Zabed Ali, stated that on March 25, 2007 at about 6-00/7-00 pm the deceased went to the neighbour's house 'to watch television and thereafter went missing. He searched for the deceased at different houses. On hearing being found a dead body, he went to the place of occurrence on March 27, 2004 and saw the naked dead body of the deceased with several injuries.
37. The defence declined to cross-examine this witness.
38. PW 13, Md Zainal Haque, had' been declared hostile and was cross-examined by the prosecution and he deposed that at the time of searching for the deceased accused Azanur, Shukur, Mamun, Sentu and Kamrul were not with the villagers.
39. PW 14, Dr. Ashok Kumar Saha, deposed that on March 28, 2004 he was performing his duty at General Hospital, Kushtia as Emergency Medical Officer. A Medical Board was constituted consisting 4 members where he was the president and. Other three members were Dr. Arbinda Pal, Dr. Saleh Ahmed and Dr. A. Salam. After conducting the Autopsy the Board noted their findings as under:
- Body partially decomposed and distended with Maggot formation with loss Of epidermis with burst abdomen with expulsion of coils of intestine.
- One continuous ligature mark at the middle of the throat size 1" in breadth with knot, a tie.
- One incised penetrating injury on front of the right side of the chest, size 2" x ½" up to chest cavity.
- Two incised penetrating injury on front of the left side of the chest, size 2" x ½" up to abdominal cavity:
- Four incised penetrating injury on anterior abdominal wall, size 2½" x 1½" up to abdominal cavity.
- One incised penetrating injury on inner aspect of left thigh up size 1½" x 1½" x 2/3".
- One incised injury on inner aspect of right thigh up, size 2½"" x 2/3".
- One lacerated injury in vagina on right all size 1"x 1" mucus membrane.
40. On dissection: Anti-mortem blood clot and tissue laceration and congestion were seen associated with the injured/places stated above trachea congested both lung are injured, liver injured, stomach injured. Brain is soften. High vaginal swab was taken and sent for pathological examination for spermatozoa. But no spermatozoa was found.
41. After conclusion of the autopsy the Doctors opined as under:
"In our opinion the cause of death was due to asphyxia as a result of above mentioned injuries, caused by strangulation which were ante-mortem and homicidal in nature with rape".
42. This witness proved the post-mortem report and his signature so endorsed thereon and marked as Exhibits-2 and 2/1 respectively. He also identified the signatures of Dr. Arbinda, Dr. Saleh Ahammad and Dr. Abdus Salam which were marked as Exhibits- 2/2, 2/3 and 2/4 respectively.
43. During cross-examination he deposed that they found evidence of rape on the dead body. He further deposed that they found the injury in the inner part of the vagina of the deceased which may have been caused due to rape.
44. PW 15, Md Nabirul Islam, stated that when he was on duty on March 29, 2004 as 1st Class Magistrate at Kushtia Collectorate, he recorded the confessional statement of accused Azanur and Mamun under section 164 of the Code of Criminal Procedure, 1898 and he followed the provisions of section 364 of the Code of Criminal Procedure, 1898. He found the confessional statements of the accused were true and voluntary. He proved the confessional statements and his signature so endorsed thereon and marked as. Exhibits-3, 3/1, 3/2, 3/3 and 3/4 respectively. His signature and signature of the accused were marked as Exhibits-4, 4/1, 4/2, 4/3 and 4/4 respectively.
45. PW 16, Md Nabir Hossen, stated that on April 04, 2004 he took the charge of investigation of the case on transfer of the Officer-in-Charge Faruk Ahmmed and perused the case docket, autopsy report. Subsequently, he handed over the CD to SI Musaddek on his transfer.
46. The cross-examination of the witness was declined by the defence.
47. PW 17, Md Mosaddek Hossen Khan, deposed that as the final Investigating Officer he took the charge of investigation of the case on April 22, 2004. He perused the case docket including sketch map, index, deposition of witnesses and confessional statements of the accused Mamun and Azanur. He recorded statements of some witnesses. He submitted charge-sheet No.108 dated July 07, 2004 against the accused persons finding prima facie ingredients of crime.
48. During cross-examination he deposed that he compared the confessional statements of the accused persons with autopsy report.
49. PW 18, Faruk Ahmmed is one of the three Investigating Officers of the case. He stated that on oral presentation of the informant he wrote the FIR. He also identified the thumb impression of the informant. He prepared the inquest report of the deceased, his signature so endorsed thereon has been marked as Exhibits-1 and 5/1 respectively. He stated that he sent the FIR for recording. He also deposed that he as Officer-in-Charge signed the FIR as Exhibit-5 and he identified his signature thereon as Exhibit- 5/1. He also stated that Mosharrof Hossain as duty officer filled up the FIR form as Exhibit-6 and he identified his signature thereon as Exhibit-6/l. He took up the case for investigation; visited the place of occurrence; prepared sketch-map thereof with index and his signature so endorsed thereon has been marked as Exhibits-7, 7/1, 8 and 8/1 respectively. He duly sent the dead body to the morgue for autopsy. He deposed that the mouth of the victim was fastened with orhna. He recorded the statement of 4 witnesses. He arrested accused Azanur, Mamun and Sentu and produced them to the learned Magistrate for recording their confessional statements. He stated that the tobacco plants were three or four feet tall.
50. During cross-examination he stated that he did not seize blood stained mud of place of occurrence. He stated that he found some injures on the dead body of the deceased. He did not mark any apparent injury marks. He suspected that the deceased was murdered after commission of rape.
51. These are the witnesses adduced by the prosecution. On scrutinising the depositions of the witnesses, the features appeared that the deceased Sabina went to watch television to the neigh-bouring house and went missing. On searching, the naked dead body of the deceased was found in the tobacco field with marks of injuries on her chest, thigh and private organ. From the .post-mortem report, the cause of death was found due to asphyxia caused by strangulation which was ante-mortem and homicidal in nature with rape.
52. In the instant case, two appellants namely Mamun and Azanur Rahman made confessional statement before the Magistrate under section 164 of the Code of Criminal Procedure, 1898.
53. The confessional statement of Mamun reads as follows:
“সাবিনাদের বাড়ি থেকে আমাদের বাড়ি এক কিলো দূরে। তিজার প্রামাণিক এর ছেলে সেন্টুর সাথে সাবিনার ভালবাসা ছিল। সাবিনার বান্ধবী কাঞ্চন (পিং-রবেজল মণ্ডল) কে সেন্টু বলে সাবিনাকে সাবিনাদের বাড়ির পাশের তামাকের ক্ষেতে ডেকে আনতে বলে। সেন্টুর সাথে তার বন্ধু কামু (পিং-গনি মাস্টার) ছিল। ২৫-৩-২০০৪ তারিখ বৃহস্পতিবার রাত ৭/৮ টার দিকে কাঞ্চন সাবিনাকে ডেকে এনে দিয়ে বাড়িতে চলে যায়। সাবিনা, সেন্টু ও কামু তামাক ক্ষেতের মধ্যে বসে গল্প করতে থাকে। রাত হওয়ায় তারা সাবিনাকে বাড়িতে রাখতে যায়। বাড়ির কাছে গিয়ে সাবিনাকে খোঁজাখুঁজি হচ্ছে জেনে আবার মাঠের মধ্যে নিয়ে আসে। সেন্টু সাবিনাকে বলে চল বিয়া করব। সে সেন্টু ও সাবিনাকে বসিয়ে রেখে কামু টাকা আনার নাম করে বাড়িতে যাওয়ার কথা বলে শুকুর (পিং-কইমুদ্দিন মণ্ডল) কে ডেকে আনে। কামু ও শুকুর আজানুর কে ডাকতে আসে। কামু আজানুরকে বলে চল মাঠের মধ্যে কাজ আছে। ওরা তিনজন এসে আমাকে ডাকে। বলি যাইতে পারব না। তারা পীড়াপীড়ি করায় তাদের সাথে গেলাম। ৪ জন সাবিনা ও সেন্টুর কাছে পৌঁছানোর পর কামু সাবিনার মুখ চেপে ধরে। সেন্টু সাবিনার ওড়না দিয়ে সাবিনার মুখ বাঁধে। শুকুর সাবিনাকে কাধে করে তামাকের ক্ষেতের মধ্যে আনে। সেন্টু সাবিনার দুই হাত চেপে ধরে রাখে। কামু মুখ চেপে ধরে। শুকুর সালোয়ার ও কামিজ টেনে ছিঁড়ে গা থেকে খুলে ফেলে। শুকুর সাবিনার সাথে খারাপ কাজ করে। শুকুরের হয়ে গেলে সে সাবিনার মুখ চেপে ধরে। তখন কামু সাবিনার সাথে খারাপ কাজ করে। শুকুর ও কামু দুই হাত ধরে রাখে। তখন সেন্টু সাবিনার সাথে খারাপ কাজ করে। সেন্টু উঠে দাঁড়ানোর পর আজানুর খারাপ কাজ করে। তারপর আমি খারাপ কাজ করি। আমি যখন করি তখন সাবিনা হাত পা এড়িয়ে দেয়। মনে হয় অজ্ঞান হয়ে গিয়েছিল। শুকুর তার কোমরের থেক চাকু বের করে। আমি ও আজানুর জিজ্ঞাসা করি চাকু কি করিবি? বলে খুন করে ফেলতে হবে। আমরা বাধা দিই। তখন আমাদের শুকুর লাথি মারে। আমরা একটু সরে গিয়ে চোখ ঢেকে ফেলি। শুকুর চাকু দিয়ে আরও কয়টি কোপ দেয় তা অন্ধকার বুঝতে পারিনি। সাবিনাকে ধর্ষণ করার পের যে যারমত পালিয়ে যাই।”
54. The confessional statement of Azanur Rahman reads as follows:
“২৫-৩-২০০৪ তারিখে রাত্রি ১১ টা সাড়ে ১১ টার দিকে আমাকে শুকুর ও কামু এসে ডাকে। বলে মাঠে যেতে হবে। বলি কেন? বলে কাজ আছে। পীড়াপীড়ি করে আমাকে নিয়ে মামুনের বাড়ীতে যায়। মামুনকেও ডেকে নয়। মাঠের মধ্যে গিয়ে আমি সেন্টু ও সাবিনাকে দেখি। তারা পাশাপাশি বসেছিল। আমি কামুর কাছে জানতে পারি কাঞ্চনের মাধ্যমে TV দেখার নাম করে সাবিনাকে কামু ও সেন্টু ডাকায় আনে। সাবিনাকে দিয়ে কাঞ্চন চলে যায়। আমাদের ডেকে আনার পর কামু হঠাৎ সাবিনার মুখ চেপে ধরে। সেন্টু সাবিনার ওড়না দিয়ে সাবিনার মুখ বেধে ফেলে। শুকুর, কামু ও সেন্টু মিলে সাবিনাকে পেড়ে ফেলে। শুকুর সাবিনার জামা পায়জামা টেনে ছিঁড়ে ন্যাংটা করে ফেলে। সেন্টু মুখ চেপে ধরে রাখে। দুই হাত চেপে ধরে কামু। শুকুর দুই পা দুই হাত ধরে সাবিনার সাথে খারাপ কাজ করে। শুকুরের হাতে বড় নখ আছে তা দিয়ে সাবিনার দুধে জোরে টান দেয়। শুকুরের কাজ হয়ে গেলে কামু সাবিনার উপর চড়ে খারাপ কাজ করতে থাকে। শুকুর গিয়ে মুখ চেপে ধরে। কামুর হয়ে যাওয়ার পর সেন্টু খারাপ কাজ করে। তখন কামু গিয়ে সাবিনার হাত দুইটা ধরে। তখন মেয়েটা আর নড়াচড়া করছিল না। সেন্টুর হয়ে যাওয়ার পর আমি দাড়িয়ে ছিলাম। আমাকে শুকুর খারাপ কাজ করতে বলে। তখন আমার প্যান্টের চেইন খুলে সাবিনার সাথে খারাপ কাজ করি। তারপর আমি ওঠার পর মামুনকে খারাপ কাজ করার জন্য শুকুর বলে। তখন মামুন খারাপ কাজ করে। সাবিনা সেন্টু খারাপ কাজ করার সময় থেকে গা এড়িয়ে দিয়ে অজ্ঞান হয়ে যায়। আমি এবং কামু যখন খারাপ কাজ করি তখন তার জ্ঞান ছিল না। সবার খারাপ কাজ হয়ে যাওয়ার পর শুকুর তার কোমর থেকে চাকু বের করে। চাকু হঠাৎ শাঁট করে। আমি বলি কি করছিস? সে বলে একে খুন করব। আমি বাধা দিই। তখন আমাকে গালি দিয়ে লাথি মারে। মামুন বাধা দিলে তাকেও লাথি মারে। আমরা ভয়ে একটু দূরে গিয়ে দাঁড়াই। শুকুর চাকু মারছে এই শব্দ শুনতে পাই। সাবিনা একবার শুধু উঁ করে শব্দ করে। তার কোন শব্দ পাইনি। শুকুর বলে বাড়ি যায়। আমরা ভয়ে পালিয়ে যাই। আমি আর মামুন একবারে গীব বাসে ঢাকা যাই। ঘুরে ফিরে কোন কাজ না পেয়ে এক দিনই রাত ৯ টার বাসে কুষ্টিয়া চালের বাণ্ডার এ আমার খালার বাড়ীতে যাই। পরে আমার ভাই এসে পুলিশের হাতে ধরিয়ে দেয়।”
55. In the inquest report regarding the marks of injury on the dead body of the deceased it has been mentioned that there were seven marks of injuries with sharp knife on her chest, 2 marks of injuries on her thighs and one mark of injury on her private organ and his mouth was fastened with orhna. It is also mentioned' that deceased was raped before murder.
56. The injuries found on the dead body of the deceased after autopsy, have been mentioned in the preceding paragraphs during discussion of the evidence of PW 14 the doctor, who held the post-mortem.
57. So, the nature of injuries found in the inquest report as well as in the post-mortem report and in the inculpatory confessional statements made by Mamun and Azanur Rahman corroborate one another. The inculpatory confessional statements of Mamun and Azanur Rahman vividly narrated the circumstances how they committed rape and thereafter killed the deceased. The confessional statements support the inquest report as well as the post-mortem report.
58. From the deposition of PW 15, Md Nabirul Islam, Magistrate, 1st Class, and on perusal of confessional statements, it appears that the statements were recorded by the learned Magistrate following all the provisions required by law to be followed at the time of recording the confessional statements. PW 15 stated that the confessional statements made by Mamun and Azanur were clone voluntarily and it was true. The appellants Mamun and Azanur made confessional statements incriminating themselves along with Shukur, Sentu and Kamrul. Now, the question arises whether the confessional statements of Mamun and Azanur can be used against Shukur and Sentu.
59. Section 30 of the Evidence Act, 1872 provides that as follows:
"30. When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other persons as well as against the person who makes such confession."
60. The ingredients of this section are that:
- More persons than one are to be tried jointly for the same offence.
- One of such persons has to make confessional statement affecting himself and others. and
- Such confession can be taken into consideration by the Court against others as well as the maker of the confession.
61. In the instant case, the appellants Mamun and Azanur made inculpatory confessional statements which vividly narrated the crime committed by all of them. They made the inculpatory confessional statements incriminating themselves along with other co-accused and the defence failed to prove any personal enmity or grudge of Mamun and Azanur with the non-confessing appellants Shukur, Sentu and Kamu. Moreover, PWs 1, 10 and 11 gave evidence to the effect that they suspected the involvement of all the accused in the occurrence as they were missing after the occurrence and appellants Mamun and Azanur were arrested on such suspicion. In their confessional statements, both of them in a voice narrated the role played by themselves and other accused persons in the occurrence and there is no inconsistency in their statements which leads us to believe the confessional statements of Mamun and Azanur involving Shukur and Sentu in the said occurrence are true.
62. Moreover, the deposition of PWs 1, 10 and 11 regarding the absconding of Shukur and Sentu along with Mamun and Azanur after the occurrence took place, provides strong corroboration to the confessional statements of Mamun and Azanur. Besides, the post-mortem report and the depositions of the witnesses clearly it reveals that there was sign of rape on the victim girl and accordingly, the appellants Mamun and Azanur confessed about the role played by all of them at the time of committing rape. The confessional statements of Mamun and Azanur are not contradictory rather they in a voice categorically stated the acts committed by each of them.
63. It is true that there is no eye-witness in the instant case but the inculpatory, true and voluntary confessional statements of two accused and the circumstances particularly long absconding by Shukur and Sentu are so well, connected to indicate that those circumstances render no other hypothesis other than the involvement of the appellants Shukur, Sentu, Mamun and Azanur in the alleged rape and murder thereof.
64. In performing our duties, this court is charged with the task of not only assessing the facts against the law, but also considering the impacts of judgments that are pronounced and any assessment made on the overall justice system,.
65. With modern criminal justice mechanism, the right against self-incrimination is one that stands as a cornerstone. As such confessions by a co-accused are generally inadmissible against the accused in a concerned case. However, in our duties of administering justice, we are sometimes faced with a case that forces us to consider aspects of larger policy at play.
66. The balance between crime control and due process models of justice is such a consideration that requires reassessment with changing times and upon the fact of each case. The case before us is one of such a heinous crime, where measures of control are made far more necessary to ensure that justice can be brought to the victim in question, As such while due process is still of utmost importance: crime control considerations must be made as well.
67. As such, the considerations of the use of a co-accused's confession, where supported by corroborating evidence, in the face of an overwhelming presence of circumstantial evidence, must be made. In this instance, the accused's absconding prior to trial, suggests an intent to obstruct justice. Corroborative evidence presented by the prosecution shows that there is sufficient reason to suggest that the co-accused's accounts of the events are likely to be true. It is therefore, that this court is of the opinion that in order to pursue a model of crime control in this regard, this court is willing to admit, in such rare instances the confession of a co-accused as incriminating evidence against the other accused. Albeit such evidence is still circumstantial.
68. The principle of the right against self incrimination is also accompanied by the principle that upon silence on part of those incriminated adverse inferences may be drawn at any stage of the trial and pretrial procedures.
69. When the co-accused, Azanur and Mamun put forth their confessions, incriminating the accused Shukur and Sentu, they had the opportunity to present their accounts of the events in question. Their refusal to adduce defence witness and to give any statement, allows this Court to draw an adverse inference against them, in conjunction with the inferences drawn from the period of their absconding.
70. We hold that confessional statement of a co-accused can be used against others non-confessing accused if there is corroboration of that statement by other direct or circumstantial evidence. In the instant case, the makers of the confessional statements vividly have stated the role played by other co-accused in the rape incident and murder of the deceased which is also supported/corroborated by the inquest report, post-mortem report and by the depositions of the witnesses particularly the deposition of PWs 1, 2, 3, 10, 11, 12, 14 and 18 regarding the marks of injury on the body of the deceased. Every case should be considered in the facts and circumstances of that particular case. In light of the facts and circumstances of the present case, we are of the view that the confessional statement of a co-accused can be used for the purpose of crime control against other accused persons even if there is a little bit of corroboration of that confessional statement by any sort of evidence either direct or circumstantial. Thus, the accused namely Shukur and Sentu are equally liable like Azanur and Mamun for murdering the deceased after committing rape.
71. We are also of the view that confession of Azanur and Mamun and the inculpatory facts furnished by the circumstances appearing from the evidence as discussed above are incompatible with the innocence of the appellant Shukur and Sentu.
72. In consideration of the matters discussed above, we are of the view that the deceased Sabina was raped before murder. The post-mortem report shows that her death was due to asphyxia caused by strangulation which was ante-mortem and homicidal in nature with rape. The marks injuries found on her body as well as the discovery of .naked dead body which was supported by the witnesses i.e. PWs 1, 2, 4, 5, 10 and 11 clearly indicate .that she was raped before Murder. It is a strong circumstantial evidence that the deceased was raped before murder 'by the appellants.
73. In the light of the discussions we may conclude that the prosecution has been able to prove the charge against all the appellants beyond reasonable doubt and the Tribunal has rightly convicted and sentenced the appellants to death and the confirmation thereof by the High Court Division is justified. We find no cogent reason to interfere with the judgment and order passed by the High Court Division.
74. In the instant case, it is found that the deceased Sabina was a girl of 13 years and she had a relation with Sentu. On the date of occurrence, the deceased went to meet with Sentu. At one moment Sentu along with other appellants, namely Shukur Ali, Mamun and Azanur to fulfill their nefarious desire raped Sabina and thereafter, Appellant Shukur Ali killed the deceased with a knife which he brought with him. Before killing, appellant Shukur Ali stabbed Sabina with the knife on the different parts of her body including on her private organ which resulted to her harrowing death.
75. Mr SM Shahjahan learned advocate appearing for the appellant Shukur lastly drew our attention regarding the age of the appellants and submits that Shukur Ali was very young at the time of offence, 'the other appellants were also of very tender age, considering their age the sentence of death may be reduced.
76. In this regard it is pertinent to mention the observation of his Lordship HL Dattu former Honorable Chief Justice of India & two other honorable judges of the Supreme Court made in the case of Mofil Khan vs State of Jharkhand, (2015) 1 SCC 67, Para-20 that "Sentences of severity are imposed to reflect the seriousness of the crime, to promote respect for the law, to provide just punishment for the offence, to afford adequate deterrent to criminal conduct and to protect the community from further similar conduct. It serves a threefold purpose-punitive, deterrent and protective."
77. Regarding appropriate punishment and sentence his Lordship Mr Justice P. Sathasivam, J. in the case of Ahmed Hussain Pali Mohammed Saiyed vs State of Gujarat, (2009) 7 SCC 254, Paras 99 & 100 observed that "Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the victim of the crime but the society at large while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong."
78. We are of the view that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence on the judiciary. It is the duty of the Court to award appropriate sentence considering the gravity of the offence. Considering the nature and gravity of the, offence committed by the appellant Shukur Ali, we are of the view that the cruelty and violence with which he killed Sabina, the ends of justice demands his death sentence.
79. From the Materials on record, it appears that the appellants Sentu, Mamun and Azanur are in the condemned cell for more then 12(twelve) years Suffering the pangs of death. It was held in the case of Nazrul Islam (Md) vs State reported in [66 DLR (AD) 199] that, "Lastly' with regard to the period of time spent by the accused in the condemned cell, there are numerous decisions of this Division which shed light on this aspect. In general terms, it may be stated that the length of period spent by a convict in the condemned cell is not necessarily a ground for commutation of the sentence of death. However, where the period spent in the condemned cell is not due to any fault of the convict and where the period spent there is inordinately long, it may be considered as an extenuating ground sufficient for commutation of sentence of death." In view of the decision cited above as well as the circumstances of this case, we are of the view that justice would be sufficiently met if the sentence of death of the appellants Sentu, Mamun and Azanur be commuted to one of imprisonment for life.
80. Accordingly, the Criminal Appeal No.127 of 2014 is dismissed. The sentence of death of the appellant in respect of condemned-prisoner, namely Md Shukur Ali is maintained.
81. The sentence of death in respect of the appellant condemned-prisoner, namely, Sentu, son of Tijabuddin, Village-Lalnagor, Police Station-Daulatpur, District-Kushtia is commuted to imprisonment for life and also to pay a fine of Taka 50,000(fifty thousand), in default, to suffer rigorous imprisonment for 02(two) years more. He will get the benefit of section 35A of the Code of Criminal Procedure, 1898 in calculation of his sentence: The concerned Jail Authority is directed to shift the appellant to the normal jail from the condemned cell forthwith.
82. Jail Appeal No.26 of 2014 is dismissed with modification of sentence.
83. The sentence of death of appellant condemned-prisoner, namely, Mamun, son of Sirajul Pramanik of Village-Lalnagor, Police Station-Daulatpur, District-Kushtia is commuted to imprisonment for life and also to pay a fine of Taka 50,000(fifty thousand), in default, to suffer rigorous imprisonment for 02(two) years more. However, he will get the benefit of section 35A of the Code of Criminal Procedure, 1898 in calculation of his sentence. The concerned jail authority is directed to shift the appellant to the normal jail from the condemned cell forthwith.
84. Jail Appeal No.29 of 2014 is dismissed with modification of sentence.
85. The sentence of death of appellant condemned-prisoner, namely, Azanur Rahman, son of Talemuddin Mondal, Village-Lalnagor, Police Station-Daulatpur, District-Kushtia is commuted to imprisonment for life and also to pay a fine of Taka 50,000 (fifty thousand), in default, to suffer imprisonment for 02(two) years more. He will get the benefit of section 35A of the Code of Criminal Procedure in calculation of his sentence. The concerned jail authority is directed to shift the appellant to the normal from the condemned cell forthwith.
Jail Appeal No.29 of 2014 in respect of the appellant Sentu, is redundant in the light of the judgment in Criminal appeal No.127 of 2014.
End.
Appellate Division (Criminal)
Present:
Mr. Justice Syed Mahmud Hossain, Chief Justice
Mr. Justice Muhammad Imman Ali
Mr. Justice Hasan Foez Siddique
Mr. Justice Md. Nuruzzaman
Mr. Justice Obaidul Hassan
Criminal Petition for Leave to Appeal No.1088 of 2019.
(From the order dated the 18th of June, 2019 passed by the High Court Division in Criminal Appeal No.5923 of 2019).
State
... Petitioner
VS
Aslam Shikder
... Respondent
Judgement Date : November 22, 2021
Counsels:
AM Amin Uddin Attorney-General, with Biswajit Deb Nath Deputy Attorney-General, instructed by Sufia Khatun Advocate-on-Record
-- For the Petitioner.
Md Bodrul Islam, Advocate-on-Record
— For the Respondent.
Judgment
Md Imman Ali, J: This criminal petition for leave to appeal was filed by the State against the order dated 18-6-2019 passed by the High Court Division in Criminal Appeal No.5923 of 2019 granting ad interim bail for a period of one year to Aslam Shikder who was accused in Nari-o-Shishu Case No.15 of 2019 pending in the Nari-o-Shishu Nirjatan Daman Tribunal No.7, Dhaka.
2. The accused, Aslam Shikder was charged with an offence under section 9(1) of the Nari-o-Shishu Nirjatan Daman Ain, 2000. During the course of trial, the accused filed a number of applications for bail, lastly on 16-5-2018, which was rejected by the trial Court. The accused then filed Criminal Appeal No.5923 of 2019 before the High Court Division which culminated in the impugned order- granting ad interim bail. The State filed Criminal Miscellaneous Petition for Leave to Appeal No.694 of 2019 before this Division with a prayer for staying operation of the Order dated 18-6-2019 passed by the High Court Division. The State obtained an order of stay of the said order of ad interim bail, from the learned Judge-in-Chamber on 25-6-2019 for a period, of four weeks which was extended by, application for extension dated 14-7-2019.
3. When the criminal petition for leave to appeal was taken up for hearing on 12-3-2020, this Court was informed that the appellant had already been released on bail granted by the trial Court. In view of such revelation, this Court passed the following order on 12-3-2020.
“Having gone through the orders sheet in particular order No.44 dated 2-3-2020 of Nari-o-Shishu Nirjatan Daman Tribunal No.7 in Nari-o-Shishu Case No.15 of 2019, we are inclined to call Ms. Musammat Qumrun-nahar, Judge, Nari-o-Shishu Nirjatan Daman Tribunal-7, Dhaka to appear in person on 2-4-2020 at 9-00 am before this Court to explain how she could grant ad interim bail to the accused respondent Aslam Shikder, notwithstanding the fact that the order of bail granted by the High Court Division in Criminal Appeal No.5923 of 2019 was stayed by the learned Judge-in-Chamber on 25-6-2019. The order of stay was duly communicated to the Nari-o-Shishu Nirjatan Daman Tribunal-7, Dhaka as is evident by order No.32 dated 26- 9-2019.
For compliance of the order of stay dated 25-6-2019 passed by the learned judge-in-Chamber; the respondent Aslam Shikder is directed to surrender before the learned Nari-o-Shishu Nirjatan Daman Tribunal-7, Dhaka within 02 (two) weeks from date.
Let this order be communicated by a special messenger of this Court. The office is directed to return the LC records of Nari-o-Shishu Case No.15 of 2019 of the Judge, Nari-o-Shishu Nirjatan Daman Tribunal-7, Dhaka at once.
Accordingly, the petition is adjourned to 2-4-2020 for further order."
4. Due to COVID-19 pandemic, this Court could not sit on 2-4-2020. Thereafter, the matter was again posted in the daily cause list on 15-11-2021 and an order was passed directing Ms. Musammat Qumrunnahar to appear in person before this Court on 22-11-2021 at 9-30 am.
5. Today (22-11-2021) Ms. Musammat Qumrunnahar, the learned Judge of the Nari-o-Shishu Nirjatan Dainan Tribunal-7 physically appeared in Court No.1 and was heard in camera by virtual means. All members of the public, learned Advocates, court staff and officers, apart from the Special Officer of the Supreme Court; were excluded from the hearing.
6. Ms. Musammat Qumrunnahar was heard at length by the Full Bench of this Court. She was asked to explain how she could pass the order of ad interim bail to accused Aslam Shikder on 2-3-2020 when there was in existence an order of this Court dated 25-6-2019 staying the order of bail granted in his favour by the High Court Division. She replied that she was not aware of the order of stay passed by this Court. It was then pointed out to her that the records of the concerned case kept in her Court, particularly Order No.32 dated 26-9-2019 shows that the order of stay passed by this Court had been communicated to her Court. In reply she stated that she did not go through the record of the case and was not aware of the order of this Division which stayed the order of bail granted by the High Court Division. She repeatedly apologized for not having gone through the records of the case before passing the order granting bail to the accused.
7. The learned members of the Bench pointed out to Ms. Musammat Qumrunnahar that her orders dated 30-1-2020 and 2-3-2020 indicate that she had in fact gone through the records. We find that her order dated 2-3-2020 refers to an earlier order of the Tribunal dated. 11-3-2019 by which an application for bail filed by the accused had been rejected and the subsequent Criminal Appeal No.3526 of 2019 had been disposed of by the High Court Division on 16-4-2019. That order of the High Court Division is mentioned in the Tribunal's order No. 13 dated 16-6-2019 and order No.15 dated 25-6-2019. If she had diligently performed her judicial function and looked a little further, then she would have found that her predecessor had granted bail to the accused on 25-6-2019 pursuant to the order of bail granted by the High Court Division on 18-6-2019 which was communicated under a memo of the High Court Division dated 24-6- 2019. She would have also found that by order No.16 dated 27-6-2019 her predecessor had cancelled the bail of the accused in view of the order of stay passed by this Division on 25-6-2019, and on the next date (1-7- 2019) the accused was produced from jail custody.
8. We find from the records of the Tribunal that Ms. Musammat Qumrunnahar's predecessor refused the bail applications of the accused on five occasions. Ms. Musammat Qumrunnahar's intentional oversight to see the entire records of the case indicates bad intention.
9. It is true that the matter of granting bail to any accused is within the discretion of the learned Judge considering the bail application, but bail cannot be granted to an accused whose bail order has been stayed by the apex court. Moreover, discretion must be exercised judiciously, and any such application must be scrutinised in the light of all the facts and circumstances of the case and the evidence and materials on record. In the instant case, the prosecution case had been closed and arguments placed by the learned Advocates. It is highly improper to grant an accused bail when the case is ready for pronouncement of judgment, especially when the allegation is of an offence so Serious as rape and when bail has been consistently refused by all the Courts.
10. Moreover, it is evident that the order of bail granted by Ms. Musammat Qumrunnahar to accused Aslam Shikder is in violation of the order passed by this Court; which she evidently ignored. Ms. Musammat Qumrunnahar has palpably acted in defiance of the order of this Court ignoring the fact that her predecessor had canceled the bail of the accused in view of the selfsame order of this Court and the existence of that order is apparent on the face of the record. Thereafter, within seven days of granting bail to the accused, on 10-3-2020 Ms. Musammat Qumrunnahar expressed her embarrassment and recused herself from further dealings with the trial. This was done on a date when the case was not fixed for trial and there was no apparent reason for her to feel embarrassed after giving uncalled for relief to the accused by granting him bail in utter violation of the order of this Court.
11. In the light of the discussion above, we are of the view that Ms. Musammat Qumrunnahar in granting bail to accused Aslam Shikder has acted in patent violation of the order of this Court. We hold that Ms. Musammat Qumrunnahar is not fit to preside over any criminal matters. Hence, in exercise of our power Under Article 104 of the Constitution, the Sessions power of Ms. Musammat Qumrunnahar is hereby seized. Henceforth Ms. Musammat Qumrunnahar will not preside over any criminal matters in any Court of law in Bangladesh.
12. We note that by a subsequent order the judgment in the case was pronounced on 14-10-2020 acquitting the accused, and the said acquittal is under appeal in Criminal Appeal No.05 of 2020.
13. Accordingly, with the above observations and direction the criminal petition for leave to appeal is disposed of.
14. Let a copy of this order be communicated to Ms. Musammat Qumrunnahar and the Secretary, Ministry of Law, Justice and Parliamentary Affairs.
15. Let a copy of this order be placed on the Annual Confidential Record (ACR) of Ms. Musammat Qumrunnahar.
End.
IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Civil Appeal No. 55 of 2003
Decided On: 11.12.2022
Shishubar Dhali and Ors.
... Vs. ...
Chitta Ranjan Mondol and Ors.
Hon'ble Judges/Coram:
Md. Nuruzzaman, Obaidul Hassan, Borhanuddin and M. Enayetur Rahim, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Md. Nurul Amin, Senior Advocate instructed by Md. Nurul Islam Chowdhury, Advocate-on-Record
For Respondents/Defendant: M. Qumrul Haque Siddique, Advocate and Md. Ashiqul Haque, Advocate instructed by Bivash Chandra Biswas, Advocate-on-Record
Acts/Rules/Orders:
Code of Civil Procedure, 1908 (CPC) - Section 115(1); Constitution Of The People's Republic Of Bangladesh - Article 103, Constitution Of The People's Republic Of Bangladesh - Article 19(2), Constitution Of The People's Republic Of Bangladesh - Article 19(3), Constitution Of The People's Republic Of Bangladesh - Article 27, Constitution Of The People's Republic Of Bangladesh - Article 28(1), Constitution Of The People's Republic Of Bangladesh - Article 28(2)
Prior History:
From the Judgment and Order dated 04.07.2000 passed by the High Court Division in Civil Revision No. 2049 of 1999
Result:
Appeal Dismissed
JUDGMENT
Borhanuddin, J.
1. This civil appeal by leave is directed against the judgment and order dated 04.07.2000 passed by the High Court Division in Civil Revision No. 2049 of 1999 discharging the Rule and thereby affirming the judgment and decree passed by the courts below.
2. Brief facts for disposal of the appeal are that mother of the present respondent nos. 1-4 namely Elokeshi Mondol wife of Binoy Krishna Mondol as plaintiff instituted Title Suit No. 171 of 1981 in the 2nd Court of Sub-ordinate Judge, Khulna, impleading petitioners herein alongwith others as defendants for declaration of title; On transfer in the Court of Senior Assistant Judge, Additional Court No. 3, Khulna, the suit was renumbered as Title Suit No. 15 of 1992; During pendency of the suit, the sole plaintiff Elokeshi Mondol died and in her place present respondent nos. 1-4 were substituted as plaintiff nos. 1(ka) to (gha); Plaintiff-respondents claimed that the suit land originally belonged to Mohadeb Dhali and others who permanently settled the suit land infavour of Krishna Chandra Mondol by registered patta dated 24.01.1311 B.S; Said Krishna Chandra Mondol died leaving two sons namely Chatra Mondol and Roy Charan Mondol who in their turn transferred the suit land by registered kabala dated 16.05.1913 infavour of Rukkhini Dashi who purchased the same from her Stridhan fund; During owning and possessing 10.37 acres of land, Rukkhini Dashi settled 2.02 acres land under Korfa interest and the balance 8.35 acres was recorded in C.S. Khatian No. 36 in her name; Rukkhini Dashi died leaving only daughter Hazari Sundory Dashi who also died leaving only daughter the plaintiff Elokeshi Mondol; Plaintiff after getting the suit land by way of inheritance used to possess 15 decimals of land by settlement to Boroda Khanta Mondol and Pancharam Mondol and 28 decimals of land to Surendra Nath Bairagee for their residential purpose; During revisional settlement the plaintiff used to live at different village and she entrusted the responsibility to record the land in her name to defendant nos. 1-6 who were paternal uncles of the plaintiff but in breach of the trust they managed to get the suit land recorded in their names in the S.A. record; Although the record was prepared in the names of defendant nos. 1-6 but they never possessed the suit land; In the month of Falgun, 1348 B.S. for the first time they denied plaintiff's title; Hence, the suit.
3. Defendant nos. 1-4 and 11-14 contested the suit by filing separate written statement denying material allegations made in the plaint and contending, interalia, that one Darikanath died leaving 4(four) sons namely Banku Behari, Monmatha, Birinchi and Jagadish Chandra and while the aforesaid brothers were living in joint mess they purchased the suit land in the benami of Rukkhini Dashi who is the wife of Monmatha, with their joint money for their joint interest; The said Rukkhini Dashi was benamdar of the aforesaid 4(four) brothers; Banku Behari died leaving 3(three) brothers; Monmatha died leaving wife Rukkhini Dashi as his heir and after her death the suit land was correctly recorded in R.S. Khatian and S.A. Khatian in the names of defendant nos. 1-6 and that the suit land is not the Stridhan property of Rukkhini Dashi; Jagadish Dhali died leaving 4(four) sons i.e. defendant nos. 1-4 and husband of defendant no. 7; Birinchi Dhali died leaving Khogendra and Brindra i.e. defendant nos. 5 and 6 and they sold their share measuring 3.96 acres by registered kabala dated 02.07.1996 infavour of the defendant nos. 11-13 and delivered possession thereof; Defendant no. 14 also purchased .80 acre of land from the heirs of Nagendra who is the son of Jagadish; The plaintiff has no right, title and possession in the suit land and the contesting defendants have been possessing the suit land on payment of rent to the Government exchequer regularly; Plaintiff never inherited the suit land according to Hindu Dayabhaga Law of Inheritance as such the suit is liable to be dismissed.
4. In the trial court, the plaintiff examined 4 PWs and the defendants examined 6 DWs. All the witnesses were cross examined. Some documents were adduced in evidence and marked as exhibits.
5. Upon hearing the parties and perusing the evidence on record, learned Assistant Judge decreed the suit infavour of the plaintiff vide judgment and decree dated 26.02.1995 holding that 'by amendment of Hindu Law of Inheritance, 1929' the daughter's daughter are included as heirs and according to that law the plaintiff inherited the property left by Rukkhini Dashi.
6. Being aggrieved, the contesting defendants preferred Title Appeal being No. 92 of 1995 in the Court of learned District Judge, Khulna, and on transfer the appeal was heard by the learned Additional District Judge, Court No. 1, Khulna, who after hearing the parties dismissed the appeal by his judgment and decree dated 23.03.1999 affirming the judgment and decree of the trial court.
7. Having aggrieved, the defendant-appellants filed Civil Revision No. 2049 of 1999 under Section 115(1) of the Code of Civil Procedure before the High Court Division. In revision, the learned Single Judge of the High Court Division discharged the Rule vide judgment and order dated 04.07.2000 affirming the judgment and decree of the appellate court below.
8. Having aggrieved by and dissatisfied with the judgment and order passed by the High Court Division, the defendant-appellants as petitioners preferred Civil Petition for Leave to Appeal No. 671 of 2000 before this Division under Article 103 of the Constitution and obtained leave granting order dated 09.04.2002 in the following term:
"It is now submitted before us that the trial court wrongly held that the plaintiff Elokeshi as daughter's daughter of Rukkhini although did not inherit the suit land as Stridhan of Rukkhini Dashi according to Sections 154, 155, 156 and 157 of the Hindu Law but she inherited the suit land as per 'The Hindu Law of Inheritance (Amendment) Act, 1929' which is wrong as the above amendment is only applicable to the school of Mitakshara as it appears from said amendment itself. In not taking notice of the above important point of law the impugned judgment and decree is liable to be set-aside.
The submission made by the learned counsel for the leave petitioner needs to be examined.
Leave is granted."
9. Mr. Nurul Amin, learned Senior Advocate for the appellants at the very outset submits that the High Court Division erred in law in not considering that 'The Hindu Law of Inheritance (Amendment) Act, 1929' is only applicable to the school of 'Mitakashara' and this Amended Act has no relation with the Stridhan property as such the impugned judgment and order is liable to be set-aside. He also submits that the High Court Division failed to appreciate that according to the 'Dayabhaga' school, property inherited by a woman whether from a male or from a female, does not become her Stridhan and she takes only a limited interest in the property and on her death the property passes not to her heirs but to next heir of the person from whom she inherited it and if the property is inherited from a female, it will pass to the next Stridhan heirs of such female, thus the impugned judgment and order is liable to be set-aside. The learned Advocate referring Section 130 of 'The Principles of Hindu Law' written by D.F. Mulla and also Sections 162, 168 and 169 of the same submits that the property inherited by Hazari Sundory Dashi from the Stridhan property of her mother Rukkhini Dashi does not become her Stridhan property and she acquires only a limited interest of the property i.e. life estate and after the death of Hazari Sundory Dashi the property passes not to her heirs but to the next Stridhana heir of the person from whom she inherited it i.e. to the next Stridhana heir of Rukkhini Dashi i.e. her husband's younger brother and husband's brother's son as Stridhana heirs who are the defendants of the suit since daughter's daughter is not a heir to Stridhan under the Bengal Law and accordingly the High Court Division failed to appreciate in the light of the referred Sections of Hindu Law that Elokeshi Mondol is not the next Stridhan heir of Rukkhini Dashi as daughter's daughter of Rukkhini Dashi as such the impugned judgment and order is liable to be set-aside. In support of his submissions, learned Advocate referred the case of Sheo Shankar Lal and another vs. Debi Sahai (1903), reported in 30 I.A. 202, as well as 'Tagore Law Lectures-1878' by Gooroodass Banerjee M.A., D.L., Tagore Law Professor on 'Marriage and Stridhan of the Hindu Law'.
10. On the other hand Mr. Qumrul Haque Siddique, learned Advocate appearing on behalf of the respondents submits that the trial court decreed the suit finding that the defendants could not prove the case of ‘benami’ and plaintiff proved her possession in the suit land, the plaintiff inherited the suit land as per provision of ‘The Hindu Law of Inheritance (Amendment) Act, 1929’ and this finding has been affirmed in appeal and civil revision but referring paragraph-5 of the plaint he submits that the case of the plaintiff made out in paragraph-5 “নালিশী সম্পত্তি রুক্ষিনী দাসীর স্ত্রীধন সম্পত্তি বিধায় হিন্দু দায়ভাগ Law of succession অনুযায়ী বাদিনী উক্ত সম্পত্তি ওয়ারিশ সূত্রে প্রাপ্ত হইয়া.....” has not been examined or decided and as such decision/fate of this case depends on examination and decision of the question “Does the plaintiff inherit the suit land according to ‘The Dayabhaga’ law of Hindu succession?” After drawing our attention to paragraph nos.154-157 under chapter X(V) and paragraph nos.161, 162 under chapter X(VI) and paragraph no.169 under chapter XI(I) of the book ‘The Principles of the Hindu Law’ (15th Edition) by D. F. Mulla and the case of Sheo Shankar Lal and another vs. Debi Sahai (1903), reported in 30 I.A.202 as well as the decision in the case of Huri Doyal Singh Sarmana and others vs. Girish Chunder Mukerjee and others [Ind. L.R. 17 Cal, 911] alongwith Sections I and II under chapter IV of ‘The Dayabhaga’ by Jimuta Vahana, learned Advocate submits that the case of Huri Doyal Singh Sarmana and others vs. Girish Chunder Mukerjee and others [Ind. L.R. 17 Cal, 911] was a judgment Per Incuriam and does not have a binding effect and for the same reason the decision in the case of Sheo Shankar Lal and another vs. Debi Sahai (1903), reported in 30 I.A. 202 cannot be treated as binding precedent. By referring different Sections of chapter IV of ‘The Dayabhaga’ by Jimuta Vahana, learned Advocate submits that if all the paragraphs of Sections I and II of chapter IV are read together, it strongly suggests that when a daughter inherits Stridhan of her mother, she takes it absolutely like a son because son and daughter inherit “EQUALLY” and not even a single line ‘The Dayabhaga’ suggest it to become her “widow’s estate” or anything like that from which it is clear that Jimuta Vahana said that daughter inherits her mother’s Stridhana absolutely and thereafter did not say anything whether it would rank her Stridhana again or something else. Referring opinion of different Hindu jurists and scholars, (who had access to both Shanskrit and English) namely Gooroodass Banerjee, Golap Sastri, Jogendra Cunder Ghose and Mohamahopadhyayam Pandurang Vaman Kane, M.A, LL.M, learned Advocate submits that the women acquires all the rights to dispose of the Stridhana property at her will and there is no express text restricting women’s heritable right inasmuch as equality is the Rule where no distinction is expressed as such Elukeshi Mondol is entitled to get the property of her grandmother Rukkhini Dashi after the death of her mother Hazari Sundory Dashi.
11. Mr. Probir Neogi, learned Senior Advocate engaged as Amicus Curie by filing a writing submits that the contention of the appellants whether the suit property is Stridhana or not and whether Rukkhini was a mere benamder for the joint family are questions of fact decided by the courts below upon concurrent findings and the High Court Division upheld this concurrent findings of fact and now the question is 'if the suit property is Stridhan of Rukkhini, whether it could lawfully devolve upon the plaintiff Elokeshi, Rukkhini's daughter's daughter'. Referring Sections 160, 161, 162 and 168 of Mulla's 'The Principles of Hindu Law' (20th Edition), Volume 1, P.P. 264-272, learned Advocate submits that Bengal School of Hindu Law i.e. 'Dayabhaga Law of Inheritance' which is applicable in the instant case is not subscribed by identical view of different experts of Hindu Law rather it is clear that there is no consistent, uniform and firm Rule of Hindu Law imposing absolute/unqualified bar to succeed Stridhana by daughter's daughter as such plaintiff Elokeshi Mondol being the Stridhana heir in the second generation is not excluded from inheriting Stridhana of her grandmother. He also referred relevant portion of 'Tagore Law Lectures, 1878' by Sir Gooroodass Banerjee on the 'Hindu Law of Marriage and Stridhana' and submits that diversity of opinion of the authors/experts of customary law is an ambiguity in law and to clear that ambiguity in order to bring uniformity into the law required interpretation of this court. He next submits that judgment of the Privy Council in the case of Sheo Shankar Lal and another vs. Debi Sahai (1903), reported in 30 I.A. 202 is no bar for rendering necessary interpretation by this court to answer the question raised in this appeal i.e. whether the suit property could lawfully devolve upon the plaintiff Elokeshi, Rukkhini's daughter's daughter. He further submits that while interpreting a particular question of law in order to clear ambiguity, this court should be guided by spirit and objective of the supreme law of the land, namely the Constitution, which prohibits discrimination on the ground of sex. On this point he also referred the enactment of the Hindu Succession Act, 1956 by which harmony, uniformity and fundamental reforms have been brought in Hindu Law in India and thus giving equal right of inheritance to man and women. He lastly submits that the decision of the courts below challenged in this appeal merits to be upheld expunging the trial courts view on 'The Hindu Law of Inheritance (Amendment) Act, 1929'.
12. Heard the learned Advocates for the parties as well as learned Amicus Curiae engaged by the court. Leave has been granted at the instance of the defendant-appellants to consider the following grounds:
"Elokeshi as daughter's daughter of Rukkhini although did not inherit the suit land as 'Stridhan' of Rukkhini Dashi according to Sections 154, 155, 156 and 157 of the Hindu Law but she inherited the suit land as per 'The Hindu Law of Inheritance (Amendment) Act, 1929' which is wrong as the above amendment is applicable only to Mitakshara school as it appears from said amendment itself. In not taking notice of the above important point of law the impugned judgment and decree is liable to be set-aside."
13. Plaint case in brief is that the suit land belonged to Rukkhini Dashi which she acquired by registered patta dated 24 Baishakh, 1311 B.S. and it was her 'Stridhana' property. Said Rukkhini died leaving only daughter Hazari Sundory Dashi who also died leaving only daughter the plaintiff Elokeshi Mondol who is in possession of the suit land.
14. The defendant-appellant's line of contention is broadly divided into two branches:
- The suit property was not 'Stridhana' of Rukkhini, rather it was a joint family property purchased from joint family funds and Rukkhini was a mere benamder for the family;
- Even if, the suit property is held to be 'Stridhana' of Rukkhini it cannot devolve upon the plaintiff Elokeshi who happens to be Rukkhini's daughter's daughter.
15. Whether the suit property is 'Stridhana' or not, and whether Rukkhini was a mere benamder for the joint family property, are questions of fact and both the Trial Court and the Appellate Court below having arrived at the same conclusion on this questions on concurrent findings of fact and the High Court Division in revision having upheld this concurrent findings of fact, this question cannot be reopened at this stage. The trial court also arrived at a finding that the plaintiff has inherited the suit land as per provision of 'The Hindu Law of Inheritance (Amendment) Act, 1929' and this finding has also been affirmed in appeal and civil revision. The submission made on behalf of the defendant-appellants to the effect that 'The Hindu Law of Inheritance (Amendment) Act, 1929' [Act II of 1929] is only applicable to the school of Mitakshara, is correct inasmuch as Section 1(2) of the said Act provides:
"1(1) ----------------
(2) It extends to the whole of Bangladesh, but it applies only to persons who, but for the passing of this Act, would have been subject to the law of Mitakshara in respect of the provision herein enacted, and it applies to such persons in respect only of the property of males not held in coparcenary and not disposed of by will."
16. So, finding of the courts below based on ‘The Hindu Law of Inheritance (Amendment) Act, 1929’ is wrong. The learned Counsel for the plaintiff-respondents also admitted the same. But he submits that the plaintiff in paragraph-5 of the plaint stated that “নালিশী সম্পত্তি রুক্ষিনী দাসীর স্ত্রীধন সম্পত্তি বিধায় হিন্দু দায়ভাগ Law of succession অনুযায়ী বাদিনী উক্ত সম্পত্তি ওয়ারিশ সূত্রে প্রাপ্ত হইয়া.....” has not been examined or decided as such decision of this case depends on examination and determination of the question “Does the plaintiff inherit the suit land according to ‘The Dayabhaga’ law of Hindu succession?”
17. The guiding 'Principle of Law of Inheritance' under the Dayabhaga School of Law, which prevails in Bangladesh, is the doctrine of religious efficacy. Religious efficacy means capacity to confer special benefit upon the deceased person. Succession is the mode of devolution of property under the Dayabhaga system. The general Rule of inheritance is that once a property is vested upon any one, it will not be divested. But in case of Hindu woman, getting limited ownership in the property is contradictory to this general Rule as the property will revert back to the heir of the owner. Only in case of Stridhan property, it reverts back to the nearest heir of the female who is the owner of that property. It is to be noted that succession of the 'Stridhan property' is held absolutely by a female. The word Stridhan is derived from the term 'Stri' which means woman and 'Dhan' which means property. A Hindu woman may acquire property from various sources. She may acquire property through gifts, inheritance as well as her own skill and labor.
18. "The Principles of Hindu Law" by D.F. Mulla is one of the most frequently consulted book on the point at issue. The 15th Edition of the book with supplement of 1986 by Sundarlal T. Desai contain the commentaries as written before 1956 divided into Chapters and Paragraph numbers. Paragraph Nos. 154 to 157 of Chapter X(V), Paragraph Nos. 161, 162 of Chapter X(VI), and Paragraph No. 169 of Chapter XI(I) are relevant for the present case.
19. It appears that Bengal School of Hindu Law i.e. Dayabhaga Law of Inheritance which is applicable in the instant case is not subscribed by identical view of different experts of Hindu Law. Some of the very important divergent views on this point are mentioned below:
In Mulla's 'The Principles of Hindu Law' (20th Edition, Vol. 1, pp. 264-272), while describing Rules common to all the Schools, these have been contemplated:
§ 160. Stridhana heirs take per stripes
Stridhana heirs in the second generation, i.e., son's, daughter's sons, and daughter's daughters, take per stripes and not per capita.
(emphasis added)
§ 161. Where stridhana heir is a male
A male inheriting stridhana takes it absolutely, and on his death, it passes to his heirs.
Stridhana heirs are either males, such as sons, daughter's sons, son's sons, etc., or they are females, such as daughter, daughter's daughters, etc.
(emphasis added)
§ 162. Where stridhana heir is a female
According to the Bombay School, a female inheriting stridhana takes it absolutely, and on her death, it passes to her heirs. According to all other schools, a female inheriting stridhana takes a limited interest in it, and on her death, it passes not to her heirs, but to the next stridhana heir of the female from whom she inherited it.
(emphasis added)
Illustration (a) of § 168 of the Mulla's Hindu Law states-
(a) A, a Hindu male governed by the Bengal School of Hindu Law, dies leaving a widow and a brother. On A's death, the widow succeeds as his heir. The widow then dies leaving a daughter's daughter. The widow's stridhana will pass to the daughter's daughter as her stridhana heir, but the property inherited by her from her husband A will pass to the next heir of her husband, namely his brother.
(emphasis added)
20. In the said commentaries of Mulla, even it has been stated-
"A Hindu widow may by custom, be entitled to her husband's property absolutely. [Krishna Bai vs. Secretary of State, (1920) 42 All 555, 57 IC 520, MANU/UP/0068/1920 : AIR 1920 All 101 (Bikaner)]"
21. From the above principles quoted from Mulla, it is clear that there is no consistent, uniform and firm rule of Hindu Law imposing absolute/unqualified bar to succeed Stridhana by daughter's daughters. Moreover, § 160 makes it clear that Stridhana heirs in the second generation may be daughter's daughter. In the instant case, plaintiff Elokeshi is daughter's daughter of Rukkhini, the original Stridhana owner, and, for that matter, she is a Stridhana heir in the second generation, and obviously not excluded from inheriting Stridhana of her grandmother, as it is evident from § 160.
22. Further, the contemplations of sections 159, 160 and 161 make it absolutely clear that daughter's daughters are not excluded from inheriting Stridhana. But § 162 contemplates that where a female inherits Stridhana, on her death, it passes not to her heirs but to the next Stridhana heirs of the female from whom she inherited it. In the instant case Hazari Sundori Dashi inherited Stridhana of her mother Rukkhini Sundori Dashi, and on the death of Hazari, it passed to Elokeshi who is the next Stridhana heir of Rukkhini as it appears from both the plaint and the written statement.
23. Sir Gooroodass Banerjee, in his 'Tagore Law Lectures, 1878 on the Hindu Law of Marriage and Stridhana' said:
"It remains now to consider the definition of Stridhana according to the Bengal school. That school is represented by its founder Jimuta Vahana and his followers Raghunandana and Srikrishna. The Dayabhaga of Jimuta Vahana, which is the leading authority of that school, gives, like the Mitakshara, a general definition of Stridhana; but, unlike the work of Vijnaneshwara, from which it differs on many important points, it restricts the application of the term to certain descriptions of property belonging to a woman. Generally speaking, woman's property has two peculiarities attaching to it:-
Firstly, she has absolute power of disposal over it, notwithstanding her general want of independence; and,
Secondly, it follows a special order of succession.
Now, the former of these peculiarities does not, according to certain texts of Katyayana cited above, attach to every sort of property belonging to a woman and accordingly, to reconcile their unlimited literal interpretation of the term Stridhana with these texts, the Viramitradaya and the Mayukha expressly affirmed that a woman's power of disposal is absolute, not with regard to every kind of her Stridhana, but with only certain kinds of it. Jimuta Vahana, on the contrary, maintains, that property belonging to a woman in order that it may properly be called Stridhana, must possess the quality of being alienable by her at pleasure." (p. 297, 3rd Edition-Revised)
24. Sir Gooroodass Banerjee in the said lecture also stated-
"The doctrine that the Stridhana which has once passed by inheritance ceases to rank as such, is not easily deducible from Jimuta Vahana's definition of Stridhana. That definition, as you have seen, restricts the term to property which woman has power to dispose of independently of her husband's control. " (p. 303-304, ibid)
25. Diversity of opinion of the authors/experts of customary law is an ambiguity in law. It is submitted that where there is an ambiguity in law, both statute and non-statue law (customary law), this Court can and is required to clear the ambiguity in order to bring uniformity into the law by way of interpretation. Such interpretations are more required for non-statute/customary laws like personal laws, as in the instant case, which stem from different sources very ancient, which were reduced into written form over centuries after they actually came into being, which took their present shape through widely divergent opinion of various religious legal experts, and which are still composed of divergent views.
26. Thus, the judgment of the Privy Council in the case of Sheo Shankar Lal and another Vs. Debi Sahai (1930), 30 I.A. 202, is no bar for rendering necessary interpretation by this Court to answer the question raised in this appeal. The learned counsel for the plaintiff-respondents has submitted that the said decision of the Privy Council is a judgment per incurium, and on that score it is not binding. The word 'per incurium', is a Latin expression. It means, 'through inadvertence' (BADC vs. Abdul Barek Dewan, 4 BLC (AD) 85, para 18). In Black's Law Dictionary per incurium has been meant as follows:
Per incurium (of a judicial decision): wrongly decided, usually because the judge or judges were ill-informed about the applicable law.
27. In Paragraph 169 under chapter XI(I) of 'The Principles of Hindu Law' by D.F. Mulla, referring to a decision of Privy Council in the case of Sheo Shankar Lal and another vs. Debi Sahai (1903), reported in 30 I.A. 202, it has been stated that:
"---- a female inheriting property [Stridhana] from a female takes only a limited estate in such property, and at her death the property passes not to her heirs, but to the next Stridhana heir of the female from whom she inherited it".
28. Relevant portions of the said judgment are as follows:-
"The precise question, therefore, arising for decision is whether, under the Hindu Law of Benares school, property which a woman has taken by inheritance from a female is her Stridhan in such a sense that on her death it passes to her Stridhan heirs in the female line to the exclusion of males.
Their Lordships regret that they are called upon to decide this question upon an appeal heard ex-parte --- --- ---
---- In Bengal it is well-settled law that property inherited from a woman by a woman does not on the death of the latter passes as her Stridhan. The Rule has often been expressed by saying that what has once descended as Stridhan does not so descend again. The authorities have been collected and reviewed in Huri Doyal Singh Sarmana vs. Girish Chundar Mukerjee (Ind. L. R. 17 Cal. 911). ---"
29. Examining the decision in the case of Huri Doyal Singh Sarmana vs. Girish Chundar Mukerjee [Ind. L.R. 17 Cal, 911] the following relevant observation are found:
"--- --- from the Dayabhaga, Chapter IV, Section I --- --- and there is not the slightest indication that inherited property in the author's opinion would rank as Stridhan. In Chapter XI, Section II, Paragraphs 30 and 31 of the same treatise, when treating of the daughter's succession to the father's property, the author says that the principle laid down in the case of widow (Chapter XI, Section I, Section 56), that on her death the inheritance passes to the next heir of the last full owner, the husband, 'is applicable generally to the case of succession of a woman's succession by inheritance'. It is true that this is said in a Chapter of the work relating to succession to the property of a male, but the language is quiet general.----
--- --- whenever a woman succeeds to property by inheritance, the property on her death passes not to her heir, but to the next heir of the last full owner who would have succeeded in the first instance if she had not been in existence ----"
30. The 17 Ind. L.R. Cal 911 case was decided relying on Chapter XI Section II of the Dayabhaga. But title of Chapter XI of the Dayabhaga by Jimuta Vahana is "On succession to the estate of one who leaves no male issue", title of Section I of this Chapter is "On the widow's right of succession" and that of Section II of this Chapter is "On the right of Daughter and Daughter's Son."
31. On the other hand, title of Chapter IV of the Dayabhaga by Jimuta Vahana is "Succession to Women's Property".
32. Title of Section I of this Chapter is "Separate property of a Woman defined and explained".
33. Title of Section II of this Chapter is "Succession of a woman's children to her separate property."
34. From a plain reading of the "Dayabhaga" we find:
- Section I of Chapter IV of "The Dayabhaga" defined and explained separate property of a woman in paragraphs 1 to 26. An examination of the said paragraphs shows that at least 6 kinds of properties have been enumerated in this section, which materially differs from what has been discussed in the book written by D.F. Mulla.
- At the end of paragraph 17 of section I it has been stated "---- and after her death, descends to her offspring."
- Section II of Chapter IV deals with succession to STRIDHANA named separate property of woman and there are 29 paragraphs in this Section.
- Paragraph I of this Section quotes Manu to have said, "When the mother is dead, let all the uterine brothers and the uterine sisters equally divide the maternal estate."
- Paragraph 2 says "--- --- Meaning of this passage must be this: "Let sisters and brothers of the whole blood share the estate."
- Paragraph 8 says the term "Equal" is unquestionably pertinent, as it obviates the supposition, that deductions of a twentieth and the like shall be allowed in the instance of the estate of the mother's estate, as in that of the father's. Therefore, the half-learned person who argues, that the declaration of equality is impertinent, must be disregarded by the wise, as unacquainted with the letter of the law, and with the reasoning which has been set forth." (emphasis added)
- Paragraph 12 of Section II says, "on failure of all these above-mentioned, including the daughter's son and the son's grandson, the barren and the widowed daughters both succeed to their mother's property; For they also are her offspring; and the right of others to inherit is declared to be on failure of issue."
35. If all the paragraphs of sections I and II of Chapter IV are read together, it strongly suggests beyond all shadow of doubts that when a daughter inherits Stridhan of her mother, she takes it absolutely like a son because son and daughter inherit "EQUALLY" and not even a single line of "The Dayabhaga" suggests it to become her "widow's estate" or anything like that. Consequences of widow's estate are depicted in Chapter XI of "The Dayabhaga".
36. Thus it is clear that, Jimuta Vahana said that daughter inherits her mother's Stridhana absolutely, and thereafter did not say anything whether it would rank her Stridhana again or something else, it would be totally beyond jurisdiction, competence, and authority of
- all governed by "The Dayabhaga",
- the lawyers, and
- even the Judges, how high so ever,
to add something in the Dayabhaga to deprive the daughter's daughter from her mother's or maternal grandmother's "separate property" or "absolute property".
37. In this connection it would be wise to examine the opinion of the famous Hindu jurists and scholars (who had access to both Sanskrit and English), expressed in their laborious works on 'Hindu Law' both before and after the judgment of the Privy Council in Sheo Shankar Lal's case (30 I.A. 202).
38. Gooroodass Banerjee: In Tagore Law Lectures-1878, Lectures XI and XII on Hindu Law of Marriage and Stridhan delivered by Gooroodass Banerjee, M.A., D.L., Tagore Law Professor said (at page 411)-
"the Bengal lawyers divide Stridhan into the following three classes with reference to the relative rights of sons and daughters:-
I. The Yautuka.
II. Property given by the father.
III. All other description of Stridhana.
With reference to class III, which is the main class, Jimuta Vahana cites the following texts:-
Manu: When the mother is dead, let all the uterine brothers and the uterine sisters equally divide the maternal estate.
---- on turning to the Dayabhaga Chapter IV, Section 2, On the succession of a women's children to her separate property, in the third sloke, the law is thus laid down-'A woman's property goes to her children, and the daughter is a sharer with them, provided she be unaffianced.'
----- after the daughter's son, Jimuta Vahana admits the barren and the widowed daughters, though they are unfit to confer spiritual benefit, on the ground that 'they also are her offspring' and that 'the right of others to inherit is declared to be on failure of issue', that is in other words, on the ground of natural love and affection. Thus, Jimuta Vahana so far allows the doctrine of spiritual benefit to be subordinated to other considerations."
39. Golap Sastri, in his precious investigative work 'Hindu Law' 4th Edition, 1910 dealt with the point in Chapter XII. Quoting from the original texts the author drew his conclusions. He observed at Page No. 638 as follows:
"---- and certain women are declared heirs to Stridhana property. According to the codes, the property inherited by women became their Stridhana; because the very fact of one's becoming heir to another's estate, means, that the former acquires all the rights of the deceased over his property, and because there is no express text restricting women's heritable right."
40. At page 639 he observed:
"And thus the Bengal women's position with curtailed heritable right is superior to that of Mitakshara women -----"
41. At page 659 he said:
"If any Bengali be asked as to the law by which he is governed, the answer will be invariably received that he is governed by the Dayabhaga; nobody will name either Srikrishna or Dayakarma-Shangraha.
Now not only there is nothing in the Dayabhaga in support of the above view on the contrary, a perusal of Chapter IV of the Dayabhaga wherein Stridhana and its devolution are discussed, will convince the reader that the daughter takes the same interest in their mother's Stridhana as sons.
Because it is a peculiar doctrine of the founder of the Bengal school, that sons and daughters equally inherit their mother's non-jautuka Stridhana, and in arguing out this position, he refers to the well-known maxim that, "Equality is the Rule where no distinction is expressed." It is difficult to understand how in the face of what the founder maintains, namely, that the heritable right of the son and the daughter is equal, can it be contended that they take different estates. This would be over-ruling Jimuta Vahana by Srikrishna.
Besides in nine hundred and ninety-nine cases out of every thousand, Stridhana consists of movables only; and the heir male or female takes it absolutely, according to the popular belief and usage. That the female heir takes only a limited interest, and is not absolutely entitled, is an idea which is not known to the people, nor even to the persons likely to become reversioners. If that were the law, how is it that there is no provision made by Hindu Law for the protection of the future interest of the reversioners?"
42. Jogendra Cunder Ghose, in his 'The Principles of Hindu Law' Volume-1, first published in 1917 at page 352 had observed:
"The Privy Council has held that the descent to such property is not governed by the rules of succession to Stridhana but goes to the heirs of her other property. The Smritis as well as the commentaries, except the Mayukha, contained no provisions, regarding succession to a female's property other than her Stridhana and the family property inherited from the husband and son. We are thus placed in a very difficult position and when a female leaves no son but a daughter's daughter, who would be the heir of her Stridhana, such daughter will not take; and indeed, any special rules of succession to such property that may be laid down will have no texts or commentaries to support them. Indeed, there is no authority in the Smritis for this position."
43. Mohamahopadhyayam Panduang Vaman Kane, M.A, LL. M, Advocate in his esteemed book "The History of Dharmasastra" Volume III published by Bhandarkar Oriental Research Institute, Poona, 1946 at page 789 stated 'Manu (IX.192-193) provides:
"When the mother dies all the full brothers and full sisters should equally divide the mother's estate. Even to the daughters of those daughters something should be given (that is) as much as would be seemly out of the estate of their grandmother on the ground of affection."
44. All the above-mentioned scholars in the field of law were also members of the Hindu Community of Bengal. It must be presumed that they were aware and acquainted with the faith, customs, and usages of the Hindus of Bengal as to 'partition of Stridhan'. What they have opined in their reputed works are now the best available aid to construction of the text of "The Dayabhaga".
45. From the discussions made above, it can be said that the decision passed in Huri Doyal Singh Sarmana and others vs. Girish Chunder Mukerjee and others [Ind. L.R. 17 Cal, 911] and the decision in the case of Sheo Shankar Lal and another vs. Debi Sahai (1903), reported in 30 I.A. 202 does not have a binding effect and cannot be treated as a binding precedent.
46. It is an elementary principle of law that what devolve upon the successor from the predecessor are all rights and liabilities of the predecessor attached to and arising of a certain property. In that view of the matter, the Stridhana being absolute ownership of a woman, on her death, absolute ownership devolve upon her heir, no matter whether it is called Stridhana or not. Even in the judgment of Sheo Shankar Lal and another vs. Debi Sahai, it has been observed by the Privy Council:
"During the voluminous discussions, ancient and moderned which have arisen with regard to the separate property of woman under Hindu Law, its qualities, its kinds, and its lines of descents, the question has constantly been found in the forefront, What is Stridhana? The Bengal School of the lawyers have always limited the use of the term narrowly, applying it exclusively or nearly exclusively to the kinds of woman's property enumerated in the primitive sacred texts. The author of the Mitakshara and some other authors seem to apply the term broadly to every kind of property which a woman can possess, from whatever source it may be derived. Their Lordships do not propose to dwell upon this particular question. It may perhaps be regarded as one mainly of phraseology, not necessarily involving, however it be answered, much distinction in the substance of the law; for most of the old commentators recognize with regard to the property of a woman, whether called Stridhana or by any other name, that there may be room for differences in its line of descent according to the mode of its acquisition."
47. In Chapter IV, Sub-section 8 of Section II, relating to succession of a woman's children to her separate property described by Jimuta Vahana in 'Dayabhaga' is as follows:
But if one should propose this solution: 'the ordaining of equal participation is fit, if the brother and sister have alike a right of succession to their mother's property; but, if sisters only inherit equally, or, on failure of them, brothers only, the declared equality would be impertinent, since it might be deduced, without such declaration, from reasoning, because no exception to it has been specified:' he might be thus answered [by an obstinate antagonist:‡] It is no less impertinent to declare equality, on the assumption, that brother and sister inherit: since their parity may be in like manner deduced from reasoning.' [The antagonist might proceed to say+]. Besides, how is it impertinent? Since, in the case of brothers inheriting alone, [upon failure of sister,‡] the term "equal" is unquestionably pertinent, as it obviates the supposition, that deductions of a twentieth and the like shall be allowed in the instance of the mother's estate, as in that of the father's. Therefore, the half learned person [who argues, that the declaration of equality would be impertinent, (sic)] must be disregarded by the wise, as unacquainted with the letter of the law, and with the reasoning [which has been here set forth.]
(emphasis added)
48. To ensure 'equality' between male and female, Indian Parliament by amending section 14 of the Hindu Succession Act, 1956 declared property of a female Hindu to be her absolute property in the following manner:
(1) any property possessed by a Female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.-In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as Stridhana immediately before the commencement of this Act.
(emphasis added)
49. Again, Section 15 under the caption General rules of succession in the case of female Hindus runs as follows:
(1) The property of female Hindu dying intestate shall devolve according to the Rules set out in section 16.-
(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
50. Furthermore, the Constitution of the People's Republic of Bangladesh is the solemn expression of the will of the people and the supreme law of the land. The principles of 'equality' before the law and 'equal protection' of the law are also incorporated in the Constitution as Fundamental Rights. It has been stated in Article 27 of the Constitution that:
'All citizens are equal before law and are entitled to equal protection of law.'
51. One of the Fundamental Principles of State Policy of the Constitution of Bangladesh as provided in Article 19(2) is that:
'The State shall adopt effective measures to remove social and economic inequality between man and man and to ensure the equitable distribution of wealth among citizens, and of opportunities in order to attain a uniform level of economic development throughout the Republic.'
52. Again, Article 19(3) of the Constitution further declare that:
'The State shall endeavor to ensure equality of opportunity and participation of women in all spheres of national life.'
53. Formal equality is explicitly enshrined in the Constitution of Bangladesh and various Articles reiterate the principle of non-discrimination based on sex, caste, race and other motives. It has been stipulated in Article 28(1) of the Constitution that:
'The state shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth.'
54. Again, Article 28(2) further provided that:
'Women shall have equal rights with men in all the spheres of the State and of public life.'
55. Under the facts and circumstances of the case and the discussions made above, we are of the view that the suit property being Stridhana of Rukkhini Dashi will lawfully devolve upon the plaintiff Elokeshi, Rukkhini's daughter's daughter according to her faith law 'The Dayabhaga'. However, the trial court's view on 'The Hindu Law of Inheritance (Amendment) Act, 1929', affirmed by the court of appeal and revision is hereby expunged.
56. Accordingly, the civil appeal is dismissed with the observations made above.
57. No order as to costs.
IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Civil Appeal No. 142 of 2008
Decided On: 17.01.2023
Commissioner of Customs, VAT & Excise, Agrabad Commercial Area Chattogram and Ors.
... Vs. ...
Abul Khair Steel Mills Limited
Hon'ble Judges/Coram:
Md. Nuruzzaman, Borhanuddin and Md. Abu Zafor Siddique, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Samarendra Nath Biswas, Deputy Attorney General instructed by Haridas Paul, Advocate-on-Record
For Respondents/Defendant: Ramjan Ali Sikder, Advocate instructed by Madhumalati Chowdhury Barua, Advocate-on-Record
Acts/Rules/Orders:
Constitution Of The People's Republic Of Bangladesh - Article 102; Customs Act, 1969 - Section 104, Customs Act, 1969 - Section 12, Customs Act, 1969 - Section 25, Customs Act, 1969 - Section 25(1), Customs Act, 1969 - Section 25(2), Customs Act, 1969 - Section 25(3), Customs Act, 1969 - Section 25(7), Customs Act, 1969 - Section 25A, Customs Act, 1969 - Section 30, Customs Act, 1969 - Section 30(a), Customs Act, 1969 - Section 30(b), Customs Act, 1969 - Section 30A, Customs Act, 1969 - Section 79, Customs Act, 1969 - Section 79(2), Customs Act, 1969 - Section 98
Prior History:
From the Judgment and Order dated 19-7-2005 passed by the High Court Division in Writ Petition No. 101 of 1998
Result:
Appeal Dismissed
JUDGMENT
Borhanuddin, J.
1. This civil appeal by leave arise out of the judgment and order dated 19-7-2005 passed by the High Court Division in Writ Petition No. 101 of 1998 making the Rule absolute with direction.
2. Facts relevant for disposal of the appeal are that the respondent herein as petitioner riled the writ petition contending, inter alia, that the petitioner is a private limited company incorporated under the Companies Act, 1913 and engaged in the business of, amongst other, importing BP/MS coil, cold rolled etc.; In course of its business, the petitioner opened Letter of Credit (hereinafter stated as 'LC') on 7-10-1996 for importation of one thousand metric tons of BP/MS coil valued at USS 4,86,000 under section 25A of use Customs Act, 1969; Subsequently, the said LC was amended on 17-10-1996 increasing value of the goods to USS 4,87,500; The LC was opened relying on the notification being SRO No. 316-Ain/94/1568/Shulko dated 3-11-1994 issued under the authority of section 25A of the Customs Act to get benefit of Clean Report of Findings Certificate (hereinafter stated as 'CRF Certificate') and the condition of the CRF Certificate has been incorporated in the LC; The aforesaid SRO No. 316 dated 3-11-1994 provides that the imported goods to be physically verified by the Government enlisted Pre-Shipment Inspection (hereinafter stated as 'PSI') Agency and accordingly a CRF Certificate will be issued and such goods on arrival in the country shall be assessed on the basis of such CRF Certificate wherein the price, quality, quantity and HS Code number of the goods verified will be mentioned; The petitioner's imported goods were duly verified at the port of loading by one of the Government enlisted PSI Agency on 15-11-1996 and the CRF Certificate was issued on 12-12-1996; After arrival of the goods at Chattogram Port, the petitioner through its clearing (C&F) agent submitted In-Bond Bill of Entry on 1-2-1997 under the Registration No. C-58875 for the purpose of assessment of duties and taxes on the basis of CRF Certificate value and accordingly the customs authority assessed the goods on the basis of CRF value and allowed the goods to be warehoused against Bond No. A-5 dated 13-2-1997; On 2-11-1997 the petitioner company through its clearing agent submitted Ex-Bond Bill of Entry for release of a part of the warehoused goods on payment of duties and taxes on the basis of CRF value but the writ-respondent No. 2 the Superintendent, Customs, Excise & VAT, Feni Circle, Feni refused to make assessment as per CRF certified value stating that there is no Rule to assess the goods on the basis of CRF Certificate value in respect of Ex-Bond Bill of Entry vide order dated 28-12-1997; In the meantime the notification being SRO No. 113-Ain/97/1705/Shulko dated 11-5-1997 was published by which several items were taken out from the list of items allowed to enjoy benefit of CRF Certificate facility and by another notification being No. 26797/Shulko dated 11-9-1997 tariff value has been fixed in respect of the petitioner's imported items and some others under the authority of section 25(7) of the Customs Act, 1969 repealing the Notification No. 16/97/Shulko dated 19-5-1997 and the tariff value was fixed at USS 750 per metric ton in respect of the goods imported by the petitioner.
3. Being aggrieved by such refusal to make assessment on the basis of CRF Certificate, the petitioner moved before the High Court Division under Article 102 of the Constitution submitting, inter alia, that the impugned order for assessment of duties and taxes on the basis of tariff value as fixed by Notification No. 26797/Shulko dated 11-9-1997 based on SRO No. 113-Ain/97/1705/Shulko dated 11-5-1997 is arbitrary and without lawful authority inasmuch as the petitioner is entitled to pay duties and taxes on the basis of CRF value as assured by the SRO No. 316-Ain/94/1568/Shulko dated 3-11-1994 issued under the authority of section 25A of the Customs Act, 1969 and that the IX having been opened by the petitioner on 7-10-1996 prior to the publication of the Notification No. 26797/Shulko dated 11-9-1997 and the SRO No. 113-Ain/97/1705/Shulko dated 11-5-1997, the petitioner acquired vested right under a statutory notification which cannot be taken away by a subsequent statutory notification.
4. Upon hearing the petitioner, a Division Bench of the High Court Division issued a Rule Nisi upon the writ-respondents to show cause.
5. The writ-respondent No. 1 Com-missioner of Customs, Excise and VAT, Chattogram contested the Rule by filing an affidavit-in-opposition stating, interalia, that the submission of In-Bond Bill of Entry is admitted and the imported consignment warehoused under In-Bond Bill of Entry for which Customs duty, tax etc. are to be assessed and paid at the time of release of the goods on the basis of the price prevalent on the date of submission of Ex-Bond Bill of Entry and therefore the CRF Certificate as issued was not entertainable, more so when by the SRO No. 113 dated 11-5-1997 the imported consignment of the petitioner was withdrawn from the list of items allowed to enjoy the CRF Certificate facility, the order of assessment of the petitioner's imported consignment on the basis of tariff value was proper. It is also stated that as per provision of section 30 read with sections 25(1), 25(2) and 25(3) of the Customs Act the petitioner is required to pay the Customs duty, VAT and other taxes regarding bonded warehoused goods on the basis of tariff value prevailing at the time of clearance of the goods from the bonded warehouse submitting Ex-Bond Bill of Entry. It is further stated that the petitioner's submitted Ex-Bond Bill of Entry dated 2-11-1997 was subsequent to the publication of the Notification No. 26/97/Shulko dated 11-9-1997 and SRO No. 113 dated 11-5-1997 and, as such, the Rule is liable to be discharged.
6. The writ-petitioner filed an affidavit-in-reply asserting the statements made in the writ-petition and further stating that the value of the imported goods has been certified by the Government approved PSI Agency and the same has not been disputed by the respondents as such assessment based on tariff value instead of CRF Certified value relying on SRO No. 113 dated 11-5-1997 is illegal inasmuch as the CRF Certificate granted pursuant to SRO No. 316 dated 3-11-1994 issued under the authority of section 25A of the Customs Act prevails over all notifications issued subsequent to SRO No. 316 dated 3-11-1994, more so no tariff value was fixed for the item in reference at the time of issuance of the CRF Certificate. It is also stated that as per the settled principle of law the writ-petitioner, in the facts and circumstances, acquired a vested right, which cannot be taken away by any subsequent notification. It is further stated that section 25A of the Customs Act is an overriding provision of the Customs Act as been held by this Division in several cases, neither in the notification dated 11-9-1997 nor in the SRO dated 11-5-1997 there is any clause giving retrospective effect to said notifications and those are not applicable in the instant case.
7. After hearing the parties, a Division Bench of the High Court Division made the Rule absolute with a direction upon the respondents to make assessments of the petitioners imported consignment on the basis of CRF Certificate value and return the Bank guarantee furnished by the petitioner at the time of release of the goods on provisional assessment.
8. Having aggrieved, the writ-respondent No. 1 as petitioner preferred Civil Petition for Leave to Appeal No. 1457 of 2005. Upon hearing the learned Advocate for the petitioner, this Division granted leave on 21-4-2008.
9. Consequently, the instant civil appeal arose.
10. Mr. Samarendra Nath Biswas, learned Deputy Attorney-General reiterated the submissions made by the learned Counsel for the petitioner at the time of hearing the leave petition stating that Ex-Bond Bill of Entry having been submitted on 2-11-1997 for removal of the goods from the warehouse after exclusion the goods from CRF facility and fixation of tariff value as such Customs duty and tax etc. are payable under section 30 of the Customs Act on the basis of tariff value and thus the impugned judgment and order is liable to be set-aside. He also submits that the High Court Division erred in law in not considering that section 25A of the Customs Act does not apply in this case and under section 30 of the Act the writ-petitioner is require to pay Customs duties and taxes as well as on the tariff value prevailed on 2-11-1997 when the writ-petitioner presented Ex-Bond Bill of Entry for removal of the goods from the warehouse as such the impugned judgment and order is liable to be set-aside. In support of his submissions, learned Deputy Attorney-General relied on the decision of this Division passed in the case of Commissioner of Customs vs Monohor Ali, reported in IX ADC (2012) 451 : 8 BLC (AD)87.
11. On the other hand Mr. Ramjan Ali Sikder, learned Advocate appearing for the respondent No. 1 in support of the impugned judgment and order submits that the respondent No. 1 opened LC on 7-10-1996 relying upon SRO No. 316 dated 3-11-1994 issued under section 25A of the Customs Act and obtained CRF Certificate upon inspection by the Government approved PSI Agency as per the said SRO at the cost of importer-respondent No. 1 and the goods were warehoused by submitting In-Bond Bill of Entry dated 1-2-1997, Government sub-sequentry issued Notification No. 26/97/Shulko dated 11-9-1997 fixing the tariff value in respect of the imported goods which was after the conclusion of the import process of the goods into Bangladesh as such the goods were ought to have been assessed on the basis of the CRF Certificate value as held by the High Court Division. He also submits that the High Court Division has rightly held that the respondent No. 1 having acted on the promise made by the Government under section 25A of the Customs Act, 1969, that if the CRF Certificate is issued by the PSI Agency after inspection at the cost of importer-respondent the same would be the basis for assessment of Customs duties and taxes and the writ respondent-petitioners cannot go back from the promise as it was binding upon them. He lastly submits that the law as was prevalent at the time of opening of the LC on 7-10-1996, arrival of the imported goods and also during submission of In-Bond Bill of Entry, the assessment on the basis of the CRF Certificate as per the SRO No. 316 dated 3-11-1994 issued in exercise of power conferred under section 25A of the Customs Act would prevail and would be the basis for assessment of Customs duties and taxes and, as such, the appeal is liable to be dismissed. The learned Advocate also relied on the case of Commissioner of Customs vs Monohor Ali, reported in IX ADC (2012) 451 - 8 BLC (AD) 87.
12. We have gone through the impugned judgment and order alongwith other papers/documents contained in the paper book and also the judgment cited by the parties.
13. Admittedly, the writ-petitioner opened LC on 7-10-1996 relying upon SRO No. 316-Ain/94/1568/Shulko dated 3-11-1994 allowing benefit to the importers under section 25A of the Customs Act and the LC was amended on 17-10-1994 to increase the value of the goods. As per terms of section 25A of the Act and SRO No. 316 dated 3-11-1994 the goods were inspected at the port of loading by one of the Government approved PSI Agency namely 'Bureau VERITAS' and after inspection the PSI Agency issued CRF Certificate on 12-12-1996. On arrival of the consignment at the port of Chattogram the importer-respondent through its clearing agent submitted In-Bond Bill of Entry No. C-58875 dated 1-2-1997 for assessment of the goods based on the CRF Certificate and accordingly the Customs authority after assessing the goods on the basis of CRF Certificate warehoused the goods In-Bond No. A-5 on 13-2-1997. The importer-petitioner submitted Ex-Bond Bill of Entry on 2-11-1997 for removal of a part of the imported goods on the basis of CRF Certified value but the writ-respondent No. 2 refused to make assessment as per CRF Certified value stating that there is no Rule to assess the goods on the basis of CRF Certified value in respect of Ex-Bond Bill of Entry vide order dated 28-12-1997. In the meantime notification being SRO No. 113 dated 11-5-1997 was published by which several items including petitioner's imported item were delisted from enjoying benefit of CRF Certificate facility and by another notification being No. 16/97/Shulko dated 11-9-1997 tariff value was fixed at US$ 750 per metric ton in respect of petitioner's imported goods. The High Court Division after thorough discussions arrived at a finding:
"Thus on plain reading of the provisions of said SRO No. 316 dated 3-11-1994 and section 25A of the Customs Act, we find that the Certificate issued by an approved Pre-Shipment Agency on verification of the goods imported will be the basis for assessment and further in view of the non-obstantive clause like 'Notwithstanding anything contained in any other section of this Act', contained in section 25A, the CRF Certificate as granted as per provision of SRO No. 316 dated 3-11-1994 issued under the authority of section 25A of the Customs Act shall prevail over all other notifications issued either under section 25(7) or under section 25(1) of the Customs Act. It further appears that the petitioner appointed a Government approved Pre-Shipment Inspection Agency for the purpose of verification of the imported goods and on such verification the CRF Certificate having been granted and the goods having been shipped prior tome issuance of SRO No. 113 dated 11-5-1997 and Notification No. 26797/Shulko dated 11-9-1997, the CRF Certificate will not be affected inasmuch as the writ-petitioner acquired the vested right to get his consignment assessed on the basis of the CRF Certificate. The Statutory Notification No. 316 dated 3-11-1994 being issued pursuant to section 25A of the Customs Act the subsequently issued statutory notification will not affect the CRF Certificate in any way and this contention gets support from the decision in the case of the Commissioner of Customs and others vs Monohor Ali and others, reported in 2003 BLD (AD) 59 "8 BLC (AD) 87."
14. The High Court Division regarding the point raised by the learned Deputy Attorney-General in respect of applicability of CRF Certificate value regarding bonded ware-housed goods arrived at a finding that:
"It appears that the provisions of said section 30 did not put any bar against the application of section 25A of the Customs Act, rather section 25A has overriding clause over all other section of the Act. Therefore the statement that the application of CRF Certificate is not applicable in case of bonded warehoused goods has no basis. The decision of the Appellate Division being binding on us and in view of the decision of the Appellate Division in the case of Monohor Ali mentioned above we find substance in the submission of the learned Advocate appearing for the petitioner to the effect that the CRF Certificate as issued pursuant to SRO No. 316 dated 3-11-1994 is binding on the Customs authority and refusal thereto is illegal and without lawful authority."
15. The learned Deputy Attorney-General argued that the case of Commissioner of Customs and others vs Monohor Ali and others, reported in 2003 BLD (AD) 59 : 8 BLC (AD) 87 has been reviewed by this Division reported in DC ADC (2012) 451 - 8 BLC (AD) 87. The learned Counsel for the respondent No. 1 also, relied on the same case reported in IX ADC (2012) 451 - 8 BLC (AD) 87. The facts of the reported case and the point of law are almost similar to the case in hand.
16. After thorough and meticulous discussions this Division arrived at a conclusion based on the following findings:
"36. On careful perusal of section 25(7) and 25A of the Customs Act reveals that section 25(7) override of all other sub-sections of section 25 of the Customs Act only, whereas section 25A overrides all other sections of the Customs Act and thereby the CRF value certified validly under section 25A overrides any tariff value fixed under section 25(7). Therefore it cannot be said that only the items of import which do not fell under tariff value notification of a relevant period can be treated under section 25A and that if any imported goods fall under tariff SRO of a relevant period shall straightway attract the provision of section 25(7). Provisions of section 25A of the Customs Act supersedes the Provisions of section 25, which includes sections 25(1) & 25(2), 25(7), 30 and 30A of the Customs Act. CRF certificates issued validly shall get preference and the value certified therein shall supersede the value of the imported goods fixed under sections 25(1) & 25(2) and or 25(7) of the Customs Act and shall be binding on the Customs authority. Thus the goods imported with CRF certificates issued prior to 13-5-1997 shall get the benefit of the CRF scheme and such goods shall be assessed for customs duty on the basis of the CRF certificated value.
37. Thus the Customs duty of the imported goods, the value of which have been duly verified and certified by the Government approved by Pre-shipment Inspecting Agencies at the port of loading prior to 13-5-1997, the publication date of the SRO No. 113-Ain/97/1705/Shulka dated 11-5-1997 in the official gazette, should be assessed on the basis of such CRF certificated value and that section 30 of the Customs Act will not affect the value of such imported goods certified in the CRF certificates issued prior to 13-5-1997, inspite of withdrawal of such goods from the benefit of CRF scheme effective from 13-5-1997 i.e. prior to the date of presentation of the Bill(s) of Entry to the Customs authority, for assessment of Customs duty.
38. It thus appears that the out of 27 appeals under review 18 appeals being (1) Civil Appeals (on review) Nos. .................. will get benefit of CRF certificated value as the CRF Certificates were issued prior to 13-5-1997 and the remaining nine(9) appeals being Civil Appeal (on review) Nos. ............................................. are not covered by the decision hereof, and will not get benefit of the CRF scheme as the CRF Certificates were issued on or after 13-5-1997.
39. Accordingly, the review-appeals are allowed Review appeals being CA No. ......................................are allowed.
40. It is declared that the consignments imported and Bill(s) of Entry of which has been presented for assessment along with the CRF certificates issued prior to 13-5-1997 in accordance with the provisions of SRO 316 dated 3-11-1994 and SRO No. 244 dated 31-12-1996 are entitled to the benefit of CRF scheme inspite of issuance of SRO No. 113 dated 11-5-1997 and the CRF Certificated value of such consignments should be accepted by the Customs authority for the purpose of assessment of Customs duty on presentation of the Bills of Entry along with other required documents, without recourse to the date mentioned in section-30 of the Customs Act and that the Bill(s) of Entry presented with CRF certificates dated 13-5-1997 or thereafter in respect of the imported goods for the purpose of assessment of customs duty shall not get the benefit of CRF scheme and shall be guided by section-30 of the Customs Act The consignments covered by CA Nos. 332, 333, 335 to 345, 347, 351, 352, 355 and 357 of 2009 will get benefit of the CRF subject to other related provision of the law.41. The CA Nos. 119, 120, 121, 174, 555, 556, 559 and 560 all of 2001 and the Civil Petitions for Leave to Appeal Nos. 1873-80 of 2002, as appeared in the cause list dated 19-8-2009 with Item No. 2, shall be governed by the judgment and order passed and accordingly those disposed of."
17. In view of the findings arrived at in the case of Commissioner of Customs vs Monohor Ali, reported in IX ADC (2012) 451 : 8 BLC (AD) 87, we do not find any reason to deviate from the above findings.
18. The core question involved in this civil appeal is what should be the value of goods on which the Customs duty shall be payable i.e. what is the relevant time for determination of the value of the goods. That the legal provision regulating this query is stated in section 30 of the Customs Act, 1969 talks about the relevant time for determination of value of goods including the rate of duty and exchange rate.
19. Section 30 of the Customs Act, 1969 (as it was in the relevant time) runs as follows:
"30. Date for determination of the value and rate of import duty-
(1) The value of and the rate of duty applicable to any imported goods shall be the value and the rate of duty in force-
(a) in the case of goods cleared for home-consumption under section 79, on the date on which a bill of entry is presented under that section;
(b) in the case of goods cleared from a warehouse for home-consumption under section 104, on the date on which the goods are actually removed from the warehouse; and
(c) in the case of any other goods, on the date of payment of duty.
20. Both section 30(a) and 30(b) clearly indicates that, the value of goods and the rate of duty shall be the one prevailing on the date when the Bill of Entry is presented under section 79. Although admittedly Bill of Entry can be presented either for In-Bond or for Ex bond, and two separate Bill of Entry number can be allocated in this two piece of document, section 79 of the Customs Act, 1969 only refers to In-Bond Bill of Entry and the same is evident from a complete reading of the said provision as it then was:
"79. Entry for home-consumption or warehousing.-
(1) The owner of any imported goods shall make entry of such goods for home-consumption or warehousing or for any other approved purpose by delivering to the appropriate officer a Bill of Entry thereof in such form and manner and containing such particulars as the Board may direct:
Provided that if the owner makes and subscribes a declaration before the appropriate officer to the effect that he is unable, for want of such information as is essential for submitting a Bill of Entry then the said officer shall permit him previous to the entry thereof, to examine the goods in the presence of an officer of Customs or to deposit such goods in a public warehouse appointed under section 12 without ware-housing the same, pending the production of such information.
(2) A Bill of Entry under sub-section (1) may be presented and the goods be cleared at any tune within forty five days of the date of unloading thereof at a Customs-port or a land Customs-station or Customs-inland container depot or within thirty days of the date of unloading thereof at a Customs-airport or within such extended period as the Commissioner of Customs may deem fit:
Provided that the Commissioner of Customs may, in any special circumstances, permit a Bill of Entry to be presented before the delivery of the manifest
(3) If the Commissioner of Customs is satisfied that the rate of Customs duty is not adversely affected and that there was no intention to defraud, he may in exceptional circumstances and for reasons to be recorded in writing permit substitution of a Bill of Entry for home-consumption for a Bill of Entry for warehousing or vice versa."
21. From complete reading of section 79 it is apparent that chapter under which section 79 is included deals with "Discharge of Cargo and Entry Inwards of Goods" and the section itself is headed "Entry for home consumption or warehousing" as such section 79 is dealing with the entry document which is the In-Bond Bill of Entry and not the exit documents which is the Ex-bond Bill of Entry. Most importantly, the time restriction at section 79(2) for presenting the Bill of Entry within 45 (forty five) days since the goods were unloaded also indicates that this section is only referring to In-Bond Bill of Entry because an Ex-Bond Bill of Entry (as per section 98) can be presented within 24 (twenty four) months since the goods were warehoused As such interpreting section 79 in a manner to construe that the said section refers to Ex-Bond Bill of Entry would give rise to an absurdity and direct conflict with section 98 of the Customs Act 1969 and hence the only logical interpretation of section 79 would lead to the conclusion that it referred to In-Bond Bill of Entry and not Ex-Bond Bill of Entry.
22. Another feet that is to be noted is that at the time of presenting In-Bond Bill of Entry the rate of applicable duty is always mentioned at the In-Bond Bill of Entry (that at 'Box No. 47'), which is assessed on the basis of value of the goods prevailing on the date on which In-Bond Bill of Entry is presented and the said document also shows the exchange rate of the very day. Unless the value of goods, rate of duty and exchange is to be paid as was prevailing on the day when In-Bond Bill of Entry was presented this whole assessment in the In-Bond document would appear to be a futile exercise worth of nothing.
23. Thus the spirit of law is that the date for the purpose of calculating the value of the goods and the date for determining the rate of duty should be the same. Therefore, we have no hesitation to hold that there is no justification for taking one date for one purpose and another date for another purpose.
24. From the discussions made above and the principle enunciated in the cited case there seems no plausible way to conclude that section 79 is referring to Ex-Bond document and consequently it is clear that the value of goods and the rate of duty shall be the one prevailing at the time of presenting the In-Bond Bill of Entry and not the Ex-Bond Bill of Entry document and once the In-Bond Bill of Entry is submitted any subsequent development in case of determination of value or any predetermination of rate of duty or taxes, shall not affect the value of the concern goods or the rate of duty for the purpose of payment of duties and charges.
25. Accordingly, the civil appeal is dismissed.
26. The judgment and order dated 19-7-2005 passed by the High Court Division in Writ Petition No. 101 of 1998 is maintained.
No order as to costs.
IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Criminal Petition for Leave to Appeal No. 380 of 2022
Decided On: 31.08.2022
The State
... Vs. ...
Omit Hasan
Hon'ble Judges/Coram:
Md. Nuruzzaman, Borhanuddin and Krishna Debnath, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Samarendra Nath Biswas, Deputy Attorney General instructed by Sufia Khatun, Advocate-on-Record
For Respondents/Defendant: Md. Ariful Islam, Advocate instructed by Zainul Abedin, Advocate-on-Record
Subject: Criminal Law
Acts/Rules/Orders:
Arms Act, 1878 - Section 19A; Explosive Substances Act, 1908 - Section 4, Explosive Substances Act, 1908 - Section 6
Prior History:
From the Judgment and Order dated 16.02.2022 passed by the High Court Division in Criminal Appeal No. 7403 of 2021
Result:
Disposed of
JUDGMENT
Md. Nuruzzaman, J.
1. This criminal petition for leave to appeal is directed against the order dated 16.02.2022 passed by the High Court Division in Criminal Appeal No. 7403 of 2021 granting bail to the accused respondent.
2. Prosecution case, in brief, is that one Md. Abdus Salam, Sub-Inspector of Detective Branch, Mymensingh as informant lodged the First Information Report (in short, FIR) against the FIR named accused persons on 14.03.2014 under sections 4/6 of the Explosive Substances Act, 1908 (as amended in 2002) (in short, Act) and section 19A of the Arms Act, 1878 (as amended in 2002) (in short, Act) before the Officer-in-Charge, Valuka Model Police Station, District Mymensingh alleging, inter alia, that the informant along with his associates found some incriminating materials from the house of accused Nos. 1 and 2, then after interrogation police went to Munshir Vita and after searching, police found the seized materials and accused Ziaul Islam Zifa and Md. Al-Amin were arrested by them. They disclosed that they were engaged by the accused Golam Sarwar Rahat and the accused Omit in connection in the present case and, as such, they gave money for helping the offence. Hence, the accused persons committed offence under section 4/6 of the Act and section 19A of the Act. Accordingly, Valuka Police Station Case No. 15 dated 14.03.2014 corresponding to G.R. No. 70/2014 under sections 4/6 of the Act and section 19A of the Act was started against the accused persons. Hence the case.
3. The police, after completion of investigation, submitted charge-sheet being Charge-sheet No. 199 dated 11.08.2014 under section 4/6 of the Act against the accused persons which was submitted before the Chief Judicial Magistrate, Mymensingh.
4. The learned Chief Judicial Magistrate, Mymensingh transferred the case record to the learned Judge of the Special Tribunal No. 5, Mymensingh for disposal and trial, who took cognizance against the accused persons under section 4/6 of the Act and registered the Special Tribunal Case No. 21 of 2015.
5. The learned Judge of the Special Tribunal No. 5 framed charge against the accused persons under section 4/6 of the Act. The said charge read over to them in which they pleaded not guilty and claimed to be tried. The accused appellant on 10-10-2021 also prayed for bail which was rejected.
6. Feeling aggrieved by the order dated 10.10.2021 passed by the learned Judge of the Special Tribunal No. 5, Mymensingh, the accused respondent filed Criminal Appeal No. 7403 of 2021 before the High Court Division.
7. The High Court Division, upon hearing both the parties, by its order dated 16.02.2022, granted bail to the accused-respondent.
8. Hence, the State as petitioner feeling aggrieved by the judgment and order dated 16.02.2022 of the High Court Division, preferred the instant Criminal Petition for Leave to Appeal No. 380 of 2022 before this Division.
9. Mr. Samarendra Nath Biswas, the learned Deputy Attorney General appearing on behalf of the Petitioner-State submits that the interim order of bail granted by the High Court Division clearly shows non-application of judicial mind having failed to appreciate that the accused respondent is named in the FIR having strong prima-face and specific overt act of committing heinous offence under section 4/6 of Act. He further submits that the accused respondent being the active member of "JMB" a banned organization who was committing terrorist activities (Jongi) to make unrest throughout the whole country inspired the general mass to create unrest in the country with view to deteriorate the law and order situation in the country, to destroy our holy sovereignty, accordingly to damage the important buildings, place, the safety and security of the general mass to inspire them to destroy secularism, kill the important persons of the country from whose explosive control and possession huge number of explosive substances, banned books, leaflets, destructive materials were recovered. He finally submits that the case is under trial, at this stage, the interim order of bail will totally frustrate the purpose of prosecution case creating obstacle in the way of free/fair trial and, as such, the impugned order of ad-interim bail dated 16.02.2022 passed by the High Court Division is liable to be set aside.
10. Mr. Md. Ariful Islam, the learned Advocate appearing on behalf of the accused respondent filing an application for dismissing this Civil Petition for Leave to Appeal made submissions apprising this Division that the Criminal Appeal No. 7403 of 2021 was dismissed as being not pressed by the appellant before the High Court Division, therefore, this Criminal Petition for Leave to Appeal has become infructuous, as Civil Petition arose from the appeal is not alive.
11. We have considered the submissions of the learned Deputy Attorney General for the leave petitioner and the learned Advocate for the accused respondent. Perused the impugned ad-interim order of bail of the High Court Division and connected other materials on record.
12. On perusal of the case record it is revealed that learned Judge-in-Chamber, Appellate Division on 28.02.2022 stayed the impugned judgment and order of the High Court Division for 06 (six) weeks and directed that regular leave petition be filed within that time. Thereafter, the petitioner filed regular petition along with a petition for extension of stay on 22.03.2022 which is well within 06 weeks.
13. Now, the moot question before this Division whether submission advanced by the learned Advocate for accused respondent is acceptable or require to explain the situation as prevail in the present case. Thus, the question is replied in the following manner.
14. It is a general Rule of custom or usage practiced in the Appellate Division of the Supreme Court of Bangladesh and followed through the years that in any pending petition, if file any application within stipulated time for extension of order of stay passed by the learned Judge-in-Chamber be regarded as continuation of the stay order passed earlier. It was recognized in view of the long standing convention and judicial discipline and maintained as good as a legal provision unfailingly by all concerned. The same view was postulated and enshrined through a written Office Order of the Appellate Division of the Supreme Court of Bangladesh bearing Memo No. ... dated 17-10-2006. The crucial piece of the said Office Order is worth quoting:
"এতদ্বারা সংশ্লিষ্ট সকলের অবগতির জন্য জানান যাইতেছে যে, চেম্বার জজ আদালত হইতে প্রদত্ত কোন స్టే অর্ডার নির্দিষ্ট সময়ান্তে বর্ধিতকরণের জন্য কোন আবেদন সময়মত (within time) দাখিল করা হইলে উক্ত আবেদন নিষ্পত্তি না হওয়া পর্যন্ত চেম্বার জজ আদালত হইতে প্রদত্ত స్టే অর্ডার বলবৎ থাকিবে।"
15. The said Office Order simply reinforced the very existence of the said convention, custom or usage practiced in the Apex Court of Bangladesh since long.
16. There is a concept in the arena of customary international law which is known as "opinio juris" (Latin) "opinion that an act is necessary by rule of law" which requires that the custom or practice be accepted as law or followed from a sense of legal obligation. This element is necessary to establish a legally binding practice or custom. "opinio juris" denotes a subjective obligation, a sense on behalf of a state that it is bound to the law in question. If any such customs or usages or practices pass the test of "opinio juris" for a reasonable time then it is recognized as a legally provision. The same test and standard too are applied in the laws of the states since immemorial in countless ramifications. Regarding the above mentioned practice or custom it is evident that a sense on behalf of the stakeholders established that they are bound to the law in question. Hence, it could easily be said that it passed the test of "opinio juris" in its arene, as such, attained the strength of law.
17. On the basis of the above discussion the custom or usage of the Appellate Division in discussion, in our opinion, has the force of law and consequently, the order was of prohibiting nature.
18. In the case of Bessesswari Chowdhurany Vs. Horro Sundar Mozumdar and Ors (1892) reported in 1 CWN 226 (MANU/WB/0134/1892) the High Court of Calcutta decided that if an order is in the nature of a prohibitory order, it would only bind courts below when communicated. The same view is maintained till date by the Apex courts in this region. The Supreme Court of India endorsed the same view in the case of Mulraj V. Murti Raghunathji Maharaj reported in MANU/SC/0338/1967 : AIR 1967 SC 1386. This Division too maintained the same in the ruling of Chairman, Kushtia Co-Operative industrial Union Ltd. vs. Md. Mujibur Rahman and others reported in 44 DLR (AD)(1992) 219.
19. This Division, in the same ruling reported in 44 DLR(AD)(1992) 219 decided that where there is a prohibiting order of the higher court, the subordinate courts thereto is bound not to proceed with the case. The Appellate Division observed:
"As soon as the executing Court comes to know of the, stay order either by receiving a communication from the court passing the stay order or from an affidavit from one of the parties to the proceeding or in other way, it will stay its hands till further order and, if it does not do so, it not only acts illegally but will also be liable for contempt of the court that passed the order."
20. However, we too endorse the expanding view of matter by another bench of Calcutta High Court referred in Hukum Chand Boid V. Kamalanand Singh (1906) ILR 33 Cal. 927, that an order of stay takes effect from the moment it is passed and the knowledge of the court or others concerned is immaterial. However, the information of the existence of such a prohibiting order must be communicated in any way to the courts below for the purpose of proceedings to be taken against any person for contempt of the authority of the higher Court. But the operation of the order is not in any way postponed till it has been communicated to the Subordinate Court or the party intended to be affected by it.
21. The court may receive knowledge either on receipt of an order of stay from the court that passed it or through one party or the other supported by an affidavit or in any other way such as lawyer's certificate with affidavits. In the case of a stay order, it prohibits courts below from proceeding further, as soon as the court has knowledge of the order it is bound to obey it and if it does not, it not only acts illegally, and all proceedings taken after the knowledge of the order but also all proceedings taken even without knowledge too would be a nullity in toto.
22. As Officer of the Court it is the foremost duty of the learned Counsel engaged to inform the same in the courts below each and every occasion needed.
23. Before passing any order it is the duty of the High Court Division by applying its ordinary prudence to enquire from the learned Counsels concerned whether there pending any prohibitory order from the Apex Court in the matters concerned. As Officer of the Court, the learned Advocates pressing the petition too is duty bound to communicate any such information before the Court and be restrained themselves from lodging or hearing any such petitions.
24. However, with great compunction we witnessed that ignoring it the learned Advocate pressed the non-prosecution petition and High Court Division allowed the same of the present respondent for disallowing the appeal for non-prosecution on 27-06-2022 pending the Criminal Petition for Leave to Appeal as well as a prohibiting order.
25. In the present case in absence of any solid-concrete evidence as to that the High Court Division passed the impugned order with conscious defiance of the higher courts our considered view as eloquent above is that the order was passed in ignorance of the order of stay and it may be said that there was no willful disobedience of the order. However, it is highly expected that courts below including the High Court Division should maintain cautiousness in the matters discussed above for coming days.
26. In the result, this Criminal Petition for Leave to Appeal is disposed of with the following order and observation. The application for dismissing this criminal petition is rejected.
27. Resultantly, the order of the High Court Division for dismissing the criminal appeal no. 7403 of 2021 allowing the petition for non-prosecution on 27.06.2022 is set aside and the Criminal Appeal no. 7403 of 2021 is hereby restored to its original file and number and in the category of Rule hearing. The order of stay granted by this Division to be continued till disposal of the Rule.
28. Learned member of the Bar is directed to hear the matter at once in any appropriate Bench. The High Court Division is further directed to dispose of the Rule on merit. The copy of this judgment be communicated to the Judges of the criminal Benches of the High Court Division at once for further reference and steps.
Appellate Division (Criminal)
Present:
Mr. Justice Nazmun Ara Sultana
Mr. Justice Muhammad Imman Ali
Mr. Justice Anwarul Haque
Mr. Justice Hasan Foez Siddique
Criminal Appeal No.7 of 2004
(From the judgement and order dated 31st July, 2000 passed by the High Court Division in Criminal Appeal No. 1349 of 1996.
State
------ Appellant
VS
Mostafizur Rahman and others
------ Respondent
Judgement Date : September 18, 2013
Counsels:
Momtazuddin Fakir, Additional Attorney General, instructed by B. Hossain, Advocate-on Record
----- For the Appellant
None Represented
----- For Respondents.
Judgment
Madam Justice Nazmun Ara Sultana, J:
1. I have gone through the judgments proposed to be delivered by my brothers, Muhammad Imman Ali, J. and Mohammad Anwarul Haque,J. I agree with the reasoning and findings given by Mohammad Anwarul Haque,J.
MUHAMMAD IMMAN ALI, J:-
2. This criminal appeal, by leave, is directed against the judgement and order dated 31.07.2000 passed by a Division Bench of the High Court Division in Criminal Appeal No. 1349 of 1996 allowing the appeal.
3. After conclusion of the appeal hearing the view of the majority members of this Division was to dismiss the appeal.
4. I have had the privilege of going through the draft judgement of my learned brother Mr. Justice Mohammad Anwarul Haque. Since I could not agree with the reasoning and findings as disclosed in the majority judgement, I propose to express my own views.
5. The facts of the case have been narrated in the judgement of my learned brother Mr. Mohammad Anwarul Haque, J. and I do not propose to repeat those. However, I shall reproduce facts of the case relevant for the purpose of my opinion.
6. Accused Mostafizur Rahman and Aleya Begum were charged and tried by the Nari-O-Shishu Nirjaton Daman Bishesh Adalat, Rajbari in Nari-O-Shishu Nirjaton Daman Case No. 13 of 1996 for offences under sections 6 (1)/14 of the Nari-O-Shishu Nirjaton Daman (Bishesh Bidhan)Ain, 1995. Upon finding the two accused persons guilty as charged, the learned judge of the Nari-O-Shishu Nirjaton Daman Bishesh Adalat sentenced them to suffer imprisonment for life and also to pay a fine of Taka 5000/- each, in default to suffer rigorous imprisonment for 1 (one) year more.
7. The victim Shefali Khatun was 10 or 11 years old when her mother, step father and half sister Aleya (accused in the case) sent her to work as a house maid. The evidence and records disclose that at various times she worked as maid servant in the house of Proshanto, Chand Ali, Montu and lastly accused Mostafizur Rahman. At that time she was aged about 13 years. The prosecution case is that she worked in the house of accused Mostafizur Rahman for about 3 months and at that time she was kept in confinement under lock and key and was raped by accused Mostafiz on numerous occasions. She was unable to escape until 31.08.1995. On the day of her escape she met one Ruhul Parvez (P.W.5) on the way, who took her to the house of Komruddin Biswas @ Chand Ali (P.W.3). She narrated her story to P.W. 5, P.W. 3 and Maksuda Begum P.W.4, the wife of Chand Ali. The matter was disclosed to Abu Reza Ashraful Masud (Babu Mollik), the Publisher and Editor of a local Newspaper, namely Dainik Sahaj Katha. The report of the victim’s torture was published in that newspaper on 07.09.1995. After seeing the newspaper report the informant Shamsunnahar Chowdhury (P.W.1), who is the Convener of the Mohila Parishad, Rajbari discussed the matter in their regular meeting on 30.09.1995 and according to the decision of the meeting the informant went to meet the victim on 08.10.1995 at the house of Chand Ali. After that the Mohila Parishad took out a procession on 11.10.1995 and, thereafter, went to the Police Station but the Officer of the Police Station declined to record the First Information Report (F.I.R.). A memorandum was handed over to the Deputy Commissioner and the Superintendent of Police. Ultimately on 24.10.1995 the police accepted the F.I.R. After investigation the police report was submitted on 17.02.1996 stating that the case against the accused persons was not proved, and recommending their discharge. However, the learned Judge took cognizance and after framing charge against accused Mostafizur Rahman under Section 6 (1) of the Nari-O-Shishu Nirjaton Daman (Bishash Bidhan) Ain, 1995 and against accused Aleya Begum under Section 6 (1)/14 of the said Ain, read the same over to the accused, who pleaded not guilty and sought trial.
8. The prosecution produced 12 witnesses of whom 3 were tendered. The two accused persons were examined under Section 342 of the Code of Criminal Procedure when they again pleaded their innocence. After hearing argument on behalf the defence and the prosecution and upon consideration of the evidence and materials of record the learned trial Judge convicted the accused persons and sentenced them as stated above.
9. Being aggrieved by and dissatisfied with the judgement and order of conviction and sentence the accused preferred Criminal Appeal No. 1349 of 1996 before the High Court Division, which was successful and the appellants were acquitted. Hence, the State as petitioner filed the Criminal Petition for Leave to Appeal No. 37 of 2001. Upon hearing the parties this Division granted leave to consider whether the High Court Division ought to have considered the fact that 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 F.I.R. case and the evidence of the prosecution witnesses were believed and accepted upon giving cogent reasons.
10. The submissions of learned Additional Attorney General on behalf of the appellant have been reproduced in the majority judgement and I need not repeat them.
11. The High Court Division allowed the appeal on the grounds, firstly, that there was no corroborative evidence regarding rape committed by the accused Mostafizur Rahman. The learned Judges observed that expert examination of the person of the prosecutrix and garments she had worn at the time and place where the rape took place is sine qua non. Since the wearing apparels were neither produced to nor seized by the Investigating Officer they have not been brought on record as material exhibits and “in such circumstances coupled with the evidence of P.W. 12 the Doctor who examined the victim led us to believe that the story of rape as alleged by the prosecution is not true inasmuch as the same is false.” The learned Judges of the High Court Division disbelieved the evidence of the victim since she did not disclose her story to neighbours who sometimes visited the house where she was staying.
12. Secondly, the High Court Division disbelieved the story of the victim because her parents did not lodge the F.I.R. nor came to depose in court, and they asked the victim to stay in the house of the accused, who allegedly raped their daughter which is against human conduct.
13. Thirdly, the High Court Division observed that there was no reasonable explanation as to why the F.I.R. was lodged after inordinate delay “which makes a reasonable man suspicious about genuineness of the prosecution case.”
14. The trial Court, on the other hand, had the benefit of observing all the witnesses who deposed in court and gave an elaborate judgement convicting the accused persons upon finding that the prosecution case was fully corroborated. The learned Tribunal Judge observed that the victim was taken back from her previous employer in Mirpur under false pretext and sent to the house of accused Mostafizur Rahman as a maid servant which was a preconceived plan of the victim’s half sister, Aleya. He pointed out that the fact of death of her maternal grandmother was proved to be false. So she was taken from her place of work at Mirpur on false pretences so that she could work in the house of accused Mostifiz. He found P. Ws. 3-5 to be independent and disinterested witnesses and their evidence was corroborative. He also found that P.W. 1, the informant was neither related to the victim nor had any reason to bring a false case against accused Mostafizur Rahman and Aleya. He observed that the witnesses had no enmity with the accused.
15. In a case of this nature it is imperative to keep in mind certain social and moral aspects as well as the background of the victim for proper adjudication. Shefali was an illiterate village girl who at the time of occurrence was below the age of 13 years. She came from a poor family, who forced her to work as a maid servant from the age of about 10/11 according to the evidence of P.Ws. 4 and 5. In all, she worked in 4 households including that of accused Mostafizur Rahman, where she remained confined for about 3 months. Previously she had worked for about 18/20 months in the house of one Montu, at Mirpur. She also worked for Proshanto and Chand Ali. It is also noted that her mother had re-married and co-accused Aleya was her halfsister and that either the victim’s father was dead or was not living with her. It was the half-sister Aleya and her step father and mother, who insisted that she came back from Mirpur where she had been working happily for a long period of time so that she could work for accused Mostafiz. The finding of the trial Court is that this was preplanned and that Shefali had been brought away from Mirpur under a false pretext. The evidence of the victim suggests that it was the family’s plan that Shefali should marry Mostafiz and that in spite of the fact that Mostafiz raped her, the family forced her to stay with him as he paid them money. She stated in her evidence that because she refused to marry Mustafiz, he and Aleya used to beat her. Hence, one should not lose sight of the fact that Shefali was in a most vulnerable condition.
16. The High Court Division did not believe the story of rape by the accused as, according to their Lordships, there was no corroborative evidence. Clearly the learned Judges were in patent error since the facts of the instant case would show that it is a case of “statutory rape”. Section 375 of the Penal Code provides as follows:
“A man is said to commit “rape” who except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following description.-
First.-Against her will.
Secondly.- Without her consent.
Thirdly.- With her consent, when her consent has been obtained by putting her in fear of death, or of hurt.
Fourthly.- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.- With or without her consent, when she is under fourteen years of age.
Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Explanation.- Sexual intercourse by a man with his own wife, the wife not being under thirteen years of age, is not rape.
17. Description “Fifthly” under section 375 clearly indicates that sexual intercourse with a child below the age of 14 is rape whether it is with consent or without consent. The medical report clearly shows that the victim was habituated to sexual intercourse and, therefore, whoever had sexual intercourse with the victim would be guilty of rape, even if sexual intercourse took place with her consent.
18. The learned Judges of the High Court Division were clearly of the view that any allegation of rape by the prosecutrix has to be corroborated. They went so far as to say “the evidence of a prosecution (sic. prosecutrix)” in a rape case is customarily received by the court with some suspicion. This is clearly perverse since the victim of rape should be dealt with and considered in the same way as a witness who was injured in the course of the occurrence. Referring to Modi’s Medical Jurisprudence, the learned Judges implicitly required evidence of marks of violence on the body of the victim, which having been absent, they found the allegation of rape to be not substantiated. Again I must say that the existence of marks of violence is not a sine qua non of rape. The learned Judges further observed as follows:
“Expert’s examination of the person of the prosecution (sic. prosecutrix) and garments she had weared (sic.) at the time and the place where the rape took place is sine qua non in such case.”
19. This statement/requirement as pronounced by the learned Judges of the High Court Division is absolutely misconceived. It can never be said that a case of rape is not proved simply because the wearing apparel of the raped victim was not produced to the investigating officer and no expert examination took place. Clearly the views of the learned Judges are misconceived and perverse. Sexual intercourse with a girl below the age of 14 years is ipso facto rape.
20. The learned Judges of the High Court Division disbelieved the victim because she had not reported the occurrence of rape upon her to the people who were either living in the vicinity or visited the house where she was confined. From the evidence on record it appears that the learned Judges overlooked many important factors narrated by the victim in her deposition before the court, including the fact that she was kept under lock and key everyday; that the children of Joinal, a neighbour used to visit when Mostafiz was at home; that the children used to eat guava from Mostafiz’s tree when he was at home; that the neighbours used to take water from Mostafiz’s house when he was at home; that when Hashem was at home the victim was locked up; she used to play with children when Mostafiz was present. Mostafiz always kept the key with him and finally she stated also that she could not tell anyone through fear as Mostafiz had threatened her. Overlooking such important factors the Hon’ble Judges of the High Court Division disbelieved the testimony of the victim because she did not tell anyone about her plight, ignoring the social context and practical impediments in the way of a vulnerable child.
21. The learned Judges of the High Court Division disbelieved the story of the victim because her parents allowed her to continue to live in the house of Mostafiz in spite of the fact that he raped her, which, according to them, is against human conduct. However, they have overlooked the fact that the victim was not the real child of the father and not a full-sister of accused Aleya and that it was pre-planned that the victim should stay in the house of accused Mostafiz so that he would marry her. The victim also stated in her statement before the Magistrate that her parents received money from Mostafiz and that Aleya would also beat her if she did not stay in the house of Mostafiz.
22. Clearly, the whole of that family was scheming against the victim, ensuring that she continues to live in the house of accused Mostafiz. It is, therefore, neither unusual nor surprising that any member of the victim’s family did not come forward to lodge the F.I.R. or to depose in court.
23. With regard to the delay in lodging the F.I.R., the learned Judges of the High Court Division appear to have ignored the fact that the victim did not have the support of her family nor anyone else to whom she could turn for assistance. The informant runs an organization which admittedly assists victims such as Shefali, but at the same time was constrained by factors relating to the organization’s business procedure. It is not unnatural that the organization would be required to go through certain formalities before lodging any F.I.R. and those formalities require meeting of the other members which in turn requires fixing of dates for those meetings. In such circumstances delay in commencing the procedural process is inevitable. Moreover, it appears that the police were initially reluctant to accept any information and did so later upon intervention by higher authority. Hence, it cannot be said that the delay in lodging the F.I.R. is unexplained. Furthermore, one should not lose sight of the fact that in a case of this nature where the chastity of a maiden young girl is in question publicity and legal process is purposely avoided keeping in mind her future. There is no gainsaying that once it becomes known that a girl had been raped, she effectively becomes an outcast having no prospect of marriage. It takes a lot of bravery to publicise the fact of rape of an unmarried girl in a conservative society such as ours. This factor alone speaks of truthfulness of the victim.
24. With regard to the evidence of the witnesses, we note that the informant has deposed as P.W.1 in an official capacity as the Convener of the Rajbari Mohila Parishad, stating facts as they were reported to her. There is no question of any motive being present for her to file any false case against the accused. Moreover, it is noted that no question was put to her with regard to the delay in lodging the F.I.R. The evidence of P.W. 2, the victim gives a vivid description of her vulnerable condition and the tragic and horrendous events which she had to suffer. It is noted that there was no suggestion that she had had any sexual intercourse with anyone other than the accused Mostafiz. Her evidence shows that she was very happy in the house of Montu at Mirpur. There was no suggestion that she had had any sexual relationship with anyone in that household. P.Ws 3, 4 and 5 are independent witnesses who narrated their knowledge of the story and no suggestion was made as to any existence of enmity between the witnesses and the accused. I note from the evidence of P.W. 5 Ruhul Parvez that when he met her at 5:30 in the morning she was in fear and was crying. This appears to be quite natural in the attendant situation as described.
25. In the facts and circumstances discussed above, I am of the view that the discussion of the evidence and materials by the High Court Division indicates perversity, misconception and lack of appreciation of the surrounding circumstances leading to the occurrence. I may profitably refer to the decision of the Indian Supreme Court in the case of Md. Iqbal and anr. Vs. State of Jharkhand reported in AIR 2013 SC 3077. In that case the father of the prosecutrix as well as other witnesses, who had been examined as prosecution witnesses were declared hostile and did not support the case of the prosecution. No spermatozoa were found in the vaginal swab examination and there was no injury in the private parts. Their lordships held that:
“There is no prohibition in law to convict the accused of rape on the basis of sole testimony of the prosecutrix and the law does not require that her statement be corroborated by the statements of other witnesses.”
26. Their lordships went on to observe that no explanation had been furnished by either of the accused as to why the prosecutrix had deposed against them and involved them in such a heinous crime. It was further held that:
“Rape cannot be treated only as a sexual crime but it should be viewed as a crime involving aggression which leads to the domination of the prosecutrix.”
27. It was further held that:
“In case of rape besides the psychological trauma, there is also social stigma to the victim…………….Social stigma has a devastating effect on rape victim. It is violation of her right of privacy. Such victims need physical, mental, psychological and social rehabilitation…………… Rape is blatant violation of women’s bodily integrity.”
28. In the facts of the instant case, a 13 year old house maid has undoubtedly been raped and there is no reason why the victim, who suffered the trauma and the stigma that goes with it, should not be believed. She has put herself in an invidious situation where she will be shunned and marginalised for the rest of her life and yet she has been disbelieved. This is clearly a travesty of justice.
29. In view of the above discussion it is my opinion that the appeal should be allowed.
30. Accordingly, the appeal is allowed. The judgement and order of the High Court Division is set aside and the judgement and order of conviction and sentence passed by the trial court is affirmed.
Mohammad Anwarul Haque, J:
31. This criminal appeal is directed against the judgment and order of acquittal passed on 31.07.2000 by Division Bench of the High Court Division, in Criminal Appeal No. 1349 of 1996 arising out of Nari-O Shishu Nirjaton Daman Case No. 13 of 1996, Rajbari, acquitting the accused–appellant of the charge punishable under section 6(1)/14 of the Nari-O-Shishu Nirjatan (Bishes Bidhan) Ain, 1995 on setting aside the order of conviction and sentence of life imprisonment with fine of Tk.5000/-in default to pay to suffer one year imprisonment more passed by the judge of Nari-O-Shishu Nirjaton Daman, Bishes Adalot.
32. In short, the case of the prosecution for the purpose of disposal of the appeal is as follows:
33. Victim Shefali was appointed as domestic worker in a house, situated at Mirpur, Dhaka. While she was rendering her service there; her step sister accused Aleya, serving at Rajbari as maid servant in the house of accused Mostafizur Rahman, called her back from Dhaka to Rajbari but she did not respond but ultimately accused Aleya, step sister of victim P.W.2, brought her in the Rajbari on false plea of her maternal grand mother’s death and engaged her as maid servant in the house of accused Mostafizur Rahman on 01.06.1996 where she was also there.
34. Taking such opportunity the accused Mostafizur Rahman began to ill-treat her and frequently committed rape on her who was at that time a minor girl of 13 years only.
35. To release herself from such an atmosphere P.W.2, victim Shefali, fled away from the house of the accused Mostafizur Rahman on 31.08.1995 and took shelter in the house of local businessman P.W.3, Chand Ali, where she previously worked as domestic-worker with the help of P.W.6 & 7 and others. Then victim disclosed the entire story of rape and related physical torture committed by accused Mostafizur Rahman which was published in the daily news paper “Soja Katha”. Then local “Mohila Parishad” took up the matter and lodged the FIR on 24.10.1995 with the help of local administration, Rajbari showing the date of occurrence from 1.6.1995 to 31.8.1995.
36. During the course of investigation victim was produced before learned Magistrate who recorded the statement of the victim under section 164 of the Code of Criminal procedure and she was sent to doctor for physical examination.
37. However, on the conclusion of investigation a final report was submitted which was not accepted by the learned Judge of the Nari-O-Shishu Nirjaton Daman Bishesh Adalat rather took cognizance of the offence punishable under section 6(1)/14 of Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 and issued process to secure the presence of the accused to face trial.
38. On conclusion of the trial the learned Judge of the Nari-O-Shishu Nirjatan Daman Bishesh Adalat ensured the conviction of the accused– appellant–respondent for commission of the offence referred to above. Subsequently convicted accused preferred a criminal appeal to the High Court Division which was heard and allowed acquitting the convicted appellant of the charge punishable under section 6(1)/14 of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995.
39. Mr. Momtaz Uddin Fakir the learned Additional Attorney General submits that the High Court Division erred substantially in upsetting the sentence of imprisonment for life awarded under section 6(1)/14 of the Nari-O-Shishu Nirjaton Daman (Bishesh Bidhan) Ain, 1995 since it is based on sound and sturdy reasons. Mr. Fakir further submits that the High Court Division has chosen to advance on fragile reason to upset a well resound conclusion of the trial court based on the evidence of the prosecutrix which is relevant one. Moreover, the High Court Division has given to much importance on the inordinate delay in lodging the FIR without considering the prevailing circumstances which was absolutely beyond the control of a minor victim. As such impugned Judgment of the High Court Division acquitting the accused cannot be sustained. In fact, the behavior of the victim of rape would depend upon the circumstances where she is placed. In the instant case since victim was kept confined she had no occasions to lodge the FIR with help of any one at an earliest opportunity. So the impugned judgment of acquittal passed by the High Court Division is to be set aside and the very judgment of conviction and sentence passed by the trial Court is to be maintained.
40. On the other hand, none is found on behalf of the accused–appellant who has been acquitted by the High Court Division.
41. We have gone through the FIR meticulously which has been lodged by P.W.1 Mrs. Shamsunahar Choudhury who has not given any plausible explanation about the inordinate delay in lodging such FIR.
42. It is evident that there is no eye witness of the occurrence. Even the victim, getting sufficient opportunity to disclose this type of alleged physical torture did not project it to any other requesting to release her from the hand of the accused persons.
43. It is equally interesting to note that in spite of getting this type of information from the victim her parent did not take any step rather asked her to remain in the job in the house of the accused persons. In this connection we are to quote an observation made in case of state of Panjab Vs Jagir Sing; reported in SCC(1974) PP 285-286:
“A Criminal trial is not like a fairy tale wherein one is free to give flight to one’s imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is changed. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures”.
44. In fact, materials placed before the court give rise to suspicion against the commission of the offence as narrated by the prosecution. The victim, being a minor, was not handed over to her parents who are her best well-wisher P.W.1 being convener of Mohila Parishad under took the matter for prosecution beyond the knowledge of her parent. As such High Court Division disbelieved the entire story of commission of rape on the person of a minor girl which deserves no interference.
45. In facts, the story of rape itself gives rise to a grave suspicion implicating the accused, respondent; as such it will be fully within the domain of the appellate court to acquit the accused. Moreover, 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, P.W.2 as beyond any reasonable doubt which is the fundament requirement of conviction of an accused person.
46. Considering the overall situation including the non-examination of the parent of the victim to whom she previously disclosed the entire alleged occurrence and other evidence, adduced by the prosecution, we find no ring of truth beyond any reasonable doubt in the case as narrated by the prosecution. In fact, we are not ready to accept or believe this infirm evidence of the prosecutrix which has rightly been discarded by the High Court Division. In this connection we may also refer the decision of a case Md. Abdul Hamid Mollah Vs. Ali Mollah and another reported in 13 BLD page 127 where their lordships of the Apex Court have observed that the High Court Division on proper assessment of the evidence both oral and circumstantial has taken a decision for acquittal which Appellate Division should not interfere on reevaluating the same available in the record.
47. As such we are not inclined to interfere with the decision of the High Court Division and considering the majority views as shown in the judgment this appeal is dismissed.
Mr. Justice Hasan Foez Siddique, J:
48. I have gone through the judgments proposed to be delivered by my brothers, Muhammad Imman Ali, J. and Mohammad Anwarul Haque, J. I agree with the reasoning and findings given by Mohammad Anwarul Haque, J.
COURT’S ORDER
49. The appeal is dismissed by majority decisions.
End.
Appellate Division (Criminal)
Present:
Mr. Justice Syed Mahmud Hossain, Chief Justice
Mr. Justice Muhammad Imman Ali
Mr. Justice Hasan Foez Siddique
Mr. Justice Abu Bakar Siddiquee
Mr. Justice Md. Nuruzzaman
Mr. Justice Obaidul Hassan
Criminal Appeal No.10 of 2014
With
Jail Petition No.07 of 2014.
(From the judgment and order dated 25-11-2013 passed by the High Court Division in Death Reference No.72 of 2008 with Criminal Appeal No.5027 of 2008 and Jail Appeal No.778 of 2008.)
Mamun @ Mamun Ar Rashid (Md)
-------- Appellant [In both the cases]
VS
State
------- Respondent [In both the cases]
Judgement Date : July 06, 2021
Counsels:
SM Shahjahan, Advocate with Nahid Mahtab, Advocate, instructed by Md Zahirul Islam, Advocate-on-Record
— For the Appellant/Petitioner. (In both the cases)
Sk. Md Morshed, Additional Attorney-General, instructed by Hondas Paul, Advocate-on-Record
— For the Respondent. (In both the cases)
Judgment
Syed Mahmud Hossain, CJ: This criminal appeal is directed against the judgment and order dated 25-11-2013 passed by a Division Bench of the High Court Division in Death Reference No.72 of 2008 heard along with Criminal Appeal No.5027 of 2008 and Jail Appeal No.778 of 2208. The High Court Division accepted the Death Reference and dismissed the appeals and thereby confirmed the judgment and order of conviction and sentence dated 21-7-2008 passed by the learned Judge, Nari-o-Shishu Nirjatan Daman Tribunal No.2, Rajshahi in Nari-o-Shishu Case No.79 of 2005 arising out of Charghat Police Station Case No.05 dated 7-12-2004 corresponding to GR Case No.678 of 2004 under section 302 of the Penal Code.
2. The facts, leading to the filing of this criminal appeal, in a nutshell, are:
The prosecution version of the case, in short, is that the deceased Naher Banu, aged about 22 years was given in marriage with the condemned-appellant Md Mamun @ Mamun-or-Rashid 2 years back. She was strangled to death by her husband condemned-appellant Mamun on the night following 7-12-2004, in his house when she was living with him and was in his custody. Immediately after the occurrence, the condemned-appellant and the inmates of the house vanished from the scene. In the above circumstances, the PW 1 Md Idris Ali the elder brother of the deceased, hearing about the incident rushed to the place of occurrence house, saw the dead body, and thereafter lodged an ejahar (Exhibit-1) with Charghat Police Station against the condemned-appellant and others under section 11. (Ka)/30 of the Nari-o-Shishu Nirjatan. Daman Ain-2000 (amended in 2003).
3. Police investigated the case and submitted charge-sheet on 31-1-2005 against 04 accused including the condemned-appellant under section 11(Ka)/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 (amended in 2003).
4. After submission of the charge-sheet, the case was transferred to the Nari-o-Shishu Nirjatan Daman Tribunal No.2, Rajshahi for trial and the same was numbered as Nari-o-Shishu Case No.79 of 2005, and the Tribunal framed charge against the condemned-appellant under section 11(Ka) of the Nari-o-Shishu Nirjatan Daman Ain, 2000 while the rest 03 co-accused were charged under section 11(Ka)/30 of the said Ain-2000. The charge was read over and explained to the accused present in the dock, but they pleaded not guilty thereto and claimed to be tried.
5. During trial, the prosecution examined as many as 13 witnesses to prove the case and after completion of the prosecution evidence, the accused were further examined under section 342 of the Code of Criminal Procedure, but the accused present in the dock pleaded not guilty and declined to adduce any defence evidence.
6. The defence version of the case, as it appears from the trend of cross-examination of the prosecution witnesses, is that the condemned-appellant is innocent and the deceased wife had committed suicide by hanging.
7. On conclusion of trial, the Nari-o-Shishu Nirjatan Daman Tribunal No.2, Rajshahi altering the charge by its judgment and order dated 21-7-2008, convicted the condemned appellant under section 302 of the Penal Code and sentenced him thereunder to death with a fine of Taka 25,000 and acquitted the co accused, and made the Reference to the High Court Division for confirmation of the sentence of death.
8. The High Court Division upon hearing both the parties accepted the Death Reference and dismissed the appeals and thereby confirmed the judgment and order of conviction and sentence passed by the learned Judge of the Tribunal.
9. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the High Court Division the condemned prisoner has preferred the instant appeal and jail petition.
10. Mr SM Shanahan, Advocate appearing on behalf of the appellant submits that the prosecution version of the case as made out during trial is different from the story stated in the First Information Report (FIR) and the PWs gave evidence to the effect that the deceased Naher Banu had committed suicide by hanging and, as such, the condemned-appellant should be acquitted of the charge levelled against him. He further submits that the prosecution has failed to prove the motive of the case and the post-mortem report which is secondary evidence has not been corroborated by any other legal evidence, direct or circumstantial and mere absconsion of the condemned-appellant immediately after the occurrence is not conclusive of his guilt. He then submits that there is no eye-witnesses to the occurrence and none of the PWs gave evidence that the condemned-appellant was present at the house where the occurrence took place at the material time, but the Tribunal on an erroneous view substituted moral conviction for legal evidence and illegally found the accused guilty of the offence under section 302 of the Penal Code and, as such, the impugned judgment and order of conviction and sentence should be set aside. He continues to submit that this is a case of no evidence and the conviction and sentence is based on secondary evidence, that is, the post mortem report ignoring the substantive evidence of suicide alleged to have been committed by the deceased. He lastly submits that the condemned-appellant has been languishing in condemned cell since 21-7-2008 and, as such, a lenient view should be taken in respect of his sentence by commuting the sentence of death to imprisonment for life.
11. Mr Sheikh Mohammad Morshed, learned Additional Attorney-General, appearing on behalf of the State-respondent, on the other hand, supports the impugned judgment delivered by the High Court Division. He further submits that when wife died within the custody of her husband, the husband was to explain the cause of death and that instead of doing so the condemned-appellant fled away from his house, and after long absconsion he was arrested. He then submits that absconsion is one of the strong circumstances that points at the condemned prisoner's guilt. Considering the evidence in post-mortem report coupled with the absconsion of the appellant, it could be said without any hesitation that it is the condemned-appellant who had murdered his wife by strangulation and, as such, no interference is called for. As regards sentence, he submits that now a days wife-killing by the husbands has increased alarmingly and, as such, no sympathy should be shown to the condemned-appellant and the sentence of death should be maintained.
12. We have considered the submissions of the learned Advocate for condemned-appellant and the learned Additional Attorney-General for the State-respondent, perused the impugned judgment and the evidence on record.
13. Admittedly, there is' no direct evidence to the occurrence. It should not be expected that the witnesses would be present when the husband committed murder of his wife in his dwelling house and, even if, there were witnesses, that is, inmates of the house they would not depose against the husband. Now a days it has become order of the day.
14. PW 1, Idris Ali, the full brother of the deceased even did not support the prosecution case although he lodged an FIR accusing the condemned-appellant, for murdering his sister.
15. PW 2, Md Mozammel Hoque, the father of the ill fated deceased, also deposed that he heard his daughter committed suicide. He did not see any mark of injury in the dead body.
16. PW 3, Md Shafiqul, maternal uncle of the deceased, also deposed in the same tone. The other' local witnesses from PWs 4-11 stated in a chorus that Naher Banu had committed suicide. The only legal evidence before the Court is the post-mortem report of the doctor, who in the post-mortem report stated as under:
"Death in my opinion is due to asphyxia following strangulation by ligature material. Death is homicidal hi nature."
17. PW 13, Dr. Emdadur Rahman, Assistant Professor, Forensic Medicine, Rajshahi Medical College Hospital; who performed the post-mortem on the dead body of the deceased, deposed before the trial Court and supported his opinion in an unequivocal manner. Therefore, there is no gainsaying that Naher Banu did not commit suicide but she was done to death by strangulation.
18. In the case in hand, the defence miserably failed to prove that Nahar Banu committed suicide and rather she was done to death by strangulation. When wife dies within the custody of her husband, the husband is to explain the cause of her death. In the instant case, we find that the deceased was admittedly living with the condemned-appellant at the relevant time and thus the condemned-appellant was obliged to give an explanation as to how his wife had met with her death although normally an accused is under no obligation to account for the death for which he is on trial. The consideration is bound to differ in a case like this.
19. This is the consistent view of the superior Courts of the Subcontinent including this Division.
20. Though FIR is not a substantive evidence, it can be gathered from the statements made therein that the relationship between the husband and the wife was bitter because of demand of dowry by the husband. It is alleged in the FIR that Taka 30,000 was paid to the condemned-appellant at the time of marriage.
21. In the case of Nausher Ali Sarder & others vs The State, 39 DM (AD) 194 it has been held that death sentence was commuted to imprisonment for life because "bitter matrimonial relationship played a part in this nefarious situation and while inflicting sentence such relationships, cannot be overlooked." In the present case, it is evidently clear that the offence followed a tenure of rancorous marriage between the appellant and the deceased.
22. Having taken into consideration all the facts and circumstances of the case, we are inclined to commute the sentence of death to imprisonment for life.
23. Accordingly, this criminal appeal is dismissed. Thee conviction imposed upon the condemned appellant under section 302 of the Penal Code passed by the trial Court and confirmed by the High Court Division is maintained but his sentence of death is commuted to one for imprisonment for life and also to pay a fine of Taka 10,000 (ten thousand), in default, to suffer rigorous imprisonment for 1 (one) month more. He will get the benefit of section 35A of the Code of Criminal Procedure and other remissions as admissible under the Jail Code.
Jail Petition No.07 of 2014 is also disposed of in the light of the judgment delivered in Criminal Appeal No.10 of 2014.
End.
IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Criminal Appeals Nos. 67-71 of 2019
Decided On: 25.08.2022
Barrister Muhammad Jamiruddin Sircar
... Vs. ...
The State and Ors.
Hon'ble Judges/Coram:
Hasan Foez Siddique, C.J., Md. Nuruzzaman, Obaidul Hassan and Borhanuddin, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: A.J. Mohammad Ali and Abdur Razzak Khan, Senior Advocates instructed by Zainul Abedin, Advocate-on-Record
For Respondents/Defendant: Bashir Ahmed, Deputy Attorney General instructed by Haridas Paul, Advocate-on-Record
Acts/Rules/Orders:
Code of Criminal Procedure, 1898 (CrPC) - Section 561A; Ministers, Ministers Of State And Deputy Ministers (remuneration And Privileges) Act, 1973 - Section 13, Ministers, Ministers Of State And Deputy Ministers (remuneration And Privileges) Act, 1973 - Section 13(1); Penal Code, 1860 - Section 109, Penal Code, 1860 - Section 409; President's (remuneration And Privileges) Act, 1975 - Section 10; Prevention Of Corruption Act, 1947 - Section 5(2); Prime Minister's (remuneration And Privileges) Act, 1975 - Section 12; Speaker And Deputy Speaker (remuneration And Privileges) Act, 1974 - Section 9
Prior History:
From the Judgment and Order dated 11.10.2018 passed by the High Court Division in Criminal Miscellaneous Cases Nos. 20701-20705 of 2013
Result:
In Favour of Accused
JUDGMENT
Obaidul Hassan, J.
1. The Criminal Appeals No. 67, 68, 69, 70, 71 of 2019 are being disposed of by rendering this common judgment as all the cases involve common questions of law and facts and the parties are also identical in all the cases.
2. These Criminal Appeals are directed against the judgment and order dated 11.10.2018 discharging all the Rules passed by a Single Bench of the High Court Division in Criminal Miscellaneous Cases No. 20705, 20704, 20701, 20703 & 20702 of 2013 preferred by the appellant.
3. The appellant initiated applications before the High Court Division under Section 561A of the Code of Criminal Procedure, 1898 challenging the proceedings being Metro Special Case Nos. 219, 221, 218, 219 and 223 of 2013 in which Rules were issued with interim order of stay of the further proceedings. A Division Bench of the High Court Division finally heard all the Rules and on 19.05.2016 a splitted judgment was delivered by the said division Bench. One of the Judges of that Bench made all the Rules absolute quashing the proceedings of aforesaid Metro Special Cases while another Judge of that Division Bench discharged all the Rules and vacated the order of stay. Since there was a dissenting opinion regarding the result of the Rules, the matter was placed before the Hon'ble Chief Justice for necessary order. Pursuant to the order of the Hon'ble Chief Justice a Single Bench was constituted and the Judge of that Bench upon hearing discharged all the Rules by its judgment and order dated 11.10.2018 and granted certificate to prefer appeal before this Division. Thereafter, the appellants have come up with these appeals as referred below.
Criminal Appeal No. 67 of 2019:
4. This Criminal Appeal is directed against the judgment and order passed in Criminal Miscellaneous Case No. 20705 of 2013 arising out of Metro Special Case No. 219 of 2012 corresponding to Sher-E-Bangla Nagar Police Station Case No. 47 dated 28.12.2010 and A.C.C. G.R. No. 117 of 2010 under Sections 409/109 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947 pending in the Court of Metropolitan Senior Special Judge, Dhaka.
5. The prosecution case, succinctly, is that the Anti-Corruption Commission lodged the First Information Report (FIR) with the concerned police station against the appellant along with another person contending inter alia, that the appellant being the former speaker of the National Parliament received medical treatment at Mount Elizabeth Hospital, Singapore from 26.01.2006 to 12.02.2006. On his return back to the country after undergoing treatment in abroad, he intending to get his medical treatment bill amounting Tk. 27,86,364.00 (twenty seven lac eighty six thousand three hundred and sixty four only) reimbursed applied to the then Prime Minister for approval and he accordingly forwarded a summary proposal to the then Prime Minister on 04.04.2006. But the Prime Minister instead of rejecting the summary sent the same back to the appellant on 31.05.2006 vide memo No. 5.2.31.30.00.00.10-2006-82 to dispose of it according to the provisions of Sangsad Shachibalaya Ain, 1994. After receiving back the summary the appellant decided to get the bill approved accordingly. Although the Auditor and the Account Officer raised objection in respect of the said bill, but the Chief Accounts Officer of the Parliament Secretariat sanctioned a sum of Tk. 27,86,364.00 (twenty seven lac eighty six thousand three hundred and sixty four only) against the medical treatment expenditure and the appellant received the same amount reimbursed. The appellant in this way, in collaboration with the Chief Accounts Officer, Bangladesh National Parliament Secretariat illegally got approval of reimbursing the said bill amount and received the said amount. It is alleged that in the aforesaid way, the appellant committed offence under Sections 409/109 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947.
6. The Anti Corruption Commission (ACC) upon investigation submitted charge sheet recommending prosecution of the appellant and another accused under the aforesaid provisions of law. The case was then transferred to the Court of Metropolitan Senior Special Judge, Dhaka, who took cognizance of the offence against the appellant and another accused. Challenging the proceeding of the case, the appellant filed an application under Section 561A of the Code of Criminal Procedure in the High Court Division and obtained Rule and an order of stay of the proceedings. Lastly, upon hearing a Single Bench of the High Court Division by its judgment and order dated 11.10.2018 discharged the Rule and vacated the order of stay. The appellant filed the Criminal Appeal No. 67 of 2019 before this Division challenging the aforesaid judgment and order of the High Court Division.
Criminal Appeal No. 68 of 2019:
7. The instant Criminal Appeal is directed against the judgment and order passed in Criminal Miscellaneous Case No. 20704 of 2013 arising out of Metro. Special Case No. 221 of 2012 corresponding to Sher-E-Bangla Nagar Police Station Case No. 51 dated 28.12.2010 and ACC G.R. No. 121 of 2010 under Sections 409/109 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947 pending in the Court of Metropolitan Senior Special Judge, Dhaka.
8. The prosecution case, in short, is that the ACC lodged an FIR with the concerned police station against the then Deputy Speaker Mr. Akter Hamid Siddiqui along with the appellant stating, inter alia, that Mr. Akter Hamid Siddiqui, the then Deputy Speaker went to London and Moscow at his own costs with permission from the appellant. On his return to the country the then Deputy Speaker submitted medical bills amounting Tk. 1,21,703.59 (one lac twenty one thousand seven hundred three taka and fifty nine paisa only). Although the Audit Officer raised objections against the said bill of the then Deputy Speaker, the appellant ignoring the same got the said bill sanctioned. The then Deputy Speaker in connivance with the appellant received the said medical bill reimbursed. In the aforesaid way, the appellant thus committed offences under Sections 409/109 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947.
Criminal Appeal No. 69 of 2019:
9. This Criminal Appeal is directed against the judgment and order passed in Criminal Miscellaneous Case No. 20701 of 2013 arising out of Metro. Special Case No. 218 of 2012 corresponding to Sher-E-Bangla Nagar Police Station Case No. 48 dated 28.12.2010 and ACC G.R. No. 118 of 2010 under Sections 409/109 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947, pending in the Court of Metropolitan Senior Special Judge, Dhaka.
10. The prosecution case, in brief, is that the ACC lodged an FIR with the concerned police station against Mr. Khandokar Delowar Hossain, the then Chief Whip along with the appellant stating, inter alia, Mr. Khandokar Delowar Hossain, the then Chief Whip of the 8th National Parliament was provided with some furniture and other goods from the parliament secretariat for the use at his residential office. After dissolution of the 8th National Parliament the then Chief Whip was requested on 16.11.2006 to make the furniture and other goods supplied earlier to him returned, but he intimated the National parliament secretariat on 31.01.2007 stating that the furniture and other goods had been damaged due to use and it was not possible to return those and he also sought exoneration from the liability of returning those goods. The appellant misusing his power accepted the prayer of the then Chief Whip and exempted him from the liability of returning those goods. In the aforesaid way, the then Chief Whip in collusion with the appellant misappropriated the furniture and other goods worth about Tk. 6,09,662.00 (six lac nine thousand six hundred sixty two only). Thus, the appellant committed offences under Sections 409/109 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947.
Criminal Appeal No. 70 of 2019:
11. This Criminal Appeal is directed against the judgment and order passed in Criminal Miscellaneous Case No. 20703 of 2013 arising out of Metro. Special Case No. 19 of 2013 corresponding to Sher-E-Bangla Nagar Police Station Case No. 50 dated 28.12.2010 and ACC G.R. No. 120 of 2010 under Sections 409/109 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947, pending in the Court of Metropolitan Senior Special Judge, Dhaka.
12. The prosecution case, in brief, is that the ACC lodged an FIR with the concerned police station against Mr. Khandokar Delowar Hossain, the then Chief Whip along with the appellant stating, inter alia, that Mr. Khandokar Delowar Hossain, the then Chief Whip of the 8th National Parliament was used to reside at the 1st floor of House No. 103, S.C.C. Road, Armanitola, Dhaka and although only two electric meters were used by him at his own floor while he submitted electric bills from November 2001 to October 2006 for electric meters twelve in numbers. Likewise although he used two double gas burners at his floor he submitted gas bills from November, 2001 to February, 2005 for six double gas burners and two single gas burners. The appellant approved the said electric and gas bills of the then Chief Whip which he was not entitled to get. In the aforesaid way, the then Chief Whip in accomplice with the appellant made loss of sum amounting Tk. 4,40,087.50 (four lac forty thousand eighty seven taka and fifty paisa only) to the government fund.
Criminal Appeal No. 71 of 2019:
13. This Criminal Appeal is directed against the judgment and order passed in Criminal Miscellaneous Case No. 20702 of 2013 arising out of Metro. Special Case No. 223 of 2012 corresponding to Sher-E-Bangla Nagar Police Station Case No. 49 dated 28.12.2010 and ACC G.R. No. 119 of 2010 under Sections 409/109 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947, pending in the Court of Metropolitan Senior Special Judge, Dhaka.
14. The prosecution case, in brief, is that the ACC lodged an FIR with the concerned police station against Mr. Khandokar Delowar Hossain, the then Chief Whip along with the appellant and another accused stating, inter alia, that on 29.07.2006 Mr. Khandokar Delowar Hossain, the then Chief Whip of the 8th National Parliament filed an application to the appellant mentioning that he had been admitted in Singapore National University Hospital on advice of the Medical Board and he needed Tk. 10,00,000.00 (ten lac only) for bearing his medical expenses. The bills were sent to the then Prime Minister's Office for approval which was returned back to the then Speaker. The appellant misusing his power approved the medical bills amounting Tk. 6,00,000.00 (Six lac only). In the aforesaid way, the then Chief Whip in accomplice with the appellant and another accused person misappropriated the government money.
15. In all the aforesaid cases the ACC upon investigation submitted charge sheets against the appellant along with other accused persons under Sections 409/109 of the Penal Code read with Section 5(2) of the Prevention of Corruption Act, 1947. All the cases were transferred to the Court of Metropolitan Senior Special Judge, Dhaka, who took cognizance of the offence against appellants and other accused persons.
16. Challenging the proceeding of those five cases, the appellant filed five applications under Section 561A of the Code of Criminal Procedure in the High Court Division and obtained Rule and an order of stay of the proceedings. Lastly, upon hearing a Single Bench of the High Court Division by its judgment and order dated 11.10.2018 discharged the Rule and vacated the order of stay.
17. Being aggrieved with the judgment and order dated 11.10.2018 of the High Court Division the Appellant filed the above mentioned five Criminal Appeals before this Division.
18. Mr. A.J. Mohammad Ali, learned senior Advocate appearing with Mr. Abdur Razzak Khan, the learned Advocate on behalf of the appellant contended that the allegation brought against the appellant is false for the reasons that after his medical treatment in the abroad he sent the medical bill to the then Prime Minister for sanction, but the Prime Minister without rejecting the said bill sent it back to the appellant for taking necessary steps as per provisions of the Parliament Secretariat Act, 1994. In the same way the then Chief Whip too submitted foreign medical bills to the appellant which he sent to the Prime Minister. But it was also sent back to the appellant for necessary action according to the Parliament Secretariat Act, 1994. On receipt of the said bills the appellant had no option other than endorsing approval of those. The learned Advocates contended next that the appellant approved the alleged medical bills and other utility bills on good faith, and if the appellant had any criminal intention to misappropriate the government fund he would not forward the alleged bills to the then Prime Minister for sanction.
19. The learned Counsels submitted further that the appellant approved the alleged medical bills on condition that he would be responsible to refund the medical bill when directed by the Supreme Court of Bangladesh to do so. Similarly, the appellant approved the medical bills of the then Deputy Speaker and the then Chief Whip by taking an undertaking to refund the medical bills, if directed by the Supreme Court of Bangladesh. The learned Counsels further contended that earlier late Deputy Speaker Mr. Humayun Rashid Chowdhury and the former Chief Whip Mr. Abul Hasnat Abdullah received the foreign medical bills to which the then Prime Minister provided sanction and thus the appellant justifiably approved the alleged medical bills. By reference to Sections 9 and 18 of the Parliament Secretariat Act, 1994 the learned Counsels contended next that the appellant being the head of the legislature was empowered to approve the alleged medical bills. The learned Counsels submitted too that the appellant had no criminal intention in allowing the application of the then Chief Whip for exemption from returning the furniture and also approving the alleged utility bills. Assailing the alleged judgment and order of the High Court Division the learned Counsels further submitted that the High Court Division without applying judicial mind discharged the Rules in the Criminal Miscellaneous Cases filed by the appellant and thus the impugned judgment and order dated 11.10.2018 passed by the High Court Division is liable to be set aside. The learned Counsels lastly submitted that the cases brought against the appellant are preposterous and as such the proceedings of those cases are liable to be quashed to prevent the abuse of the process of the Court.
20. Per contra, Mr. Bashir Ahmed, the learned Deputy Attorney General on behalf of the respondent No. 1 contended that according to Rule 12 of the Special Medical Attendant Rules the appellant was not empowered to approve the foreign medical bills of the Speaker, the Deputy Speaker and the Chief Whip without the prior sanction of the Prime Minister. The learned Deputy Attorney General next submitted that the appellant without having sanction of the Prime Minister approved the alleged medical bills and as such he was liable to be prosecuted. The learned Deputy Attorney General argued that according to Section 18 of the Parliament Secretariat Act, 1994 the Speaker has the authority to use the funds at his choice, but such use of fund can only be made for lawful expenditure. The learned Deputy Attorney General finally submitted that the appellant by abusing his power approved the alleged bills and thus being the head of the National Parliament he would not get impunity for the illegality done by him.
21. Mr. Sarwar Ahmed, the learned Advocate for the respondent No. 2 adopted the submissions extended by the learned Deputy Attorney General. But however he added in his submission that the jurisdiction of the ACC would not be barred by the provisions of the Parliament Secretariat Act, 1994 and as such the appellant could be prosecuted according to the Prevention of Corruption Act, 1947.
22. For the convenience of discussion we may cluster all the cases in two categories based on the facts of all the five cases corresponding to five Criminal Appeals, as stated above. First category includes Criminal Appeals No. 67, 68 and 71 of 2019 which deals with the approval of foreign medical bills by the Speaker of Jatiya Sangsad which he was not allegedly authorized to do while the second category includes Criminal Appeals No. 69 and 70 of 2019 which deals with the misappropriation of furniture and other goods supplied to the then Chief Whip for his use in his residential office and withdrawing excessive electricity and gas bills at his residence to which he was not entitled to get.
23. Now, we will embark upon discussing the first category. The allegation against the appellant was that he sanctioned medical bills for the then Deputy Speaker and the then Chief Whip. In this regard the main issue hinges on a question whether the appellant i.e. the then Speaker of the National Parliament had the authority to give sanction to such medical bills. Let us eye on Section 9 of the Speaker and Deputy Speaker (Remuneration and Privileges) Act, 1974 which lays down in the following:
"9. Other allowances, facilities and Privileges-The other allowances, facilities and privileges of the Speaker and the Deputy Speaker shall be the same as are admissible to a Minister under the Act."
Again, Section 13 of the Ministers, Ministers of State and Deputy Ministers (Remuneration and Privileges) Act, 1973 provides that-
"13. Medical Facilities-(1) A Minister, Minister of State or Deputy Minister and his family shall be entitled to such medical facilities as may be prescribed by rules made under this Act.
(2) Until rules are made under sub-section (1), Medical Attendance Rules, 1950 shall be applicable to a Minister, Minister of State or Deputy Minister and his family."
24. During hearing it has been brought to notice of this court by the learned counsels for both sides that no Rules under Section 13(1) of the Ministers, Ministers of State and Deputy Ministers (Remuneration and Privileges) Act, 1973 has yet been formulated for the Minister, Minister of State or Deputy Minister. Thus, it is indisputably evident that the Special Medical Attendant Rules, 1950 (shortly Rules, 1950) is the only law applicable for the Speaker and Deputy Speaker in respect of their medical facilities availed in abroad.
25. Rule 2(e) of the Rules, 1950 defines the term 'medical attendance' in the following-
"2.(e) 'medical attendance' means attendance in hospital or at the resident of a Government servant, and includes-
(i) such pathological, bacteriological, radiological or other methods of examination for the purposes of diagnosis as are available in any Government hospital or laboratory in Bangladesh and are considered necessary by the authorised medical attendant; and
(ii) such consultation with a specialist or other medical officer in the service of the Government as the authorised medical attendant certifies to be necessary, to such extent and in such manner as the specialist or medical officer may in consultation with the authorised medical attendant determine."
Again, Rule 9 of the Rules, 1950 provides that-
"9. Nothing in these Rules shall be deemed to entitle a patient-
(a) to travelling allowance for a journey-
(i) for attendance by a dentist or oculist; or
(ii) outside Bangladesh; or
(b) to reimbursement of costs incurred in respect of medical services obtained by him, or to travelling allowance for any journey performed by him, otherwise than as expressly provided in these Rules."
On bare reading of Rule 9 in conjunction with Rule 2(e) of the Rules, 1950 it emanates patently that there is no scope for the Speaker and the Deputy Speaker to claim medical expenses occurred in abroad from the government fund. But Rule 12 of Rules, 1950 empowers the Government for sanctioning such foreign medical treatment bills to the Speaker and Deputy Speaker.
Rule 12 of the Rules, 1950 reads thus-
"12. Nothing in these rules be construed as preventing the Government from granting to any person to whom they apply any concession relating to medical treatment or attendance which is not authorised by these rules."
At this juncture, it is important to know about the medical facilities of the Chief Whip. Section 2(b) of the Members of Parliament (Remuneration and Allowances) Order, 1973 reads in the following-
"2(b) 'Member' means a Member of Parliament but does not include the Speaker or the Deputy Speaker or the Prime Minister or a Minister or a Minister of State or a Deputy Minister."
Thus, the Chief Whip falls within the definition of Section 2(b) of the Members of Parliament (Remuneration and Allowances) Order, 1973 and is entitled to get remuneration, allowances and medical facilities like a Member of Parliament.
26. Again, Section 7 of the Members of Parliament (Remuneration and Allowances) Order, 1973 provides that-
"7. A Member and the members of his family shall be entitled to the same medical facilities as are admissible to a gazetted officer (Class I) of the Government and the members of the family of such officer under the Government Servants (Medical Attendance) Rules, 1963:
Provided that, notwithstanding anything contained in the said Rules, a Member shall be entitled to a sum of seven hundred taka per mensem as medical allowance, but shall not be entitled to reimbursement of any expenses incurred by him for his treatment or for the treatment of the members of his family."
27. In view of the aforementioned provisions of law it appears that the Chief Whip is not entitled to get medical expenditure occurred in abroad reimbursed from the government fund except when the Prime Minister gives sanction in that behalf.
28. Now we may advert to a pertinent question as to whether the Appellant had mens rea in approving the alleged foreign medical bills submitted by himself, the then Deputy Speaker and the then Chief Whip. From the record it divulges that on 04.04.2006 pursuant to Rule 12 of the Rules, 1950 the appellant sent a summary proposal to the then Prime Minister for having approval of his own medical treatment bill amounting Tk. 27,86,364.00 (Twenty seven lac eighty six thousand three hundred and sixty four only). In the summary it was also mentioned that earlier the Prime Minister approved the medical bills for the treatment of the former Speaker Mr. Humayun Rashid Chowdhury and former Chief Whip Mr. Abul Hasnat Abdullah. But the then Prime Minister on perusal of the said summary without rejecting the summary sent it back to the appellant to dispose of as per provisions of the Parliament Secretariat Act, 1994. The relevant segment of the charge sheet in respect of Metro. Special Case No. 219 of 2012 has been extracted below:
“উল্লিখিত ১২ নং বিধি প্রয়োগ করে উক্ত রুলের বিধান শিখিলপূর্বক বিদেশে চিকিৎসা ব্যয় নির্বাহ অনুমোদনের জন্য সংসদ সচিবালয় থেকে মাননীয় প্রধানমন্ত্রীর নিকট সারসংক্ষেপ প্রেরণ করা হলে প্রধানমন্ত্রীর কার্যালয়ের পত্র সংখ্যা নং-৫.২.৩১.৩০.০০.০০,১০.২০০৬-৮২, তারিখ: ৩১-৫-২০০৬ ইং মোতাবেক অনুমোদন না দিয়ে জাতীয় সংসদ সচিবালয় আইন, ১৯৯৪ অনুযায়ী ব্যবস্থা নেয়ার কথা উল্লেখ করে সারসংক্ষেপটি ফেরত প্রদান করা হয়। প্রধানমন্ত্রীর কার্যালয় হতে সার-সংক্ষেপটি ফেরত পাওয়ার পর বাংলাদেশ জাতীয় সংসদ সচিবালয়ের সংশ্লিষ্ট ২৩ থেকে ২৭ নং নোটানুচ্ছেদ) স্পীকারের সিদ্ধান্তের জন্য উপস্থাপন করা হলে সাবেক স্পীকার ব্যারিস্টার মুহাম্মদ জমিরউদ্দিন সরকার ২৮-৩০ নং অনুচ্ছেদে বিশদ বিবরণ লিপিবদ্ধ করে ৩১ নং নোটানুচ্ছেদে নিম্নরূপ সিদ্ধান্ত প্রদান করেন ।
উপরিউক্ত বিষয় মাননীয় প্রধানমন্ত্রীর নির্দেশ ও সংসদ সম্পর্কিত আইন বিচার বিশ্লেষণ করে on good faith and on my honest understanding of law বিলটি পরিশোধের সিদ্ধান্ত নিলাম । যদি কোনদিন উপযুক্ত কর্তৃপক্ষ এ ব্যাপারে দ্বিমত পোষণ করেন এবং বিলের টাকা পরিশোধের জন্য আইনের আশ্রয় নেন, তাহলে বাংলাদেশ সুপ্রীম কোর্টের সিদ্ধান্ত অবশ্যই মাননীয় স্পীকার মেনে নিবেন বলে এতদ্বারা Guarantee/Undertaking দিচ্ছেন। ইতিপূর্বের মত উপযোজন পূর্বক সিদ্ধান্ত বাস্তবায়ন করা হউক।”
29. From the above it has been demonstrated that being loyal to the existing law of the land the appellant sent the summary to the then Prime Minister for having approval of his own medical bill. Had the appellant any criminal intention to misappropriate the money he would not have sent it for the approval of the Prime Minister who was legally empowered to provide approval of the said medical bill. But when the then Prime Minister without rejecting the said medical bill sent back to the appellant for taking necessary steps as per provisions of the Parliament Secretariat Act, 1994, he had no other alternative, but to approve the said medical bill, being the head of the Legislature. Accordingly the appellant approved the said bill bona fide on giving endorsement in the following terms "On good faith and on my good understanding of law". Moreover, the appellant approved the bill together with a certificate that he would give an undertaking or guarantee to pay back the amount, if the appropriate authority disagrees with his opinion and resort to legal process, the appellant would abide by the decision of the Supreme Court of Bangladesh. From the foregoing discussion it is palpably patent that the appellant had no intention to misappropriate the alleged medical bill.
30. Now let's discuss what about the rest two medical bills of then Deputy Speaker and Chief Whip. It is the clear standing of law that the Deputy Speaker and Chief Whip are not entitled to reimburse foreign medical expenses except with the sanction of the Prime Minister. In the cases in hand, the Prime Minister did not provide sanction to the alleged medical bills of the Deputy Speaker and the Chief Whip. But the then Deputy Speaker and the Chief Whip got the alleged medical bills approved by the appellant, for which the then Deputy Speaker and the Chief Whip were liable. Despite that the appellant approved the said medical bills in good faith as the head of the National Parliament, and on belief that earlier former Speaker Mr. Humayun Rashid Chowdhury and former Chief Whip Mr. Abul Hasnat Abdullah received such medical bills, we deduce. It has been drawn closer to our notice that the Appellant approved the medical bill of the then Deputy Speaker Mr. Akter Hamid Siddiqui amounting Tk. 1,21,703.59 subject to the condition that the Deputy Speaker would refund the said sum of money if so directed by the Supreme Court of Bangladesh in legal proceeding. Accordingly, the then Deputy Speaker submitted an undertaking signed by him to the Parliament Secretariat. The relevant portion of the charge sheet of Metro. Special Case No. 221 of 2012 reads as under:
“সাবেক স্পীকার ব্যারিস্টার জমির উদ্দিন সরকার উক্ত বৈদেশিক চিকিৎসা ব্যয় অনুমোদনের জন্য প্রধানমন্ত্রীর কার্যালয়ের সারসংক্ষেপ প্রেরণ মা করে জাতীয় সংসদ সচিবালয় আইন, ১৯৯৪ এর আওতায় তাকে ১,২১,৭০৩.৫৯ টাকা প্রদানের নির্দেশ প্রদান করেন । তবে শর্ত আরোপ করেন যে, যদি কোনদিন হয় তাহলে টাকাটা ফেরত দিতে হবে । সাবেক ডেপুটি স্পীকার জনাব আখতার হামিদ সিদ্দিকী এক আঙ্গীকারনামায় স্বাক্ষর করে জাতীয় সংসদ সচিবালয়ে দাখিল করেন যা হিসাব-১ শাখায় ১৯-২-০৮ খি. তারিখে গৃহীত হয়। তিনি অঙ্গীকারনামায় উল্লেখ করেন যে, সরকার বা অন্য কোন প্রতিষ্ঠান যদি কোনদিন আইনের আশ্রয় নেয় এবং আদালতে যদি তাহলে উত্তোলিত ১,২১,৭০৩.৫৯ টাকা ফেরত প্রদানে বাধ্য থাকবেন ।”
31. In view of discussions as made above, we find that the appellant had no mens rea in approving the medical bill of the then Deputy Speaker. Now, we turn to the case of the then Chief Whip in respect of approval of his medical bill by the appellant. From the record it transpires that the then Chief Whip filed an application to the appellant i.e. the then Speaker of Jatiya Sangsad praying for reimbursement of medical treatment expenditure by submitting medical bill amounting Tk. 10,00,000.00 (Ten lac only), which was sent to the then Prime Minister in the form of a summary for having approval as per provisions of Rule 12 of Rules, 1950. On 07.08.2006 the then Prime Minister without rejecting the summary sent it back to the appellant with a recommendation for disposal of the same as per provisions of the Parliament Secretariat Act, 1994. On receipt of the said recommendation the appellant gave approval to the medical bill to the extent of Tk. 6,00,000.00 (Six lac only) on condition of refunding the said sum of money in future. Thus, the appellant was constrained to approve the said medical bill as the head of the National Parliament. The relevant portion of charge sheet of Metro. Special Case No. 223 is being reproduced below:
“উক্ত আবেদনের প্রেক্ষিতে সংসদ সচিবালয় হতে দি স্পেশাল মেডিকেল এটেনডেন্ট রুলস ১৯৫০ এর ১২ নং বিধি শিথিল করে ১০,০০,০০০ টাকা প্রদানের বিষয়ে মাননীয় প্রধানমন্ত্রীর অনুমোদনের জন্য সারসংক্ষেপ প্রেরণ করা হলে প্রধানমন্ত্রীর কার্ধালয়েরণ-৮-২০০৬ তারিখের এক পত্রে জাতীয় সংসদ সচিধালয়, ১৯৯৪ এর আওতায় প্রয়োজনীয় কার্যক্রম গ্রহণ করার লক্ষো সারসংক্ষেপটি ফেরত দেয়া হয়। উল্লিখিত সারসংক্ষেপটি ফেরত পাওয়ার পর তণ্কালীন স্পিকার ব্যারিস্টার মুহাম্মদ জমির উদ্দিন সরকার জাতীয় সংসদ সচিবালয় আইন, ১৯৯৪ এর ১৮ নং ধারায় প্রদত্ত করে অঙ্গীকারনামা প্রদানের শর্তে জনাব খোন্দকার দেলোয়ার হোসেনকে ৬,০০,০০০ টাকা চিকিৎসা বিল পরিশোধের অনুমোদন প্রদান করেন। খোন্দকার দেলোয়ার হোসেন ওই সময় সিঙ্গাপুর চিকিৎসাধীন থাকায় তার পক্ষে তার ছেলে খোন্দকার আব্দুল হামিদ ও কন্যা দেলোয়ার বেগম পান্না শর্তানুযায়ী অঙ্গীকারনামা প্রদান করেন। অঙ্গীকারনামায় তারা উল্লেখ করেন যে, যদি কোনদিন সুপ্রিম কোর্টের রায়ে টাকা ফেরত দেয়ার নির্দেশ প্রদান করা হয় তা হলে উল্লিখিত ৬,০০,০০০ টাকা তাদের পিতার অবর্তমানে তারা ফেরত প্রদানে বাধ্য থাকবেন ।”
Thus, it is unerringly transparent that the appellant had no mens rea in providing approval to the medical bill submitted by the then Chief Whip Mr. Khandokar Delwar Hossain and as such the appellant cannot be prosecuted.
32. According to our Constitution there are three organs of the State i.e. the Executive, the Legislature and the Judiciary. The Executive is headed by the Prime Minister, while the Legislature and the Judiciary are headed by the Speaker and the Chief Justice respectively.
33. The Prime Minister is the head of government of the Republic of Bangladesh. Executive authority is vested in the Prime Minister and their chosen Council of Ministers, despite the president of Bangladesh being the head of the executive having nominal power. The Prime Minister is often the leader of the party or the coalition with a majority in the Parliament, which is the legislative body in the Republic of Bangladesh. The Prime Minister and their cabinet are at all times responsible to the Parliament.
34. The position of Speaker in parliamentary system of government is as below:
The Speaker of the Lok Sabha in India is the presiding officer and the highest authority of the Lok Sabha, the lower house of the Parliament of India. He conducts the business in house and decides whether a bill is a money bill or not. He maintains discipline and decorum in the house and can punish a member for unruly behavior with respect to law after suspending them. He also permits the moving of various kinds of motions and resolutions such as a motion of no confidence, motion of adjournment, motion of censure and calling attention notice as per the rules. The Speaker decides on the agenda to be taken up for discussion during the meeting.
Further, all comments and speeches made by members of the House are addressed to the Speaker. In Bangladesh Parliament the Speaker enjoys the similar power as the Speaker of Lok Sabha in India enjoys.
35. In the case of Maves Jasmin and others vs. Md. Ruhul Amin-3 and others reported in 26 BLC (AD) [2021] 239 paragraph-8, it has been held by this Division that "The office of the Speaker is held in the highest respect and esteem in parliamentary traditions and the Speaker holds an important and ceremonial office. Such respect is historical and inherent in the concept of Parliamentary democracy. Pandit Jawaharal Nehru had to say about the position of the Speaker, which is reproduced below:
"The Speaker represents the House. He represents the dignity of the House, the freedom of the House and because the House represents the nation, in a particular way, the Speaker becomes the symbol of the nation freedom and liberty."
36. This Division in the above said case rendered its decision that "The Parliament Secretariat is an independent constitutional and statutory body which functions under the guidance and control of the Speaker. The Parliament Secretariat is part of the second organ of the State. The Speaker is the executive head of the Parliament Secretariat. In the discharge of the constitutional and statutory responsibility, the Speaker of the Parliament is assisted by the officers and staffs of Parliament Secretariat. The main activity of the Secretariat is to provide secretarial assistance and support to the functions of the Speaker and Parliament."
37. The role of Chief Justice where parliamentary form of government exists is as under:
Indian Chief Justice is the chief Judge of the Supreme Court of India as well as the highest-ranking position holder of the Indian Judiciary. The Constitution of India grants power to the president of India to appoint, in consultation with the outgoing Chief Justice, the next Chief Justice, who will serve until they reach the age of sixty-five.
On the administrative side, the Chief Justice carries out functions of maintenance of the roster, appointment of court officials and general and miscellaneous matters relating to the supervision and functioning of the Supreme Court.
In Bangladesh the Chief Justice also tasked with similar jobs like the Chief Justice of India.
38. Further, in view of the judgment delivered by this Division in the case of Bangladesh vs. Md. Ataur Rahman and Ors. reported in 69 DLR (AD) (2017) 17, paragraphs 43-46, this division observed that the present position of the Speaker of the Jatiya Sangsad is placed at serial No. 3, right after the Prime Minister but in 1975 both Speaker and the Chief Justice was in the same serial i.e. in serial No. 4. This division further observed that the Chief Justice should be placed in serial No. 3. Meaning thereby both the Speaker of the Jatiya Sangsad as well as the Chief Justice of Bangladesh are in the same serial of the warrant of precedence.
39. Now let us see how the medical expenses of the President, Prime Minister and Chief Justice of Bangladesh and other Judges of the Supreme Court are met.
President:
40. The position of the President is at the top in the warrant of precedence and he is entitled to medical facilities abroad. Section 10 of The President's (Remuneration and Privileges) Act, 1975 lays down that-
"The President and his family shall be entitled free of charge, to treatment at any hospital in Bangladesh, that can, in the opinion of his physician, provide necessary and suitable treatment:
Provided that the President and his family shall ordinarily be entitled to receive medical treatment at the residence:
Provided further that the President and his family may, if so advised by his physician, receive medical treatment abroad or consult a foreigner or a physician other than his own and receive such other treatment at the Government cost as may be prescribed."
Prime Minister:
41. The Prime Minister being the head of the Executive Organ of the Country also enjoys medical facilities in abroad. Section 12 of The Prime Minister's (Remuneration and Privileges) Act, 1975 provides that-
"The Prime Minister and his family shall be entitled free of charge, to treatment at any hospital in Bangladesh, that can, in the opinion of his physician, provide necessary and suitable treatment.
Provided that the Prime Minister and his family shall ordinarily be entitled to receive medical treatment at the residence:Provided further that the Prime Minister and his family may, if so advised by his physician, receive medical treatment abroad or consult a foreigner or a physician other than his own and receive such other treatment at the Government cost as may be prescribed."
Chief Justice and others Judges of the Supreme Court:
42. Being the head of the Judiciary the Chief Justice of Bangladesh has been delegated by the Government with its power (under Rule 12 of the Special Medical Attendants Rule, 1950) vide letter dated 13th March, 2013 under memo No. 10.00.0000.128.002.06.2013-355 issued by the Law and Justice Division of the Ministry of Law, Justice and Parliamentary Affairs to take necessary steps for endorsing payment in respect of the medical expenses incurred by the learned Judges of the Supreme Court of Bangladesh and their family members.
43. In compliance with the said letter the Chief Justice of Bangladesh framed Guidelines for Supreme Court Judges for Claiming Medical Expenses Incurred Home and Abroad, 2015 (shortly Supreme Court Judges Medical Expenses Guidelines, 2015) which was adopted in the Full Court Meeting comprising both the Divisions of the Supreme Court of Bangladesh, held on 23rd November, 2015 and 23rd June, 2022 which has been acted upon and thus, the said guideline has got force of law. All the Judges of the Supreme Court and all other concerned of the State functionaries are bound to follow this guideline in respect of payment of medical expenses incurred at Home and Abroad. For better understanding the preamble of The Supreme Court Judges Medical Expenses Guidelines, 2015 is extracted in the following:
"Whereas, in the letter dated 13th March, 2013 under memo No. 10.00.0000.128.002.06.2013-355 issued by the Law and Justice Division of the Ministry of Law, Justice and Parliamentary Affairs of the People's Republic of Bangladesh, it has been spelt out that in view of the judgment of the High Court Division of the Supreme Court of Bangladesh, passed in Writ Petition No. 10803 of 2011, the Chief Justice of Bangladesh may take necessary steps for approving the bills submitted by the Judges of the Supreme Court against the expenses incurred for their medical treatment and expenses ancillary and incidental thereto;
And
Whereas, by virtue of Rule 12 of the Special Medical Attendance Rules, 1950, the Government, vide aforesaid letter dated 13th March, 2013 under memo No. 10.00.0000.128. 002.06.2013-355, accorded concession and, thereby, delegated its power to the Chief Justice of Bangladesh to take necessary steps for making payment in respect of medical expenses incurred by the Judges of the Supreme Court and their family members.
And
Whereas, in the aforesaid backdrop and pursuant to the resolution adopted in the Full Court Meeting comprising both the Divisions of the Supreme Court of Bangladesh, held on 23rd November, 2015, a guideline was approved for providing guidance to the Judges of the Supreme Court of Bangladesh for reimbursement of medical expenses incurred home and abroad, and after taking further decision by the full Court meeting comprising both the Divisions of the Supreme Court of Bangladesh, held on 23rd June, 2022, it is expedient to amend and update the said guidelines, the following guidelines (as amended) have now been accepted and adopted." (Full context of the guideline is available in the Supreme Court website i.e. www.supremecourt.gov.bd)
44. Judges of the Supreme Court of Bangladesh, one constitutional organ have been functioning unstintingly. Their wellbeing needs to be ensured. Chief Justice of Bangladesh being the guardian of judiciary, one constitutional organ of the State has paid due attention to this matter. Guidelines as to reimbursement of medical expenditure enunciated have been formulated formally on approval of the Chief Justice of Bangladesh.
45. On examination of the aforesaid provisions it is crystal clear that the Chief Justice of Bangladesh has the authority to approve the medical expenses of the Supreme Court Judges in home and abroad and in keeping pace with the aforesaid provisions the Chief Justice of Bangladesh has formed a three member committee by the Appellate Division Judges for discharging the task of approving the medical bill of the Supreme Court Judges.
46. But the fact remains that despite the head of the Legislature the Speaker has not been delegated with the power of approval of medical bill for himself including the Deputy Speaker, Chief Whip, Whip and members of parliament. In a fair democratic polity it is highly expected that the existence of equal and identical privileges among the constitutional post bearers of the same status. The Speaker being head of the Legislature is also no exception in enjoying approval of the medical expenses abroad vis-à-vis other two heads of organs that is the Executive and Judiciary. To that end we are of the view that the government may consider to delegate the power to the Speaker of approval of reimbursement of the foreign medical expenses for the Speaker, Deputy Speaker, Chief Whip and Whip to the Speaker of the Jatiya Sangsad.
47. Now, we will discuss about the second category of the cases which are related to the misappropriation of furniture and utility bills. In Criminal Appeal No. 69 of 2019 the case of the prosecution is that the then Chief Whip Mr. Khandokar Delwar Hossain was asked by the parliament secretariat to return the furniture and other goods supplied at his residential office. But the then Chief Whip instead of returning those furniture and goods prayed for exemption to return the same and the appellant allowed the said prayer. In Criminal Appeal No. 70 of 2019 the prosecution case was that the then Chief Whip Mr. Khandokar Delwar Hossain took electricity and gas bills at a larger amount at his residence to which he was not entitled to get but the appellant approved the said application of exemption as well as the utility bills.
48. We know that the parliament secretariat is established under the Parliament Secretariat Act, 1994. According to Section 4 of the Parliament Secretariat Act, 1994 the task of monitoring in respect of proper use of furniture and payment of utility bills is assigned with the parliament secretariat and the concerned department of the secretariat is responsible for making such monitoring effective. In the present cases it appears that some subordinate officers of the concerned department were bound by the rules of business of the government and to look after the alleged matters. The Speaker being the head of the Parliament simply gives approval of utility bills when the concerned Officers of the Parliament Secretariat use to place those after due scrutiny. But there was no objection as to failure of such scrutiny in respect of the alleged utility bills and accordingly the appellant approved the same.
49. In the aforesaid backdrop, we find that the appellant, in exercise of his authority, on good faith allowed the said application believing the statements of the then Chief Whip and he also approved the utility bills of the then Chief Whip bona fide. Sequence of facts does not lead to conclude that it was done with mala fide intention.
50. During hearing the learned Counsel for the appellant contended that according to Section 18 of the Parliament Secretariat Act, 1994 the appellant was empowered to approve the alleged medical bills. The learned Counsel further contended that according Section 9 of the Parliament Secretariat Act, 1994 the Parliament is the proper authority to take decision, action or raise question on the approval of alleged bills and neither the ACC nor any authority does have power to raise question about the approval of said bills. To decide about the said issue let's examine the provisions of the Parliament Secretariat Act. Section 18 of the Parliament Secretariat Act, 1994 provides that-
“১৮। অর্থ ব্যয়: সংসদ সচিবালয়ের জন্য বাজেটে বরাদ্দকৃত অর্থ অনুমোদনের ব্যাপারে স্পীকার চূড়ান্ত কর্তৃপক্ষ হইবেন।”
Section 9 of the Parliament Secretariat Act, 1994 states that-
“৯। বাজেট-অনুমোদিত ব্যয়ের ব্যাপারে সচিবালয়ের দায়িত্ব: সংসদ সচিবালয়ের জন্য বাৎসরিক বাজেটে বরাদ্দকৃত অর্থ ব্যয়ের ক্ষেত্রে সংসদ সচিবালয় মহাহিসান নিরীক্ষক ও নিয়ন্ত্রকের মাধ্যমে কেবল সংসদের নিকট দায়ী থাকিবে ।”
51. From the combined reading of Section 9 together with Section 18 of the Parliament Secretariat Act, 1994 it appears indubitably that the parliament secretariat will be responsible only to the Parliament through the Controller and Auditor General over the matter of expenditure of the financial allocation in the yearly budget and nobody else can raise any question as to the use of such budget. But in the cases in hand, those provisions of the Parliament Secretariat Act, 1994 will not give any protection to the appellant since the Anti-Corruption Commission brought allegation against the appellant and other accused persons as to the mode of approval of medical bills in doing which the Speaker was not authorized to approve without the sanction of the Prime Minister. However, we have already viewed that neither the ACC nor any authority does have power to raise question about the authority of the Speaker in approving said bills.
52. In view of the above discussions, we may conclude that the aforesaid criminal proceedings against the appellant are liable to be quashed to prevent the abuse of the process of law and the High Court Division committed illegality in passing the impugned judgment and order dated 11.10.2018 and as such the same is not tenable in the eye of law.
53. Accordingly, the appeals are allowed. The judgment and order dated 11.10. 2018 passed by the High Court Division in Criminal Miscellaneous Case Nos. 20705, 20701, 20702, 20703 & 20704 of 2013 are hereby set aside.
Consequently the proceedings of Metro. Special Case No. 219 of 2012 arising out of Sher-e-Bangla Nagar Police Station Case No. 47 dated 28.12.2010 corresponding to ACC G.R. No. 117 of 2010;
Metro. Special Case No. 221 of 2012 arising out of Sher-e-Bangla Nagar Police Station Case No. 51 dated 28.12.2010 corresponding to ACC G.R. No. 121 of 2010;
Metro. Special Case No. 218 of 2012 arising out of Sher-e-Bangla Nagar Police Station Case No. 48 dated 28.12.2010 corresponding to ACC G.R. No. 118 of 2010;
Metro. Special Case No. 19 of 2013 arising out of Sher-e-Bangla Nagar Police Station Case No. 50 dated 28.12.2010 corresponding to ACC G.R. No. 120 of 2010; and
Metro. Special Case No. 223 of 2012 arising out of Sher-e-Bangla Nagar Police Station Case No. 49 dated 28.12.2010 corresponding to ACC G.R. No. 119 of 2010, all are pending before the Court of Metropolitan Senior Special Judge, Dhaka are hereby quashed so far as it relates to the appellant Barrister Mohammad Jamiruddin Sircar.
54. However, the appellant is directed to refund the amount which he has withdrawn from the government exchequer within 6 (six) months from the date of receiving a copy of the said judgment by the trial Court.
IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Civil Petition for Leave to Appeal No. 1738 of 2022
Decided On: 19.06.2022
Government of Bangladesh and Ors.
... Vs. ...
Syed Fazle Elahi Obhi and Ors.
Hon'ble Judges/Coram:
Hasan Foez Siddique, C.J., Obaidul Hassan and M. Enayetur Rahim, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: A.M. Aminuddin, Attorney General and Biswajit Debnath, Deputy Attorney General instructed by Haridas Paul, Advocate-on-Record
For Respondents/Defendant: Zainul Abedin, Murad Reza, Senior Advocates, Ruhul Quddus, Advocate and Anik R. Hoque, Advocate instructed by Madhu Malati Chowdhury Barua, Advocate-on-Record
Subject: Criminal Law
Acts/Rules/Orders:
Constitution Of The People's Republic Of Bangladesh - Article 102, Constitution Of The People's Republic Of Bangladesh - Article 32, Constitution Of The People's Republic Of Bangladesh - Article 35(5), Constitution Of The People's Republic Of Bangladesh - Article 51; Penal Code, 1860 - Section 143, Penal Code, 1860 - Section 186, Penal Code, 1860 - Section 307, Penal Code, 1860 - Section 332, Penal Code, 1860 - Section 333, Penal Code, 1860 - Section 353, Penal Code, 1860 - Section 427
Prior History:
From the Order dated the 9th day of June, 2022 passed by a Division Bench of the High Court Division in Writ Petition No. 7045 of 2022
Result:
Disposed of
JUDGMENT
M. Enayetur Rahim, J.
1. This civil petition for leave to Appeal is directed against the order dated 09.06.2022 passed by a Division Bench of the High Court Division in Writ Petition No. 7045 of 2022.
2. The facts, relevant for disposal of the instant leave petition are as follows:
The writ petition-respondent No. 1 has filed writ petition No. 7045 of 2022 before the High Court Division challenging the order dated 08.06.2022 passed by the Additional Chief Metropolitan Magistrate, Court No. 4, Dhaka (writ-respondent No. 6) allowing the prayer of the prosecution for remand of accused Yeasin Arafat Bhuiyan, and Sohakul Islam Bhuiyan, both are Advocates of Dhaka Bar Association in connection with Shampur Police Station Case No. 11 date 07.06.2022 under sections 143/186/307/353/332/333/427 of the Penal Code and also for a direction upon the writ-respondent No. 1 to transfer the case to any other organization other than the police.
3. The above writ petition has been filed claiming to be public interest litigation.
4. In the writ petition it is contended that the writ petitioner, an Advocate, observed a video footage and found that Yasin Arafat Bhuiyan and Sohakul Islam Bhuiyan, two members of Dhaka Bar Association while coming to Dhaka court for performing professional duty, they were harassed by some police personnel and they also physically tortured by them and subsequently a First Information Report was lodged against them and others by the police upon which Shampur Police Station Case No. 11 dated 07.06.2022 under Section 143/186/307/353/332/333/427 of the Penal Code has been started.
5. In connection with the said case police arrested the said two persons and also wife of accused Yasin Arafat Bhuiyan and others and eventually, police forwarded them to the court of Chief Metropolitan Magistrate, Dhaka along with an application for remand. After hearing of the application the learned Additional Chief Metropolitan Magistrate, respondent No. 6, allowed three days police remand by the order dated 08.06.2022.
6. It is further contended in the writ petition that the police remand is not a judicial order, the said persons have been detained illegally, the victim and the Investigating Agency both are from same community so no proper investigation will be held and the detenue will be prejudiced and thus a direction for judicial inquiry is needed.
7. The High Court Division after hearing the said writ petition on 09.06.2022 issued Rule and an ad-interim order on the following terms:
"Let a Rule Nisi be issued calling upon the respondents to show cause as to why the remand of the detenues should not be declared to have been done without lawful authority and violative to the fundamental rights guaranteed to the detenues in our Constitution and guideline and observations given by our apex court in regard to remand and why the respondent No. 6 should not be directed to transmit the record of Shampur Police Station Case No. 11 dated 07.06.2022 before this court and/or pass such other or further order and orders as to this court may seem fit and proper.
The Rule is made returnable within 4(four) weeks from date.
Pending hearing of the Rule, the respondent No. 6 is hereby directed to certify and transmit, the record of Shampur Police Station Case No. 11 dated 07.06.2022 to this court by 1.00 P.M. on 12.06.2022 through the office of the Registrar, High Court Division. Supreme Court of Bangladesh by special messenger to be dealt with in accordance with law.
The petitioner is directed to put in requisites for service of notices of the rule upon the respondents by a special messenger at his own cost to be deposited to the respective office by today.
Let this matter appear in the list at 02.00 p.m. on 12.06.2022 as an 'order'."
8. Feeling aggrieved by the said order the State has preferred the instant leave petition.
9. Mr. A.M. Aminuddin, learned Attorney General, appearing for the leave petitioners submits that the writ-petitioner has no locus standi to challenge the order of police remand, as he is not an aggrieved person. Moreso, the provision of police remand has been stipulated in the Code of Criminal Procedure.
10. Learned Attorney General further submits that the High Court Division erred in law in entertaining the writ petition without considering the fact that no statement has been furnished in the writ petition as to the infringement of any fundamental right of the accused persons or the petitioner and as such both the Rule issuing order as well as the ad-interim order passed by the High Court Division is illegal and without jurisdiction.
11. He further submits that the writ petition has been filed on the plea of greater public interest; however, the facts and circumstances of the present case do not show that any public interest is involved in the writ petition. The accused were allowed to remand which is a judicial order and said order cannot be challenged in writ jurisdiction by a 3rd party on the plea of public interest and as such the Rule issuing order and as well as the ad-interim order passed by the High Court Division is liable to be set aside.
12. Mr. Anik-R-Haque, learned Advocate, appearing for the writ-petition-respondent submits that the High Court Division considering the facts and circumstances of the present case rightly issued the Rule and passed the ad-interim order and since, in the meantime the accused have been granted bail by the Court below, the present leave petition has become in fructuous.
13. Heard the learned Advocates for the respective parties, perused the rule issuing order and the ad-interim order passed by the High Court Division.
14. In the instant case, writ petitioner filed the writ petition challenging the order dated 08.06.2022 passed by the Additional Chief Metropolitan Magistrate, Dhaka respondent No. 6, in allowing two accused of the case, who are the members of the Dhaka Bar Association for three days remand in connection with Shampur Police Station Case No. 11 dated 07.06.2022 and also for holding the investigation of the case to another organization rather than the police.
15. Two Advocates who are accused of the above mentioned case were arrested by the police on specific allegation and thereafter, on behalf of the prosecution an application was filed for their remand and the learned Additional Chief Metropolitan Magistrate, respondent No. 6 upon hearing the respective parties allowed three days remand.
16. The learned Magistrate passed the said order within the scope of the law i.e. under the provision of Code of Criminal Procedure. The order passed by a Magistrate cannot be challenged in the garb of public interest litigation under Article 102 of the Constitution of the Peoples Republic of Bangladesh, as the order passed by a Magistrate is revisable one under revisional jurisdiction before the concerned Court of Sessions. If, the accused against whom the order of remand has been made are aggrieved by the said order then they have the forum to move before the concerned Court of Sessions in its revisional jurisdiction. A 3rd person has no locus-standi to challenge the said order of remand under Article 102 of the Constitution of the People's Republic of Bangladesh before the High Court Division. The High Court Division failed to consider this factual and legal proposition and on erroneous view issued Rule and passed ad-interim order. When a Judicial Officer passed an order within the ambit of a particular law i.e. under the Code of Criminal Procedure said order cannot be interfered with under Article 102 of the Constitution of the Peoples Republic of Bangladesh unless said order is without jurisdiction or suffers from quorum non-judice.
17. In the writ petition it is contended that order of remand passed by the Magistrate is not a judicial order and forum of revision is not an efficacious one. The above contentions are absolutely misconceived and not tenable in law.
18. In revision, the concerned court has got the power to pass any ad-interim order including stay operation of the impugned order.
19. It is pertinent to mention here that in the writ petition the FIR has not been annexed or quoted. However, application for remand has been quoted which is as follows:
“বরাবর,
বিজ্ঞ চীফ মেট্রোপলিটন ম্যাজিষ্ট্রেট,
ঢাকা মহানগর আদালত ,
মাধ্যমঃ উপ-পুলিশ কমিশনার (প্রসিকিউশন), মহানগর আদালত, ডিএমপি, ঢাকা |
বিষয়ঃ আসামীদের বিজ্ঞ আদালতে প্রেরণ সহ ০৭ (সাত) দিনের পুলিশ রিমান্ডের আবেদন।
সূত্রঃ শ্যামপুর থানার মামলা নং-১১, তাং-০৭/০৬/২০২২ইং ধারা-
১৪৩/১৮৬/৩০৭/৩৫৩/৩৩২/৩৩৩/৪২৭ পেনাল কোড-১৮৬০; পেনাল কোড ।
জনাব,
যথাবিহীন সম্মান প্রদর্শন পূর্বক বিনীত নিবেদন এই যে, সুত্রে বর্ণিত মামলার এজাহারনামীয় আসামী ১। সোহাকুল ইসলাম রনি (৩২), পিতা-নজরুল ইসলাম, মাতা-শিরিন সুলতানা, সাং-নারায়নপুর, থানা-মুকসুদপুর, জেলা-গোপালগঞ্জ, ২। ইয়াসিন আরাফাত ভূইয়া (২৮), পিতা-ইয়ার মোহাম্মদ ভূইয়া, মাতা-নাজমুন নাহার, সাং-১০৬ নং রজ্জব আলী সরদার রোড, থানা-কদমতলী, ঢাকা এবং তদন্তে প্রাপ্ত সন্ধিগ্ধ গ্রেফতারকৃত আসামী ৩। মোঃ শরিফ (৩৪), পিতা-মৃত জালাল উদ্দিন মাঝী, মাতা-মৃত ভুলু বেগম, সাং-১০৬ নং রজ্জব আলী সরদার রোড, থানা-কদমতলী, ঢাকা, ৪। মোঃ নাহিদ (২৪), পিতা-মোঃ কামাল হোসেন, মাতা-নুকুন্নাহার বেগম, সাং-১০৬ নং রজ্জব আলী সরদার রোড , থানা-কদমতলী, ঢাকা, ৫ | মোঃ রাসেল (১৯), পিতা-মোঃ আসাদ, মাতা-মোছাঃ আনোয়ারা বেগম, সাং-শংকটারী, থানা-আদিতমারী, পুলিশ স্কটের মাধ্যমে আপনার বিজ্ঞ আদালতে সোপর্দসহ ০৭(সাত) দিনের পুলিশ রিমান্ডের আবেদন পূর্বক এই প্রতিবেদন দাখিল করিতেছি যে, আসামীরা সকলেই উগ্র-উশৃঙ্খল প্রকৃতির । গত ইং ০৭/০৬/২০২২ তারিখ সকাল ০৬.০০ ঘটিকা হইতে বেলা ১৪.০০ ঘটিকা পর্যন্ত বাদী সঙ্গীয় এটিএসআই/হাবিব, কং/২২৮৯৭ সিরাজ, কং/৫৫৭৬ মাহবুব, কং/৩৫৪৪৬ আবেদ, শ্যামপুর থানাধীন জুরাইন রেল গেট এলাকায় টেঙ্গু ৪৩৬ কল সাইনে ট্রাফিক ডিউটিতে নিয়োজিত হন। সকাল অনুমান ০৯.৩০ ঘটিকার সময় শ্যামপুর থানাধীন ঢাকা মাওয়া ইনকামিং রোড জুরাইন রেলগেট সংলগ্ন জুরাইন নতুন রাস্তার মুখে ডিউটি করাকালে রাস্তায় গাড়ীর চাপ থাকা স্বত্বেও মামলার এজাহার নামীয় আসামী-১। সোহাকুল ইসলাম রনি (৩২) এবং ২। ইয়াসিন জাহান নিশান ভূইয়া (২০) দ্বয় ঢাকা মেট্রো-ল-১৪-৮৪৭৯ নাম্বারের একটি মোটর সাইকেল যোগে ০১ জন হেলমেট বিহীনসহ ০২ জন মোটর সাইকেল আরোহী যাত্রাবাড়ীর দিক হইতে জুরাইন রেল গেটের দিকে উল্টোপথে আসে । তখন বাদী তাহাদের উল্টোপথে আসার কারণ জিজ্ঞাসা করেন এবং গাড়ীর কাগজপত্র দেখতে চায় । কিন্তু আসামীদয় বাদীকে কাগজপত্র না দেখিয়ে বাদীকে অকথ্য ভাষায় গালিগালাজ করিতে থাকে এবং বাদী ইউনিফর্মধারী হওয়া স্বত্বেও বাদীর কাগজপত্র দেখাতে বলে। বাদী পুনরায় তাহাদের নিকট গাড়ীর কাগজপত্র দেখানোর জন্য অনুরোধ করিলে তাহারা সরকারী কাজে বাধা প্রদানসহ বাদীর উপর ক্ষিপ্ত হয় এবং এজাহার নামীয় ২নং আসামী ডাক চিৎকার করিয়া পথচারী লোকজনসহ ঘটনাস্থলে উপস্থিত লোকজনকে চরম উত্তেজিত করিয়া তোলে এবং বাদীকে সহ বাদীর সাথে ডিউটিরত অফিসার ও ফোর্সদের উপ হামলা করার জন্য উষ্কানী দিতে থাকে । একই সময়ে বিবাদীদ্বয় মোবাইল ফোনের মাধ্যমে তাহার আত্তীয়স্বজন ও পরিচিত লোকদের ঘটনাস্থলে আসতে বলে । ইতিমধ্যে বেতার মাধ্যমে সংবাদ প্রাপ্ত হইয়া শ্যামপুর থানার টহল টিমের এসআই/উৎপল দত্ত অপু সঙ্গীয় অফিসার ও ফোর্সসহ ঘটনাস্থলে উপস্থিত হয়। তখন ৩নং আসামী ইয়াসিন আরাফাত ভূইয়া (২৮) দলবল নিয়া ঘটনাস্থলে আসে । উপরোক্ত আসামীদের নেতৃত্বে অজ্ঞাতনামা ৩৫০/৪০০ জন আসামী একযোগে দলবদ্ধ হইয়া জুরাইন রেল গেইট সংলগ্ন ট্রাফিক পুলিশ বক্স সম্পূর্ণ ভাংচুর করিয়া প্রায় ৮,০০,০০০/- (আট লক্ষ) টাকার ক্ষতি সাধন করে এবং বাদীর নামে ইস্যুকৃত সরকারী মোটর সাইকেল, যাহার রেজি নং-ঢাকা মেট্রো-হ-১৪-৪১৭৫ ভাংচুর করিয়া ক্ষতি সাধন করে। অতঃপর ১, ২ ও ৩ নং আসামীর নেতৃত্বে অজ্ঞাতনামা আসামীরা হত্যার উদ্দেশ্যে পুলিশকে লক্ষ্য করে ইট পাটকেল, পাথর নিক্ষেপ করিতে থাকে এবং কিল, ঘুষি, লাথি মারে ও লাঠি দিয়া এলোপাথারীভাবে পিটাইতে থাকে ৷ আসামীরা বাদীসহ অন্যান্য পুলিশ সদস্যদের সাথে থাকা সরকারী অস্ত্রগুলিও কাড়িয়া নেওয়ার চেষ্টা করে। বিবাদীদের হামলায় বাদীর সঙ্গীয় ট্রাফিক কং/২২৮৯৭ সিরাজ এবং এসআই/উৎপল দন্ত অপু সাধারণ ও গুরুত্বর রক্তাক্ত জখম হয়। বাদী গুরুত্বর জখম অবস্থায় রাস্তায় পাশে থাকলে আসামীরা পুনরায় বাদীর উপর হামলা করে । ১ ও ২নং আসামী বাদীকে এলোপাথারীভাবে লাথি দিতে থাকে । ৩নং আসামী ইয়াসিন আরাফাত ভূইয়া বাদীর বুকের উপর উঠে দাড়ায় ও ট্রাফিক বক্স ভাঙ্গা কাঁচ দিয়ে আঘাত করিয়া বাদীর বাম হাতে ও মাথায় গুরুত্বর রক্তাক্ত জখম করে। এজাহার নামীয় আসামীদের মামলার ঘটনার সময় ঘটনাস্থল হইতে গ্রেফতার করা হয় এবং তদন্তেপ্রাপ্ত সন্ধিগ্ধ আসামীদের মামলার তদন্তকালীন সময়ে যথেষ্ট সাক্ষ্য প্রমাণের ভিত্তিতে গ্রেফতার করা হয়। আসামীদের মামলার ঘটনার বিষয়ে প্রাথমিক জিজ্ঞাসাবাদ করা হইয়াছে। সময়ের স্বল্পতার কারণে আসামীদের ব্যাপকভাবে জিজ্ঞাসাবাদ করা সম্ভব হয় নাই। প্রাথমিক জিজ্ঞাসাবাদে আসামীরা মামলার ঘটনার বিষয়ে একেক সময়ে এককে তথ্য প্রদান করিয়া বিভ্রান্ত সৃষ্টি করে ও কৌশলে সঠিক তথ্য প্রদান করা হইতে বিরত থাকে । এমতাবস্থায় উপরোক্ত আসামীদের ০৭(সাত) দিনের পুলিশ রিমান্ডে আমি ব্যাপক ও ধারাবাহিকভাবে জিজ্ঞাসাবাদ করিলে মামলার ঘটনার বিষয়ে আরো ব্যাপক তথ্য সংগ্রহ সহ ঘটনায় জড়িত অজ্ঞাতনামা পলাতক আসামীদের সঠিক নাম ঠিকানা সংগ্রহ সহ তাহাদের অবস্থান নির্নয় পূর্বক গ্রেফতার করা সম্ভব হইবে । এমতাবস্থায় মামলা সুষ্ঠু তদন্তের স্বার্থে আসামীদের ০৭(সাত) দিনের পুলিশ রিমান্ডে পাওয়া একান্ত প্রয়োজন । প্রকাশ থাকে যে, আসামীরা ট্রাফিক পুলিশ বক্স ভাংচুর করার সময় এজাহার নামীয় ১নং আসামী সোহাকুল ইসলাম রনি (৩২) নিজে নিজেই আঘাত পেয়ে সামান্য জখমধ্রাপ্ত তাহাদের প্রাথমিক চিকিৎসা প্রদান করা হইয়াছে (চিকিৎসা ব্যবস্থাপত্র সংযুক্ত)।
অতএব, মহোদয় মামলার সুষ্ঠু তদন্তের স্বার্থে, মামলার ঘটনার বিষয়ে আরো ব্যাপক তথ্য সংগ্রহ সহ জড়িত অজ্ঞাতনামা পলাতক আসামীদের সঠিক নাম ঠিকানা সংগ্রহ সহ তাহাদের অবস্থান নির্ণয় পূর্বক গ্রেফতার করার লক্ষ্যে আসামীদের ০৭ (সাত) দিনের পুলিশ রিমান্ডের আদেশদানে মর্জি হয় ।
তারিখ-০৮/০৬/২০২২ইং ।
বিনীত
স্বাঃ অস্পষ্ট
০৮/০৬/২০২২
বিপি-৭৭০৮১১৯৮৭০
পুলিশ পরিদর্শক (অপারেশন) ।”
20. From the above, it reveals that specific allegations have been brought against the accused persons. At this stage there is no scope to adjudicate the falsity or truth of the said allegations. It is true that an advocate is the integral part of the judiciary. However, it does not mean that an advocate is above the law and immune from any criminal proceedings.
21. In view of Article 51 of the constitution of the People's Republic of Bangladesh, only the President of the Republic shall not be answerable in any court for anything done or omitted by him in the exercise or purported exercise of the functions of his office.
22. It appears from the Rule issuing order that the High Court Division having considered the ground No. 6 of the writ petition issued the Rule. The said ground No. 6 is as follows:
"For that the in police custody and subsequent action of the respondent No. 6 clearly reflects that there will be no free and impartial investigation and the victim community will never brought to justice therefore such an incidents will deteriorate the confidents of public upon Law enforcing agencies and their constitutional right to life and protection in respect of investigation and trial enumerated under article 32 and 35(5) of the Constitutions of the Peoples Republic of Bangladesh and life will be trampled and as such the detune should brought before this Hon'ble Court without further delay and release them with any condition."
(underlines supplied)
23. The above ground taken in the Writ Petition is nothing but the writ petitioner has made allegation against a Judicial Officer who passed the impugned order. A Judicial Officer has every right to pass any order within the ambit of law and if, anyone is aggrieved by the same he has legal remedy before the Higher Court in appropriate forum. But, the manner the writ petitioner brought unfounded allegation against the concerned Magistrate, writ respondent No. 6, is highly objectionable. During investigation of a case there is no scope to come to a definite conclusion that an accused is to be harassed and humiliated on mere apprehension and surmises.
24. In the facts and circumstances of the present case as well as the materials on record, we are of the view that no public importance or interest is involved in the writ petition and same has filed on misconception of law and fact. The High Court Division has proceeded with the matter in a wrong way and thus, issued the Rule and passed the ad-interim order erroneously.
25. Having considered as above we have no hesitation to hold that writ petition is not maintainable.
26. Thus, the leave petition is disposed of.
27. The Rule issued in writ petition No. 7045 of 2022 is hereby discharged.
IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Civil Petition for Leave to Appeal No. 2771 of 2018
Decided On: 25.04.2022
Md. Sanaullah
... Vs. ...
Government of Bangladesh and Ors.
Hon'ble Judges/Coram:
Md. Nuruzzaman, Obaidul Hassan, Borhanuddin, M. Enayetur Rahim and Krishna Debnath, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Mohammad Bakiruddin Bhuiyan, Advocate instructed by Md. Zahirul Islam, Advocate-on-Record
For Respondents/Defendant: Chowdhury Mousumee Fatema, Advocate instructed by Nahid Sultana, Advocate-on-Record
Subject: Employment Laws, Administrative Law
Acts/Rules/Orders:
Administrative Tribunals Act, 1980 - Section 4(2); Public Servants (retirement) Act, 1974 - Section 10
Prior History:
From the Judgment and Order dated the 21.03.2018 passed by the Administrative Appellate Tribunal, Dhaka in A.A.T. Appeal No. 202 of 2015 in A.T. Case No. 02 of 2014
Decision:
Disposed of
ORDER
M. Enayetur Rahim, J.
1. Delay in filing the leave petition is condoned.
2. This Civil Petition for Leave to Appeal at the instance of the defendant-Appellants is directed against the judgment and order dated 21.03.2018 passed by the Administrative Appellate Tribunal, Dhaka in A.A.T. Appeal No. 202 of 2015 allowing the appeal and thereby setting aside the judgment and order dated 21.06.2015 passed by the Administrative Tribunal, Chattogram in A.T. Case No. 02 of 2014 allowing the case.
3. The relevant facts, leading to the filing of this leave petition, in brief are as follows;
The petitioner filed A T Case No. 02 of 2014 under section 4(2) of the Administrative Tribunal Act, 1980 in the Administrative Tribunal, Chattrogram. It is the case of the petitioner that he was a service holder of the People's Republic of Bangladesh under the Ministry of Post, Telecommunication and Information Technology. Since the appointment to till retirement, he had served his duties most honestly and sincerely to the entire satisfaction to his superiors and during 31 years of his service there was no black spot, and that he did neither commit any professional misconduct nor committed any offence at any time which may cause him any punishment. After retirement when he demanded all his pension from his department on 22.05.2013, unfortunately the respondent No. 3 passed an order on 21.08.2013 stopping to pay the pension to the petition on the plea that
‘বিভাগীয় বাসা এবং জায়গা জমিতে কোন কর্মচারী বসবাস বা দখলে রাখিলে তা কর্মচারী কর্তৃক সংশ্লিষ্ট কর্তৃপক্ষের নিকট বুঝিয়ে না দেওয়া পর্যন্ত পেনশন মঞ্জুরীর কোন বিধান নাই।”
4. Being aggrieved by and dissatisfied with the aforesaid order dated 21.08.2013 the petitioner preferred a departmental appeal before the Managing Director, Bangladesh Tele Communication Ltd. (BTCL) Central Office, on 10.10.2013 but there is no result. Hence, he filed the case.
5. The respondent Nos. 3 and 4 contested the case by filing written objection. The material case of these respondents was that the petitioner occupied the land of BTCL and he used to live there by making house long time and also the Government is entitled to get Tk. 34,709.00 from him for the purpose of selling the telephone calls. The authority allowed the application of the petitioner for twelve months retirement leave from 01.06.2011-31.05.2012 and paid him to arrear money for twelve months retirement leave with provident fund. But the authority ordered the petitioner for shifting his house from the land of BTCL but he did not care and illegally kept the possession of the said land and as such the A.T. Case No. 02 of 2014 is liable to be dismissed.
6. The Administrative Tribunal, Chattogram by its judgment and order dated 21.06.2015 allowed the A.T. Case holding to the effect that the impugned order dated 21.08.2013 passed by the respondent No. 3 is illegal and void.
7. Against the said judgment and order the respondents preferred an appeal being A.A.T. Appeal No. 202 of 2015 before the Administrative Appellate Tribunal, Dhaka and the Appellate Tribunal after hearing the said appeal allowed the same and set aside the judgment and order dated 21.06.2015 passed by the Administrative Tribunal.
8. Feeling aggrieved by the same the petitioner has preferred this leave petition.
9. Mr. Md. Bakiruddin Bhuiyan, learned Advocate, appearing for the petitioner submits that the Administrative Appellate Tribunal committed serious error in setting aside judgment passed by the Administrative Tribunal without considering the facts that the respondent No. 3 passed the order on 21.08.2013 without any show cause notice and without mentioning any provisions of law and hence ultimate departmental action there under was quite illegal.
10. He further submits that the departmental order dated 21.08.2013 against the petitioner was passed without supporting documents and there is no proofable evidence on record and thus, the Tribunal has opined that the allegations against the petitioner is false, concocted and fabricated one and those were not proved against the petitioner by any legal evidence and the order imposed by the respondent No. 3 against the petitioner is bad in law, but the Administrative Appellate Tribunal proceeded in the matter in a wrong way and as such the impugned order is liable to be set aside.
11. However, Ms. Chowdhury Mousumee Fatema, learned Advocate, appearing for the respondent Nos. 2-4 has supported the impugned judgment passed by the Administrative Appellate Tribunal.
12. We have considered the submissions of the learned Advocates for the respective parties, perused the judgment of the Administrative Tribunal as well as the Administrative Appellate Tribunal and other documents as placed before us.
13. It is the case of the respondents that they have stopped the pension to the petitioner as he occupied some land of the respondents organization i.e., BTCL and the respondents are entitled to get Tk. 34,709.00 from the petitioner.
14. On this issue the Tribunal on consideration of the materials placed before it has observed that-
“১ম পক্ষের দাবী ও যুক্তি এই যে, কথিত ঘর ২য় পক্ষ প্রতিষ্ঠানের স্বত্ত্ব দখলীয় সম্পত্তির উপর প্রতিষ্ঠিত নহে । বরং এতদসংক্রান্ত রাঙামাটি জেলার যুগ জেলা জজ আদালতে ৩২৫/১৪ নং একটি দেওয়ানী অপর মামলা বিচারাধীন রহিয়াছেন। ১ম পক্ষের আরো যুক্তি এই যে, টেলিফোন কল বিক্রি বাবদ ৩৪,৭০৯ টাকা পাওনার বিষয়টি বাস্তবতা বিবর্জিত, কাল্পনিক ও মিথ্যা । প্রার্থী কখনো কোন অঙ্গীকারনামা প্রদান করে নাই এবং ২য় পক্ষের বরাদ্দকৃত কোন বাসায় বসবাস করেন না।........।
প্রথম পক্ষের দাখিলী এই অঙ্গীকারনামা ১ম পক্ষের এডমিশন হিসাবে গণ্য করা হইলে Law of estoppels দ্বারা এতদসংক্রান্ত (সম্পত্তির মালিকানা ও দখল) ১ম পক্ষের দাবী আইন বহিভূত গণ্য হইবে। কিন্তু বিষয়টি নিষ্পত্তি ও আলোচনা পূর্বক সিদ্ধান্ত প্রদানের সম্পূর্ণ এখতিয়ার দেওয়ানী আদালতের । এই বিষয়ে ইতোমধ্যে রাঙামাটি জেলার যুগ জেলা জজ আদালতে ৩২৫/১৪ নং দেওয়ানী মামলা থাকার তথ্য বিচারাধীন রহিয়াছে। দ্বিতীয়ত: ১ম পক্ষের নিকট ২য় পক্ষের ৩৪,৯০৭ টাকা বকেয়া পাওনা সংক্রান্ত বিষয়টি দালিলিক ভাবে প্রমাণের দায়িতৃ ২য় পক্ষের । কিন্তু ২য় পক্ষ গ্রহণযোগ্য কোন প্রমাণপত্র দ্বারা এই পাওনার বিষয়টি প্রমাণে সক্ষম না হওয়ায় কেবলমাত্র এই অজুহাতে পেনশন তথা অবসর গ্রহণ সংক্রান্ত পাওনাদি পরিশোধ না করার কোন আইনগত ভিত্তি পরিলক্ষিত হয় না। ২য় পক্ষ ফিরিস্থি মূলে একটি জমা বিভাগের নির্ধারিত ছকে পূরণকৃত ২য় পক্ষের নামীয় কাগজ দাখিল করেন। কিন্তু এই জমা বিভাগরে কাগজ দ্বারা ১ম পক্ষের অবৈধ দখল প্রমাণ হয় নাই।”
15. However, the Administrative Appellate Tribunal relying on an angikarnama dated 16.06.2013 allowed the appeal and set aside the judgment passed by the Administrative Tribunal.
16. A government officer/employee is entitled to get pension and other retirement benefits after his retirement and such right of pension cannot be taken away on any unreasonable and unfounded plea. On the mere allegation of occupying the land of the respondents by the petitioner is not a ground to stop pension privilege.
17. Section 10 of the Public Servants (Retirement) Act, 1974 runs as follows:
"10. Public Servants not entitled to retirement benefits in certain cases-If any judicial proceedings instituted by the Government or, as the case may be, employer or any departmental proceedings are pending against a public servant at the time of his retirement or, as the case may be, ceasing to be in service, he shall not be entitled to any pension or other retirement benefits, except his subscriptions to any provident fund and the interest thereon, till the determination of such proceedings, and the payment to him of any pension or other retirement benefits shall be subject to the findings in such proceedings."
18. If we analyse the above provision of law, then it would be clear that authority may withhold or stopped the pension or other retirement benefits if there is any judicial proceedings, initiated by the government or as the case may be or departmental proceedings is pending against a public servant at the time of his retirement subject to the finding of the said proceedings after determination of the proceedings.
19. In the case of Air Marshal Jamaluddin Ahmed (Retd) vs. Government of Bangladesh and others, reported in 57 DLR 1, a Division Bench of the High Court Division held that:
"On a plain reading of the above provision it would appear that in order to bring a public servant within the mischief of section 10, the Government has to show that a judicial proceeding or a departmental proceeding was pending at the time of his retirement."
20. Chapter XVII of Bangladesh Service Rules, Part-1 deals with pension.
21. Rule 246 of the above Rules contemplated that-
"Future good conduct is an implied condition of every grant of a pension. Government reserves to themselves the right of withholding or withdrawing a pension or any part of it, if the pensioner be convicted of serious crime or be guilty of grave misconduct."
(under lines supplied).
22. Rule 247 of the above Rules is as follows:-
"The president reserves to himself the right to order the recovery from the pension of an officer who entered service on or after 23rd February, 1939 of any amount on account of losses found in judicial or departmental proceedings to have been caused to Government by the negligence or fraud of such officer during his service:
Provided that-
(1) Such departmental proceedings, if not instituted while the officer was on duty,-
(i) shall not be instituted save with sanction of the president;
(ii) shall be instituted before the officer's retirement from service or within a year from the date on which he was last on duty which- ever is later;
(iii) shall be in respect of an event which took place not more than one year before the date on which the officer was last on duty; and
(iv) shall be conducted by such authority and in such places whether in Bangladesh or elsewhere, as the president may direct;
(2) all such departmental proceedings shall be conducted, if the officer concerned so requests in accordance with the procedure applicable to departmental proceedings on which an order of dismissal from service may be made; and
(3) such judicial proceedings, if not instituted while the officer was on duty, shall have been instituted in accordance with sub-clauses (ii) and (iii) of clause (1).
23. Rule 249 also speaks that-
"No pension may be granted to an officer dismissed or removed of misconduct, insolvency or inefficiency; but to officers so dismissed or removed compassionate allowances may be granted when they are deserving of special consideration; provided that the allowance granted to any officer shall not exceed two-thirds of the pension which would have been admissible to him if he had retired on medical certificate."
24. In the instant case the petitioner neither convicted nor found guilty of grave misconduct by any competent authority during his entire 31 years service period. In the instant case there was no judicial or departmental proceedings pending against the petitioner at the time of his retirement; even no proceedings either judicial or department had been initiated against him within a year of his retirement. Thus, the action taken by the authority stopping the pay of the pension to the petitioner has no legal basis. The respondents have failed to show us that the impugned action has been taken within the ambit of the above provisions of law or any other relevant law.
25. Having considered and discussed as above, we are of the opinion that the Administrative Appellate Tribunal in passing the impugned judgment considered some irrelevant and unfounded issues, rather than the legal aspect and as such the impugned judgment cannot be sustained and same is liable to be interfered.
26. Accordingly, the leave petition is disposed of.
27. Judgment and order dated 21.03.2018 passed by the Administrative Appellate Tribunal, Dhaka in A.A.T. Appeal No. 202 of 2015 allowing the appeal is set aside and the judgment and order dated 21.06.2015 passed by the Administrative Tribunal, Chattogram in A.T. Case No. 02 of 2014 is maintained.
IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Civil Petition for Leave to Appeal Nos. 1462 and 2374 of 2020
Decided On: 14.03.2022
The Government of Bangladesh and Ors.
... Vs. ...
Confidence Cement Limited and Ors.
Hon'ble Judges/Coram:
Md. Nuruzzaman, Borhanuddin and Krishna Debnath, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Sk. Md. Morshed, Additional Deputy Attorney General, Sumendra Nath Biswas, Deputy Attorney General instructed by Haridas Paul, Advocate-on-Record
For Respondents/Defendant: Rokanuddin Mahmud, Senior Advocate and Abdul Hannan, Advocate instructed by Syed Mahbubar Rahman, Advocate-on-Record
Subject: Indirect Taxation
Acts/Rules/Orders:
Constitution Of The People's Republic Of Bangladesh - Article 104, Constitution Of The People's Republic Of Bangladesh - Article 65(1); Customs Act, 1969 - Section 219B
Prior History:
From the Judgment and Order dated 28.08.2019 passed by the High Court Division in Writ Petition No. 3155 and 2989 of 2019
Decision:
Disposed of
JUDGMENT
Md. Nuruzzaman, J.
1. Delay in filing of both the civil petition for leave to appeal is hereby condoned.
2. These 2(two) Civil Petitions for Leave to Appeal are directed against the judgment and order dated 28.08.2019 passed by the High Court Division in Writ Petition Nos. 2989 and 3155 of 2019 making the Rules absolute and declaring the impugned Memo No. 08.01.0000. 068.20.001. 16/373 dated 29.11.2018 issued by the writ respondent No. 4 purportedly misinterpreting Rule 31Ka of the VAT Rules, 1991 and thereby treating the writ petitioners' supply as not "deemed export" (Annexure-F to the Writ Petition No. 3155 of 2019) including refusal by the writ respondent No. 5 to allow input output co-efficient in favour of the writ petitioners vide Nathi Nos. 1(Uma)Dedo/Shohag/2018/496/764, 1(Uma) Dedo/Shohag/2017/80772 and Nathi No. 1(Uma)/Dedo/Shohag/2018/539/771 all dated 24.01.2019 (Annexure-H-H(2) respectively of Writ Petition No. 3155 of 2019) including making demand of VAT with show cause notice under section 55(1) of the VAT Act, 1991 vide Nathi No. 4th/A(12)13/Mushak Parihar/Confidence Cement/SoiDa/2019/584 dated 12.02.2019 (Annexure-H of Writ Petition No. 2989 of 2019) to have been issued without lawful authority and hence, are of no legal effect.
3. These 2(two) civil petitions for leave to appeal since involved the similar and identical question of law having similar formulated questions, are heard together and they are dealt with by this single judgment.
4. The facts relevant for disposal of both the civil petitions for leave to appeal are that the Confidence Cement Limited is the writ petitioner-the Writ Petition No. 2989 of 2019 is a private limited companies duly incorporated under the Company Act, 1994, manufacturer of cement and supply the same in the local market as well as exports in foreign market. It also supplies cement to the foreign entities who have acted as project contractor under the Government getting work order of international tender published in the respective national newspapers, under letter of credit against foreign currency. In compliance thereof the writ petitioner No. 1 submitted "challan" in "Form Musul-11" as well as PRC so had been issued by the respective negotiating banks. During the relevant period, the writ petitioner No. 1 also submitted monthly VAT return under "Form Musuk-19" from December, 2017 to December, 2018 wherein at serial No. 2, the quantum of "deemed export" had been shown in U.S. dollar against the goods supplied at 0% VAT, which the authority concerned duly acknowledged and approved without raising any objections whatsoever. However, after issuance of the impugned explanation dated 29.11.2018 and pursuant to the directions so contained therein the writ respondent No. 1 also issued notice of demand of VAT with show cause thereof upon the writ petitioner No. 1 under section 55(1) of the Vat Act, 1991 on 12.02.2019 for the period of December, 2017 to December, 2018.
5. The writ-petitioners filed the Writ Petition No.3155 of 2019 before the High Court Division challenging the Nathi No.08.01.0000. 068.20.001.16/373 dated 29-11-2018 issued by the writ respondent No.4 purportedly misinterpreting the Rule 31Ka of the VAT Rules, 1991 and thereby treating the petitioners' supply as not "deem export" and refusal by the writ respondent No.5 to allow input output co-efficient in favour of the writ-petitioners vide Nathi No . 1(Uma)Dedo/Shohag/2018/496/ 764, Nathi No.1(Uma)Dedo/Shohag/2017/80/ 772, Nathi No.1(Uma)Dedo/Shohag/2018/ 539/771 all dated 24-1-2019 stating that at the time of issuance of Rule Nisi in Writ Petition No.3I55 of 2019 there was direction upon the Writ respondents concern to receive and return "57M-S" and "mer--o" under rule 27(2) of the VAT Rules, 1991 in support of the sale of products of the writ-petitioners under "deemed export" scheme in respect of Contract No.PGCB/JICA/BP-P70/76 of Hathazari-Sikalbala 230KV and Hathazari-Rampur 230KV, Contract No.PGLB/400KV/PAT-GOP/TL of Patuakhali (Payra) Gopalgonj 400KV, Contract No.PGCB/23DKV/PP/TL of Patuakhali-Payra 230KV and Contract No.PGCB/132KV /BKG-BGN/TL of Bakergonj -Borgona 132KV respectively, all in connection with transmission line projects. The writ-petitioner Nos.1 and 2 are the private limited companies duly incorporated under the Company Act, 1994 who manufactured different steel products which are being used in electricity transmission line under electrical sector. Those two companies are registered with the Board of Investment as well as the VAT authority as supplier (Mgf), service renderer, importer and exporter of cement. The writ-petitioner No.1, whoever, obtained bond license from the writ respondent No.2 as 100% export oriented industry which is valid upto 16-1-2021. Pursuant to the terms of the said bond license said writ-petitioner imported raw materials from time to time through different Bills of Entry within the limit of allocation. Pursuant to international tenders so published by M/s Power Grid Company of Bangladesh Ltd. (in short, PGCB), an enterprise of Bangladesh Power Development Board, Dhaka on 12-2-2017, 1-9-2016, 2-3-2015 and 12-2-2017 respectively in connection with infrastructural development projects of the Government respective contracts were executed on 25-10-2016 between consortium of Fujikuraq Ltd., ITOCHU Corporation and LS Cable and System Ltd., Japan for Hathazari-Sikalbaha 230KV Transmission and Hathazari-Rampur-230KV transmission line on turnkey basis; on 24-5-2017, with GS Engineering and Construction Corporation, a company of the Republic of Korea for Patuakhali (Payra)-Gopalgonj 400KV transmission line on turnkey basis; with JV of China National Cables Engineering Corporation (CCC) and WUXI hangnail Cable Co. Ltd., China for Patuakhali-Payra 230KV transmission line on turnkey basis; and with HG Power Transmission, Sdn Bhd, Malaysia for Bakergonj-Burguna 132KV transmission line on turnkey basis. Under the said 4(four) contracts so made pursuant to 4(four) international tenders, separate and individual contracts had been executed between consortium of Fujikuraq Ltd. ITOCHU Corporation and LS Cable and System Ltd., Japan and also with GS Engineering and Construction Corporation, Korea and the writ-petitioners respectively for supply of electrical towers as sub-contractor. Before commencing their supply to the respective projects under "deemed export scheme" the writ-petitioner Nos.1 and 2, however, applied before the writ respondent No.2 for approval of input output co-efficient (সহগ) of the imported raw materials from time to time. In response, thereof, the writ respondent No.2 gave approval subject to certain terms and conditions as set forth therein. Consequent thereto several Letters of Credit had been opened by the writ-petitioners against foreign currency. To that effect Export Proceed Realization Certificates (in short, PRC) had also been issued by the concerned negotiating bank. It has been contended that in 2013 after inserting clause (ই) in section 2(শ) of the VAT Act, 1991 (in short, the Act of 1991) vide Finance Act, 2013, an office order was issued by the National Board of Revenue (in short, the NBR) vide Nathi No.5(9)/Shulka Export and Bond/2007/342 dated 4-8-2013 observing, inter-alia, that in view of clause (2) of section 2(শ) of the Act, 1991 if any product had been supplied by the respective bonded warehouse against L/C of foreign currency under any international tender, it would be deemed as export and that said order was published in public interest with immediate effect. Said office order is still in force. However, since 2013 the writ respondents all along treated, classified and allowed the supply of the writ-petitioners as "deemed export" by allowing input output co-efficient (সহগ) from time to time. Later, on 4-11-2018, the Customs, Excise and VAT Commissionerate, Chattogram sought necessary explanation and direction from the NBR in connection with Rule 31 Ka of the VAT Rules, 1991. In response thereof a section of the National Board of Revenue namely "মূসক আইন ও বিধি শাখা” under the signature of Second Secretary, writ respondent No.4 vide Nathi No-8-01.0000.068.20.001.16/ 373 dated 29-11-2018 issued the impugned "স্পষ্টীকরণ ও দিক নির্দেশনা", which is quoted herein below:
“গণপ্রজাতন্ত্রী বাংলাদেশ সরকার
জাতীয় রাজস্ব বোর্ড
রাজস্ব ভবন
সেগুনবাগিচা, ঢাকা
মূসক আইন ও বিধি শাখা
নথি নং-০৮.০১.০০০০.০৬৮,২০-০০১.১৬/৩৭৩
তারিখঃ ১৫ অগ্রহায়ন, ১৪২৫ বঙ্গাব্দ
২৯ নভেম্বর, ২০১৮ খিস্টাব্দ
বিষয়ঃ মূল্য সংযোজন কর বিধিমালা, ১৯৯১ ৩১ক এ উল্লিখিত স্থানীয় বা আন্তর্জাতিক দরপত্রের বিপরীতে বৈদেশিক মুদ্রায় পণ্য সরবরাহ বা সেবা প্রদানের বিষয়ে স্পষ্টীকরণ ও দিকনির্দেশনা ।
সুত্রঃ কাস্টমস, এক্সাইজ ও ভ্যাট কমিশনারেট, চট্টগ্রাম এর পত্র নং ৪র্/এ(৫১২)২১/মূসক-উৎপাদন/রপ্তানী/সংদঃ/২০১৮/৪ ৭১৩, তারিখ ৪ নভেম্বর, ২০১৮ খিস্টাব্দ ।
উপর্যুক্ত বিষয় ও সূত্রের প্রতি আপনার দৃষ্টি আকর্ষণ করা হলো।
২। মূল্য সংযোজন কর বিধিমালা, ১৯৯১ এর বিধি ৩১ক এ উন্লিখিত স্থানীয় বা আন্তর্জাতিক দরপত্রের বিপরীতে বৈদেশিক মুদ্রায় পণ্য সরবরাহ বা সেবা প্রদানের ক্ষেত্রে “রপ্তানি” এবং “রপ্তানিকৃত বলিয়া গণ্য” এ দুটো সংজ্ঞার পরিধি নিয়ে মাঠ পর্যায়ে জটিলতা পরিলক্ষিত হচ্ছে মর্মে জাতীয় রাজস্ব বোর্ডকে অবহিত করা হয়েছে৷
৩। এ সংক্রান্ত বিদ্যমান বিধি-বিধান জাতীয় রাজস্ব বোর্ডে পর্যালোচনা করা হয়েছে। পর্যালোচনান্তে দেখা যায়, মূল্য সংযোজন কর বিধিমালা, ১৯৯১ এর বিধি ৩১ক এর মাধ্যমে মূলত বাংলাদেশে নিবন্ধিত কোন উৎপাদক বা সেবা উন্নয়ন সহযোগী, বিদেশী রাষ্ট্র বা সংস্থার সাথে সরকারের সম্পাদিত আন্তর্জাতিক চুক্তি বা সমঝোতা স্মারকের আওতায় খণ, অনুদান বা অন্য কোন চুক্তির অধীন কোন পণ্য, কার্য বা সেবা ক্রয়ের বিপরীতে দরপত্রে অংশগ্রহণের ক্ষেত্রে আন্তর্জাতিক বা বিদেশি প্রতিষ্ঠানের তুলনায় প্রতিযোগিতায় সক্ষমতা (Competitive Edge প্রদান) সৃষ্টি করা হয়েছে। অর্থাৎ, এ বিধির মাধ্যমে দেশিয় নিবন্ধিত প্রতিষ্ঠানসমূহ অংশথহণের ক্ষেত্রে পিছিয়ে না পড়ে এবং খণ বা অনুদান চুক্তির আওতায় প্রাপ্ত বৈদেশিক মুদ্রা যেন বিদেশি প্রতিষ্ঠানের মাধ্যমে পুনরায় দেশের বাহিরে চলে না যায় সে বিষয়টি বিবেচনায় রেখে মূলত দেশিয় প্রতিষ্ঠান কর্তৃক সম্পাদিত কার্যক্রমকে রপ্তানিকৃত বলিয়া গণ্য করার বিধান রেখে শুল্ক কর প্রণোদনা প্রদান করা হয়েছে। তবে এক্ষেত্রে এ কার্যক্রম “রপ্তানিকৃত বলিয়া গণ্য”বিবেচিত হতে হলে দেশিয় প্রতিষ্ঠান কর্তৃক সরাসরি দরপত্র অংশগ্রহণের মাধ্যমে কার্যাদেশ প্রাপ্তির বাধ্যবাধকতা রয়েছে।
৪। বৈদেশিক ঝণ বা অনুদান চুক্তির আওতায় কোন প্রকল্প/কার্য/সেবা সম্পাদনের লক্ষ্যে আহ্বানকৃত স্থানীয় বা আন্তর্জাতিক দরপত্রের আওতায় কিংবা বৈদেশিক মুদ্রার বিনিময়ে আন্তর্জাতিক দরপত্রের আওতায় বাংলাদেশের অভ্যন্তরে কোন পণ্য বা সেবা সরবরাহের ক্ষেত্রে কেবলমাত্র প্রাথমিকভাবে মনোনীত/কার্যাদেশ প্রাপ্ত দেশিয় নিবন্ধিত প্রতিষ্ঠানসমূহের ক্ষেত্রে বিধি ৩১ক এ বর্ণিত আনুষ্ঠানিকতা পরিপালন সাপেক্ষে পণ্য বা সেবা সরবরাহের ক্ষেত্রে“রপ্তানিকৃত বলিয়া গণ্য”হওয়ার সুবিধা প্রাপ্য হবে। উক্ত প্রাথমিকভাবে মনোনীত/কার্ধাদেশ প্রাপ্ত প্রতিষ্ঠান/কন্ট্রাক্টর কর্তৃক পরবতীতে পত্রিকায় দরপত্র আহ্বানের মাধ্যমে অন্যকোন প্রতিষ্ঠানকে প্রকল্প সম্পাদনের লক্ষ্যে পণ্য/সেবা/কার্য সম্পাদনের সাব-কক্ট্রাক্ট/কার্যাদেশ প্রদান করা হলে উক্ত সাব-কন্ট্রাক্টরকে কার্যাদেশ প্রাপ্ত প্রতিষ্ঠান প্রাপ্ত প্রতিষ্ঠান কর্তৃক মূল কার্যাদেশ প্রাপ্ত প্রতিষ্ঠান/কন্ট্রাক্টরকে একই প্রকল্প সম্পাদনের লক্ষ্যে পণ্য বা সেবা সরবরাহ করা হলে তা বিধি ৩১ক এর আওতায়“রপ্তানিকৃত বলিয়া গণ্য”হওয়ার কোন আইনগত সুযোগ নেই। এটি বিধিতে যেমন স্পষ্ট করা হয়েছে তেমনি অনুচ্ছেদ-৩ এ উল্লিখিত কারণে তা আলোচ্য বিধি প্রণয়নের মূল চেতনা এর পরিপন্থি । কেননা, এক্ষেত্রে একটি ঋণ বা অনুদান চুক্তির আওতায় একটি নির্দিষ্ট প্রকল্প সম্পাদনে বাংলাদেশ সরকার একবারই বৈদেশিক মুদ্রা প্রাপ্ত হয় এবং সে কারণে প্রকল্প বাস্তবায়নকারী সংস্থা কর্তৃক প্রাথমিকভাবে আহ্বানকৃত আন্তর্জাতিক দরপত্রের আওতায় কার্যাদেশ প্রাপ্ত মূল দেশিয় নিবন্ধিত প্রতিষ্ঠানকে রপ্তানি সুবিধা প্রদান করা হয়। পরবতীতে আহ্বানকৃত আন্তর্জাতিক দরপত্রের আওতায় কার্যাদেশ প্রাপ্ত মূল দেশিয় নিবন্ধিত প্রতিষ্ঠানকে রপ্তানি সুবিধা প্রদান করা হয়। পরবর্তীতে উক্ত মুল কার্যাদেশ প্রাপ্ত প্রতিষ্ঠান কর্তৃক যদি একই প্রকল্পে পণ্য/সেবা সরবরাহের লক্ষ্যে পুনরায় পত্রিকায় দরপত্র বিজ্ঞপ্তি আহ্বান করে কোন দ্বিতীয় পক্ষকে সাব-কন্ট্রাক্টর নিয়োগ করা হয় অথবা পণ্য/সেবা সরবরাহের কার্যাদেশ প্রদান করা হয় সেক্ষেত্রে যেহেতু নতুন করে বাংলাদেশ সরকার কোন বৈদেশিক মুদ্রা প্রাপ্ত হয় না, সেহেতু পণ্য/সেবা সরবরাহ দ্বিতীয়বার “রপ্তানিকৃত বলিয়া গণ্য”হওয়ার কোন আইনগত সুযোগ নেই। প্রকল্প সম্পাদনের জন্য যে স্বত্বার সাথে প্রাথমিক চুক্তি সম্পাদিত হয় শুধুমাত্র এ স্বত্বার জন্য পণ্য বা সেবার সরবরাহ বা কার্যসম্পাদন রপ্তানি বলে গণ্য অন্যকোন সরবরাহকারী এক্ষেত্রে বিবেচনার সুযোগ নেই। কারণ এক্ষেত্রে প্রকল্প/চুক্তি সম্পাদনে মুল কার্যাদেশপ্রাপ্ত প্রতিষ্ঠানের কার্যক্রম “রপ্তানিকৃত বলিয়া গণ্য”হওয়ায় সরবরাহ চেইনে পরিশোধিত পূর্ববর্তী শুক্ক-কর প্রত্যর্পণ প্রদান করার বিধান করা হয়েছে । তাই, প্রকল্প সম্পাদনে, প্রাথমিকভাবে চুক্তিবদ্ধ স্বত্ত্বা “রপ্তানিকৃত বলিয়া গণ্য” কার্যক্রম করে বিধায় এ সুবিধা প্রাপ্ত হবে, অন্যকেউ নয়।
৫। এছাড়া, পাবলিক প্রকিউরমেন্ট আইন, ২০০৬ এর ধারা ৩ এর দফা (ঘ) অনুযায়ী কোন উন্নয়ন সহযোগী, বিদেশী রাষ্ট্র বা সংস্থার সহিত সরকারের সম্পাদিত কোন ঋণ, অনুদান বা অন্য কোন চুক্তির অধীন কোন পণ্য, কার্য বা সেবা ক্রয়ের ক্ষেত্রে পাবলিক প্রকিউরমেন্ট আইন, ২০০৬ এবং পাবলিক প্রকিউরমেন্ট রুল, ২০০৮ এর বিধান পরিপালন বাধ্যতামূলক । অর্থাৎ মূল্য সংযোজন কর বিধিমালা, ১৯৯১ এর বিধি ৩১ক এর আওতায় পণ্য বা সেবা সরবরাহ কার্যক্রম “রপ্তানিকৃত বলিয়া গণ্য”হতে হলে যে কোন স্থানীয় বা আন্তর্জাতিক দরপত্র কার্যক্রম পাবলিক প্রকিউরমেন্ট ক্লুল, ২০০৮ এর বিধান মোতাবেক সংঘটিত হওয়ার আইনি বাধ্যবাধকতা রয়েছে। কোন সংস্থা বা প্রতিষ্ঠান কর্তৃক পাবলিক প্রকিউরমেন্ট রুল, ২০০৮ অনুসরণপূর্বক দরপত্র কার্যক্রম সম্পন্ন না করলে সেক্ষেত্রে বিধি ৩১ক এ উল্লিখিত রপ্তানি সংশ্লিষ্ট সুবিধাদি প্রযোজ্য হবে না।
৬। সম্প্রতি কিছু কিছু প্রতিষ্ঠান মূল্য সংযোজন কর বিধিমালা, ১৯৯১ এর বিধি ৩১ক এর অপব্যবহার করে রাজস্ব ফাকি দিচ্ছে মর্মে জাতীয় রাজত্ব বোর্ডের গোচরীভূত হয়েছে। তাই এ জাতীয় প্রতিষ্ঠানের কার্যক্রম নিবিড় মনিটরিং করে প্রয়োজনে নিরীক্ষা কার্যক্রম সম্পাদনের মাধ্যমে আইনানুগ রাজত্ব আদায় করার জন্য সংশ্লিষ্ট সকলকে নির্দেশক্রমে অনুরোধ করা হলো । বর্ণিতাবস্থায়, উপরোক্ত নির্দেশনা মোতাবেক যথাযথ আইনানুগ পদক্ষেপ গ্রহণের জন্য সংশ্লিষ্ট সকলকে নির্দেশ প্রদান করা হলো।
স্বাক্ষর
(মোঃ তারেক হাসান)
দ্বিতীয় সচিব (মুসক আইন ও বিধি)”
6. Pursuant to the said directions as contained in the impugned Nathi dated 29.11.2018 the writ respondent No. 5 had refused to entertain the applications made by the writ petitioner Nos. 1 and 2 for approval of input output co-efficient vide Nathi Nos. 1(Uma) Dedo/Shohag/2018/496/764, 1(Uma)Dedo/Shohag/2017/80/772 and Nathi No. 1(Uma) Dedo/Shohag/2018/539/771 all dated 24.01.2019. Under the aforesaid facts and circumstances, the writ petitioners, finding no other alternative efficacious remedy, filed the above noted writ petitions before the High Court Division and obtained the Rules Nisi.
7. The writ respondent No. 3 contested the said Rule Nisi by filing an affidavit-in-opposition in Writ Petition No. 3155 of 2019.
8. In due course, after hearing the parties and considering the connected papers on record, a Division Bench of the High Court Division made the Rules Nisi absolute by the impugned judgment and order dated 28.08.2019.
9. Feeling aggrieved, by the judgment and order dated 28.08.2019 passed in Writ Petition No. 3155 and 2989 of 2019, the Government of Bangladesh and others - writ respondents as petitioners herein filed the instant civil Petitions for leave to appeal.
10. Mr SK. Md Morshed, the learned Additional Attorney-General appearing on behalf of the petitioners in both the petitions submits that the respective agreements were executed between M/s. Power Grid Company of Bangladesh Ltd. (in short, PGCB) and consortium of Fujikura Ltd. ITOCHU Corporation and LS Cable and System Ltd. Subsequently, the writ-petitioners concerned as suppliers entered into an agreement on 21-12-2016 with the said contractors for supplying goods. The writ-petitioners and the procuring entity, i.e., PGCB did not enter into any agreement at any point of time under the international tender process. In this regard, referring to Rule 3lKa(lka) of the VAT Rules, 1991, and in view of the said provision respective project must be funded in foreign currency in the form of grant or loan; that project should be under an international agreement or Memorandum of Articles; the consignee liable to implement the project should be a VAT registered entity in Bangladesh; and that the work order for supply of materials/implementation should be given to the successful bidder who participated in any local or international tender. The person/ organization liable to implement the project is PGCB (বৈদেশিক মুদ্রার বিনিময়ে প্রকল্পে বাস্তবায়নে দায়িত্বপ্রাপ্ত সংস্থা) who has been granted fund and assigned for implementation of the project in question and that GS Engineering and Construction Corporation, a foreign company being a successful bidder entered into a contract with PGCB bearing Contract No.PGCB/400kv/PAT-GOP/TL) for design, manufacture and supply, installation, testing and commissioning the project. Since the activities of the said foreign company had been done in exchange of foreign currency, hence, its activities may be treated as "export/deemed export" provided it fulfills the pre-condition of being a registered entity under the VAT Act in Bangladesh. Apart from that, the writ-petitioners although are VAT registered companies of Bangladesh but being the sub-contractor of GS Engineering and Construction Corporation have no scope to get the said benefit since it did not sign any contract directly with PGCB but getting its remuneration in foreign currency, which is a part of sum acquired by GS Engineering from PGCB.
11. He further submits that the writ respondent No. 4 has issued the impugned Memo explaining the legal aspects as contained in Rule 31Ka of the VAT Rules, 1991 but the writ petitioners by filing the instant writ petitions have intended to misinterpret the said provision of law to suit its own sweet will in order to avail duty drawback paid in connection with the input output co-efficient in the guise of "deemed export" which is malafide. He next submits that the writ respondent No. 3, National Board of Revenue, has statutory power conferred under section 219B of the Customs Act, 1969 read with section 72 of the VAT Act, 1991 to issue Rules, orders and notices, explanations or circulars in any matter for the purpose of implementation/execution of the Act provided that those are not inconsistent with the provisions of the Act or the Rules so framed thereunder. At the same time, Rule 38 of the VAT Rules so framed thereunder. In addition, Rule 38 of the VAT Rules, 1991 has also provided power to the Board, the Commissioners or the Director Generals to issue explanations, orders clarify the disputes emendated therefrom. Moreover, the Director General of the concerned Department of NBR has power to determine input-output coefficient pursuant to section 13(3) of the VAT Act, 1991 and to grant drawback to the exporter on the duties and taxes paid on inputs used in the manufacturing of exported/deemed exported goods on that basis. Hence, the impugned orders issued by the writ respondent No. 5 regretting to approve input-output coefficient prior to granting drawback is lawful. He also submits that the writ petitioners submitted monthly return in statutory form "Mushak-19" stating its activities thereon. However, its monthly returns were duly accepted on being satisfied by the authority since no objection as to taking rebate by the writ petitioners was raised. But fact remains that section 26Ka(6) of the VAT Act, 1991 has put no bar on re-investigation or re-audit of the activities of any tax payer on reasonable ground even though it has been audited or investigated earlier. Hence, the writ petitioners cannot be absolved from any subsequent demand on the plea that the returns were submitted and those had been accepted without any instant objection whatsoever. In that view of the matter, the impugned Nathi dated 29.11.2018 issued by the writ respondent No. 4 providing explanation of Rule 31Ka of the VAT Rules, 1991 and thereby subsequent refusal to allow input-output co-efficient in favour of the writ petitioners as well as demand of VAT under section 55(1) of the Act of 1991 cannot be mandated as unlawful.
12. He finally submits that Article 65(1) of the Constitution of the People's Republic of Bangladesh provides that nothing shall prevent the Parliament from delegating its power to make orders, rules or other enactments having legislative effect. However, it is the established principle of law that the Legislature is not always required to legislate in its entirely to carry out all its work. Some of its functions is left out to be performed fully by persons technically conversant with the levy and realization thereof, or else the legislative scheme as to levy and realization may be frustrated but the High Court Division committed serious illegality in making the Rules Nisi absolute and, as such, the impugned judgment and order passed by the High Court Division is liable to be set aside.
13. Mr Rokanuddin Mahmud, the learned Senior Counsel appearing on behalf of the respondents in Civil Petition No.1462 of 2020 and respondents in Civil Petition No.1462 of 2020 and respondent Nos. I and 2 in Civil Petition No.2374 of 2020 made submissions in support of the impugned judgment and order of the High Court Division. He submits that from a plain reading of those provisions of law and the impugned Nathi dated 29-11-2018 it becomes apparent that neither the writ respondent No.3 nor writ respondent No.4 has been authorized or delegated with the authority to give periphery (পরিধি) of the definition of the word "রপ্তানি" as defined in section 2(ঘ) " রপ্তানি বলিয়া গণ্য” as defined in section 2(শ) of the Act nor under any other provisions of the VAT Act or the Rules so framed thereunder. In this regard, vide section 2(শ)clause (আ) and (ই) the words "বিধি দ্বারা নির্ধারিত পদ্ধতিতে" have been incorporated, which are to be read along with section 72(2) of the VAT Act empowering the NBR to frame Rules. In exercise of the said power the NBR has inserted/ incorporated Rule 31 Ka in "মূল্য সংযোজন বিধিমালা, ১৯৯১” vide SRO No.305-আইন/2004/433-Mushuk dated 21-10-2004 regarding method/procedure as to indentifying the supply as "deemed export". Later, by making amendment of Rule 31 Ka, sub-rule (1Ka) has been inserted vide SRO No.05- Ain/2013/694-Mushak dated 2-1-2014 by adding (1Ka) including the word 'ব্যাখ্যা' by adding "বা আন্তর্জাতিক দরপত্র" after the words "স্থানীয় বা আন্তর্জাতিক দরপত্র". Rule 31Ka does not confer any jurisdiction 'স্ব স্ব এখতিয়ার ভুক্ত বিষয়' to be read along with Rule 38 of the VAT Rules, 1991. The Rule 31Ka(lka) being clear in terms, hence, the writ respondent concern does not require any clarification or direction in the name of "স্পষ্টীকরণ ও দিক নির্দেশনা", as has been done vide the impugned Nathi dated 29-11-2018. From careful perusal of the contents of the impugned Nathi it is apparent that the writ respondent No.4 has substantially deviated from the provisions of sections 2(শ)(ই)and 3(2)(Ka) of the VAT Act, 1991 read with Rule 2 (ঙঙঙঙ) and Rule 31Ka (1Ka)(4) (ব্যাখ্যা) of the VAT Rules, 1991 as well as the office order dated 4-8-2013 issued earlier by the NBR of the Writ Petition No.3155 of 2019. In this connection referring to the first sentence of paragraph 4 in particular "কেবলমাত্র প্রাথমিকভাবে মনোনীত/কার্যাদেশপ্রাপ্ত দেশীয় নিবন্ধিত প্রতিষ্ঠানসমূহের ক্ষেত্রে বিধি ৩১ক এ বর্ণিত আনুষ্ঠানিক পরিপালক সাপেক্ষে পণ্য বা সেবা সরবরাহের ক্ষেত্রে ‘রপ্তানিকৃত বলিয়া গণ্য’ হওয়ার সুবিধা প্রাপ্য হবে।” and, as such, the High Court Division rightly made the Rules Nisi absolute and passed the impugned judgment. Hence, the instant leave petition may kindly be dismissed.
14. We have considered the submissions of the learned Additional Attorney General for the petitioners and the learned Counsel for the respondents. Perused the impugned judgment of the High Court Division and connected other materials on record.
15. The facts in issue involved in these petitions are that
- Whether the writ petitioner companies entered into any agreement with the procuring entity, hence, entitled to get drawbacks under Rule 31A of the Vat Rules, 1991;
- Whether the writ respondents possesses the power of delegated legislation in the form of the impugned memo. no. 08.01.0000.068.20.001.16/373; dated 29.11.2018;
- Whether re-investigation or re-audit of the activities of any tax payer on reasonable ground even though it has been audited or investigated earlier;
- Whether the writ respondent no. 5's regretting to approve input-output coefficient prior to granting drawback is lawful.
16. It is crystal clear from the averments of the very writ petitions that PGCB, the procuring entity entered into contract with the China Communication and Construction Limited (in re writ petition no. 2989 of 2019) and consortium of Fujikura Ltd., ITOCHU Corporation and LS Cable and System Ltd., Japan; GS Engineering and Construction Corporation, South Korea; JV of China National Cables Engineering Corporation (CCC) and WUXI Jiangnan Cable Co. Ltd., China and HG Power Transmission, Snd Bhd, Malaysia for its different projects through some international tender processes. The writ petitioner companies and PGCB never ever entered into any agreement under the concerned international tender process. Rather the writ petitioner companies entered into agreements with the China Communication and Construction Limited (in re writ petition no. 2989 of 2019) and consortium of Fujikura Ltd., ITOCHU Corporation and LS Cable and System Ltd., Japan; GS Engineering and Construction Corporation, South Korea; JV of China National Cables Engineering Corporation (CCC) and WUXI Jiangnan Cable Co. Ltd., China and HG Power Transmission, Snd Bhd, Malaysia (in re writ petition no. 3155 of 2019) as supplying goods which are subcontracts in nature. To avail the fruits of Rule 31Ka of the VAT Rules, 1991 relevant scheme must be funded in foreign currency in the form of grant or loan; that project should be under an international agreement or Memorandum of Articles; the consignee liable to implement the project should be a VAT registered entity in Bangladesh and that the work order for supply of materials/implementation should be given to the winning bidder who participated in any local or international tender.
17. The concerned rule 31A of the VAT Rules 1991 is as such-
“৩১ক । স্থানীয় বা আন্তর্জাতিক দরপত্রের বিপরীতে বৈদেশিক মুদ্রায় পণ্য সরবরাহ বা সেবা প্রদান ।-
(১) আন্তর্জাতিক চুক্তি বা সমঝোতা স্মারকের আওতায় বাংলাদেশের অভ্যন্তরে কোনো স্থাপনা বা অবকাঠামো নির্মাণ, সুষমকরণ, সম্প্রসারণ, আধুনিকায়ন বা বাংলাদেশের কোনো জনগোষ্ঠীর মধ্যে কোনো পণ্য সরবরাহ বা সেবা প্রদানের অভিপ্রায়ে উপর্যুক্ত কার্যাবলির সহযোগিতার লক্ষ্যে অনুদান বা ঋণ হিসেবে প্রদত্ত বৈদেশিক মুদ্রার বিনিময়ে প্রকল্প বাস্তবায়নে দায়িত্প্রাপ্ত সংস্থা বা ব্যক্তি কর্তৃক বাংলাদেশে নিবন্ধিত কোনো উৎপাদক বা সেবা প্রদাননকারীর নিকট হইতে স্থানীয় বা আন্তর্জাতিক দরপত্রের মাধ্যমে কোনো পণ্য বা সেবা ক্রয় করা হইলে নিম্নবর্ণিত শর্তে উহা আইনের ধারা ৩ এর উপ-ধারা (২)(ক) এর অধীন রপ্তানিকৃত বলিয়া গণ্য হইবে, যথা:
(ক) বাংলাদেশ সরকার বা সরকারের নিকট হইতে ক্ষমতাপ্রাপ্ত ব্যক্তি বা প্রতিষ্ঠানের সহিত অনুদান বা খণ সংক্রান্ত বিষয়ে দাতা সংস্থার আন্তর্জাতিক চুক্তি বা সমঝোতা স্মারক থাকিতে হইবে;
(খ) স্থানীয় বা আন্তর্জাতিক দরপত্রে উক্ত চুক্তি বা স্থানীয়ভাবে সংগৃহীত পণ্য বা সেবা ব্যবহারের বিষয়টি উল্লেখ করিতে হইবে; এবং
(গ) দরপত্রের মাধ্যমে নির্বাচিত পণ্য সরবরাহকারী বা সেবা প্রদানকারী সংশ্লিষ্ট আন্তর্জাতিক চুক্তি বা সমঝোতা স্মারকের সত্যয়িত কপি, দরপত্র বিজ্ঞপ্তি ও সরবরাহ আদেশ বা, প্রযোজ্য ক্ষেত্রে, ক্রয় আদেশের কপিসহ স্থানীয় মূল্য সংযোজন কর কর্তৃপক্ষকে অবহিত করিতে হইবে ।
(২) যে নিবন্ধিত ব্যক্তির ক্ষেত্রে আইনের ধারা ৩৫ অনুযায়ী দাখিলপত্র প্রদানের বাধ্যবাধকতা রহিয়াছে তিনি তথ্কর্তৃক স্থানীয় বা আন্তর্জাতিক দরপত্রের বিপরীতে বৈদেশিক মুদ্রার বিনিময়ে সরবরাহকৃত পণ্য বা প্রদত্ত সেবায় ব্যবহৃত উপকরণের ক্ষেত্রে কর প্রত্যর্পণ গ্রহণ করিতে চাহিলে তাহার ক্ষেত্রে বিধি ২৯-এর সংশ্লিষ্ট বিধানাবলি প্রযোজ্য হইবে ।
(৩) যে নিবন্ধিত ব্যক্তির ক্ষেত্রে উপ-বিধি (২) এ বর্ণিত বাধ্যবাধকতা প্রযোজ্য নহে তিনি তথকর্তৃক স্থানীয় বা আন্তর্জাতিক দরপত্রের বিপরীতে বৈদেশিক মুদ্রার বিনিময়ে সরবরাহকৃত পণ্য বা প্রদত্ত সেবায় ব্যবহৃত উপকরণের ক্ষেত্রে কর প্রত্যর্পণ গ্রহণ চাহিলে তাঁহার ক্ষেত্রে বিধি ৩০-এর সংশ্লিষ্ট বিধানাবলি প্রযোজ্য হইবে।
(৪) উপ-বিধি (২) ও (৩) এ বর্ণিত ক্ষেত্রে যথাক্রমে দাখিলপত্র ও আবেদনপত্রের সহিত সংশ্লিষ্ট দরপত্রের অনুলিপি, দরপত্র গ্রহণের প্রমাণপত্র, কার্যসম্পাদনের নির্দেশনামা এবং বৈদেশিক মুদ্রায় মূল্য প্রাপ্তির প্রমাণপত্র সংযুক্ত করিতে হইবে।
ব্যাখ্যা ।__এই বিধির উদ্দেশ্য পুরণকল্পে “স্থানীয় বা আন্তর্জীতিক” দরপত্র বলিতে বাংলাদেশে প্রকাশিক জাতীয় দৈনিক পত্রিকা বা বাংলাদেশের বাহিরে প্রকাশিত আন্তর্জাতিকমানের পত্রিকায় আহ্বানকৃত দরপত্র বিজ্ঞপ্তি (Tender Notice) কে বুঝাইবে |”
18. Consequently, the goods supplied by the writ petitioner companies as sub-contractors cannot be assessed as "deemed export" under the rules concerned.
19. The companies legally responsible to execute the ventures are the aforementioned foreign companies being successful bidders entered into contracts with PGCB for design, manufacture and supply, installation, testing and commissioning etc of the projects. As the activities of the company had been done in exchange of foreign currency, consequently, its activities may be treated as "export/deemed export" if fulfills the pre-condition of being registered entities under the VAT Act in Bangladesh not the writ petitioner companies as they are sub-contractors only. Subcontractors are not eligible to get drawbacks under rule 31A of the VAT Rules, 1991.
20. In addition, section 13(3) of the VAT Act, 1991 states that-
‘(৩) “মহাপরিচালক, শুল্ক রেয়াত ও প্রত্যর্পণ পরিদপ্তর”, সরকারী গেজেটে জারীকৃত আদেশ দ্বারা, কোন রপ্তানিকারককে প্রকৃত রপ্তানির বিপরীতে চালানভিত্তিক বা, ক্ষেত্রমত, রপ্তানি পণ্যের উপকরণ-উৎপাদ সহগ (input-output co-efficient) এর ভিত্তিতে সমহার (flat rate) এ রপ্তানিকৃত পণ্যে ব্যবহৃত উপকরণের উপর পরিশোধিত পরিমাণ উপ-ধারা (১) উল্লিখিত শুল্ক ও করসমূহ প্রত্যর্পণের নির্দেশ প্রদান করিতে পারিবেন ।”
21. Thus it is clear that the concerned Department of NBR has power to conclude input-output co-efficient pursuant to and to grant drawback to the exporter on the duties and taxes paid on inputs used in the manufacturing of exported/deemed exported goods on that basis. For this reason, the impugned orders issued by the writ respondent no. 5 regretting to approve input-output coefficient prior to granting drawback is lawful.
22. Another writ respondent, National Board of Revenue, has statutory power conferred under section 219B of the Customs Act, 1969 read with section 72 of the VAT Act, 1991 to issue Rules, orders and notices, explanations or circulars in any matter for the purpose of implementation/execution of the Act provided that those are not inconsistent with the provisions of the Act or the Rules so framed thereunder. At the same time, Rule 38 of the VAT Rules, 1991 has also provided power to the Board, the Commissioners or the Director Generals to issue explanations, orders clarify the disputes emendated therefrom.
23. Section 219B of the Customs Act, 1969 is as follows-
"Power to issue Orders, Notices, Explanations or Circulars
219B. The Board or, as the case may be, the Commissioner of Customs (Bond), or Commissioner of Customs (Valuation and internal audit), or any other Commissioner of Customs or any Director General may issue orders, notices, explanations or circulars within their respective jurisdiction not inconsistent with the provisions of this Act and the rules made thereunder."
24. Section 72 of VAT Act, 1991 is as follows-
“৭২। বিধি প্রণয়নের ক্ষমতা ।_(১) এই প্রজ্ঞাপন দ্বারা, বিধি প্রণয়ন [এবং প্রণীত বিধির ইংরেজিতে অনূদিত একটি নির্ভরযোগ্য পাঠ (Authentic English text) প্রকাশ] করিতে পারিবে [:
তবে শর্ত থাকে যে, বাংলা পাঠ ও ইংরেজি পাঠের মধ্যে বিরোধের ক্ষেত্রে বাংলা পাঠ প্রাধান্য পাইবে ।]
(২) বিশেষ করিয়া এবং উপরি-উক্ত ক্ষমতার সামর্থিকতাকে ক্ষুণ্ন না করিয়া, অনুরূপ বিধিতে নিন্নবর্ণিত সকল অথবা যে কোন বিষয়ে বিধান করা যাইবে, যথা:-
(ক) মূল্য সংযোজন কর বা, ক্ষেত্রমত, মূল্য সংযোজন কর ও সম্পূরক শুল্ক নিরূপণ, ধার্যকরণ ও আদায়করণ এবং উক্তরূপ ধার্যের জন্য মূল্য নির্ধারণ, মূল্য ঘোষণা ও ঘোষিত মুল্য যাচাই বাছাইকরণ প্রক্রিয়া উপকরণ কর রেয়াত গ্রহণ এবং এই আইনের অধীন দায়িত্বসমূহ পালনকারী কর্তৃপক্ষসমূহ নির্ধারণ;
(খ) মূল্য সংযোজন কর আরোপযোগ্য পণ্য উহার উৎপাদন বা প্রস্তুতকরণের স্থান বা ব্যবসায় স্থল হইতে অপসারণ ও পরিবহন;
(গ) এই আইনের অধীন কোন বিধির প্রয়োগের তদারকির জন সরকারী কর্মকর্তা নিয়োগ;
(ঘ) করযোগ্য পণ্য, অব্যাহতিপ্রাপ্ত পণ্য এবং উক্তরূপ পণ্যসমূহ প্রস্তুতকরণ বা উৎপাদনে বা সরবরাহে ব্যবহৃত উপকরণসমূহ পণ্য প্রস্তুতকরণ বা উৎপাদনের স্থান বা ব্যবসায় স্থলে পৃথকভাবে রক্ষণ;
(ঙ) করযোগ্য পণ্য সরবরাহ বা সেবা প্রদানে নিয়োজিত কোন ব্যক্তি কর্তৃক এই আইনের অধীন প্রয়োজনীয় তথ্য সরবরাহ;
(চ) করযোগ্য পণ্য কেবল নির্ধারিত মোড়ক, বলিয়া বা কোষে সরবরাহকরণ এবং যে মোড়ক, থলিয়া বা কোষে উহা সরবরাহ করা হয় তাহাতে উহার খুচরা মূল্য মুদ্রণ, উৎর্কীণকরণ বা বুনন বাধ্যতামূলককরণ;
(ছ) যে কোন পণ্য সম্পর্কে এই আইন বা কোন বিধি লঙ্ঘন করা হয় তাহার বাজেয়াপ্তকরণ;
(জ) প্রস্তুতকরণ বা উৎপাদিত বা আমদানীকৃত, ক্রয়কৃত, অর্জিত বা অন্য কোনভাবে সংগৃহীত পণ্যের] নমুনা সংগ্রহ ও উহার পরীক্ষা এবং করযোগ্য পণ্য পরিবহনকারী যানবাহন পরিদর্শন, তল্লপশী ও আটক;
(ঝ) পণ্য বা সেবা রপ্তানি এবং রপ্তানি সংক্রান্ত রেয়াত ও প্রত্যর্পণ পদ্ধতি;
(ঞ) এই ধারার অধীন প্রণীত কোন বিধি হইতে উদ্ভুত কোন বিষয় সম্পর্কে লিখিত নির্দেশ প্রদানের জন্য কমিশনার, মুল্য সংযোজন করকে ক্ষমতা প্রদান;
(ট) ধারা ৭১কক এর বিধান অনুযায়ী পুরস্কার প্রদান |
(৩) এই ধারার অধীন প্রণীত বিধিতে বোর্ড এইরূপ বিধান করিতে পারিবে যে কোন বিধি লঙ্ঘনকারী ব্যক্তি, এই আইনের অধীনে তাহার বিরুদ্ধে অন্য যে কোন ব্যবস্থা গ্রহণের বিধান ক্ষুণ্ন না করিয়া, সংশ্লিষ্ট পণ্য সরবরাহ বা সেবা প্রদানের উপর প্রদেয় মূল্য সংযোজন কর বা, ক্ষেত্রমত, মূল্য সংযোজন কর ও সম্পূরক শুল্কের অনূর্ধ্ব দেড়গুণ পরিমাণ অর্থদণ্ডে দণ্ডনীয় হইবেন এবং উক্ত লঙ্ঘন যে পণ্য বা সেবা সম্পর্কিত হয় উহা সরকারের অনুকূলে বাজেয়াপ্ত হইবে ।”
25. Rule 38 of VAT Rules, 1991 is as follows:
“৩৮, আদেশ বা বিজ্ঞপ্তি বা ব্যাখ্যা বা পরিপত্র জারির ক্ষমতা ।_-এই বিধিমালা হইতে উদ্ভুত যেকোনো বিষয়ে বোর্ড বা কমিশনার বা পরিদপ্তরের মহাপরিচালক সময় সময় স্ব স্ব এখতিয়ারভুক্ত বিষয় সম্পর্কে আদেশ বা বিজ্ঞপ্তি বা ব্যাখ্যা বা পরিপত্র জারি করিতে পারিবেন ।”
26. Moreover, the Constitution of the Article 65(1) of People's Republic of Bangladesh provides that nothing shall prevent the Parliament from delegating its power to make orders, rules or other enactments having legislative effect. In addition, it is the established principle of law that the Legislature is not always required to legislate in its entirely to carry out all its work. Some of its functions is left out to be performed fully by persons technically conversant with the levy and realization thereof, or else the legislative scheme as to levy and realization may be frustrated. As such, we opine that High Court Division committed serious illegality in making the Rules Nisi absolute.
27. It is true that the writ petitioners submitted monthly return in statutory form "Mushak-19" stating its activities thereon. However, its monthly returns were duly accepted on being satisfied by the authority since no objection as to taking rebate by the writ petitioners was raised. But fact remains that section 26Ka(6) of the VAT Act, 1991 has put no bar on re-investigation or re-audit of the activities of any tax payer on reasonable ground even though it has been audited or investigated earlier. The relevant section states as follows-
“(৬) পুনঃ নিরীক্ষা ও পুনঃ অনুসন্ধান করিবার যুক্তিযুক্ত কারণ থাকিলে কোন ব্যক্তির কোন কর মেয়াদ সংশ্লিষ্ট কার্যত্রম নিরীক্ষিত বা অনুসন্ধানকৃত হওয়া সত্ত্বেও, উক্ত করদাতার অন্য কোন কর মেয়াদ সংশ্লিষ্ট কার্যক্রম পুন:নিরীক্ষা এবং পুনঃ অনুসনন্ধান করার ক্ষেত্রে কোন বাধা থাকিবে না।”
28. Hence, the writ petitioners cannot be absolved from any subsequent demand on the plea that the returns were submitted and those had been accepted without any instant objection whatsoever. In that view of the matter, the impugned Nathi dated 29.11.2018 issued by the writ respondent No. 4 providing explanation of Rule 31Ka of the VAT Rules, 1991 and thereby subsequent refusal to allow input-output co-efficient in favour of the writ petitioners as well as demand of VAT under section 55(1) of the Act of 1991 cannot be mandated as unlawful.
29. The aforementioned section 13 is as follows-
“রপ্তানিককৃত পণ্য প্রস্তুতে বা উৎপাদনে ব্যবহৃত উপকরণের উপর প্রদত্ত কর প্রত্যর্পণ ১৩(১) Customs Act, 1969 (IV of 1969) এর Chapter VI এর বিধানাবলীতে যাহা কিছু থাকুক না কেন, এই ধারার অধীনে যে কোন ব্যক্তি তৎ্কর্তৃক রপ্তানিকৃত পণ্য প্রস্তুতে বা উৎপাদনে বা রপ্তানিকৃত সেবায় বা রপ্তানিকৃত বলিয়া গণ্য পণ্যে বা সেবায় বা ধারা ৩ এর উপ-ধারা (২) এ উল্লিখিত খাদ্য বা অন্য কোন সামগ্রীতে ব্যবহৃত উপকরণের উপর প্রদত্ত মূল্য সংযোজন কর, সম্পূরক শুল্ক, আমদানি শুল্ক, আবগারী শুল্ক ও অন্যান্য সকল প্রকার শুল্ক ও কর (আগাম প্রদত্ত আয়কর এবং রপ্তানি পণ্য প্রস্ততকরণে বা উৎপাদনে ব্যবহৃত, সরকার কর্তৃক সরকারী গেজেটে প্রজ্ঞাপন দ্বারা এতদুদ্দেশ্যে নির্ধারিত, কোন উপকরণের উপর প্রদত্ত সম্পূরক শুল্ক ব্যতীত) প্রত্যর্পণ হিসাবে পাওয়ার অধিকারী হইবেন:
তবে শর্ত থাকে যে, কোন রপ্তানীকৃত বা রপ্তানীকৃত বলিয়া গণ্য পণ্য বা সেবা রপ্তানির তারিখের এবং যেক্ষেত্রে নিশ্চিত ও অপরিবর্তনীয় রপ্তানি ঋণপত্রের অথবা অভ্যন্তরীণ ব্যাক টু ব্যাক ঋণপত্র অথবা স্থানীয় বা আন্তর্জাতিক দরপত্রের শর্তমোতাবেক আংশিক জাহাজীকরণের (Partial Shipment) ভিত্তিতে পণ্য রপ্তানি করা হয় সেক্ষেত্রে সর্বশেষ রপ্তানির তারিখের ছয় মাসের মধ্যে প্রত্যর্পণ (Drawback) দাবী করা না হইলে, এই ধারার অধীন প্রত্যর্পণ (Drawback) প্রদেয় হইবে না।
ব্যাখ্যা-_এই উপ-ধারায়, “রপ্তানির তারিখ”বলিতে যে তারিখের রপ্তানিকৃত পণ্য বা সেবার মালিক Customs Act এর section 131 এর বিধান অনুযায়ী উক্ত পণ্য বা সেবা রপ্তানির বিল অব এক্সপোর্ট সংশ্লিষ্ট কর্মকর্তার নিকট হস্তান্তর করেন সেই তারিখ বুঝাইবে।
(১ক) উপ-ধারা (১) এ যাহা কিছুই থাকুক না কেন, সরকার, সরকারী গেজেটে প্রজ্ঞাপন দ্বারা, রপ্তানিকৃত পণ্য প্রস্তুতে বা উৎপাদন বা রপ্তানিকৃত সেবায় বা রপ্তানিকৃত বলিয়া গণ্য পণ্যে বা সেবায় ব্যবহৃত কোন নির্দিষ্ট উপকরণের উপর প্রদত্ত মূল্য সংযোজন কর এবং প্রবোজ্য ক্ষেত্রে, অন্যান্য শুল্ক বা কর প্রত্যর্পণের হার নির্ধারণ করিতে পারিবে ।
(২) কোন রপ্তানিকারক তৎ্কর্তৃক বাংলাদেশে সরবরাহকৃত পণ্য বা প্রদত্ত সেবার উপর প্রদেয় উৎপাদ করের বিপরীতে তৎকর্তৃক রপ্তানিকৃত বলিয়া গণ্য পণ্যে বা সেবায় বা ধারা ৩ এর উপ-ধারা (২) এ উল্লিখিত খাদ্য বা অন্য কোন সামগ্রীতে ব্যবহৃত উপকরণের উপর উপ-ধারা (১) মোতাবেক প্রত্যর্পণযোগ্য যাবতীয় কর ও শুল্ক সমন্বয় করিতে পারিবেন।
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(৪) বোর্ড, সরকারী গেজেটে জারীকৃত আদেশ দ্বারা, আদেশে উল্লিখিত শর্ত সাপেক্ষে কোন উৎপাদিত কোন পণ্য বা সেবার উপর কোন ব্যক্তি বা সংস্থা কর্তৃক পরিশোধিত মূল্য সংযোজন কর বা, ক্ষেত্রমত, মুলা সংযোজন কর ও সম্পূরক শুদ্ধ প্রত্যর্পণের নির্দেশ প্রদান করিতে পারিবে।
30. Conversely, as no such right was vested upon the respondent company in the present case, it was in no way entitled for drawbacks/tax rebates as promised in the parent law. Therefore, any plea of against retrospection is not sustainable in the eye of law. Misinterpretation of the laws at their sweet will cannot be a ground for statutory relieves and if any such drawbacks was paid that must be refunded.
31. Here in the present case, the correlated enactment with reference to "drawback" of VAT of the parent law i.e. VAT Act, 1991 is section 13 and rule 31A is the delegated legislation thereof, which is practically consistent with the parent Act. The impugned explanation is another type of subordinate legislation irrespective of its status in the eye of law. At the same time the Office Order, dated 04.08.2013 i.e. Annexure-E(4) of the writ petition is too another subordinate legislation as per Rule 38 of VAT Rules, 1991.
32. For better understanding let's study the impugn explanation and Annexure-E(4) of the writ petition vis-à-vis-
“গণপ্রজাতন্ত্রী বাংলাদেশ সরকার
জাতীয় রাজস্ব বোর্ড
রাজস্ব ভবন
সেগুনবাগিচা, ঢাকা
(মূসক আইন ও বিধি শাখা]
নথি নং-০৮-০১.০০০০.০৬৮.২০.০০১,১৬/৩৭৩
১৫ অগ্রহায়ন, ১৪২৫ বঙ্গাব্দ
তারিখ ২৯ নভেম্বর, ২০৯৮ খ্রিস্টাব্দ
বিষয়ঃ মূল্য সংযোজন কর বিধিমালা, ১৯৯১ এর বিধি ৩১ক উল্লিখিত স্থানীয় বা আন্তর্জাতিক দরপত্রের বিপরীতে বৈদেশিক মুদ্রায় পণ্য সরবরাহ বা সেবা প্রদানের বিষয়ে স্পষ্টীকরণ ও দিকনির্দেশনা।
সুত্রঃ কাস্টমস, এক্সাইজ ও ভ্যাট কমিশনারেট, চট্টগ্রাম এর পত্র নং-৪র্থ/এ৫১২)২১/মৃসক-উৎপাদন/রপ্তানী/সংদঃ/২০১৮/৪ ৭১৩, তারিখঃ ৪ নভেম্বর, ২০১৮ খ্রিস্টাব্দ।
উপর্যুক্ত বিষয় ও সূত্রের প্রতি আপনার দৃষ্টি আকর্ষণ করা হলো।
২। মূল্য সংযোজন কর বিধিমালা, ১৯৯১ এর বিধি ৩১ক এ উল্লিখিত স্থানীয় বা আন্তর্জাতিক দরপত্রের বিপরীতে বৈদেশিক মুদ্রায় পণ্য সরবরাহ বা সেবা প্রদানের ক্ষেত্রে“রপ্তানি” এবং “রপ্তানিকৃত বলিয়া গণ্য” এ দুটো সংজ্ঞার পরিধি নিয়ে মাঠ পর্যায়ে জটিলতা পরিলক্ষিত হচ্ছে মর্মে জাতীয় রাজস্ব বোর্ডকে অবহিত করা হয়েছে।
৩। এ সংক্রান্ত বিদ্যমান বিধি-বিধান জাতীয় রাজস্ব বোর্ডে পর্যালোচনা করা হয়েছে। পর্যালোচনন্তে দেখা যায়, মুল্য সংযোজন কর বিধিমালা, ১৯৯১ এর বিধি ৩১ক এর মাধ্যমে মুলত বাংলাদেশে নিবন্ধিত কোন উৎপাদক বা সেবা প্রদানকারী প্রতিষ্ঠানকে বৈদেশিক মুদ্রার বিনিময়ে কোন উন্নয়ন সহযোগী, বিদেশী রাষ্ট্র বা সংস্থার সাথে সরকারের সম্পাদিত আন্তর্জাতিক চুক্তি বা সমঝোতা স্মারকের আওতায় খণ, অনুদান বা অন্য কোন চুক্তির অধীন কোন পণ্য, কার্য বা সেবা ক্রয়ের বিপরীতে wary অংশগ্রহণের ক্ষেত্রে আন্তর্জাতিক বা বিদেশি প্রতিষ্ঠানের তুলনায় প্রতিযোগিতায় সক্ষমতা (Competitive Edge প্রদান) সৃষ্টি করা হয়েছে। অর্থাৎ, এ বিধির মাধ্যমে দেশিয় নিবন্ধিত প্রতিষ্ঠানসমূহ যাতে করে বিদেশী প্রতিষ্ঠানসমূহের তুলনায় দরপত্রে অংশগ্রহণের ক্ষেত্রে পিছিয়ে না পড়ে এবং খণ বা অনুদান চুক্তির আওতায় প্রাপ্ত বৈদেশিক মুদ্রা যেন বিদেশি প্রতিষ্ঠানের মাধ্যমে পুনরায় দেশের বাহিরে চলে না যায় সে বিষয়টি বিবেচনায় রেখে মূলত দেশিয় প্রতিষ্ঠান কর্তৃক সম্পাদিত কার্যক্রমকে রপ্তানিকৃত বলিয়া গণ্য করার বিধান রেখে শুল্ক কর প্রণোদনা প্রদান করা হয়েছে । তবে এক্ষেত্রে এ কার্যক্রম “রপ্তানিকৃত বলিয়া গণ্য” বিবেচিত হতে হলে দেশিয় প্রতিষ্ঠান কর্তৃক সরাসরি দরপত্র অংশগ্রহণের মাধ্যমে কার্যাদেশ প্রাপ্তির বাধ্যবাধকতা রয়েছে।
৪। বৈদেশিক খণ বা অনুদান চুক্তির আওতায় কোন প্রকল্প/কার্য/সেবা সম্পাদনের লক্ষ্যে আহ্বানকৃত স্থানীয় বা আন্তর্জাতিক দরপন্রের আওতায় কিংবা বৈদেশিক মুদ্রার বিনিময়ে আন্তর্জাতিক দরপত্রের আওতায় বাংলাদেশের অভ্যন্তরে কোন পণ্য বা সেবা সরবরাহের ক্ষেত্রে কেবলমাত্র প্রাথমিকভাবে মনোনীত/কার্ধাদেশ প্রাপ্ত দেশিয় নিবন্ধিত প্রতিষ্ঠানসমূহের ক্ষেত্রে বিধি ৩১ক এ বর্ণিত আনুষ্ঠানিকতা পরিপালন সাপেক্ষে পণ্য বা সেবা সরবরাহের ক্ষেত্রে“রপ্তানিকৃত বলিয়া গণ্য”হওয়ার সুবিধা প্রাপ্য হবে। উক্ত প্রাথমিকভাবে মনোনীত/কার্যাদেশ প্রাপ্ত প্রতিষ্ঠান/কন্ট্রাক্টর কর্তৃক পরবতাঁতে পত্রিকায় দরপত্র আহ্বানের মাধ্যমে অন্যকোন প্রতিষ্ঠানকে প্রকল্প সম্পাদনের লক্ষ্যে পণ্য/সেবা/সাব-কন্ট্রাক্টরকে কার্যাদেশ প্রাপ্ত প্রতিষ্ঠান প্রাপ্ত প্রতিষ্ঠান কর্তৃক মূল কার্যাদেশ প্রাপ্ত প্রতিষ্ঠান/কন্টরাক্টরকে একই প্রকল্প সম্পাদনের লক্ষ্যে পণ্য বা সেবা সরবরাহ করা হলে তা বিধি ৩১ক এর আওতায় “রপ্তানিকৃত বলিয়া গণ্য”হওয়ার কোন আইনগত সুযোগ নেই। এটি বিধিতে যেমন স্পষ্ট করা হয়েছে তেমনি অনুচ্ছেদ-৩ এ উল্লিখিত কারণে তা আলোচ্য বিধি প্রণয়নের মূল চেতনা এর পরিপন্থি । কেননা, এক্ষেত্রে একটি খণ বা অনুদান চুক্তির আওতায় একটি নির্দিষ্ট প্রকল্প সম্পাদনে বাংলাদেশ সরকার একবারই বৈদেশিক মুদ্রা প্রাপ্ত হয় এবং সে কারণে প্রকল্প বাস্তবায়নকারী সংস্থা কর্তৃক প্রাথমিকভাবে আহ্বানকৃত আন্তর্জাতিক দরপত্রের আওতায় কার্যাদেশ প্রাপ্ত মূল দেশিয় নিবন্ধিত প্রতিষ্ঠানকে রপ্তানি সুবিধা প্রদান করা হয় । পরবর্তীতে আহ্বানকৃত আন্তর্জাতিক দরপত্রের আওতায় কার্যাদেশ প্রাপ্ত মূল দেশিয় নিবন্ধিত প্রতিষ্ঠানকে রপ্তানি সুবিধা প্রদান করা হয় । পরবর্তীতে উক্ত সুল কার্যাদেশ প্রাপ্ত প্রতিষ্ঠান কর্তৃক যদি একই প্রকল্পে পণ্য/সেবা সরবরাহের লক্ষ্যে পুনরায় পত্রিকায় দরপত্র বিজ্ঞপ্তি আহ্বান করে কোন দ্বিতীয় পক্ষকে সাব-কন্ট্রাক্টর নিয়োগ করা হয় অথবা পণ্য/সেবা সরবরাহের কার্যাদেশ প্রদান করা হয় সেক্ষেত্রে যেহেতু নতুন করে বাংলাদেশ সরকার কোন বৈদেশিক মুদ্রা প্রাপ্ত হয় না, সেহেতু পণ্য/সেবা সরবরাহ দ্বিতীয়বার “রপ্তানিকৃত বলিয়া গণ্য”হওয়ার কোন আইনগত সুযোগ নেই। প্রকল্প সম্পাদনের জন্য যে স্বত্ত্বার সাথে প্রাথমিক চুক্তি সম্পাদিত হয় শুধুমাত্র এ স্বত্ার জন্য পণ্য বা সেবার সরবরাহ বা কার্যসম্পাদন রপ্তানি বলে গণ্য। অন্যকোন সরবরাহকারী এক্ষেত্রে বিবেচনার সুযোগ নেই। কারণ এক্ষেত্রে প্রকল্প/চুক্তি সম্পাদনে মূল কার্ধাদেশপ্রাপ্ত প্রতিষ্ঠানের কার্যক্রম“রপ্তানিকৃত বলিয়া গণ্য”হওয়ায় সরবরাহ চেইনে পরিশোধিত পূর্ববর্তী শুন্ধ-কর প্রত্যর্পণ প্রদান করা বিধান করা হয়েছে। তাই, প্রকল্প সম্পাদনে প্রাথমিকভাবে চুক্তিবদ্ধ স্বত্বা “রপ্তানিকৃত বলিয়া গণ্য” কার্যক্রম করে বিধায় এ সুবিধা প্রাপ্ত হবে, অন্যকেউ নয়।
৫। এছাড়া, পাবলিক প্রকিউরমেন্ট আইন, ২০০৬ এর ধারা ৩ এর দফা (ঘ) অনুযায়ী কোন উন্নয়নযোগী, বিদেশী রাষ্ট্র বা সংস্থার সহিত সরকারের সম্পাদিত কোন ঋণ, অনুদান বা অন্য কোন চুক্তির অধীন কোন পণ্য, কার্য বা সেবা ক্রয়ের ক্ষেত্রে পাবলিক প্রকিউরমেন্ট আইন, ২০০৬ এবং পাবলিক প্রকিউরমেন্ট রুল, ২০০৮ এর বিধান পরিপালন বাধ্যতামূলক। অর্থাৎ মুল্য সংযোজন কর বিধিমালা, ১৯৯১ এর বিধি ৩১ক এর আওতায় পণ্য বা সেবা সরবরাহ কার্যক্রম “রপ্তানিকৃত বলিয়া গণ্য”হতে হলে যে কোন স্থানীয় বা আন্তর্জাতিক দরপত্র কার্যক্রম পাবলিক প্রকিউরমেন্ট রুল, ২০০৮ এর বিধান মোতাবেক সংঘটিত হওয়ার আইনি বাধ্যবাধকতা রয়েছে। কোন সংস্থা বা প্রতিষ্ঠান কর্তৃক পাবলিক প্রকিউরমেন্ট রুল, ২০০৮ অনুসরণপূর্বক দরপত্র কার্যক্রম সম্পন্ন না করলে সেক্ষেত্রে বিধি ৩১ক এ উল্লিখিত রপ্তানি সংশ্লিষ্ট সুবিধাদি প্রযোজ্য হবে না।
৬। সম্প্রতি কিছু কিছু প্রতিষ্ঠান মূল্য সংযোজন কর বিধিমালা, ১৯৯১ এর বিধি ৩১ক এর অপব্যবহার করে রাজস্ব ফাকি দিচ্ছে মর্মে জাতীয় রাজন্ব বোর্ডের গোচরীভূত হয়েছে। তাই এ জাতীয় প্রতিষ্ঠানের কার্যক্রম নিবিড় মনিটরিং করে প্রয়োজনে নিরীক্ষা কার্যক্রম সম্পাদনের মাধ্যমে আইনানুগ রাজস্ব আদায় করার জন্য সংশিষ্ট সকলকে নির্দেশক্রমে অনুরোধ করা হলো । বর্ণিতাবস্থায়, উপরোক্ত নির্দেশনা মোতাবেক যথাযথ আইনানুগ পদক্ষেপ গ্রহণের জন্য সংশ্লিষ্ট সকলকে নির্দেশ প্রদান করা হলো।
স্বাক্ষর
(মোঃ তারেক হাসান)
দ্বিতীয় সচিব (মূসক আইন ও বিধি)”
“গণপ্রজাতন্ত্রী বাংলাদেশ সরকার
জাতীয় রাজস্ব বোর্ড
রাজস্ব ভবন
সেগুনবাগিচা, ঢাকা
নথি নং ৫(৯) শুল্কঃরপ্তানী ও বন্ড/২০০৭/৩৪২
তারিখ: ৪-৮-২০১৩ইং
অফিস আদেশ
বিষয়: বৈদেশিক ঋণপত্রের বিপরীতে বৈদেশিক মুদ্রার বিনিময়ে দেশের অভ্যন্তরে সরবরাহকে রপ্তানি গণনাকরন প্রসঙ্গে ।
অনেক ক্ষেত্রে দেখা যায়, দেশের সরকারী, আধাসরকারী, স্বায়তৃশাসিত প্রতিষ্ঠানের আন্তর্জাতিক দরপত্রের বিপরীতে বিদেশী কোন প্রতিষ্ঠান কার্যাদেশ প্রাপ্ত হয় এবং উক্ত কার্যাদেশের অধীন সরবরাহতব্য পণ্য সংগ্র্রহের লক্ষ্যে চুক্তিবদ্ধ বিদেশী প্রতিষ্ঠান বৈদেশিক ঋণপত্র এবং বৈদেশিক মুদ্রার বিনিময়ে দেশের অভ্যন্তরে পণ্য সরবরাহের জন্য বাংলাদেশের কোন শিল্প কারখানার সাথে চুক্তিবদ্ধ হয়ে থাকে। আন্তর্জাতিক দরপত্রের মাধ্যমে কার্যাদেশ প্রাপ্ত বিদেশী প্রতিষ্ঠান বাংলাদেশ ব্যতীত তৃতীয় কোন দেশ হতে খণপত্রের মাধ্যমে পণ্য সংশ্রহ করে বাংলাদেশে পণ্য সরবরাহ করতে পারে । তবে সেক্ষেত্রে বাংলাদেশে বৈদেশিক মুদ্রা প্রাপ্তি থেকে বঞ্চিত হবে । এ সকল বিবেচনায় কার্যাদেশ প্রাপ্ত বিদেশী প্রতিষ্ঠান বাংলাদেশী উৎপাদক প্রতিষ্ঠানকে ঋণপত্র দিয়ে বৈদেশিক মুদ্রায় পণ্য সংগ্রহকরণ পূর্বক বাংলাদেশে সরবরাহ করলে তা রপ্তানি হিসাবে গণ্য করা যোক্তিক। এ ধরণের Transaction এর ক্ষেত্রে বৈদেশিক ঋণপত্র এবং বৈদেশিক মুদ্রা যথাযথ প্রক্রিয়া অনুসরণপূর্বক বাংলাদেশ ব্যাংকের মাধ্যমে প্রত্যাবসিত হচ্ছে। এ জাতীয় পণ্য সরবরাহকে রপ্তানি হিসেবে গণ্য করা হলে একদিকে বৈদেশিক মুদ্রা অর্জন, কর্মসংস্থানের সুযোগ সৃষ্টি ও অন্যদিকে দেশী শিল্প প্রতিষ্ঠানের উৎপাদিত মান সম্পন্ন পণ্য সামগ্রীকে স্বীকৃতি প্রদান করার সুযোগ সৃষ্টি হবে । ২০১৩-২০১৪ অর্থ বছরের বাজেটে অর্থ আইন, ২০১৩ এর মাধ্যমে মূল্য সংযোজন কর আইন, ১৯৯১ এর ধারা ২(শ) এ বৈদেশিক মুদ্রার বিনিময়ে বাংলাদেশের অভ্যন্তরে সরবরাহকৃত পণ্য বা সেবাও রপ্তানীকৃত বলে গণ্য হবে মর্মে নতুন বিধান সংযোজিত হয়েছে। বন্ড সুবিধাভোগী কোন প্রতিষ্ঠান একই কার্যক্রম বিধান/নীতিমালা সুস্পষ্ট হওয়া প্রয়োজন ।এমতাবস্থায়, The Customs Act, 1969 এর section 219B, মূল্য সংযোজন কর আইন, ১৯৯১ এর ধারা ২(শ) এবং বন্ডেড ওয়্যারহাউস বিধিমালা, ২০০৮ এর বিধি ২০ এ প্রদত্ত ক্ষমতাবলে, জাতীয় রাজস্ব বোর্ড কর্তৃক নিম্নরূপ আদেশ জারী করা হলো, যথাঃ-
সরকারী, আধাসরকারী, স্বায়তৃশাসিত প্রতিষ্ঠান কর্তৃক আহ্বানকৃত আন্তর্জাতিক দরপত্রের অধীনে বৈদেশিক খণপত্রের বিপরীতে শতভাগ রপ্তানীমুখী বন্ডেড প্রতিষ্ঠান কর্তৃক বৈদেশিক মুদ্রায় দেশের অভ্যন্তরে পণ্য সরবরাহকে রপ্তানী বলে গণ্য করা হবে।
২। এই আদেশ জনস্বার্থে জারী করা হলো এবং তা অবিলম্বে কার্যকর হবে।
স্বাক্ষর অস্পষ্ট
দ্বিতীয় সচিব (শুল্কঃরপ্তানী ও বন্ড)”
33. The respondent and the High Court Division greatly relied upon the aforesaid Annexure-E(4). Therefore the same must not be directly or indirectly in conflict with the provisions of the enabling law. On perusal of the concerned parent act, rules and the aforementioned delegated legislations our considered view is that the Annexure-E(4) is inconsistent with provisions spelled out in the parent Act and Rules. In augmentation of breath, the impugned explanation is the accurate and faithful expression of what enacted in the parent Act and Rules. In addition, it is a revenue generating issue of the State. Public at large and higher State interest in no way be overpowered on the authority of some misleading subordinate legislation and procedural glitches. If these are the situations, as the highest court of the land, we opine that the Appellate Division should invoke its mandate under article 104 of the Constitution of Bangladesh for doing complete justice for the nation itself. In the case of A.F.M. Naziruddin vs. Mrs. Hameeda Banu reported in 1992 12 BLD (AD) 261 Appellate Division observed that-
"Considering the vagaries of legal proceedings and the technicalities involved in adjudication, Art 104 of the Constitution has invested, as a measure of abundant caution, the last Court of the country with wide power, so it may forestall a failure of justice and do complete justice in an appropriate case. It is an extraordinary procedure for doing justice for completion of or putting an end to a cause or matter pending before this Court."
34. Accordingly, we find merit in the submissions of the learned Additional Attorney General appearing on behalf of the petitioners and the submissions of the Counsel of the respondents exposed having less than merit worthy.
35. However, this Division is not inclined to grant leave which will prolong the disposal of the matter. In that view of the matter, we are inclined to pass the appropriate order.
36. The reason elaborated above, we find that the impugned judgment and order of the High Court Division do call for interference.
In the result, both the Civil Petitions for Leave Appeal are disposed of. The impugned judgment and order of the High Court Division is set aside without any order as to cost.
IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Civil Appeal No. 191 of 2004
Decided On: 06.04.2022
Abdul Gaffar and Ors.
... Vs. ...
Md. Mohammad Ali and Ors.
Hon'ble Judges/Coram:
Md. Nuruzzaman, Borhanuddin and Krishna Debnath, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Shah Monjurul Hoque, Advocate instructed by Md. Tawfique Hossain, Advocate-on-Record
Subject: Constitutional Law, Criminal Law
Acts/Rules/Orders:
Code of Criminal Procedure, 1898 (CrPC) - Section 16; Code of Criminal Procedure, 1898 (CrPC) - Section 54; Constitution Of The People's Republic Of Bangladesh - Article 26, Constitution Of The People's Republic Of Bangladesh - Article 27, Constitution Of The People's Republic Of Bangladesh - Article 31, Constitution Of The People's Republic Of Bangladesh - Article 43, Constitution Of The People's Republic Of Bangladesh - Article 47; Foreigners Act, 1946 - Section 14
Prior History:
From the Judgment and Order dated 25.06.2001 passed by the High Court Division in Writ Petition No. 2148 of 1994
Disposition:
Disposed of
JUDGMENT
Borhanuddin, J.
1. This civil appeal by leave is directed against the judgment and order dated 25.06.2001 passed by the High Court Division in Writ Petition No. 2148 of 1994 making the Rule absolute and imposing fine of Tk. 5000/- upon each of the appellants.
2. Brief facts are that the respondent No. 1 herein as petitioner filed the writ petition claiming enforcement of his fundamental rights as enshrined under Article 43 read with Article 31 of the Constitution, stating inter alia that one Md. Ashfaq Hussain and his niece Ms. Mina Mallik came to Bangladesh from India on 14.11.1994 to attend wedding reception of petitioner's daughter; Md. Ashfaq Hussain stayed in the house of his brother-in-law Dr. Mohammad Yunus of Grameen Bank and Ms. Mina Mallik became the house guest of the petitioner; On 17.11.1994 Ms. Mina Mallik went out with Mr. Md. Ashfaq Hussain to see around the city taking some apples with a fruit-knife in her bag; The writ-petitioner's wife and his family came to know that Ashfaq and Mina were arrested when writ-respondent No. 2 alongwith some constables forcibly entered the house of the petitioner and searched without any warrant at 10.00 p.m. on 17.11.1994 but found nothing incriminating in the house; Still the writ-respondents No. 3 and 4 with a contingent of police force entered and searched the house of the petitioner on 18th, 19th and 20th of November, 2004 at odd hours after midnight and on 19.11.2004 the writ-respondent No. 2 took away the bag of Mina without giving any receipt or preparing any seizure list but left her suitcase under lock and key; The petitioner was also served a notice under section 16 of the Code of Criminal Procedure on 19.10.1994 delivered to his wife after midnight and the notice contained instruction to handover the passport of Mina within 6.00 p.m. on that day; On each occasion the police entered and searched the house without warrant and without permission of the petitioner; The police also came with a microphone and loudly calls for the petitioner asking him to come out of the house as if they were looking for a criminal; Md. Ashfaq Hussain and Ms. Mina Mallick were shown arrested under section 54 of the Code of Criminal Procedure and later were released on bail; The police personnel led by the respondent Nos. 3 and 4 continued harassing the petitioner and members of his family as such the petitioner constrained to file the writ petition.
3. Upon hearing the petitioner a Division Bench of the High Court Division issued a Rule Nisi upon the respondents to show cause.
4. The respondent No. 1 Secretary, Ministry of Home Affairs entered appearance and contested the Rule by filing an affidavit-in-opposition denying the allegations made in the writ petition and stating inter alia that the respondent Nos. 3 and 4 neither went to the house of the petitioner as alleged nor made search for passport and did not seized the bag of Ms. Mina Mallik from that house; A GD entry numbered 1122 dated 17.11.1994 lodged with Tejgaon Police Station under section 54 of the Code of Criminal Procedure and thereafter on 20.11.1994 G.R. Case No. 77 dated 20.11.1994 under section 14 of the Foreigners' Act was initiated on the basis of the written complaint made by the Assistant Superintendent of Police, Special Branch, on 17.11.1994; G.D. entries dated 17.11.1994, 18.11.1994 and 19.11.1994 are recorded showing visits of police to the house of the petitioner who was found absent; Md. Ashfaq Hussain and Ms. Mina Mallik being Indian Nationals were reported staying in Bangladesh illegally and therefore a case under section 14 of the Foreigners' Act was initiated against them. The rule is liable to be dismissed.
5. Upon hearing the parties and perusing the relevant laws, a Division Bench of the High Court Division made the Rule absolute with a direction to the respondent Nos. 3 and 4 each to pay, as token compensation, an amount of Tk. 5000/- to the petitioner within 4(four) months and also directed the respondent No. 2 Commissioner of the Dhaka Metropolitan Police to arrange the payment of the aforementioned token compensation amount to the petitioner realizing the same from the respondent Nos. 3 and 4 within the time prescribed above.
6. The High Court Division thoroughly and meticulously discussed the provisions of law relating to search and seizure contained in the Code of Criminal Procedure as well as the Dhaka Metropolitan Police, Ordinance 1976 alongwith Article 26, 27 and 47 of the Constitution. The High Court Division observed that:
"The news items published in the National Daily Newspapers, with facts and figures, show that the misdeeds and excesses done by many of the police personnel abusing their power or office are paining the society to consider the necessity for maintaining such police with the public exchequer and that the confidence of the people on the police is diminishing day by day."
7. And further observed that:
"The allegations being against the respondent Nos. 3 and 4, the denial given in the affidavit-in-opposition by the deponent having no personal knowledge is of no use. More so when neither the writ-respondent No. 1 nor the deponent of the affidavit are competent to refute the personal allegations leveled against the respondent Nos. 3 and 4, the allegations having made on oath and not being controverted by the respondent Nos. 3 and 4, according to law those are treated as true and correct and the allegations have been established. The respondent Nos. 3 and 4 were not prevented from appearing in this Rule and they did not refute the allegations at their risk. Thus the respondent Nos. 3 and 4 are found to have acted illegally in doing excesses in abuse of their power and without any lawful authority and that too beyond their local jurisdiction in the name of search for recovery of the passport of Ms. Mina Mallik and at midnight causing loss, injury, humiliation and harassments to the petitioner and the inmates of the house and damaging the house hold Articles. Such loss and injury appears to be irreparable and cannot be adequately compensated with money, however, the respondent Nos. 3 and 4, in the facts and circumstances should be burdened with token compensation which may give consolation to the petitioner and inmates of the house to some extent."
8. Feeling aggrieved, the writ-respondent Nos. 3 and 4 as petitioners filed Civil Petition for Leave to Appeal No. 209 of 2002. Upon hearing the learned Advocate for the leave-petitioners, leave has been granted on 21.07.2004 alongwith an order of stay of the judgment and order passed by the High Court Division on 25.06.2001.
9. This matter was taken up for hearing by this Division on 01.03.2022, 08.03.2022 and 15.03.2022. Though learned Advocate for the appellants appeared but no one represented the respondent-writ petitioner. An application on behalf of the appellant No. 2 for condoning the compensation money filed on 15.03.2022 and similar application filed by the appellant No. 1 on 27.03.2022. Both the appellants filed separate application for condoning the compensation money stating that the applicants are law abiding citizens and have utmost respect for the law of the land. Both of them admitted that being junior police officer they could not dealt with the matter in appropriate manner and tenders unconditional apology before this Court. Both of them also stated that they served throughout their service life with due diligence in accordance with law and prayed to condone the compensation money considering their entire service career.
10. We have perused the applications filed by the appellants.
11. Since both the appellants filed application admitting that being junior police officer they could not dealt with the matter in appropriate manner and tenders unconditional apology and also considering their entire service career, we are inclined to condone the compensation amount of Tk. 5000/- as directed by the High Court Division to pay by each of the appellant Nos. 1 and 2 to the petitioner.
12. The police personnel should keep in mind that the police force being specially trained as disciplined force and enjoys extra benefits and protection are maintained by the Government with tax money of the public for the purpose to serve the public as such the police personnel should be more cautious to maintain dignity of their profession as well as protect human rights of the citizens alongwith other rights enshrined in the constitution.
13. The applications for condoning the compensation money are allowed. The appellants are exonerated from paying the compensation money.
14. Accordingly, the appeal is disposed of with the above observation.
15. No order as to cost.
16. Let a copy of the judgment and order be sent to the respondent No. 2 Secretary, Ministry of Home Affairs and respondent No. 3 Inspector General of Police and the Commissioner, Dhaka Metropolitan Police, Dhaka, for information and taking necessary measures.
IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Criminal Petition Nos. 957 of 2021 and 1111 of 2022
Decided On: 17.10.2022
Hasina Akhter and Ors.
... Vs. ...
Amena Begum and Ors.
Hon'ble Judges/Coram:
Hasan Foez Siddique, C.J., Md. Nuruzzaman, Borhanuddin and M. Enayetur Rahim, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Md. Hamidur Rahman, Advocate-on-Record instructed by Md. Momin Uddin, Advocate-on-Record
For Respondents/Defendant: Mirza Salah Uddin Ahmed, Advocate-on-Record instructed by Mohammad Abdul Hai, Advocate-on-Record
Subject: Criminal Law
Acts/Rules/Orders:
Code of Criminal Procedure, 1898 (CrPC) - Section 561A
Penal Code, 1860 - Section 114
Penal Code, 1860 - Section 313
Penal Code, 1860 - Section 323
Penal Code, 1860 - Section 342
Penal Code, 1860 - Section 379
Prior History:
From the Judgment and Order dated 10.02.2021 passed by the High Court Division in Criminal Miscellaneous Case No. 58314 of 2019
Disposition:
Disposed of
JUDGMENT
M. Enayetur Rahim, J.
1. Both the criminal petition for leave to appeals have been filed against the judgment and order dated 10.02.2021 passed by the High Court Division in Criminal Miscellaneous Case No. 58314 of 2019 making the Rule absolute and thereby quashed the proceeding of Nari-O-Shishu Nirjatan Daman Case No. 658 of 2010 arising out of Kotwali Model Police Station Case No. 55 dated 31.07.2010 corresponding to G.R. Case No. 563 of 2010 pending in the Court of Nari-O-Shishu Nirjatan Daman Tribunal, Barishal.
2. The relevant facts leading to the filing of these leave petitions are as follows: The informant petitioner (C.P. No. 957 of 2021) Hasina Akhter on 31.07.2010 lodged a First Information Report (FIR) with the Kotwali Model Police Station, Barishal against the 5(five) persons including the present-respondents and same was registered as Kotwali Model Police Station Case No. 55 dated 31.07.2010. It was alleged therein that the accused-Kalam Mollah cohabited with the informant with deceitful promise to marry her since July, 2007 and at one stage she became pregnant. When she became pregnant, she requested accused-Kalam Mollah to marry her and to take her in his house but accused-Kamal Mollah took time on various pleas; on 30.07.2010 accused-Kalam Mollah told the informant to go to Natullahbad Bus Stand and thereafter at 11.00 a.m. she went to the said Bus Stand and from there she with the accused-Kalam Mollah went to Hotel 'Royal' by a motorcycle. Then they have finished their lunch there and at 12.30 p.m. they went to Shahnaj complex at Borura and after 10 minutes the other accused entered into the room and all the accused detained her into a room. The accused Salina Begum pushed her an injection and the other accused persons pushed her two more injections and on her hue and cry the people informed the police and police recovered her at 14.35 hours and caught red handed accused-Salina Begum with instruments of M.R. The other accused including Kalam Mollah fled away. Accused Tutul snatched away a chain made of gold weighting 8 annas valued at Taka 17,000/-. Thereafter on consultation with parents and the relatives she lodged the first information report (FIR).
3. On the basis of the aforesaid allegations, Kotwali Police Station Case No. 55 dated 31.07.2010 has been lodged against all the accused persons under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 read with sections 342/323/313/379/114 of the Penal Code.
4. After completing investigation, the police submitted charge-sheet against the accused persons under section 9(1) of Nari-O-Shishu Nirjatan Daman Ain, 2000 read with sections 342/323/313/379 and 114 of the Penal Code including the present accused respondents.
5. The case being ready for trial the case record was transmitted to the Nari-O-Shishu Nirjatan Daman Tribunal, Barishal which was registered as Nari-O-Shishu Nirjatan Daman Case No. 658 of 2010. The Tribunal after hearing the respective parties framed charge under section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 read with section 313 of the Penal Code against accused-Kalam Mollah and under section 313 of the Penal Code against the other accused persons.
6. Eventually, the informant Hasina Akhter was examined before the Tribunal by the prosecution and she was duly cross-examined by the defence.
7. At this stage the present accused respondents moved before the High Court Division by filing an application under section 561A of the Code of Criminal Procedure for quashing the proceeding. A Division Bench of the High Court Division initially issued Rule and also stayed the proceeding pending before the Tribunal. Eventually, the Rule was heard by a Division Bench of the High Court Division and the High Court Division by the impugned judgment and order dated 10.02.2021 made the Rule absolute and thereby quashed the proceeding of Nari-O-Shishu Nirjatan Case No. 658 of 2010.
8. Being aggrieved by the said judgment and order the informant has preferred criminal petition for leave to appeal No. 957 of 2021 and on behalf of the State criminal petition for leave to appeal No. 1111 of 2022 has also been filed.
9. Mr. Hamidur Rahman, learned Advocate, appearing for the informant-petitioner (C.P. No. 957 of 2021) submits that the Tribunal having found prima-facie case against the accused persons framed charge under section 9(1) of the Nari-O-Shishu Nirjatan Daman Tribunal, 2000 read with section 313 of the Penal Code and in support of the prosecution case the informant has already been examined as P.W.-1, but the High Court Division quashed the proceeding relying on the evidence of P.W.-1 and thereby committed serious error of law.
10. Mr. Rahman, further submits that the High Court Division failed to appreciate that in the midst of the trial there is no scope to consider, evaluate or assess the evidence adduced by the prosecution invoking section 561A of the Code of Criminal Procedure but in the instant case the High Court Division in taking consideration of the said materials quashed the proceeding and thereby committed serious error of law.
11. Mr. Sheikh Mohammad Morshed, learned Additional Attorney General, has also assailed the impugned judgment and submits that the High Court Division in the garb of exercising power under section 561A of the Code of Criminal Procedure in fact assumed the jurisdiction of the trial Court and thus, committed serious error in passing the impugned judgment and order.
12. Per Contra, Mr. Mirza Salah Uddin Ahmed, learned Advocate, appearing for the accused respondent having supported the impugned judgment and order submits that the High Court Division on consideration of the evidence of P.W.-1, medical report and other materials available on record rightly came to a finding that if the proceeding is allowed to be continued, in that event it will be share abuse of the process of the Court and as such rightly quashed the proceeding.
13. We have considered the rival submissions of the learned Advocates for the respective parties, perused the impugned judgment and order and other materials as placed before us.
14. Upon perusal of the impugned judgment and order it transpires that the High Court Division having considered the evidence of P.W.-1 and medical report has quashed the proceeding.
15. Now the moot question is whether in exercising power under section 561A of the Code of Criminal Procedure the High Court Division can consider, assess, evaluate the part evidence adduced by the prosecution before conclusion of the trial. It is by now well settled that quashment of a Criminal Proceeding under section 561A of the Code of Criminal Procedure is possible in cases of;
i) facts alleged not constituting any offence;
ii) the proceeding is barred by law;
iii) coram non-judice;
iv) lack of legal evidence adduced;
v) for ends of justice.
16. Having considered the facts and circumstances of the present case, coupled with the above proposition of law, we have no hesitation to hold that above ingredients for quashing are absent in the present case and further, prima-facie offence has been disclosed against the accused persons in the FIR and charge sheet and the Tribunal having found prima-facie case framed charge against the accused persons. Falsity or truth of the allegation has to be decided at the trial in the light of the evidence adduced by the parties.
17. The High Court Division committed serious error in considering the evidence of P.W.-1 and medical report in exercising the power under section 561A of the Code of Criminal Procedure at this stage when the prosecution yet not completed to adduce its evidence. The High Court Division has not been empowered to usurp the jurisdiction of the trial Court invoking section 561A of the Code of Criminal Procedure.
18. In the case of Golam Sarwar Hiru vs. The State and another, reported in 13 MLR 103 (AD) this Division has held that neither the High court Division nor the Appellate Division of the Supreme Court is in favour of entertaining application under section 561A of the Code of Criminal Procedure for quashment of proceedings at the stage when trial has already begun and prosecution witnesses are examined.
19. In the case of Habibur Rahman Mollah Vs. the State reported in 62 DLR (AD), 233 this Division has also held that it is the consistent views of the superior courts of this subcontinent that the High court Division which exercising its power under section 561A of the Code of Criminal Procedure should not usurp the jurisdiction of the trial Court.
20. Having considered and discussed as above, we find merit in the leave petitions.
21. However, since the respondent accused have appeared in the leave petitions and their learned Advocate made his submission at length, we are of the view that to avoid further delay of disposal of the case justice will be best served if we dispose of the leave petitions without granting any leave.
22. Accordingly, both the leave petitions are disposed of.
23. The judgment and order dated 10.02.2021 passed by the High Court Division is hereby set aside. The Tribunal is directed to proceed with the case in accordance with law.
IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Criminal Miscellaneous Petitions Nos. 1432-1434 and 1441 of 2022
Decided On: 27.10.2022
The State
... Vs. ...
Md. Kabir Biswas and Ors.
Hon'ble Judges/Coram:
Hasan Foez Siddique, C.J., Md. Nuruzzaman, Obaidul Hassan, Borhanuddin and M. Enayetur Rahim, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: A.M. Amin Uddin, Attorney General and Saiful Alam, Assistant Attorney General instructed by Sufia Khatun, Advocate-on-Record
Subject: Criminal Law
Acts/Rules/Orders:
Constitution Of The People's Republic Of Bangladesh - Article 111
Penal Code, 1860 - Section 323
Prior History:
From the Order dated 11.10.2022 & 12.10.2022 passed by the High Court Division in Criminal Miscellaneous Case Nos. 51229 of 2022, 51214 of 2022, 52074 of 2022 and 51520 of 2022
Disposition:
Disposed of
JUDGMENT
Obaidul Hassan, J.
1. These Criminal Miscellaneous Petitions No. 1432, 1433, 1434 and 1441 of 2022 are being disposed of by this common judgment as all the cases involve common questions of law.
2. These Criminal Miscellaneous Petitions are directed at the instance of the opposite parties-appellants against the order dated 11.10.2022 and 12.10.2022 granting the accused-petitioners-respondents anticipatory bail passed by the High Court Division in Criminal Miscellaneous Case Nos. 51229 of 2022, 51214 of 2022, 52074 of 2022 and 51520 of 2022.
3. At the outset we consider it imperative to mention the brief facts of each case.
Criminal Miscellaneous Petition No. 1432 of 2022:
4. On 24.08.2022 the First Information Report (FIR) has been lodged against the accused Md. Kabir Biswas with the concerned police station and the same was registered as Baliakandhi Police Station Case No. 17 dated 24.08.2022 corresponding to G.R. No. 125 of 2022 under Table 10(Ka) of Section 36(1) of Madok Drobbo Niyontron Ain, 2018.
5. The FIR states that on 24.08.2022 at about 16.00 hours being tipped of secret information the Deputy Inspector of Madok Drobbo Niyontron Odhidoptor being accompanied by the members of raiding party conducted a raid as a part of anti-narcotic drive at the homestead of the accused in presence of the local witnesses and recovered 200 pieces Yaba tablets containing Amphetamine weighing 20 grams from the bed room of the accused. The said Yaba tablets were then seized by preparing a seizure list, but the accused could not be apprehended as he managed to flee the scene.
Criminal Miscellaneous Petition No. 1433 of 2022:
6. On 14.09.2022 an FIR has been lodged against the accused Mst. Bithi Begum alias Hasi with the concerned police station and the same was registered as Sadar Model Police Station Case No. 24 dated 14.09.2022 corresponding to G.R. No. 453 of 2022 under Table 8(Ka) and 8(Ga) of Section 36(1) and 41 of Madok Drobbo Niyontron Ain, 2018.
7. The accusation arraigned in the FIR in brief is that on 14.09.2022 at about 16.00 hours being tipped of secret information while the Deputy Inspector of Madok Drobbo Niyontron Odhidoptor along with the members forming the raiding party was on move towards the Station Road at Zia Nagar, they found accused Md. Moyen Ali in front of the shop of one Md. Qurban Ali and on making search of his body 20 puria heroin weighing 02 grams were recovered and he was apprehended. On being quizzed said Md. Moyen Ali told that he collected the said heroin from the accused Bithi Begum alias Hashi. Later on, at about 17.00 hours the raiding party headed toward the homestead of accused Bithi Begum alias Hashi and on search they recovered heroin weighing 100 grams from her bed room. During the raid the accused Bithi Begum alias Hashi was not found present in her house.
Criminal Miscellaneous Petition No. 1434 of 2022:
8. On 13.09.2022 an FIR has been lodged against the accused Md. Akram Mollik with the concerned police station and the same was registered as Kotwali Police Station Case No. 48 dated 13.09.2022 corresponding to G.R. No. 784 of 2022 under Section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (as amended in 2003).
9. It has been alleged that on 13.09.2022 at about 8:30 A.M. while the informant's daughter aged about 10 years old was engaged in cooking in the kitchen of their homestead, finding her alone the accused Md. Akram Mollik committed rape upon her forcefully which caused grave injuries to her private organ. Due to the sound of rainfall none could hear the scream of the victim. The accused left the crime scene by extending threat to the victim that she would be slaughtered with machete if she would disclose the incident to anyone. At the relevant time the informant along with his other family inmates remained outside the house. He along with his family inmates excepting the victim went to his in-laws house on 11.09.2022. Thereafter, the victim disclosed the event to her aunt and on 13.09.2022 at about 9:00 A.M. her uncle Md. Akkas Bepari informed the incident to the informant, the father of the victim. As the victim fell ill she was admitted to Bangabandhu Medical College Hospital, Faridpur and her treatment was going on there.
Criminal Miscellaneous Petition No. 1441 of 2022:
10. On 19.06.2022 an FIR was lodged against the accused Md. Akram Mollik with the concerned police station and the same was registered as Ulipur Police Station Case No. 13 dated 19.06.2022 corresponding to G.R. No. 153 of 2022 under Section 9(1) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (as amended in 2003) read with Section 323 of the Penal Code.
11. The victim being the informant lodged ejahar against the accused to set the law on motion alleging inter alia that she along with her husband had been living at the rented house owned by one Md. Abu Taher for one and a half year. Her husband used to run a betel leaf shop at Tabakpur Rail Gate. The accused person attempted to give love proposal to her and incited her to make sexual relationship with him at several occasions. But the victim did not agree with the unholy relationship. On 13.06.2022 at about 9:00 P.M. the informant fell asleep at her bedroom with her minor daughter, later on, at about 9:30 P.M. the accused person came to her house and knocked the door. Believing that her husband came, as soon as the informant opened the door the accused entered inside the room and forcefully raped her. At one stage of violence, while the informant started screaming loudly her husband rushed to the spot hearing the scream. No sooner her husband entered inside the bedroom the accused person smacked her husband in his head, neck and back of the body with bricks and also caused wounds at various parts of his the body by beating with steel pipe. Thereafter, the informant and her husband got admitted to Ulipur Health Complex to undergo necessary medical treatment.
12. Mr. A.M. Amin Uddin, the learned Attorney General along with Mr. Saiful Alam, the learned Assistant Attorney General appearing for the petitioner assailed that the High Court Division passed the impugned orders illegally and without applying judicial mind to the gravity and nature of arraignments. The learned Attorney General contended next that the High Court Division granted anticipatory bail to the respondents flouting the decision of this Division rendered in the case reported in 66 DLR (AD) 92 and 71 DLR (AD) 364. The learned Counsel lastly contended that the High Court Division did not take into consideration of the fact that there are specific allegations against the every respondent in the respective cases.
13. We have considered the submissions of the learned Counsel for the petitioner, perused orders passed by the High Court Division as well as the materials on record
14. It has been divulged from the record that in all the Criminal Miscellaneous Petitions the respondents surrendered before the High Court Division and they were granted anticipatory bail by the said Division. Now, it is disputed in these Criminal Miscellaneous Petitions that whether the High Court Division was authorized to exercise the power of granting anticipatory bail in cases involving the offences of rape, narcotics recovery etc.
15. The above crucial question was fairly answered by this Division in the year 2019. A full-bench of seven member Judges of this Division headed by the Hon'ble Chief Justice formulated some principles to be followed by the Court while dealing with the anticipatory bail. Referring a number of case laws from the domestic and foreign jurisdiction this Division in the case of State vs. Professor Dr. Morshed Hasan Khan and 16 others reported in 71 DLR (AD) 364 paragraphs-51 & 52 held in the following manner:
"No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. No attempt should be made to provide right and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. Few principles for grant of anticipatory bail can be summarised as follows:
(i) The F.I.R. lodged against the accused needs to be thoroughly and carefully examined;
(ii) The gravity of the allegation and the exact role of the accused must be properly comprehended;
(iii) The danger of the accused absconding if anticipatory bail is granted;
(iv) The character, behavior, means, position and standing of the accused;
(v) Whether accusation has been made only with the object of injuring or humiliating the applicant by arresting him. Because it is to be remembered that a worst agony, humiliation and disgrace is attached to arrest. Arrest leads to many consequences not only for the accused but for his entire family and at the same time for the entire community;
(vi) A balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and thorough investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(vii) The anticipatory bail being an extraordinary privilege should be granted only in exceptional cases. Such extraordinary judicial discretion conferred upon the Higher Court has to be properly exercised after proper application of mind to decide whether it is a fit case for granting anticipatory bail not according to whim, caprice or fancy;
(viii) A condition must be imposed that the applicant shall not make any inducement or threat to the witnesses for tampering the evidence of the occurrence;
(ix) The apprehension that the accused is in a position to influence, induce or coerce witnesses to desist from furnishing relevant information to the investigating agency cannot be considered to be imaginary and the court ought to have considered that aspect seriously before granting anticipatory bail;
(x) In the cases involve grave offence like murder, dacoity, robbery, rape etc. where it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror-stricken victims the accused should never be enlarged on anticipatory bail. Such discretion should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise;
(xi) It is to be borne in mind about the legislative intention for the purpose of granting anticipatory bail because legislature has omitted the provision of Section 497A from the Code;
(xii) It would be improper exercise of such extraordinary judicial discretion if an accused is enlarged on anticipatory for an indefinite period which may cause interruption on the way of holding thorough and smooth investigation of the offence committed;
(xiii) The Court must be extremely cautious since such bail to some extent intrudes in the sphere of investigation of crime;
(xiv) While enlarging an accused on anticipatory bail, the Court must direct the applicant to co-operate with the investigating officer in every steps of holding proper investigation if the same is needed;
(xv) The anticipatory bail granted by the Court should ordinarily be continued not more than 8(eight) weeks and shall not continue after submission of charge sheet, and the same must be in connection with non-bailable offence;
(xvi) The Court granting anticipatory bail will be at liberty to cancel the bail if a case for cancellation of bail is otherwise made out by the State or complainant.
The indicatives of this Division given in the case of State V. Abdul Wahab Shah Chowdhury that "such extraordinary remedy and exception to the general law of bail should be granted only in extraordinary and exceptional circumstances upon a proper and intelligent exercise of discretion" should be followed strictly."
(underlines supplied)
16. The aforesaid guidelines enunciated by this Division in the abovementioned case indisputably have a binding effect. Here we do not dilate our discussion on granting anticipatory bail vis-a-vis the scope and the legal provisions regarding the same to avoid the prolixity of discussion since the matter has well been settled in the aforesaid case of State vs. Professor Dr. Morshed Hasan Khan and others (supra).
17. Suffice it to reiterate that pursuant to the provisions enunciated in Article 111 of the Constitution of Bangladesh the law declared by the Appellate Division does have binding effect on the High Court Division and all other courts. Article 111 of the Constitution provides as follows:
"The law declared by the Appellate Division shall be binding on the High Court Division and the law declared by either division of the Supreme Court shall be binding on all courts subordinate to it."
18. In the case of Secretary, Posts and Telecommunications Division, Ministry of Posts and another vs. Shudangshu Shekhar Bhadra and others reported in 25 ALR (AD) [2022] 19 paragraph-22 this Division very eloquently stated that:
"............... the provision of Article 111 of the Constitution enjoining upon all courts below to obey the law laid down by this Court, judicial discipline requires that the High Court Division should follow the decision of the Appellate Division and that it is necessary for the lower tiers of courts to accept the decision of the higher tiers as a binding precedent. This view was poignantly highlighted in Cassell & Co. Ltd. vs. Broome and another, (1972) AC 1027 where Lord Hailsham of St. Marylebone, the Lord Chancellor, in his judgment said:
"The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers."
(underlines supplied)
19. In view of above it is quite evident that the ratio decided by this Division is binding on the High Court Division as well as other subordinate courts. But the impugned orders passed by the High Court Division stand in glaring violation of the precedents of this Hon'ble Court, which is not at all desirable and expected from the High Court Division.
20. On scrutiny of the impugned orders passed by the High Court Division, we are constrained to observe that the same are totally unwarranted and have been made flouting the specific allegations surfaced in FIR. In such cases involving the offences of grave sexual ravishment and narcotics recovery the High Court Division ought not to have exercised its jurisdiction in providing protection of the accused persons by granting anticipatory bail to them.
21. The High Court Division must keep in mind that to ensure judicial discipline it is obliged to follow the decision of the Appellate Division. Glaring non application of judicial mind of the High Court Division, as it appears, in allowing an anticipatory bail seems to be an instance of defiance of the settled legal proposition. It is highly deprecated.
22. It should be kept in mind that the Investigating Officer (IO) deserves free-hand space to go on with the task of investigation to arrive at its logical conclusion. The impugned orders cannot be said to be the outcome of judicial discretion. It is to be noted that judicial discretion refers to power to make a decision chiefly guided by the principles of law. Judicial discretion has always to be exercised not according to whim and without considering the gravity of offences.
23. The High Court Division should have paid due attention to gravity of offences and specific allegations which are the parameters while granting anticipatory bail to an accused. But it has been divulged that the orders of High Court Division granting anticipatory bails without taking the nature and gravity of the arraignments into account indubitably has created clog to the investigation and also extends frustration to the victims of hideous sexual aggression. Such orders of High Court Division rather obstructs natural course of criminal justice system.
24. Discretion vested in the High Court Division in dealing with the prayer seeking anticipatory bail must be exercised with due care and prudence depending upon the nature of accusations and averments. But it appears that the High Court Division pitiably failed to go on in light of the guidelines and principles propounded by the highest court i.e. the Appellate Division.
25. The orders passed by the High Court Division in dealing with the matter of anticipatory bail rather indicate conspicuous stamp of gross reluctance in exercising true and fair judicial mind. It appears that the High Court Division remained deliberately abstained from accepting loyally the decisions of the higher tiers. Judicial discretion has always to be exercised not according to whim and without considering the gravity of offences and material aspects. It should have been considered that the offence of sexual aggression arraigned degraded and defiled the soul of helpless minor girl and woman.
Errors in judgment text fixed.26. The impugned orders granting anticipatory bail to the respondents do not depict that while exercising the power of granting bail the High Court Division took into consideration, inter alia, the prima facie case placed against the accused, the gravity of the crime along with the severity of punishment prescribed for the offences arraigned, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds.
27. It is to be noted that each criminal case demonstrates its own peculiar factual matrix, and therefore, certain grounds peculiar to a particular case deserve to be taken into account by the court. But to our utter dismay the High Court Division has not even gone through the FIR let alone complying with the directives given by this Division.
28. But it depicts explicitly that the High Court Division considered the anticipatory bail of the respondents mechanically, whimsically and capriciously, flouting settled legal propositions. It has come to our notice that some of the benches of the High Court Division are exercising the power of granting anticipatory bail indiscriminately without adherence to law. In doing so the High Court Division travelled beyond its periphery. Such act of the High Court Division is deprecated seriously. Discretion the High Court Division exercised in granting anticipatory bail cannot be termed fair and intending to secure justice. Rather, such orders were capricious causing adverse impact upon the criminal justice system.
29. It is pertinent to mention here that the latitude given to the High Court Division while exercising the discretionary power of granting anticipatory bail must be guided by the principles laid down by the Appellate Division. But the High Court Division passed the impugned orders overstepping its limits. We have given our anxious consideration to such unwarranted attitude of the High Court Division. Such derogatory trend of the High Court Division shall leave an adverse impression upon the criminal to get an upper hand through the hands of law. In such backdrop, our considered view is that the High Court Division and all other courts are bound to follow the law and propositions enunciated by this Division in the case of State vs. Professor Dr. Morshed Hasan Khan and others (supra). We also direct the High Court Division to refrain from unscrupulous exercise of the power of granting anticipatory bail.
30. Thus, finally taking note to the patent violation of settled decision of this Division regarding the anticipatory bail, we disapprove the manner in which the High Court has adjudicated the anticipatory bail applications preferred by the respondents. In the light of the observations made above, we find merit in the submissions of the learned Attorney General. Therefore, the impugned redress passed by the High Court Division is liable to be set aside.
31. Accordingly, these Criminal Miscellaneous Petitions No. 1432, 1433, 1434 and 1441 of 2022 are disposed of.
32. Let the operation of the orders dated 11.10.2022 and 12.10.2022 passed by the High Court Division in Criminal Miscellaneous Cases No. 51229 of 2022, 51214 of 2022, 52074 of 2022 and 51520 of 2022 arising out of Tender Nos. 59226 of 2022, 59082 of 2022, 59640 of 2022 and 59037 of 2022 so far as these relate to the interim orders of anticipatory bail granted in favour of the respondents be stayed.
33. The respondent namely, Md. Kabir Biswas, son of late Rahomat Biseas and late Achis Begum of Village-Baliakandi, Ward No. 5, Union Parishad-Baliakandi, Police Station-Baliakandi, District-Rajbari, is directed to surrender before the learned Chief Judicial Magistrate, Rajbari at once, failing which, the said Court shall take appropriate steps to bring him in jail custody.
34. The respondent namely, Mst. Bithi Begum alias Hasi, daughter of Md. Esahak Ali and Mst. Ozua Begum, wife of Md. Zakir Hossein of Village-Fakir Para, Holding No. 30, Permanent address-Huzrapara Zianagar, Police Station-Sadar Model, District-Chapai Nawabganj is directed to surrender before the learned Chief Judicial Magistrate, Chapai Nawabganj at once, failing which, the said Court shall take appropriate steps to bring her in jail custody.
35. The respondent namely, Md. Akram Mollik, son of Md. Ali Akbar of Village-Kosundi, Police Station-Magura Sadar, District-Magura, At present-Father-in-law-Samad Bepari of Village-Rajapur, Police Station-Kotwali, District-Faridpur is directed to surrender before the learned Chief Judicial Magistrate, Faridpur at once, failing which, the said Court shall take appropriate steps to bring him in jail custody.
36. The respondent namely, Md. Aowlad Hossain, son of late Dulu Miah of Village-Mollapara, Union Parishad-Tabakpur, Police Station-Ulipur, District-Kurigram is directed to surrender before the learned Chief Judicial Magistrate, Kurigram at once, failing which, the said Court shall take appropriate steps to bring him in jail custody.
37. Let a copy of this judgment be sent to the concerned Courts below, immediately.
IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Criminal Petition for Leave to Appeal No. 887 of 2022
Decided On: 31.08.2022
Durnity Daman Commission
... Vs. ...
Md. Kutub Uddin Ahmmed and Ors.
Hon'ble Judges/Coram:
Md. Nuruzzaman, Borhanuddin and Krishna Debnath, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Md. Khurshid Alam Khan, Senior Advocate instructed by Shahanara Begum, Advocate-on-Record
For Respondents/Defendant: Md. Munsurul Hoque Chowdhury, Senior Advocate instructed by Mohammad Ali Azam, Advocate-on-Record
Subject: Criminal Law
Acts/Rules/Orders:
Penal Code, 1860 - Section 109
Penal Code, 1860 - Section 409
Penal Code, 1860 - Section 420
Prevention Of Corruption Act, 1947 - Section 5(2)
Prior History:
From the Order dated 14.07.2022 passed by the High Court Division in Criminal Appeal No. 2362 of 2022
Disposition:
Disposed of
JUDGMENT
Md. Nuruzzaman, J.
1. This criminal petition for leave to appeal is directed against the order dated 14.07.2022 passed by the High Court Division in Criminal Appeal No. 2362 of 2022 granting bail to the respondent No. 1 in a pending criminal appeal arising out of the judgment and order of conviction and sentence dated 14.02.2022 passed by the Special Judge (District and Sessions Judge), Court No. 6, Dhaka in Special Case No. 16 of 2019 arising out of Gulshan Thana Case No. 06 dated 08.04.2018 corresponding to GR No. 23 of 2018 under sections 420 of the Penal code, 1860 and section 5(2) of the Prevention of Corruption Act, 1947.
2. Prosecution case, in brief, is that one Mirza Jahidul Islam, Deputy Director of Durnity Daman Commission as informant lodged the First Information Report (hereinafter referred as FIR) alleging inter alia that the convict-respondent No. 1, being a public servant abusing his power for fraudulent purpose, collusively and breaching trust criminally misappropriated 10 Kathas land under Gulshan Police Station, Mouza: Vola, C.S. Khatian No. 98, C.S. and S.A. Plot No. 457 by executing the same land in the name of different persons and has committed offence under section 409/420/109 of Penal Code, 1860 and under section 5(2) of the Prevention of Corruption Act, 1947; that, the informant also alleged that the said land including 3.85 acres of land of C.S. and S.A. Plot No. 457 was acquired in L.A. Case No. 10/63-64; that, the said land was returned to the original owner by taking back the compensation money; that, thereafter RAJUK decided to acquire that land again, in this back drop, one Khademul Islam filed Writ Petition No. 835 of 1977 challenging the L.A. Case before the High Court Division. The High Court Division after hearing the parties passed the judgment by declaring the L.A. Case No. 10-63-64 is illegal; that, the Ministry of Land released 16.942 acres of land including 86.50 decimals land of Plot No. 457 in official gazette; that, this gazette was challenged by RAJUK before the High Court Division and ultimately the gazettes were declared illegal by the Appellate Division and this way, RAJUK become owner of the land but since the convict-respondent No. 1 by his influence got the gazettes published and collusively for his benefit and got the land in the name of his father-in-law and hence, he has committed offence under sections 409/420/109 of the Penal Code, 1860 read with section 5(2) of the Prevention of Corruption Act, 1947. Hence, the informant lodged the FIR against the respondent No. 1 under sections 409/420/109 of the Penal Code, 1860 read with section 5(2) of the Prevention of Corruption Act, 1947. Accordingly, Gulshan Police Station Case No. 6 dated 08.04.2018 corresponding to G.R. No. 23/2018 under sections 409/420/109 of the Penal Code, 1860 read with section 5(2) of the Prevention of Corruption Act, 1947 was started against the convict-respondent No. 1. Hence this case.
3. The Investigating Officer of Durnity Daman Commission (hereinafter referred as Commission) investigated the case as a schedule offence of the Durnity Daman Commission Ain, 2004. During investigation, the Investigating Officer collected the materials on record, recorded the statement of witnesses and after completing the investigation, the Investigating Officer submitted memo of evidence before the Commission. That the Commission after perusing the memo of evidence and other materials on record, accorded sanction under section 32 of the Durnity Daman Commission Ain, 2004. The Investigating Officer after obtaining sanction from the Commission, submitted charge-sheet along with the sanction before the Chief Metropolitan Magistrate, Dhaka being Charge-sheet No. 91 dated 31.03.2019 against the respondent No. 1 under sections 409/420/109 of the Penal Code, 1860 read with section 5(2) of the Prevention of Corruption Act, 1947 (II of 1947).
4. The learned Special Judge, Court No. 6, Dhaka after hearing both the parties and considering the evidence and materials on record convicted the respondent No. 1 and sentenced him to suffer rigorous imprisonment for 05 (five) years under section 420 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947 with a fine of Tk. 15,20,000/- (Taka fifteen lac twenty thousand), in default, to suffer rigorous imprisonment for a period of 1 (one) year more by the judgment and order of conviction and sentence dated 14.02.2022.
5. Feeling aggrieved by the order dated 14.02.2022 passed by the Special Judge, Court No. 6, Dhaka, the accused-appellant preferred Criminal Appeal No. 2362 of 2022 along with an application for bail before the High Court Division.
6. The High Court Division, upon hearing both the parties, granted bail to the accused appellant petitioner for a period of 6 (six) months from date by the impugned order dated 14.07.2022.
7. Feeling aggrieved by the order dated 14.07.2022 of the High Court Division, the respondent No. 2 as petitioner herein preferred the Criminal Petition for Leave to Appeal No. 887 of 2022 before this Division.
8. Mr. Md. Khurshid Alam Khan, the learned Senior Counsel appearing on behalf of the petitioner submits that in the bail granting order, it has been mentioned by the High Court Division that there is no immediate prospect of early hearing of the appeal and it is uncertain as to when the appeal will be heard and disposed of which is totally contrary to record. It has been argued before the High Court Division by the petitioner relying upon order dated 19.05.2022 and in the said order, it has been clearly shows that the case is ready for hearing. But the High Court Division without considering the same illegally granted bail to the convict respondent No. 1. He further submits that, the High Court Division without considering the gravity of the offense illegally granted bail to the convict-respondent No. 1, which is not in accordance with law. He next submits that, the allegation of criminal misconduct and fraud has been duly proved before the trial Court by oral and documentary evidences and, as such, question of bail in a sentence of five years does not arise at all. But the High Court Division without considering the same illegally granted bail to the respondent No. 1. He further submits that, the High Court Division granted bail with an observation that, the convict-respondent No. 1, is a man of 62 years. When the gravity of the offense is serious in nature and being a public servant committed gross criminal misconduct which has been duly proved before the trial Court, question of bail on the ground of age is not a valid ground. Hence, the High Court Division committed serious illegality in granting bail to the convict respondent No. 1. He finally submits that when the criminal appeal ready for hearing, it is the duty of the High Court Division to fix the matter immediately for hearing/disposing of the matter without any delay. But the High Court Division without considering the said submission illegally granted bail to the respondent No. 1 without fixing the matter for hearing and, as such, the impugned order passed by the High Court Division is liable to be set aside.
9. Mr. Monsurul Hoque Chowdhury, the learned Advocate appearing on behalf of the respondent No. 1 made submissions in support of the impugned order of the High Court Division. He submits that there is no legal evidence against the respondent No. 1 to sustain the conviction under section 420 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947. He further submits that the respondent No. 1 is man of 62 years old having attacked with acute Ischemic Stroke with right side hemiparests, Hypertension, Diabetes Mellitus, Bronchial Asthma, Ischemic Heart disease, Benign Enlargement of prostate as well as paralyzed for which he cannot do his own essential work alone and he is completely dependent upon his family members for physical movement. He next submits that the copy of MRI of brain of the respondent No. 1 states that for these reasons, the respondent No. 1 has been passing his days in the jail custody with great hardships which is injurious to his health as well as for his life. He finally submits that there is every chance of winning the appeal and, as such, the respondent No. 1 may be allowed to go on bail. Hence, the High Court Division rightly passed the impugned order and, as such, the instant Civil Petition may kindly be dismissed.
10. We have considered the submissions of the learned Senior Advocates for the respective parties. Perused the impugned order of the High Court Division and connected other materials on record.
11. As per Article 11 of the Universal Declaration of Human Rights (UDHR):
"Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence."
12. Bail is defined as transitory letting loose of a detainee from state's detention system after furnishing security specified for the very person to appear at a subsequent date fixed for hearing in the legal vocabulary.
13. The scheme of bail is relevant at two poles apart and distinct stages in the administration of criminal justice. First one is awaiting trial of any offender and ultimate one is after conviction and sentencing. The contemplations for bail pending trial are utterly diverse from those for bail following conviction. Per awaiting trial, bail is ensured as of right where the offence is bailable. In the case of non-bailable offences, bail is discretionary and may be given to any woman, child, sick or infirm detainee. The considerations of granting bail after the accused is convicted are entirely different.
14. In the case of Durnity Daman Commission vs. Begum Khaleda Zia and Ors. reported in 70 DLR (AD) (2018) 137 this Division observed that:
"In a case of bail pending hearing of an appeal, there is no right to get bail pending the hearing. When a competent court, after due trial, having considered all the evidence and materials, finds a person guilty of any offence under the Penal Code or any special law, it is expected that the convicted person will suffer the consequences of his/her crime and will undergo the sentence awarded. However, section 426 of the Code provides that the appellate Court, may release the appellant on bail or on his own bond for reasons to be recorded in writing. In case of a sentence of imprisonment for less than one year, the trial court may grant bail for a period sufficient to enable the convict to prefer an appeal and obtain the orders of the Appellate Court. Such bail is limited to the period necessary to file the appeal. The power of the appellate Court to release a convicted person on bail is discretionary."
15. In the instant case it has been articulated by the High Court Division in the impugned judgment and order that there is no instantaneous prospect of early hearing of the appeal and it is doubtful as to when the appeal will be heard and disposed of. Albeit, on perusal of order dated 19.05.2022 and of the impugned order, it has contrarily been showed that the case was ready for hearing. It is the duty of the High Court Division to hear or dispose of the matter without any delay and not letting a convict on bail.
16. With reference to the age and assorted maladies suffered by the appellant, we have been shown many cases where serious illness has been a ground for granting bail even in cases where granting of bail was prohibited by law. Albeit, the materials on record does not necessarily demonstrate that the illnesses suffering by the respondent are life-threatening. Moreover, question of bail on the ground of mere age, is not a rational ground.
17. Reliance may be placed upon the case of Mahbub vs. The State reported in 46 DLR (AD) 143 where it has been held that:
"...Since the matter before us relates to bail only, we need not consider the merit of the appeal. In appeals involving short term of imprisonment the appellate Court should either dispose of the appeals or consider the release of the accused on bail. We do not think that in the instant case it was necessary for the learned Single Judge to write a long judgment for the purpose of disposal of the bail petition. The learned Single Judge should better dispose of the appeal very expeditiously failing which he may consider the question of bail if raised again...."
18. This Division's standard practice is that it won't interfere with the discretion exercised by the High Court Division. When discretion is exercised judiciously, not perversely, the same generally is not interfered with by the Apex Court, which is reluctant in interfering with the discretionary power of the High Court Division.
20. In the result, the Criminal Petition for Leave to Appeal is disposed of. The judgment and order of the High Court Division is set aside.
IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Criminal Petition for Leave to Appeal No. 1140 of 2017
Decided On: 10.04.2022
Hazrat Ali
... Vs. ...
The State
Hon'ble Judges/Coram:
Hasan Foez Siddique, C.J., Obaidul Hassan and M. Enayetur Rahim, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Mansurul Haque Chowdhury, Senior Advocate instructed by Nurul Islam Bhuiya, Advocate-on-Record
For Respondents/Defendant: Biswajit Debnath, Deputy Attorney General instructed by Shamsul Alam, Advocate-on-Record
Subject: Criminal Law
Acts/Rules/Orders:
Code of Criminal Procedure, 1898 (CrPC) - Section 164
Code of Criminal Procedure, 1898 (CrPC) - Section 374
Code of Criminal Procedure, 1898 (CrPC) - Section 540
Evidence Act, 1872 - Section 145
Evidence Act, 1872 - Section 155
Penal Code, 1860 - Section 120B
Penal Code, 1860 - Section 302
Penal Code, 1860 - Section 34
Prior History:
From the Order dated the 15th to 16th October, 2012 passed by a Division Bench of the High Court Division in Death Reference No. 34 of 2009, analogously with Criminal Appeal No. 3258 of 2009 and Jail Appeal No. 287 of 2009 heard analogously with Criminal Appeal No. 4631 of 2009 and Jail Appeal No. 286 of 2009
Disposition:
In Favour of State
JUDGMENT
M. Enayetur Rahim, J.
1. This criminal petition for leave to appeal is directed against the judgment and order dated 15th to 16th October, 2012 passed by a Division Bench of the High Court Division in Death Reference No. 34 of 2009, heard along with Criminal Appeal No. 3258 of 2009 and Jail Appeal No. 287 of 2009, Criminal Appeal No. 4631 of 2009 and Jail Appeal No. 286 of 2009 rejecting the Death Reference commuting the sentence into imprisonment for life of the petitioner and another and to pay a fine of taka 10,000/- each, in default, to suffer rigorous imprisonment for a period of 3(three) months and thereby allowed Criminal Appeal No. 3258 of 2009 in part while Jail Appeal No. 287 of 2009 and Criminal Appeal No. 4631 of 2009 and jail appeal No. 286 of 2009 were also allowed in part.
2. The present convict-petitioner along with 4 others were put on trial before the Sessions Judge, Narayanganj in Sessions Case No. 126 of 2002 and charge was framed against them under sections 120B/302/34 of the Penal Code. At the time the present petitioner was abscission.
3. The prosecution case as projected in the First Information Report, in short, is that deceased Abdul Awal hails from Mamudpur village under Fatulla Police Station of Narayanganj District; he was a broker of land who on 14.01.1999 at 5.00 p.m had left his house for Sanirakhra. But in the night following 14.01.1999 he did not return back to his residence. On the following morning on 15.01.1999 the near relations of Abdul Awal had searched him heather to thither and at 9.00 a.m., Sukkur, a rickshaw puller, of the same village informed the informant Md. Shahid Alam, the son of Abdul Awal that the dead body of Abdul Awal had been lying on the Southern slope of Dhaka-Chittagong highway near Rahim market, Sanarpar; hearing the said information the informant and the other nearest and dearest one having been gone to the said place found the slaughtered dead body of Abdul Awal with the cut injuries on the veins of his legs and hands; Md. Shahid Alam, the son of the deceased lodged an FIR with the Siddirgonj Police Station through one Mozaffar Ali Member narrating the above facts and accordingly, Siddirganj Police Station Case No. 11 dated 15.01.1999 was started.
4. The police after completing investigation submitted charge sheet against 05(five) persons including the present petitioner under section 302/34 of the Penal Code.
5. Prosecution in order to prove the charge against the accused persons examined 22 witnesses.
6. On conclusion of the trial the learned Sessions Judge, Narayanganj by his judgment and order dated 15.03.2004 convicted all the 5 accused including present appellant under sections 302/34 of the Penal Code and awarded sentence each of them to death by hanging.
7. In view of the provision of section 374 of the Code of Criminal Procedure the learned Sessions Judge, Narayanganj made a reference to the High Court Division for confirmation of the death sentence awarded against the convict persons and said reference was registered as Death Reference No. 31 of 2004. A Division Bench of the High Court Division after hearing the said reference by its judgment and order dated 29.08.2007 set aside the judgment and order of the learned Sessions Judge, Narayanganj and sent back the case on remand for fresh trial with a direction to appoint state defence lawyer on behalf of the absconding accused in order to cross-examine all the prosecution witnesses already examined.
8. The learned Sessions Judge, Narayanganj upon receiving the case record transferred the same to the Court of Additional Sessions Judge, 2nd Court, Narayanganj for trial. The trial Court in view of the direction of the High Court Division had appointed state defence lawyer to defend the absconding accused who cross-examined the witnesses and at one stage of the trial the charge was amended and fresh charge was framed under section 120B and 302/34 of the Penal Code against all the accused persons. The amendment charge was read over to the accused persons present in the dock to which they pleaded not guilty. At the stage of argument, on 18.10.2008 on behalf of the prosecution an application was filed for recording evidence of charge sheeted witness No. 14 Abdur Rahman and 22 S.I. A.K.M. Azad and the Court allowed the said prayer and witness Abdur Rahman was examined as P.W-23 and he was duly cross-examined by the defence.
9. On conclusion of the trial, the trial Court found the present convict- appellant guilty along with 4 others under sections 120B/302/34 of the Penal Code and awarded sentence to death to the present appellant along with 2 others and sentenced 2 other accused to suffer imprisonment for life with a fine of Tk. 20,000/- in default to suffer rigorous imprisonment for 6(six) months more.
10. The learned Additional Sessions Judge, 2nd Court, Narayangonj made a reference for confirmation of death sentence to the High Court Division which was registered as Death Reference No. 34 of 2009. High Court Division after hearing the said Death Reference by the impugned judgment and order dated 15.10.2012 and 16.10.2012 rejected the reference with modification of the sentence and death sentence of the present convict was commuted to imprisonment for life with a fine of Tk. 1,000/- in default to suffer rigorous imprisonment for 3 (three) months more.
11. Being aggrieved by and dissatisfied with the impugned judgment and order the convict-petitioner has filed this leave petition.
12. Mr. Mansurul Haque Chowdhury, learned Senior Advocate, appearing for the convict-petitioner submits that the learned Judges of the High Court Division failed to appreciate that the previous Death Reference arising out of the same occurrence was rejected only to afford the unattended accused persons an opportunity to get the protection of law as per provisions of Section 540 of the Code of Criminal Procedure read with 6th Paragraph of Chapter XII of the Legal Remembrances Manual, 1960 but trial court in addition to that, withdrew the case from argument stage for recording of prosecution witnesses and examined one Abdur Rahman alleged eye witness, as P.W-23 only to fill up the lacuna, which came to light during argument stage and pronounced its judgment mainly relying upon the evidence of P.W-23, ignoring vital contradictions and admissions leading to absurdity of the story of P.W-23, which cannot be sustained in law and equity.
13. The learned Advocate for the petitioner further submits that save and except the evidence of P.W-23 there is no other evidence against the present petitioner to connect with the alleged murder and it is not safe to rely on the evidence of P.W-23 who was examined by the investigating officer after a long laps of time.
14. On the other hand Mr. Biswajit Debnath, learned Deputy Attorney General, having supported the impugned judgment and order passed by the High Court Division submits that P.W-23 was a charge sheeted witnesses and in re-calling him the trial court did not commit any error or illegality. He further submits that it is now well settled that conviction can be well maintained on the evidence of a solitary witness, if his testimony is found to be true and trustworthy as such the trial Court as well as the High Court Division did not commit any error in convicting the present petitioner relying on the evidence of P.W-23.
15. We have considered the submissions of the learned Advocate for the respective parties, perused the impugned judgment of the High Court Division, the evidence and other materials as placed before us.
16. In view of the rival submissions of the learned Advocates for respective parties in the instant case the moot question is whether relying on the evidence of P.W-23, Abdur Rahman the conviction of the present convict-petitioner can be sustained or not.
17. It is true before sending the case on remand by the High Court Division in Death Reference No. 38 of 2004 at the trial P.W-23, Abdur Rahman was not examined. The High Court Division at the time of disposing of the Death Reference No. 38 of 2004 directed the trial Court to appoint state defence lawyer to defend accused-Firoj Miah, Hazrat Ali, Zulhas and Kuddus. Trial Court was also directed to allow the state defence lawyer to cross-examine the witnesses already examined by the prosecution witnesses.
18. When the case was sent on remand, on behalf of the prosecution an application was filed before the trial court to examine the charge sheeted witness No. 14, Abdur Rahman and the trial court on elaborate discussion and assigning reasons allowed the application of the prosecution and examined said charge sheeted witness No. 14 as P.W-23.
19. The objection as has been raised by Mr. Mansurul Haque Chowdhury, learned Advocate, for the petitioner that when the case sent back on remand with a direction to give the defence an opportunity to cross-examine of the prosecution witnesses there is no scope to examine any new witness.
20. We have perused order No. 88 dated 14.10.2008 by the which the learned Additional Sessions Judge allowed the prayer of the prosecution for examining charge sheeted witnesses No. 14 (P.W-23). It appears to us that the learned Additional Sessions Judge after hearing the respective parties, considering the legal proposition and facts and circumstances of the present case allowed the prayer of the prosecution to examine the said charge sheeted witnesses. Relevant finding of the said order is as follows:
"On perusal of the record, it appears to the Court that victim Aowal was murdered brutally. But it is the duty of the prosecution to prove the charge beyond any shadow of doubt. It appears form the record that in this case witness No. 14 is the only eyewitness of the case and he made graphic statements of murder under section 164 of the Cr.P.C. before the Magistrate of First Class, Narayanganj. The recording Magistrate was examined and the statement made by the charge sheeted witness No. 14, was also marked as Exhibit. It is settled by apex of the Country that the statement made before the Magistrate by witness is not evidence it may be corroborated under section 155 by the prosecution or contradicted by the accused under section 145 of the Evidence Act. There is no doubt that this witness Abdur Rahman is a very vital witness in this case but prosecution could not secure his attendance at the time of trial held earlier which is candidly admitted by the then public prosecutor Mr. Nabi Hossain who came in assistant of learned APP Mr. Khandaker Azizul Haque Hantu.
After considering the facts and circumstances of case and the decision made above the Court firmly believe that the evidence of the witness only Abdur Rahman is vitally important, necessary and essential for arriving just decision in this sensational murder case and if he is brought before this court to depose obvious the accused will get the opportunity to cross him as to his earlier statement made before the Magistrate. Therefore, there is no scope on the part of the accused to be prejudiced. In the above circumstances the case is withdrawn from the list of hearing argument. Accordingly issue summons to witness Abdur Rahman fixing 17.11.08 for further trial. Thus I dispose of the petition dated 8.10.08."
21. Upon perusal of the said order we have no hesitation to hold that the order was well founded and explained. Further, the defence has cross-examined the said witnesses, so the question of prejudiced does not arise at all. Moreover, it is our considered view that the learned Judge of the Trial Court passed the said order within the ambit of section 540 of the Code of Criminal Procedure.
22. In the case of Md. Abdul Khaleque Biswas and another Vs. the State, 1996 16 BLD (AD), 108 this Division held that:
"under section 540 Cr.Pc the Sessions Judge or any court has the power to examine or re-examine a witness at any stage of the proceeding if the evidence of such witness appears to him essential for the just decision of the case."
23. In the case of Hemayatuddin @ Auranga Vs. State 46 DLR (AD) 186 this Divisional also held that- "section 540 of the Code of Criminal Procedure is expressed in widest possible term and it cannot be said that the intention of the section is to limit its application to court witnesses only."
24. Having regard to the fact that in the instant case save and except P.W.-23 there is no eye-witness of the alleged occurrence.
25. Now, let us consider the evidence of P.W-23, Abdur Rahman.
26. P.W-23 in his deposition has stated that he used to reside at Bhuiyan Bari at the time of occurrence and to drive van. He made statement as to the occurrence before the Magistrate under section 164 of Cr.P.C; the day was Thursday and it was 26th Ramjan. On the following night of 26th Ramjan at 7.30 to 11 P.M, the occurrence took place 8/9 years, ago. On that day he pulled cart at Nobabpur, Dhaka and got on bus for Shanarpara and accordingly got down at Shanarpara. At that time Magreb azan was announcing; thereafter, he took his after in a shop. At that time he was in his rented house alone. He managed to send his wife to his village home for her delivery as she was pregnant. There was no electricity in the house. He used country made lamp in his house; while he was taking preparation for offering his prayer at that time at about 7/7.30 P.M. on the invitation of accused Kalu he opened the door when Kalu, Hazrat Ali and Julhash had entered into his house, Hazrat was addressed by him as 'Mama", maternal uncle. He found 2 knives at Kalu's hand; Hazrat and Julhash were armed with Pistol. When he asked whether those pistols are used for game then accused Kalu made a filthy language to him and told him to touch the same, seeing the pistol he was trembling. They assured that he had no fear. They informed them they would take gaza. Hearing the same and he sat on a 'Jalchowki'. After few moments the door of the house was knocked then, Kalu opened the door. Then he saw victim Awal and accused Firoz came; after entering into the house Awal had pressed Hazrat to execute bainapatra. At that time the accused persons told that they would execute baina. The P.W.-23 further deposed to the effect:
“তখন হযরত মামা আউয়াল কাকার গলায় চেপে ধরে। কালু আউয়াল চাচার মাফলার দিয়ে হাত পা প্যাঁচ দিয়ে বেঁধে ফেলে। ফিরোজ মাথা এবং মুখ চেপে ধরে খাটের থেকে নীচে ফেলে দেয়। কালু পা চেপে ধরে। ফিরোজ মুখ ও মাথা চেপে ধরে। পরে হযরত মামা বুকের উপর ডান হাঁটু দিয়ে ছুরি দিয়ে গলায় জবেহ করে দেয়। গলার সামান্য কিছু অংশ বাকি থাকে। তারপর গর গরাইয়ে রক্ত পড়তে থাকে। তখন ভিকটিম এর দেহটি লাফাতে থাকে। কালু ছুরি দিয়ে হাত পায়ের কব্জি ও রগ কেটে ফেলে। বুকের আশে পাশে ছোরা দিয়ে পার দেয় অর্থাৎ কোপ দেয়।”
27. Seeing the scene he became senseless for a bit. Then Kalu pushed him by his legs. Then he regained his sense. Kalu was telling to kill Abdur Rahman by shooting. Kalu addressed him as ‘খানকির পোলা’; He also stated-‘কালু বলে আমাকে মেরে না ফেললে আমি সকলের নিকট ঘটনার বিবরণ দিয়ে দিব এবং সকলকে জানিয়ে দিব। আমি তখন হযরত মামা পায়ে ধরি’; thereafter as per the direction of Kalu he removed the blood stained of bed sheet and 'Khata'. Thereafter, Firoz went to the house of Quddus saying that work had been done. While PW 23 went to fetching water he found the light, then Kalu said there was no fear that they were their men who using the light. He threw the Khata and C'hadar (bed sheet) at the pond; at night 11-30 to 12-00 pm one knocked to the door. Then Kalu opened the door. He has further stated that:
“কালু একটা চৌকাট যাহা ৭/৮ হাত লম্বা এবং গাছ টানার রশি নিয়ে আসে। বাহিরের লোকদের থেকে এগুলো আনে। ১ টা থেকে ১½ দিকে লাশ উপর করা হয়। লাশকে তিনদিক দিয়ে বাঁধে এবং বে কাঠ রশির মধ্যে ঢোকায়। লাশ বাহির করে আমি, আসামী কালু, হযরত মামা, জুলহাস কাঁধে করে বিশ্ব রোডের দিকে নিয়ে যাই। তখন অনুমান রাত ১ টা হতে ১.৩০ টার সময় হবে। পুলিশের গাড়ী দেখে লাশ বিশ্ব রোডের ঢালের কিনারে রাখে। কালু তখন রশি কেটে এবং চৌকাট নিয়ে ঘটনাস্থলে অর্থাৎ বাসায় চলে আসে। পরে চৌকাট ঘরে চালের উপর এবং রশি খাটের নিকট ছুড়ে মারে।”
28. In the morning while Moazzin had been pronouncing Azan for Fazar prayer Kalu took him at Saydabad by way of a Taxi. Due to the request Hazrat, Kalu instead of killing him Kalu took him at Saydabad and got on a Sundarban Bus. Thereafter he went his village home Telegati, Moralganj, Bagherhat by Bus for Khulna. After going home he informed the incident to his local Chairman, local elites, UP members and his relatives and he also told them that he would not go again to Dhaka. He told them he would be killed, if he had gone to Dhaka. After 7/8 months CID visited in his area. CID took him to Narayangonj. He narrated the incident to CID. CID officer recorded the statement. Thereafter, he was taken to the Court of Magistrate and narrated the occurrence before a female Magistrate. Magistrate recorded his statement and read over to him and he put his signature on it. He did not get the notice from the Court. He has stated "আমি আসামীদের হুমকির ভয়ে চট্টগ্রাম গিয়ে রিকশা চালাই।" He identified the accused Hazrat, Kawsar and Julhash.
29. He could not say the time when CID took him to Narayanganj. He denied the suggestion that he was not a tenant of Bhuiyan Saheb or he did not reside in the alleged house where occurrence took place. He denied the suggestion that he did not see the occurrence.
30. From exhibit-8, post mortem report, it reveals that following injuries were found by the Doctor PW-16, who held the autopsy of deceased Awal.
1. One, incised wound size about 4" X 2" up to vertebral column placed transversely in mid anterior neck.
2. One incised wound size about 3" X 1½ " X bone depth, present on posterior aspect of lower leg (both Rt & left)
3. One incised wound size about 2½ " X 1½" X bone depth present anterior aspect of both forearm.
4. Several incised wounds of deferent size and shape present in head & other parts of the body.
5. One ligature mark size about 4" X 1/2" present on left lateral aspect of upper neck.
On Deep dissection: (1) Trachea, Oesophagus, Blood vessels, Nerves, Muscles, blood vessels, Nerves & other soft tissue of others wound areas are incised & congested. (3) Both lungs are congested.
31. P.W-16, Dr. Jasimuddin who held the autopsy proved the said post mortem report, exhibit-8.
32. If we consider the statement of the P.W-23 couple with the post mortem report, exhibit-8 then it would be clear that the manner of killing by the accused persons has been proved beyond reasonable doubt.
33. Further, his statement as to place of recovery of the dead body of deceased Awal is very much consistent with P.W. Nos. 1, 2, 3, 4, 12, 13 who deposed that dead body of deceased Awal was recovered on the slope of Dhaka-Chittagong High Way.
34. This Division in the cases of Abdul Hai Sikder Vs. State, 43 DLR (AD) 95 and Abdul Quddus Vs State 43 DLR (AD) 234 has held that conviction of an accused can safely be based on the solitary evidence of an eye witness, if evidence is found full, complete and self-contained and further, the testimony of the solitary eye-witness could not be shaken in any manner by the defence in cross-examination. Upon perusal of the evidence of PW. 23, we have no hesitation to hold that he being the eye-witness of the occurrence is a natural, trustworthy and competent witness. Said witness in his deposition has given a vivid picture of the alleged occurrence i.e. manner of killing of decease Awal, which supports the post mortem report. Defense cross-examined him, but has failed to shake his testimony in any manner. He also deposed that due to treat of dire consequence by the accused persons he went to hiding.
3Do not provide excess word. Just translate given text.5. Thus, we find no illegality in convicting Hazrat Ali relying on the evidence of P.W.-23.
36. It is well known maxim, which is a golden Rule, that 'evidence has to be weighed and not counted'. Thus, evidence on a point is to be judged not by the number of witnesses produced but by its inherent truth.
37. Further, it also appears from the record that after the occurrence convict- Hazrat Ali was absconded for a long time. It is well settled that mere abscondence by itself does not prove any offence against any person unless such abscondence is substantiated by evidence in favour of his guilt incompatible with his plea of innocence. In the instant case if we consider the evidence of PW-23 couple with the factum of the abscondence of convict Hazrat, then we can safely come to a conclusion that abscondence of convict Hazrat Ali is a strong circumstances as to his guilt. This pertinent fact also presumed that he is guilty of offence.
38. This Division in the case of Amin Husain Hawlader Vs. State 1989 BLD (AD) 193 has observed that-"absconsion of an accused is corroboration of direct evidence of eye-witness connecting the accused with the crime."
39. Having considered and discussed as above, we find no merit in the leave petition.
Accordingly, the leave petition is dismissed.
IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Civil Appeal No. 32 of 2005
Decided On: 16.08.2022
Bangladesh and Ors.
... Vs. ...
Bangladesh Paribesh Andolon (BAPA) and Ors.
Hon'ble Judges/Coram:
Hasan Foez Siddique, C.J., Obaidul Hassan and M. Enayetur Rahim, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Sk. Md. Morshed, Additional Attorney General and Sayem Mohammad Murad, Assistant Attorney General instructed by Haridas Paul, Advocate-on-Record
For Respondents/Defendant: Tanjib-ul-Alam, Senior Advocate instructed by Madhumalti Chy. Barua, Advocate-on-Record
Subject: Code of Civil Procedure
Acts/Rules/Orders:
Constitution Of The People's Republic Of Bangladesh - Article 24
Constitution Of The People's Republic Of Bangladesh - Article 27
Constitution Of The People's Republic Of Bangladesh - Article 31
Constitution Of The People's Republic Of Bangladesh - Article 32
Government Buildings Act, 1899 - Section 3
Prior History:
From the Judgment and Order dated 21.06.2004 passed by the High Court Division in Writ Petition No. 3548 of 2003
Disposition:
Appeal Allowed
JUDGMENT
Obaidul Hassan, J.
1. This Civil Appeal by leave granting order dated 10.11.2004 in Civil Petition for Leave to Appeal No. 983 of 2004 at the instance of the appellants has been directed against the judgment and order dated 21.06.2004 passed by a Division Bench of the High Court Division in Writ Petition No. 3548 of 2003 making the Rule absolute.
2. The brief facts as has been narrated in the Writ Petition are that, in June 1959 the Central Government of Pakistan decided to establish two capitals in Pakistan, one each for the then East Pakistan and West Pakistan and the legislative capital was to be in Dhaka, Bangladesh (Erstwhile East Pakistan) and the idea of designing a new Assembly Building was taken up because Dhaka did not have an existing structure to accommodate its new status as a 'Second Capital'. World acclaimed famous architect Louis Isadore Kahn was opted for designing the National Assembly construction project and accordingly he received the commission for the project in the year 1962 and continued working on it till the last days of his life in 1974. The construction of the National Assembly Complex was finally completed in the year 1983 under the supervision of one of Louis Kahn's associates. The National Assembly Complex is treated as the climax of the lifelong thinking of Louis Kahn about architecture, city and humanity. The aesthetic composition, visual clarity, spatial order and virtuoso engineering of the National Assembly Complex have been analyzed and studied by both the academics as well as students of architecture all over the world. The final Master Plan prepared by Louis Kahn in 1973 clearly lays out the structural composition of the buildings, including residences, plazas, fields, lakes, gardens and recreational facilities within the National Assembly Complex. However, the National Assembly Complex is continuously and incrementally being endangered and threatened by encroachment and construction of various buildings by the public authorities. The respondent No. 1 is carrying out work on construction of the residences of the Speaker and Deputy Speaker (shortly the impugned project) within the National Assembly Complex in violation of the Louis Kahn's Master Plan, 1973 causing irreparable damage to the form and beauty of the composition as envisaged by the original Master Plan. The impugned project was first approved by the Speaker of the Seventh Parliament, Humayun Rashid Chowdhury but the then Prime Minister's Office scrapped the impugned project in the face of strong public protest from the civil society, architectural community, environmentalists and the media. The present government revived the impugned project on the suggestion of some ill-motivated officials that Louis I. Kahn's original plan envisaged such residences of the Speaker and the Deputy Speaker. The Master Plan, 1973 clearly shows that the land on which the impugned project is being built was meant to be open space with green fields.
3. In the face of strong public protest the government had postponed the impugned project. However, after about a two month's suspension of the work on the impugned project construction work had been restarted and with a view to finishing of the project quickly before facing further protest additional workforce, working extra hours has been engaged in order to complete the construction of residential units for the Speaker and Deputy Speaker.
4. The impugned project being undertaken in violation of Louis I. Kahn's Master Plan, 1973 the Respondents filed the Writ Petition No. 3548 of 2003 before the High Court Division. A Rule was issued on the respondents' prayer for a declaration that the impugned project has been undertaken without lawful authority and is of no legal effect and unconstitutional as being done in violation of the law and fundamental rights of the respondents as guaranteed under Articles 27, 31 and 32 of the Constitution and a direction was sought upon the writ respondent No. 2 to declare the National Assembly Complex as National Heritage Site with a further direction upon the Writ Respondents to apply to the UNESCO to declare the Bangladesh National Assembly Complex as a World Heritage Site. There was also a prayer for an injunction restraining the Writ Respondents from carrying out any further construction of the impugned project.
5. The writ respondent No. 1 filed an affidavit-in-opposition denying the allegations of the writ petitioners contending inter alia that there are Master Plans dated 12th March, 1962, 3rd May 1963, 21st December 1963, 10th May 1964, August 1964 and February 1965 wherein the Speaker's House was incorporated. The latest Master Plan for the Shangshad Bhaban area was formally approved on May, 2002 by the Ministry of Housing and Public Works. It was further claimed that the Department of Environment and RAJUK are not the germane body to call in question where construction is made on the government land rather the Public Works Department is the competent body to embark on construction work of the buildings on the government land on obtaining endorsement from the Department of Architecture. Referring an excerpt from David Wisdom's write-up "Kahn's Building at Dhaka" it was further contended that Kahn's Master Plan is not an unyielding document, but it is supple and there had been insertions and eliminations in his plan. It was also stated that Kahn died before the preliminary design was entirely finished. He frequently changed the shapes and positions in the plan with his own reasons without any pressure from the government to get on with these designs. Kahn also studied the special houses for the President, the Speaker and the Deputy Speaker and he enjoyed those kind of work so much under no pressure to show progresses that every time he submitted a sketch for any one of them. There was a radical change of design from the previous submission. Finally the decision came not to build the three houses. Again, quoting an extract from the book titled "The Story of Ayub Nagar: Decade of Development and Reforms: 1958-1968" published by the Department of Film and Publication, Dhaka under the heading "South Elevation of Speaker's Resident" it was also stated that construction of the Speaker and the Deputy Speaker's residence in the legislative enclave has been an integral part of the government approved plan and both the residences are within the residential block of National Assembly which were built under Louis Kahn's direct supervision, will not in any way jeopardize and blemish the beauty and grace of the National Assembly Complex. It was further contended that Louis Kahn designed and made construction of the residential block of the National Assembly Complex under his direct supervision. These buildings were not shown in his own Master Plan of 1973. Louis Kahn did not furnish any unique master plan but he submitted sets of master plans from time to time. It is a co-incidence that Louis Kahn died in 1974 and no further Master Plan could be produced by him. It was also contended that the Secretary, Ministry of Housing and Public Works placed a summary to the then Prime Minister on 09.08.1998 regarding the construction of Speaker and Deputy Speaker's House within the residential block of the National Assembly and the then Prime Minister accorded approval of the said construction taking into consideration about the architectural elegance of the open space of the National Assembly Complex. It was also stated that the present construction is being made in similitude with the other buildings constructed at the supervision of Louis Khan himself. The symbolic value of the green fields of the National Assembly from the context of the new structure shall in no way tarnish the symbolizing effect of the landscape of Bangladesh and in fact the construction of residences of Speaker and Deputy Speaker will not any way mutilate and distort the beauty of the green area. It was further contended that The Town Improvement Act, 1953 and Building Construction Act, 1952 have no relevance with the construction of the residences for the Speaker and the Deputy Speaker which are being constructed on government's own land after obtaining clearance from the Department of Architecture and on approval of the Prime Minister, the Chief Executive of the Government while the Town Improvement Act, 1953 and Building Construction Act, 1952 are applicable in cases of construction of building on private land. It was further contended that on the basis of the Government Order dated 27.04.1998 for construction of residences of the Speaker and the Deputy Speaker a Master Plan for the said purpose has been approved in the place as stated in memo dated 27.04.1998 but the Memo dated 27.04.1998 and Master Plan having not being impugned, the Writ Petition is misconceived and not maintainable.
6. In reply the writ petitioners filed an affidavit controverting all the statements made in the affidavit-in-opposition filed by the writ respondents and stated that the Master Plan of 1973 prepared and finalized by Louis Kahn superseded and replaced the initial plans prepared in 1962, 12 March 1963, 3 May 1963, 21 December 1963, 10 May 1964, August 1964 and February 1965. Louis Kahn was initially commissioned to design the plan for an entire site for a city which was meant to be the Second Capital of Pakistan. The design for National Assembly Complex is only a component of the larger design of the entire capital site containing plans for a Supreme Court, a hospital, a library, a mosque, a museum, schools, clubs, markets, offices, recreational areas, special diplomatic enclave and low and high income residential areas. It was the Pakistan Government, prior to the independence of Bangladesh, which had contemplated the construction of the houses of the Speaker and Deputy Speaker as temporary residence as ancillary facilities for the second capital. However, after 1971, with the emergence of Bangladesh as an independent state, Louis Kahn was commissioned to set up the plan for the Assembly Complex of Bangladesh which was to serve quite a different role to that of an Assembly building for a second capital. It was in these changed circumstances that Louis Kahn drew up the final Master plan of 1973 which clearly did not have any residential buildings in the Legislative Enclave of the plan. The alleged latest Master Plan for the Shangshad Bhaban area as prepared by the Ministry of Housing and Public Works in May 2002 defaces and destroys the symmetry of the National Assembly Complex Buildings as prepared and envisioned by Louis Kahn. It was stated further that the issuance of the circular from the Ministry of Housing and Public Works dated 16.03.1999 is ex facie without lawful authority and is in violation of the Rules of Business, Town Improvement Act, 1953, Building Construction Act, 1952 and It was lastly contended that despite the Government is under a duty to adopt measures for the protection against disfigurement, damage of all monuments, objects or places of special artistic or historic importance or interest as per Article 24 of the Constitution, it has violated the provisions of the Constitution.
7. The High Court Division upon hearing both sides made the Rule absolute by the impugned judgment and order dated 21.06.2004.
8. Feeling aggrieved with the judgment and order dated 21.06.2004 passed by the High Court Division in Writ Petition No. 3548 of 2003 the writ respondents-appellants filed the Civil Petition for Leave to Appeal No. 983 of 2004 before this Division and after hearing the parties this Division was pleased to grant leave by order dated 10.11.2004 and hence the instant Civil Appeal.
9. Mr. Sk. Md. Morshed, the learned Additional Attorney General along with Mr. Sayem Mohammad Murad, the Assistant Attorney General appearing for the appellants took us through the judgment and order dated 21.06.2004 of the High Court Division, the materials on record and submitted that the High Court Division committed error of law in not taking into consideration that (a) the construction is made on government land by Public Works Department after obtaining clearance from the Department of Architecture and (b) on the basis of the Government Order dated 27.04.1998 for construction of residences of the Speaker and the Deputy Speaker, a Master Plan for such construction has been approved in the year 2002 in the place and (c) the said memo dated 27.04.1998 and the Master Plan having not been impugned, the rule in the Writ Petition was liable to be discharged. The learned Counsel contended next that the High Court Division committed error of law in not holding that the Town Improvement Act, 1953 and the Building Construction Act, have no relevance with the present construction work which is being done on government land after taking clearance from the Department of Architecture and on approval of the Prime Minister, the head of the government whereas the aforementioned laws are applicable in case of construction on the private land. Assailing the impugned judgment of the High Court Division the learned Counsel submitted further that the High Court Division committed error of law in making the Rule absolute without giving any specific finding as to how the impugned construction work caused environmental hazard affecting the fundamental rights of the public or of the writ petitioners. The learned Counsel contended further that the High Court Division committed illegality as it did not take into consideration that the construction of residences within the National Assembly Complex for the Speaker and the Deputy Speaker, who hold an exalted position under the Constitution are state necessity and for public interest. The learned Additional Attorney General finally submitted that during the stay of the judgment and order of the High Court Division by this Division 100% of the impugned construction work has been completed, but the High Court Division without taking into consideration committed error of law by passing the impugned judgment and order, which is liable to be set aside.
10. Conversely, Mr. Tanjib-ul Alam, the learned senior Advocate for the respondents vehemently opposed the submissions made by the learned Additional Attorney General. The learned Counsel for the respondents contended that the impugned construction work is illegal and without lawful authority since no sanction has been taken from the appropriate authority under the Building Construction Act, 1952. The learned Counsel for the respondents next submitted that by converting the open space for the National Assembly Complex into residential building for the Speaker and the Deputy Speaker, the government has violated the fundamental right of the respondents due to the reason that protection of the environment is considered to be part of the fundamental right to life. The learned Counsel contended next that the impugned construction project being done flouting the Master Plan, 1973 of the National Assembly Complex prepared by the world renowned architect Louis Kahn will tarnish the architectural beauty of the National Assembly Complex. The learned Counsel, in fine, craved for dismissal of appeal having no merit for consideration.
11. We have considered the submissions of the learned Advocates for the both sides, perused the judgment and order dated 21.06.2004 passed by the High Court Division in Writ Petition No. 3548 of 2003 and the materials on record.
12. It is admitted that Louis Kahn is recognized worldwide as one of the greatest architects of the twentieth century and the National Assembly Complex is an architectural masterpiece created by him. The timeless quality of the building transcends the boundary of the architecture and reaches out not only to our minds but to our visions of hopes. The architect's key design philosophy was to represent Bengali culture and heritage, while at the same time optimizing the use of space.
13. At this juncture, it is pertinent to know whether Louis Kahn had a unique Master Plan of the National Assembly Complex and the Speaker and the Deputy Speaker's residence was included in that plan. From the record it appears that Louis Kahn did not furnish any unique master plan but he submitted sets of Master Plan from time to time. There are Master Plans of the year 1962, March 12, 1963, May 3, 1963, December 21, 1963, May 10, 1964, August 1964, February 1965 and the Speaker's house was included in those plans. It is a coincidence that Louis Khan died in 1974 and no further Master plan could be produced by him.
14. Now, let's have a glimpse on a relevant extract of David Wisdom's write-up "Kahn's Building at Dhaka"-
"Kahn died before the preliminary design was entirely finished. Kahn studied the architectural composition and site placement of the Supreme Court, the Central Government Library and the mosque. He frequently changed the shapes and positions with his own reasons but there was no pressure from the Government to get on with these designs. No real preliminary plans were formally submitted and these projects are not shown on Kahn's last Master Plan. Kahn also studied the special houses for the President, the Speaker and the Deputy Speaker, he enjoyed these kind of work so much under no pressure to show progresses that every time he submitted a sketch for any one of them. There was a radical change of design from the previous submission. Finally the decision came not to build the three houses. When Kahn received his commission from Bangladesh these houses were not included."
15. Further, "The Story of Ayub Nagar: Decade of Development and Reforms 1958-1968" published by the Department of Film and Publication, Dhaka under the heading "South Elevation of Speaker's Resident" reads as follows-
"The residences of the Speaker and the Deputy Speaker of the National Assembly:
Provision has been made for construction of the residences for the Speaker and one Deputy Speaker in the Legislative Enclave at an estimated cost of 8 Lakh. These residences are also scheduled to be completed within the current plan period."
16. From the above it is clear that the construction of the Speaker and the Deputy Speaker's residence in the National Assembly Complex has been an integral part of the government approved plan. The construction of the Speaker and the Deputy Speaker's residence are within the residential block of National Assembly Complex which built under Louis Kahn's direct supervision, will not in any way deface the aesthetic value and grace of the National Assembly Complex.
17. The Master Plan of 1973 provided for the building of five sectors of establishments namely: (a) Assembly Sector, (b) Secretarial Sector, (c) Civic Sector, (d) Housing Sector and (e) Hospital Sector. Within the Assembly Sector Louis Kahn's 1973 Master plan catered for (1) Fountain Drive and Promenade, leading to Sher-E-Bangla Nagar Gate, (2) Crescent Lake, (3) Recreation Garden and Court, (4) Recreation Building, (5) Arcades, (6) Cricket Field, (7) Hostels for Secretaries, (8) Hostels for Ministers, (9) Lake, (10) Presidential Plaza, (11) National Assembly, (13) Memorial Mazar, (14) Garden (15) Cooling Tower, (16) South Plaza, (17) Fountain and Drainage Canal, (18) Arcaded Garden Courts, (19) Hospitality Hall and (20) Servant's Quarters. Amongst these various types of establishments within Sher-E-Bangla Nagar there are various Sectors and within the Assembly Sector which is absolutely the government domain as apparent from the Master Plan of 1973, the government opted to erect buildings for the Speaker and the Deputy Speaker, who are provided a unique position under the Constitution and such offices are basically referring to two institutions rather than two individual persons. Thus, the construction of the two residences has been undertaken due to pragmatic situation, state necessity and public interest. As such there is no hard and fast rule as to stick to the Master Plan of 1973 of Louis Kahn and treat it as an unamenable scripture rather it is supple which underwent changes from time to time as written by David Wisdom on Kahn's Building at Dhaka.
18. On the other hand, the Department of Architecture is the only Government organization to impart architectural services under the Ministry of Housing and Public Works and responsible for designing all Government buildings and also for public housing schemes across the country. The Department not only prepares architectural designs and layout plans for public building and housing projects, but also advises the government on policy matters relating to human settlement and land use planning.
19. All the architectural drawings of projects implemented for different Ministries, which are executed by the Public Works Department and National Housing Authority are prepared by the Department of Architecture. Besides providing the services and help of architecture, planning and housing design for the public sector the Department of Architecture played a vital role during the formulation of the National Housing Policy, 1993 and the National Building Code 1993 (Modified in 1999). The steering Committee constituted by the Government to update the Building Code is also headed by the Chief Architect of this Department. The Chief Architect of this department has been declared as ex officio "Authorized Officer" under the Building Construction Act, for all public building and projects implemented under the Ministry of Housing and Public works.
20. The functions of the Department of Architecture are enumerated in the following-
a. Basic architectural services including site selection, preliminary survey of sites before taking up planning and designing of building project;
b. Preparation of detailed drawings for execution of building projects and supervision of construction work to ensure execution as per Architects plans and specification;
c. Preparation of Master plans and Lay out plans;
d. Studies proposals for formulation of space standards for Government offices and residential buildings and assessing land requirements for various building projects;
e. Offer advice to Government on policy matters relating to human settlement and land use planning;
f. Assisting various public agencies in preparing plans for their building projects including assessing their land requirement. [Source: http://www.architecture.gov.bd/site/page/64fdbcba-828f-4855-822f-ec6e672e937f/-].
21. It is evident from the above discussion that the Department of Architecture is concerned with the architectural value of the National Assembly Complex and in the present case the government has not unilaterally and with arbitrary manner taken the decision of construction of the present construction work rather the same is done with the approval of the Department of Architecture and in the way the government complied with the legal requirement, but the High Court Division could not take the matter into consideration, therefore, committed illegality in making the Rule absolute.
22. From the record it is seen that the secretary, Ministry of Housing and Public Works placed a summary to the then Prime Minister on 09.08.1998 and the then Prime Minister approved 1.37 acres of land by the side of National Assembly Road through Memo No. P.C./IM-803/97 (Part-1)49 dated 27.04.1998 (Annexure-5). Subsequently as per direction of the then Prime minister the design and structure of the residences of the Speaker and the Deputy Speaker was prepared and the said structural maps have been approved. Thus a latest Master Plan (Annexure-1) for the National Assembly Complex was formally approved in May 2002. But the said Memo dated 27.04.1998 (Annexure-5) and the latest Master Plan (Annexure-1) having not been impugned in the Writ Petition, thus the Rule issued in the said Writ Petition was liable to be discharged.
23. It transpires from the Memo dated 09.08.1998 (Annexure-4) that the then Prime Minister while according approval for construction of residences of the Speaker and the Deputy Speaker scrupulously took into consideration about the architectural elegance of the open space and the green fields of the National Assembly Complex. The Government also critically examined whether proposed construction will disparage the architectural beauty of the National Assembly Complex. The relevant portion of the said Memo is extracted below:
“নিম্ন স্বাক্ষরকারী আদিষ্ট হইয়া জানাইতেছেন যে, বিগত ৬-৪-৯৮ তারিখে শেরেবাংলা নগরস্থ ডি-১ ও ডি-২ প্লট দুইটিতে স্থাপত্য অধিদপ্তর কর্তৃক প্রণীত নকশা মোতাবেক গণপূর্ত অধিদপ্তরের উদ্যোগে মাননীয় স্পীকার ও মাননীয় ডেপুটি স্পীকারের বাস ভবন নির্মাণের বিভিন্ন দিক সম্পর্কে মাননীয় গৃহায়ন ও গণপূর্ত মন্ত্রী, জাতীয় সংসদ সচিবালয়ের সচিবের উপস্থিতিতে মাননীয় প্রধানমন্ত্রীকে প্রধান প্রকৌশলী ও প্রধান স্থপতির ব্রীফিংকালে তিনি আলোচ্য দুইটি বাস ভবন নির্মাণ প্রকল্পের বিভিন্ন দিক, জমি ব্যবহারের পরিমাণ, স্থাপত্য নকশার সাথে অন্যান্য ইমারতের ডিজাইনের সামঞ্জস্যতা ও স্থপতি লুইস আই কান কর্তৃক প্রণীত মূল নকশাতে উক্ত বাস ভবনের জন্য পরিকল্পিত স্থান, সংসদ ভবন এলাকাতে ভবিষ্যৎ প্রকল্প বাস্তবায়নের জন্য সীমিত জমির প্রাপ্যতা এবং ডি-১ প্লটের জমি বাস ভবনের জন্য ব্যবহারের ক্ষেত্রে সংশ্লিষ্ট খোলা জায়গাটির সৌন্দর্যের বিনষ্ট ইত্যাদি পুংখানুপুংখরূপে পর্যালোচনা পূর্বক বিকল্প ব্যবস্থা হিসাবে মাননীয় স্পীকার ও মাননীয় ডেপুটি স্পীকারের বাস ভবন নির্মাণের জন্য সংসদ সড়ক নং বি এর পার্শ্বে ১.৩৭ একর জমি নির্দিষ্ট করিয়া দিয়াছেন।”
24. It reveals from the Master Plan of May 2002 (Annexure-1) that the residences were planned to be constructed at D(1) and D(2) area adjacent to which construction of residences have been made on the supervision of Louis Kahn himself. The site for construction of the said residences was selected after careful scrutiny of the plan of the site next to Road B in the Master Plan of 2002. Therefore, we find that the construction of the residences of the Speaker and the Deputy Speaker will not diminish the aesthetic value and the architectural beauty of the National Assembly Complex.
25. On going through the impugned judgment and order dated 21.06.2004 passed by the High Court Division it is seen that Mr. Mahmudul Islam, the learned senior Advocate being appointed amicus curiae by the court submitted in the following way-
"...... it has to be examined whether the open space being used for construction of the house for the Speaker and the Deputy Speaker was meant for public use and the right of the public has to be considered alongside the need of the government, which is also acting in the public interest. He submitted that this Court ought not to interfere in a situation where the government is acting in the public interest. He added that again, it is to be seen whether the construction is creating any congestion in the area or materially affecting the environment in order to determine whether any right of the public is infringed."
26. But the High Court Division in its judgment could not show how the environment is affected with the construction of the residences for the Speaker and the Deputy Speaker. In this regard our view is that the said construction of residences has been undertaken with the recommendation from the Department of Architecture by critically examining the architectural beauty of the National Assembly Complex as well as the need for open space or green field. Moreover, the said residences are not meant for an individual person, but for the Speaker and the Deputy Speaker who uphold a unique position under the Constitution of our country and in the said way the impugned project is being implemented for the public interest being the same is a state necessity.
27. Again, Section 3 of the Government Building Act, 1899 provides that-
"Nothing contained in any law or enactment for the time being in force to regulate the erection, re-erection, construction, alteration or maintenance of buildings within the limits of any municipality shall apply to any building used or required for the public service or for any public purpose, which is the property, or in the occupation, of the Government, or which is to be erected on land which is the property, or in the occupation, of the Government:
Provided that, where the erection, re-erection, construction or material structural alternation of any such building as aforesaid (not being a building connected with defence, or a building the plan or construction of which ought, in the opinion of Government, to be treated as, confidential or secret) is contemplated, reasonable notice of the proposed work shall be given to the municipal authority before it is commenced."
28. On examination of Section 3 of the Government Building Act, 1899 it appears that the said construction of residences of the Speaker and the Deputy Speaker being for the public purpose in the government land is exempted from complying with provisions of other municipal laws. Therefore, the Town Improvement Act, 1953 and the Building Construction Act, 1952 have no relevance with the construction of the residences for the Speaker and the Deputy Speaker which are being constructed on Government's own land after obtaining clearances from the Department of Architecture and on approval of the Prime Minister, the Chief Executive of the Government as per approved plan. But the High Court Division committed error of law failing to appreciate the said matter.
29. It also deserves to mention here that the writ petitioners obtained Rule and an order of stay of the operation of any further construction of the impugned project in the High Court Division in Writ Petition No. 3548 of 2003 on 18.05.2003. Against the order dated 18.05.2003 and 21.07.2003 passed by the High Court Division the writ respondents-appellants preferred Civil Petition for Leave to Appeal before this Division and obtained stay operation of the said orders till disposal of the Writ Petition. During the subsistence of stay order from this Division 100% of the construction work of the residential building for the Speaker and the Deputy Speaker has been completed. But the High Court Division without taking notice of the said completion of the construction work made the Rule absolute by the impugned judgment and order dated 21.06.2004 for which the interference by this Division is warranted.
30. In view of the proposition of law and discussions made above, our considered view is that the High Court Division fell in serious error of law and the impugned judgment and order of the High Court Division warrants interference by this Division.
31. In the light of the observations made above, we find merit in the submissions of the learned advocate for the appellants and therefore the impugned judgment and order dated 21.06.2004 passed by the High Court Division in Writ Petition No. 3548 of 2003 is liable to be set aside.
32. Accordingly, this Civil Appeal is allowed.
33. The judgment and order dated 21.06.2004 passed by the High Court Division in Writ Petition No. 3548 of 2003 is hereby set aside.
IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Civil Petition for Leave to Appeal No. 971 of 2014
Decided On: 24.11.2016
Md. Ashraful Haque
... Vs. ...
The Anti-Corruption, and Ors.
Hon'ble Judges/Coram:
Surendra Kumar Sinha, C.J., Syed Mahmud Hossain, Hasan Foez Siddique and Mirza Hussain Haider, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: A.M. Aminuddin, Senior Advocate instructed by Syed Mahbubar Rahman, Advocate-on-Record
For Respondents/Defendant: Md. Khurshid Alam Khan, Advocate instructed by M. Soyeb Khan, Advocate-on-Record
Disposition:
Disposed of
ORDER
1. This petition is directed against a judgment of the High Court Division discharging the rule.
2. The matter relates to issuance of notice upon the writ petitioner for submitting wealth statement. We noticed from the record that 3 (three) successive notices have been served upon the writ petitioner, of them, 2 notices were issued by the same officer of the Commission. If the Commission is not satisfied with the wealth statement, there is provision for filling case against the writ petitioner, but the Commission cannot issue repeated notice upon any person for submitting wealth statement. This is a mala fide act on the part of Durnity Daman Commission. We direct the Chairman of Durnity Daman Commission to take legal action against the officers who intentionally issue such the notices. The judgment of the High Court Division is quashed.
3. This petition is accordingly disposed of with the above direction.
IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)
(Special Original Jurisdiction)
Writ Petition No. 5380 of 2020
Decided On: 19.08.2021
Islam Prodhan and another
... Vs. ...
Government of Bangladesh and others
Hon'ble Judges/Coram:
Mr. Justice Md. Ashfaqul Islam and Mr. Justice Md. Iqbal Kabir
Counsels:
For Appellant/Petitioner/Plaintiff: Md. Oziullah with Md Tariqul Islam, Advocate
For Respondents/Defendant: Kazi Mynul Hassan, Deputy Attorney-General—For the Respondent No. 5.
Subject: Labour Law
Acts/Rules/Orders:
Bangladesh Labour Act, 2006 - Section 217, 218, 219, 219(gha), 303(e), 307, 351
Limitation Act, 1908 - Section 5
শ্রম বিধিমালা, ২০১৫ - Rule 205(4)
শ্রম বিধিমালা, ২০১৫ - Form 66
Prior History:
From the judgment and order dated 3-9-2020 passed by the learned Chairman of the Labour Appellate Tribunal, Dhaka in BLA Appeal No. 66 of 2020
Disposition:
Rule made absolute
JUDGMENT
Md Ashfaqul Islam, J:
1. This Rule under adjudication, at the instance of the petitioners, issued on 20-9-2020, was in the following terms:
"Let a Rule Nisi be issued calling upon the respondents to show cause as to why the impugned judgment and order dated 3-9-2020 passed by the learned Chairman of the Labour Appellate Tribunal, Dhaka Respondent No. 2, in BLA Appeal No. 66 of 2020, summarily dismissing the appeal and thereby affirming the judgment and order dated 21-8-2016 passed by the learned Chairman of 3rd Labour Court, Dhaka Respondent No. 3, in BLA (Criminal) Case No. 348 of 2015 convicting the convict-petitioners along with another under section 303(e)/307 of the Bangladesh Labour Act, 2006 and sentencing all of them to suffer simple imprisonment for 6 (six) months and to pay a fine of Taka 30,000 (Thirty thousands) each of them in default, to suffer further simple imprisonment for 1 (one) month should not be declared as illegal, without lawful authority and is of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper."
2. Be it mentioned that on an application for bail filed by the petitioners this Division on 2-12-2020 enlarged the convict-petitioners on bail.
3. The background leading to the Rule in short is that at the initiation of one Happy Akter, Labour Inspector (General), Department of Inspection for Factories and Establishment, Narayanganj (complainant) BLA (Criminal) Case No. 348 of 2015 was filed before the Chairman of 3rd Labour Court, Dhaka against the convict-petitioners under section 303(e)/307 of the Bangladesh Labour Act, 2006 (hereinafter referred to as Act, 2006). After receiving the said complaint the case was registered and charge was framed under section 303(e)/307 of the Act, 2006 against the petitioners and the trial proceeded accordingly. And upon completion of the trial the Chairman, Labour Court found the petitioners guilty under the said section and sentenced him to suffer simple imprisonment for 6 (six) months and to pay fine of Taka 30,000 (Thirty thousand), in default, to suffer further simple imprisonment for 1 (one) month by the Judgment and order dated 21-8-2016. The petitioners challenging the said judgment and order filed an appeal being BLA. Appeal No. 66 of 2020 with an application for condonation of delay of filing the appeal. The said appeal was heard on 3-9-2020 and the learned Chairman of the Labour Appellate Tribunal, Dhaka, respondent No. 2 summarily dismissed the appeal as being barred by law. The petitioners being aggrieved by and dissatisfied with the said order of dismissal moved this Division and obtained the present Rule as aforesaid.
4. Mr Md Oziullah, the learned Advocate appearing with Mr Tariqul Islam, the learned Advocate for the petitioners after placing the petition, judgment of both the Courts below mainly advanced his argument on the question of limitation which is the focal point and the decisive factor in respect of the impugned judgment passed by the Labour Appellate Tribunal. He submits that the Appellate Tribunal misdirected itself in holding that section 5 of limitation Act, 1908 has no manner of application under section 217 which relates to filing an appeal in as much as the same being a special law. In elaborating his submissions the learned Counsel refers section 218 and 219 of Act, 2006 read with Rule 205(4) of শ্রম বিধিমালা, ২০১৫ (hereinafter referred to as Rules, 2015) and also form 66 therein. It is his submissions that if the said law and Rule be read together, it can be well perceived that in filing appeal under section 217, if there be any delay, an application under section 5 of the limitation Act, 1908 is well applicable. In other words, as he reiterates, section 5 of the limitation Act will apply with all its trappings in case of filing an application before the Labour Appellate Tribunal. Therefore, he concludes that the Appellate Court should have taken into consideration the application for condonation of delay on merit while deciding the same.
5. The Rule is not opposed by filing any affidavit-in-opposition on behalf of the respondents.
6. We have heard the learned Counsel appearing for the petitioners and considered his submissions and also gone through the impugned judgment passed by the Labour Appellate Tribunal and also the judgment passed by the 3rd Labour Court, Dhaka carefully.
7. The only question that to be considered in this petition is whether upon analysis and interpretation of the provisions of Labour Act, 2006 and the Bangladesh Srama Bidhimala, 2015, the order impugned against would sustain.
8. For better understanding and appreciation let us have a glean on a relevant laws governing the issue. Section 217 of Act, 2006 enjoins:
“২১৭ । এই আইন সাপেক্ষে, শ্রম আদালত কর্তৃক প্রদত্ত কোন রায়, সিদ্ধান্ত, রোয়েদাদ বা দন্ডের বিরুদ্ধে কোন সংক্ষুব্ধ পক্ষ, উহা প্রদানের ষাট দিনের মধ্যে ট্রাইব্যুনালে আপীল দায়ের করিতে পারিবে এবং উক্তরূপ আপীলের ক্ষেত্রে ট্রাইব্যুনালের সিদ্ধান্ত চুড়ান্ত হইবে।”
Next section 219 states:
“২১৯ । কোন শ্রম আদালত কোন দরখাস্ত অথবা ট্রাইব্যুনালে কোন আপীল বিধি দ্বারা নির্ধারিত ফরমে পেশ করিতে হইবে এবং উহাতে বিধি দ্বারা নির্ধারিত বিষয় ছাড়াও নিম্নলিখিত বিষয়সমূহ লিপিবদ্ধ থাকিতে হইবে, যথাঃ-
(ক)-----------------------------------
(ঘ) দরখাস্ত বা আপীল বিলম্বে পেশের ক্ষেত্রে উক্ত বিলম্বের কারণ এবং যে আইনের ধারার অধীন বিলম্ব মওকুফ প্রার্থনা করা হইয়াছে উহার উল্লেখ;”
Rule 205(4) of Rules, 2015 runs thus:
“২০৫ । শ্রম আদালত বা আপীল ট্রাইব্যুনালে মামলা দায়ের।–
(৪) ফরম-৬৬ অনুযায়ী ধারা ২১৯ মোতাবেক আপীল দায়ের করিতে হইবে।”
9. And in form 66 column no. 2 it has been clearly mentioned ‘আপীল দায়েরে বিলম্ব ও মওকুফের কারণসমূহ’ It would be worthwhile to reproduced the form itself for construing and understanding:
ফরম-৬৬
[ধারা ২১৯ এবং বিধি ২০৫(৪) দ্রষ্টব্য]
আপীলের দরখাস্ত
আপীল------------নং/২০
--------এ্যাপিল্যান্ট
প্রসঙ্গ:
------শ্রম আদালত কর্তৃক প্রদত্ত----- নং মোকদ্দমায়-------তারিখে প্রদত্ত রায়/অনুমতির বিরুদ্ধে বাংলাদেশ শ্রম আইন, ২০০৬ এর ধারা ২১৯ অনুযায়ী আপীল।
১। আপীলকারীর বিনীত নিবেদন
(ক) ----------------------------------------
(খ) ----------------------------------------
(গ) ----------------------------------------
(ঘ) ----------------------------------------
২। বিজ্ঞ শ্রম আদালত -----------তারিখের রায়ে নিম্নবর্ণিত কারণসমূহে ক্রমান্বয়ে সিদ্ধান্তে উপনীত হইয়াছেন—
কারণসমূহ:
(ক) ---------------------------------------
(খ) --------------------------------------
(গ) --------------------------------------
(ঘ) --------------------------------------
আপীল দায়েরে বিলম্ব মওকুফের কারণসমূহ
--------------------------------------
এমতাবস্থায় প্রার্থনা--------- শ্রম আদালতের ---------- তারিখের তর্কিত আদেশ বাতিলপূর্বক মোকদ্দমায় প্রার্থিত প্রতিকার মঞ্জুর করিতে মর্জি হয়।
স্বাক্ষর:--------------------------
তারিখ: -------------------------
সংযুক্তি
১।
10. However, the law and the Rules if be read together it gives a clear picture that an appeal filed before the Labour Appellate Tribunal under section 217 has to be read with 219(gha) which clearly prescribed that appeal if be filed out of time the reasons for delay must be stated with a prayer for condonation of the delay of the said Ruling. Together with that when we visit Rule 205(4) of Rules, 2015 we find that in terms of the procedure of form 66 an appeal should be filed. In this connection section 219 of the Act, 2006 shall have to be mentioned. And in form 66 column 2 it has been clearly mentioned আপীল দায়ের ও বিলম্বের কারণসমূহ.
11. The law and the rules clearly spelt out that limitation act would certainly operate as an aid to a party seeking condonation of delay in filing the appeal. This legal fiction or so to say the analogy has certainly escaped notice of the Appellate Tribunal. Further it has also failed to take into consideration the provisions of Rules, 2015 in the manner as we have discussed. Be it mentioned in this regard that right to appeal is a statutory right, a right which certainly should not be circumvent with any other provisions having prohibiting effect. Rules, 2015 came into force in chapter 15(9) of 2015 by SRO No. 291/Ain/2015. This Rule was framed and promulgated pursuant to section 351 of Act, 2006 which is the enabling section.
12. Therefore, we are of the view that the submissions of the learned Counsel for the petitioners merit substance and hold that with the introduction of Rules, 2015 the question of section 5 of the limitation Act shall have clear application in filing of appeal before the Labour Appellate Tribunal. This aspect was not considered while passing the impugned judgment summarily rejecting the appeal on the ground of limitation. Therefore, this Rule succeeds.
13. In the result the rule is made absolute. The judgment and order passed by the Labour Appellate Tribunal in BLA Appeal No. 66 of 2020 summarily dismissing the appeal on the ground of limitation is declared to have been passed without lawful authority having no legal effect and set-aside.
Communicate at once.
End.
IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)
Criminal Petition for Leave to Appeal Nos. 609, 611, 612, 610 and 608 of 2018
Decided On: 01.06.2021
Ashfaq Hossain (Petitioner in Crl. P. No.609 of 2018)
Md Ashraful Alam (Petitioner in Crl. P. No.611 and 612 of 2018)
Mukul Hossen (Petitioner in Crl. P. No.610 of 2018)
Md Shafiqul Islam Khan (Petitioner in Crl. P. No.608 of 2018)
... Vs. ...
State and another (Respondents in all the cases)
Hon'ble Judges/Coram:
Mr. Justice Syed Mahmud Hossain, Chief Justice
Mr. Justice Hasan Foez Siddique
Mr. Justice Abu Bakar Siddiquee
Mr. Justice Md. Nuruzzaman
Mr. Justice Obaidul Hassan
Counsels:
For Appellant/Petitioner/Plaintiff: AM Mahbubuddin, Advocate, instructed by Md Taufique Hossain, Advocate-on-Record (In all the cases)
For Respondents/Defendant: A.J Mohammad Ali, Senior Advocate, instructed by Zainul Abedin, Advocate-on-Record (For the Respondent No.2 in all the cases)
None Represented (For the Respondent No.1 in all the cases)
Subject: Criminal Law
Acts/Rules/Orders:
Negotiable Instrument Act, 1881 - Section 138
Negotiable Instrument Act, 1881 - Section 140(1)
Code of Criminal Procedure - Section 265C
Code of Criminal Procedure - Section 342
Code of Criminal Procedure - Section 561A
Prior History:
From the judgment and order dated 5-2-2018 passed by the High Court Division in Criminal Miscellaneous Case Nos.13690, 21686, 21687, 21685 and 13689 of 2012
Disposition:
Disposed of
JUDGMENT
Md Nuruzzaman, J:
1. Delay of 35 (thirty five) days in filing all of these Criminal Petition for Leave to Appeal Nos.609, 611, 612, 610 and 608 of 2018 is hereby condoned.
2. These 5(five) Criminal Petitions for Leave to Appeal are directed against the judgment and order dated 5-2-2018 passed by a Division Bench of the High Court Division in Criminal Miscellaneous Case Nos.13690, 21686, 21687, 21685 and 13689 of 2012 making the Rules absolute and thereby, quashing the proceedings of Special Session Case No.11 of 2011 arising out of CR Case No.821 of 2010 (North), Metro Session Case No.3493 of 2011 arising out of CR Case No.21 of 2011, Metro Session Case No.2449 of 2011 arising out of CR Case No.3516 of 2010 (North), Metro Session Case No.3862 of 2011 arising out of CR Case No.3624 of 2010 and Metro Session Case No.6387 of 2011 arising out of CR Case No.16 of 2011 (North).
3. These 5(five) Criminal Petitions for leave to appeal were heard together as respondents are same, appertaining common question of law, these are dealt with by this single judgment
4. The facts of the Complaint Register Case No.821 of 2010 (North), in short, are that the accused respondent had been purchasing industrial parts for his Seus Fabrics Ltd. for cash and credit from the complainant for long time. The complainant supplied huge amount of machineries and spare parts to the accused respondent on credit for Taka 28,00,900 (Taka twenty eight lac and nine hundred). On 5-10-2019, the accused respondent gave the complainant a Cheque being No.9670938 dated 10-11-2009 of Al Arafah Islami Bank Ltd. from the Current Account No.017102009208 for amount of Taka 28,00,600 (Taka twenty eight lac and six hundred) only in the name of New Boiler parts. On 12-11-2009, the complainant produced the cheque to Al-Arafah Islami Bank Ltd., Uttara Model Town Branch for encashment but the same was dishonoured for insufficient fund. On 26-1-2010, he served a legal notice upon the accused respondent but the accused respondent did not pay the cheque amount within one month. Hence, the present petitioner as complainant filed CR Case No.821 of 2010 (North) before the Court of Chief Metropolitan Magistrate, Dhaka against the accused respondent under section 138 of the Negotiable Instrument Act, 1881.
5. The facts of the Complaint Register Case No.21 of 2011 (North), in short, are that the present petitioner and the accused respondent were known to each other. He was supplying salt and soda to the accused respondent company and Taka 15,00,000 (Taka fifteen lac) became due to the accused respondent. On 20-8-2010, the accused respondent gave him a Cheque being No.9670946 of Al-Arafah Islami Bank Ltd., Branch Code No.5700003 from Current Account No.017102009208 for Taka 15,00,000 (Taka fifteen lac) only, On 4-11-2010, the complainant produced the said Cheque to Al-Arafah Islami Bank Ltd., Uttara Model Twon Branch for encashment but the same was dishonoured for insufficient fund. On 22-11-2010, he served a legal notice through his lawyer upon the accused respondent by registered-post but the accused respondent did not pay the said cheque amount despite receiving the legal notice. Hence, the present petitioner filed CR Case No.21 of 2011 (North) before the Court of Chief Metropolitan Magistrate, Dhaka (North) against the accused respondent under section 138 of the Negotiable Instrument Act, 1881.
6. The facts of the Complaint Register Case No.3516 of 2010 (North), in short, are that the present petitioner and the accused respondent were known to each other. He had supplied salt and soda to the accused respondent company and gave Taka 30,00,000 (Taka thirty lac) to the accused respondent for shares in his company. The complainant did not receive any share and on 25-8-2010, the accused respondent gave him a Cheque being No.9670947 of Al-Arafah Islami Bank Ltd., Branch Code No.5700003 from the Current Account No.017102009208 for Taka 30,00,000 (Taka thirty lac) only. On 12-10-2010, the complainant produced the Cheque to Al-Arafah Islami Bank Ltd., Uttara Model Town Branch for encashment but the same was dishonoured for insufficient fund. On 20-10-2010, he served a legal notice through his lawyer upon the accused respondent by registered post but the accused respondent did not pay the cheque amount despite receiving the legal notice. Hence, the present petitioner as complainant filed CR Case No.3516 of 2010 (North) before the Court of Chief Metropolitan Magistrate, Dhaka against the accused respondent under section 138 of the Negotiable Instrument Act, 1881.
7. The facts of the Complaint Register Case No.3624 of 2010 (North), in short, are that the present petitioner and the accused respondent were known to each other. He gave Taka 35,00,000 (Taka thirty five lac) to the accused respondent for shares of his company. The complainant did not receive any share and on 3-9-2010, the accused respondent gave him a Cheque being No.9670949 of Al-Arafah Islami Bank Ltd., Branch Code No.5700003 from the Current Account No.017102009208 for Taka 35,00,000 (Taka thirty five lac) only. On 20-10-2010, the complainant produced the Cheque to Al-Arafah Islami Bank Ltd., Uttora Model Town Branch for encashment but the same was dishonoured for insufficient fund. On 28-10-2010, he served a legal notice through his lawyer upon the accused respondent by registered post but the he did not pay the cheque amount despite receiving the legal notice. Hence, the present petitioner as complainant filed CR Case No.3624 of 2010 (North) before the Court of Chief Metropolitan Magistrate, Dhaka against the accused respondent under section 138 of the Negotiable Instrument Act, 1881.
8. The facts of the Complaint Register Case No.16 of 2011 (North), in short, are that the present petitioner and the accused respondent were known to each other. He gave Taka 50,00,000 (Taka Fifty lac) to the accused respondent for shares of Seus Fabrics Ltd. The complainant did not receive any share and on 20-10-2010, the accused respondent gave him a Cheque being No.9670950 of Al-Arafah Islami Bank Ltd., Branch Code No.5700003 from the Current Account No.017102009208 for Taka 50,00,000 (Taka Fifty lac) only. On 20-10-2010, the complainant produced the said Cheque to Al-Arafah Islami Bank Ltd., Uttara Model Town Branch for encashment but the same was dishonoured for insufficient fund. On 30-12-2010, he served a legal notice through his lawyer upon the accused respondent by registered post but the he did not pay the cheque amount despite receiving the legal notice. Hence, the present petitioner as complainant filed CR Case No.16 of 2011 (North) before the Court of Chief Metropolitan Magistrate, Dhaka against the accused respondent under section 138 of the Negotiable Instrument Act, 1881.
9. In all the complaint cases, the learned Metropolitan Magistrate issued summons against the accused petitioner for appearance but he failed to appear in Court. Thereafter, these cases were ready for trial.
10. The learned Chief Metropolitan Magistrate, Dhaka transferred all the case records to the Court of learned Metropolitan Sessions Judge, Dhaka for trial. In Metro Sessions the CR Case No.16 of 2011 was registered as Metro Sessions Case No.6387 of 2011, the CR Case No.21 of 2011 was registered as Metro Sessions Case No. 3493 of 2011, the CR Case No.821 of 2010 was registered as Special Sessions Case No.11 of 2011, the CR Case No.3516 of 2010 was registered as Metro Sessions Case No.2449 of 2011 and the CR Case No.3624 of 2011 was registered as Metro Sessions Case No.3862 of 2011. The learned Metro Sessions Judge taking cognizance, transferred all the cases to the respective Courts for trial.
11. In all the cases the accused respondent Md Shahidul Islam surrendered before the concerned Sessions Court and obtained bail.
12. All the cases were fixed for framing of charges. However, the accused Md Shahidul Islam filed separate 5(five) applications under section 265C of the Code of Criminal Procedure for discharging him from the respective cases. The trial Courts after hearing both the parties rejected the said applications and framed charges against the accused in the aforementioned cases.
13. Among the aforesaid 5(five) cases in Sessions Case No.6387 of 2011 and Sessions Case No.11 of 2011, the PW 1 had been examined and both the cases were fixed for examining the accused respondent Md Shahidul Islam under section 342 of the Code and for further cross-examination of PW 1. The 3(three) sessions cases have been fixed for witness. At this stage of the cases, the accused-petitioner filed 5(five) Criminal Miscellaneous Case being Case Nos. 13690, 21686, 21687, 21685 and 13689 of 2012 before the High Court Division and obtained Rules.
14. The High Court Division, upon hearing the parties, made the Rules absolute and quashed the proceedings of the aforementioned cases by the impugned judgment and order dated 5-2-2018.
15. Hence, the petitioners herein, are now before us having filed the instant criminal petitions for leave to appeal.
16. Mr AM Mahbub Uddin, the learned Advocate appearing on behalf of the leave-petitioners in all the cases submits that the High Court Division failed to appreciate that the instant proceedings have been instituted after following the due procedures as specified in Section 138 of the Negotiable Instruments Act, 1881 and charge was framed by the trial Court after considering the veracity of the prosecution materials of the case and, as such, at belated stage when in the 2(two) cases prosecution has already been closed after examining the PW 1, there is no scope to interfere under section 561A of the Code of Criminal Procedure based on defence materials which could be adduced at the trial. He also submits that the High Court Division failed to appreciate that the jurisdiction under section 561A of the Code of Criminal Procedure is an extraordinary remedy to be used for avoiding abuse of the process of the Court and securing the ends of justice where no other alternative remedy is available. In the instant cases no such occasions have been occurred. He next submits that the High Court Division had failed to appreciate that a competent Court has found that a prima facie case has been made out in all the petitions of complaints and charges were framed, the High Court Division erroneously interfered in such proceedings. He, referring the decision of the Pakistan Supreme Court, submits that according to the principles enunciated in the case of Ghulam Muhammad vs Muzammal Khan reported in 19 DLR (SC) 439 the quashing of these proceedings are not sustainable. He also submits that the High Court Division failed to appreciate that the records of the Registrar of Joint-Stock Companies are defence materials which cannot be considered in quashing the proceedings under inherent power of the High Court Division. He further submits that the High Court Division passed the impugned judgment basing upon a disputed piece of evidence which is part of the defence materials which cannot be entertained in the jurisdiction under section 561A of the Code of Criminal Procedure, hence, the High Court Division committed serious illegality in making the Rules absolute and quashing the proceedings and, as such, the impugned judgment and order of the High Court Division is liable to be set-aside.
17. Mr AJ Mohammad Ali, the learned Senior Counsel appearing on behalf of the respondent No.2 in all the cases made submissions in support of the impugned judgment and order of the High Court Division. He submits that the accused respondent No.2 once was a Managing Director of Seus Fabrics Limited, but he transferred all of his shares of the company on 23-8-2009 which was duly approved by the company in its Board meeting and recorded in the shares register of the company as well as duly notified to the Registrar of Joint Stock Companies as evident by Annexure-G to the application. But the cheques in question are alleged to have been issued on 10-11-2009, 20-8-2010, 25-8-2010, 3-9-2010 and 20-10-2010 respectively, by Seus Fabrics Limited to the complainant and those cheques were placed for encashment i.e., after transfer of his entire shares of the company. At the time when the cheques were issued and when the cheques were dishonoured the accused respondent No.2 had no concern or the connection with the company. Moreover, the accused respondent No.2 had no authority to sign the cheques on behalf of the company as Managing Director and, as such, he cannot held liable for the offence.
18. To bring the case under section 140(1) of the Act an averment is necessary in the complaint petitions to the effect that the respondent No.2 was in-charge and was responsible to the company at that time. But in the present cases from plain reading of the complaint petition itself nowhere it would be found that the accused respondent No.2 has been described as Managing Director of the company and he is liable for the business of the company or he was in-charge of the day to day affairs of the company at the relevant time when the cheques were issued. As such, the accused respondent No.2 cannot be held liable for the offence under section 138 of the Act. He finally submits that section 138 of the Act shall attract where any cheque drawn by a person on an account "maintained by him" with a banker for payment of any amount of money to another person from out of that account is returned by the bank unpaid. But in the present case the account from which the cheques were issued is maintained by Seus Fabrics Limited, not by the accused respondent No.2 alleged to have signed the cheques on behalf of the company as Managing Director on whose account a cheque is drawn does not become the drawer of the cheque since the respondent No.2 is not the account holder or the drawer of the cheque, the case under section 138 of the Act is not maintainable in view of the provisions of section 138 of the Act. Hence, the High Court Division rightly made the Rules absolutes and quashed the proceedings.
19. We have considered the submissions of the learned Advocates for the respective parties.
20. Having gone through the impugned judgment it transpires that the High Court Division in quashing the proceedings of the cases under section 138 of the Act formulated 3(three) questions beyond the averment of the petition of complaints and answering those questions quashed the 3 (three) proceedings being CR Case No.3624 of 2010, CR Case No.21 of 2011 and CR Case No.3516 of 2010 and 2 (two) criminal miscellaneous cases were disposed of by observation. The questions formulated by the High Court Division are reproduced herein below which run as follows:
21. Firstly, whether the accused-petitioner is a drawer of the cheques and the account in question is maintained by him.
22. Secondly, whether the accused-petitioner can be held liable for dishonour of the cheques issued from the account maintained by Seus Fabrics Limited, a registered company, limited by shares without describing him as in charge of, and liable for the affairs of the said company.
23. Thirdly, whether the accused-petitioner has had any authority to sign the cheque on behalf of the company at the relevant time.
24. To answer the 1st and 2nd questions the High Court Division quoted the provisions of sections 138 and 140(1) of the Act and came to the conclusion that at the time of signing the cheques the accused was not in charge of the Managing Director of the Company. If that be so, why he signed the cheques as signatures were not denied by the accused-petitioner. In the case of Islami Bank Bangladesh Ltd. vs Ferdous Khan @ Alamgir and another reported in 22 BLC (AD) 209, it has been held that:
"The person, who issued the cheque, whether on his own behalf or on behalf of a company of which he is in charge or for which he is responsible cannot escape liability under the Act. In such circumstances, the proceeding against the accused cannot be quashed. The matter will be decided upon trial whether or not the omission of the company as accused is fatal to the prosecution of the Managing Director of the company, who issued the cheques on behalf of the company".
25. The High Court Division in answering the questions in fact has embarked upon inquiry and come to conclusion on the basis of the defence materials.
26. In the case of Abdul Quader Chowdhury and others vs the State reported in 28 DLR (AD) 38 this Division while speaking on the jurisdiction under section 561 A of the Code observed that:
"In exercising the question under section 561A of the Code the High Court Division would not embark upon an inquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate and ordinarily it would not be upon to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained".
27. It is our considered view that issuing and signing of the cheques would be proved at the trial. Whether he managed the affairs of the company or not is a disputed question of facts. Therefore, the High Court Division was not justified in passing the impugned judgment considering the documents submitted before it. The High Court Division observed that—
"Documents available in the record show that on 23-8-2009 the petitioner transferred his entire share and ceased to be the Managing Director of the company due to transfer of his share. The cheques in question were issued on several dates starting from the month of November, 2009 to October, 2010. The above documents placed on record by the petitioner have not been disputed and or controverted by the complainant. As a matter of fact, it was not even the case of the complainant that the change among directors of the company on transfer of shares of the petitioner with effect from 23-8-2009 has not been taken place or the petitioner as Managing Director of the company signed the cheques in question have been averted in the complaint".
28. It appears that the above observation of the High Court Division was based upon disputed question of facts and defence materials, those materials were not submitted at the trial Court, rather, directly submitted before the High Court Division for consideration in the proceedings under section 561A of the Code. The complainant has no occasion to know about the transfer of shares because it is the internal affairs of the accused and his company which ought not have scrutinized by the High Court Division while exercising its inherent jurisdiction. Therefore, on the basis of such defence material quashing of the proceedings of the 3(three) cases out of 5(five) is serious error of law.
29. In the case of Ala Uddin vs The State reported in 24 BLC (AD) 139 it has been held by this Division:
"The High Court Division on an application under section 561A of the Code is not authorized to quash a proceeding adjudicating a disputed question of fact. Once issuance of cheque and signature thereon are found to be genuine, the Court shall proceed with the proceeding".
30. In numerous cases it has held that the Court is required to look into the allegation made in the FIR or petition of complaint that whether the same discloses any offence or not, but the High Court Division is not justified in invoking its inherent power on the basis of defence materials.
31. The petitioner-leave respondent No.2 took the plea by submitting some papers from the office of the Registrar, Joint Stock Company showing that before the date of issuance of cheques he transferred his shares and he was not Managing Director at that time which are disputed question of facts, therefore, such defence plea should be determined after appreciating the evidence at the trial, giving an opportunity to put the materials on record and defence can disprove such materials by cross-examination of the witness. In that view of the matter, the High Court Division in quashing the proceedings of the 3(three) cases was not perfectly justified.
32. It was held by this Division in the case of Rahela Khatun vs Abul Hassan and others reported in 48 DLR (AD) 213:
"A criminal proceeding cannot be quashed on the basis of defence materials which are still not part of the materials for the prosecution. The High Court Division deviated from a well-known norm of disposal of an application for quashing criminal proceeding by taking into account the defence version of the case".
33. It appears that the High Court Division committed serious error in interpreting the provisions of sections 138 as well as 140 of the Act observing on the basis of defence materials that "the accused cannot be liable for his alleged signature in the cheques as he is not the Managing Director of the Company and that was not averred in the petition of complaints and thus section 138(1) cannot be applied against the accused-petitioner". All are the disputed questions of facts which should be decided after appreciating the evidence at the trial. However, the High Court Division decided the matter like a Court of appeal by invoking the extra-ordinary jurisdiction under section 561A of the Code. The High Court Division can invoke the extraordinary jurisdiction of the Court only to prevent the abuse of the process of any Court and to secure the ends of justice.
34. The High Court Division in disposing the application under the provision of section 561 A of the Code does not require to formulate any disputed question of facts, rather, only to see whether the story of the FIR or petition of complaint discloses the criminal offences or not. Therefore, the High Court Division exceeded the extraordinary jurisdiction by quashing the proceeding.
35. In view of the above discussions and the precedents relied on, we are of the view that the judgment of the High Court Division calls for interference by this Division. Accordingly, the judgment of the High Court Division is set-aside. In that view of the matter, these Civil Petitions for Leave to Appeal are disposed of.
High Court Division (Civil Revisional Jurisdiction)
Present:
Mr. Justice Sheikh Hassan Arif
Mr. Justice Ahmed Sohel
Civil Revision No. 1091 of 2020
Dr. Muntassir Uddin Khan Mamoon alias Muntassir Mamoon
-------------Petitioner
Vs
Begum Munnujan Sufian (MP) and others
------------------Opposite-Parties
Judgement Date : November 01, 2021
Counsels:
AK Rashedul Huq, Advocate (Appearing Virtually and Physically)
—For the Petitioner
Md Nurul Amin, Advocate with Md Emamul Hague Advocate (Appearing Virtually)
—For the Opposite-Party No.1.
Judgment
Sheikh Hassan Arif, J:
1. At the instance of the defendant No. 2 in Title Suit No. 40 of 2019, Rule was issued calling upon the plaintiff-opposite party No. 01 to show cause as to why the order dated 23-1-2020 passed by the Joint District Judge, Third Court, Dhaka in Title Suit No. 40 of 2019 rejecting petitioner's application filed under Order VII, rule 11 read with section 151 of the Code of Civil Procedure for rejection of plaint, should not be set-aside.
2. Background Facts:
2.1 Facts, relevant for the disposal of the Rule, in short, are that the opposite party No. 1, as plaintiff, filed the said Title Suit No. 40 of 2019 against the petitioner and three others seeking declaration and compensation. The case of the opposite party No.1-plaintiff, in short, is that she is a member of Parliament and State Minister for Labour and Employment Ministry of the Government of Bangladesh. That a book named "Bangladesh Charcha/3" was edited by defendant No. 2, and published and printed etc. by defendant Nos. 1, 3 and 4. That the plaintiff received a copy of the said book on 25-6-2018 and found that the name of plaintiff's father was listed therein at Serial No. 36 as a member of 'Peace Committee' during Liberation War. The plaintiff then visited the residence of defendant No. 2 and made query about it, who could not give proper reply. The plaintiff, thereafter, issued notice on defendant No. 2 on 1-7-2018 and the said notice was replied by defendant No. 2 in a very casual way. That the plaintiff is a highly reputed person and that although her father was a freedom fighter and Awami League leader at the relevant time, the defendants have illegally shown his father as member of 'Peace Committee' in the said book which has caused serious damage to her reputation. Accordingly, the plaintiff sought a declaration to the effect that the said information at serial 36 in the list of Peace Committee members in the said book was illegal and untrue. Additionally, the plaintiff prayed for a decree of compensation for an amount of Taka 50 crore as against the damage allegedly caused to her reputation by such publication.
2.2 Upon service of summons in the said suit, the petitioner entered appearance as defendant No. 2 and filed an application under Order VII, rule 11 read with section 151 of the Code of Civil Procedure for rejection of the plaint mainly on the ground that the suit for compensation being a suit for damage for libel, the period of limitation is one year under Article 24 of the Limitation Act and, as such, the suit having been filed after 14 years of the publication of the said book, the same is barred by limitation. It is further contended by the defendant No. 2 that the individual who filed the said suit has claimed himself as authorized person of the plaintiff and, as such, the plaint filed by such authorized person cannot be allowed to continue and that the plaintiff being in the service of profit of the government, the suit filed without prior permission of the government cannot be allowed to continue. Thereupon, the Court below, after hearing the parties, rejected the said application filed by defendant No. 2 vide impugned order dated 23-1-2020. Being aggrieved by such rejection, the defendant No. 2 has preferred this civil revisional application and obtained the aforesaid Rule.
2.3 The Rule is opposed by the plaintiff-opposite party No. 1 through learned advocate Mr Md Nurul Amin.
3. Submissions:
3.1 Mr AK Rashedul Huq, learned advocate appearing for the petitioner, after placing the plaint in question and the impugned order, submits that in the schedule to the plaint, the plaintiff has categorically stated that the book in question was published in February, 2005. Therefore, according to him, on the very information given by the plaint as regards the month of publication of the said book, the suit was obviously barred by limitation. In this regard, he has referred to Article 24 of the Limitation Act 1908 which prescribes for a period of one year for filing a suit for libel from the final publication of such libel.
3.2 Mr Huq then submits that it is clearly averred in the plaint that the same has been filed on behalf of the plaintiff by an authorized person named Md Jahangir Alam. According to him, since no averment has been made in the plaint as regards the nature of such authority of the said individual or as to how the said individual has been appointed as constituted attorney, the plaint cannot continue like this and, as such, according to him, the Court below has committed gross illegality in not rejecting the plaint on such application filed by the petitioner. By referring to some decisions of this Court including our Appellate Division, namely the decision in Faiez Ahmed and others vs Nur Allan Begum, 11 BLT 379, Nirmal Chandra Dutta vs Ansar Ahmed and others, 10 MLR (HC) 344 and the decision of our Appellate Division in BIWTC vs M/s Seres Shipping, 1984 BLD (AD) 222 = 36 DLR (AD) 82, he submits that our courts, in a clear-cut case, has held that a plaint may be rejected on the point of limitation even though in some cases it has been held that the point of limitation is a mixed question of facts and law. According to him, since this case falls under a clear-cut case category in that the plaint has specifically mentioned the month of publication of the said book and, admittedly, the plaint has been filed after about 14 years of such publication, the prayer in the plaint claiming compensation for such publication is clearly barred by limitation and, as such, the same should have at least been stricken out by the Court below.
3.3 As against above submissions, Mr Md Nurul Amin, learned senior counsel appearing for the plaintiff opposite party No. 1, submits that it has time and again been decided by our superior Courts that the point of limitation is a mixed question of facts and law and such point can only be decided after examining evidences during trial. In support of his such submission, he has referred to various decisions of this Court and our neighboring Court, namely the decisions in Dulal Sarker vs Mrs. Nurjahan Begum, 35 DLR 217, Shahabuddin vs Habibur Rahman, 50 DLR (AD) 99 and Md Shahabuddin and others vs Habibur Rahman and others, 16 DLR (AD) 279. As regards the mentioning of time of publication of the said book in the schedule to the plaint, Mr Amin submits that the schedule is not the averment of the plaint. Therefore, according to him, a plaint cannot be rejected on the basis of information given in the schedule to it. In this regard, he has referred to the provisions under Order VII, rule 1 of the Code of Civil Procedure. Learned Advocate further submits that a plaint cannot be rejected in part and that even if it is found that some parts are barred by law, the plaint should be allowed to continue.
4. Deliberations, Findings and Orders of the Court:
4.1 Admittedly, the suit has been filed by the plaintiff through an authorized person. However, since there is no statement in the averment of the plaint as to how that authorized person has been authorized and since this issue has not been addressed by the Court below in the impugned order, we are not in a position to determine as to the nature of such authorization. On the other hand, even if the authorized person is not authorized properly, there is still time in favour of the plaintiff to get any such irregularity cured. Therefore, we are of the view that on this point, the plaint cannot be rejected.
4.2 Further admitted position is that the suit has been filed by the plaintiff seeking two reliefs, namely—
(1) Prayer 'Ka': declaration to the effect that the information given at serial 36 of the list of peace committee members in the said book, namely "Bangladesh Charcha/3" is illegally, untrue etc. and
(2) Prayer ‘Kha’: A decree of compensation for an amount of Taka 50 crore as against the damage done to the plaintiffs by such publication.
4.3 Therefore, it is clear that the plaintiff has made the said prayer ‘Kha' seeking a relief for the libel done by the said publication.
4.4 It further appears from the schedule to the plaint that the plaintiff has described the said book as well as the period of publication of the said book in the following terms: "প্রথম প্রকাশ ফেব্রুয়ারী/২০০৫". Therefore, it is clearly evident from this schedule to the plaint that it was very much within the knowledge of the plaintiff that the said book was published in 2005, although the plaintiff has made averment in the plaint that the copy of the said book came to her hand in 2018. The law of libel, in particular the period of limitation applicable to a suit of libel is very clear by Article 24 of the first schedule to the Limitation Act, 1908 and the said period of limitation is one year. It does not say that the said one year period will start from the date of knowledge. Rather, it says that the said period will start from the publication of the said libel. Therefore, according to the information given by the plaintiff in the schedule to the plaint itself, the said libel was in fact published in February, 2005. Therefore, the period of limitation to file a suit seeking compensation for such libel expired in February, 2006. However, the suit was admittedly filed on 13 February, 2019. Therefore, the said relief sought by the plaintiff in the plaint is apparently barred by limitation.
4.5 Now, the question is whether such point of limitation can be decided at the earliest opportunity on an application filed under Order VII, rule 11 of the Code for rejection of plaint. In this regard, we have examined the decisions referred to by learned advocates of the parties. It appears that depending on the averments made in the plaint, some decisions of our Court are in favour of not rejecting such plaint at the earliest opportunity. As for examples in Dulal Sarker’s case and Shahabuddin's case referred to above, it was decided that the question of limitation being a mixed question of law and fact, plaint cannot be rejected at the earliest opportunity under Order VII, rule 11. However, in some other cases, namely in Faiez Ahmed case, 11 BLT 379, Nirmal Chandra's case 10 MLR (HC) 344 and BIWTC case 1984 BLD (AD) 222 referred to above, it appears that some division benches of the High Court Davison and our Appellate Division have allowed rejection of plaint at the earliest opportunity when the suit is apparently found to be barred by limitation. In those cases, it has been held that when it is clear from the very averment of the plaint that the suit is barred by limitation, there is no necessity for taking further evidences to reach such conclusion.
4.6 The case in hand is a case where the point of limitation can be decided on the very averment of the plaint, in particular its schedule. According to the plaint and its schedule, the book was published in 2005 and the copy of the book came to plaintiff's hand in 2018. But she filed the said suit in 2019. Therefore, the prayer `Kha' in her plaint, which is in fact a prayer for compensation as against libel caused to her by such publication, is apparently barred by limitation, namely by Article 24 of the first schedule to the Limitation Act, 1908. Therefore, since this prayer `Kha' is clearly barred by limitation, we are of the view that this prayer cannot exist in the said plaint. We are further of the view that taking further evidence on the said point of limitation would in fact cause monetary and other loss to the parties, particularly when the plaintiff herself has mentioned the time of publication of the said libel in the plaint. In view of above, we find partial merit in the Rule and, as such, the same should be made absolute-in-part.
4.7 In the result, the Rule is made absolute-in-part. The impugned order dated 23-1-2020 passed by the Joint District Judge, Third Court, Dhaka in Title Suit No. 40 of 2019 is hereby set-aside to the extent it has rejected the prayer of the defendant No. 2 in respect of prayer `Kha' in the plaint. Accordingly, the prayer `Kha' in the plaint is hereby rejected and struck out. Office of the Court below is directed to delete the said prayer (prayer 'Kha') from the plaint. The Court below is also directed to dispose of the suit expeditiously, preferable within a period of 06 (six) months from receipt of the copy of this order.
Communicate this.
End.
High Court Division (Special Original Jurisdiciton)
Present:
Mr. Justice J.B.M. Hassan
Mr. Justice Md. Khairul Alam
Writ Petitions No. 1511 of 2013.
M.A. Wadud and 6 (six) others
---------------- Petitioners
VS
Bangladesh, represented by the Secretary, Ministry of Housing and Public Works and others
------------------ Respondents
Judgement Date : July 29, 2019
Counsels:
Moyeen Firoze, Advocate
—For the Petitioners.
Zead-al-Malum, Advocate
—For the Respondent No.4.
Imam Hasan, Advocate
--For the Respondent No.2.
Dr. Md Shahjahan, Advocate
—For the Respondent No.5.
Judgment
JBM Hassan, J:
1. This Rule Nisi was issued calling upon the respondents to show cause as to why the office memo bearing No. RAJUK/ NaMa:Tha-2A.BC-(Part) 1828/99/861 dated 10-12-2012 issued by the respondents No. 2/3 canceling approved building layout plan relating to plot No. 19, Road-7/C, Sector-3, Uttara Model Town should not be declared to be without any lawful authority and of no legal effect and as to why the respondent No.2 (RAJUK) should not be directed to approve the building layout plan by accommodating deviations (if any) in the completely constructed 6 (six)-storied building of the petitioners as per Building Constriction Rules, 2006 and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. Relevant facts leading to issuance of the Rule Nisi are that the petitioners are the bonafide purchasers of seven flats out of total 10 flats in a six-storied building at plot No.19, Road No. 7/C, Sector-3, Uttara Model Town, Dhaka (the schedule land). One M.G. Akbar was an allottee of the aforesaid plot under the RAJUK for 99 years lease which was later gifted to his wife, Mrs. Jahanara Akbar (respondent No. 4). Mrs. Jahanara Akbar as land owner entered into an agreement on 11-1-2000 with respondent No.5 (the developer company) for the purpose of constructing a six-storied building comprising 10 flats on the aforementioned plot. Out of said flats, the developer company would get seven flats and the land owner's ratio was three flats. Pursuant to the said agreement the land owner also executed power of attorney on 6-5-2002 in favour of the developer empowering to develop land by constructing building and also to sell the flats from the said building as per developer's ratio under agreement between the parties. Accordingly, the developer after obtaining RAJUK approved plan through land owner, constructed a six-storied building on the aforementioned plot and obtaining necessary utility permissions/connections, completed the project. The petitioners purchased their respective flats on different dates from the developer by way of respective allotment letters and upon receiving the payment from all the petitioners, the developer handed over possession of respective flats on different dates to all the petitioners.
3. During their peaceful possession, the petitioners received a letter from one Shiban Akbar, claiming to be the daughter of the land owner. In the said letter she informed that her mother (land owner) cancelled the previous power of attorney executed in favour of the developer and appointed her as new attorney for the schedule property and, as such, the sale and registration of flats were responsibility of newly appointed attorney. She also mentioned that developer breached several terms and conditions of the development agreement and denied respondent No.4 of her entitled share. Mrs. Shiban Akbar also mentioned that in contravention of the agreement dated 11-1-2000 the developer, handed over possession of flats to 3rd party purchasers without handing over land owner's flat and, as such, the land owner would not recognize or accept any sale proceeding of flats until her entitled flats are handed over by the developer and compensation is paid in full.
4. The land owner also filed a criminal case (Uttara PS Case No. 42 dated 20-3-2005 corresponding to GR No. 123/05) against the petitioners No. 1-6 for purchasing the flats in violation of the Development Agreement. Learned Additional Chief Metropolitan Magistrate discharged the petitioners No. 2-6 from the case as the Court did not find any substance in the allegation. The petitioner No.1 filed a miscellaneous petition under section 561A of the Code of Criminal Procedure (CrPC) where the proceedings against him was stayed by the High Court Division. As part of their grudge against the petitioners, the respondent No.4 and her daughter used their connections both in various authorities as well as in political arena. Being influenced by respondent No.4 and her daughter, the RAJUK served notice alleging deviations in the constructed building in question from the approved layout plan.
5. Since neither the respondent No.4 (land owner) nor the respondent No.5 (the developer) took any initiative for registration of the flats, on 28-11-2012 the petitioners applied to the RAJUK (Lessor) for registration of sale deed in favour of the petitioners. But having no response, the petitioners filed a suit bearing Title Suit No. 971 of 2012 against the developer and land owner praying for registration of the purchased flats and the suit is now pending before the 2nd Assistant Judge, Dhaka. In the meantime, the petitioners came to know that the RAJUK with the consent of the land owner (respondent No.4) cancelled the building layout plan on 10-12-2012. In the letter of cancellation dated 10-12-2012 the RAJUK stated that since respondent No.4 as leasehold owner, wrote a letter informing the RAJUK that she does not have resources to remove deviation and gave her accord to cancel the layout plan, the RAJUK decided to cancel the said plan.
6. Despite the RAJUK had knowledge that the petitioners are the genuine purchasers of their respective flats of the building and they are living in the building since, 2003, yet no notice whatsoever was given to the petitioners. On the contrary, notice of cancellation was issued only to the respondent No.4 (the land owner) who consented for such cancellation. The RAJUK gave her an opportunity to appeal within 30 days which is apparently a mockery as the RAJUK has cancelled the building layout plan due to her instigation and persuasion.
7. In this backdrop, the petitioners filed this writ petition and obtained the present Rule.
8. The RAJUK as respondent No.2 has filed an affidavit-in-opposition controverting the statements made in the writ petition. Contentions of this respondent, inter alia, are that on an application of the lessee (landowner)/developer, the RAJUK sanctioned plan for constructing a six-storied building vide its memo No. তিস-১৮২৮/১৯৯৯ dated 17-8-1999, but the developer constructed the building in question with deviation of the approved plan. Thereafter, the RAJUK on 7-4-2005 issued show cause notice asking the land owner/developer as to why deviated parts of the building should not be removed. Since the reply of show cause notice was not satisfactory, the RAJUK issued final notice on 19-4-2005 asking the land owner/developer to remove deviated part of the building. Ultimately, the RAJUK executed several operations to remove the deviated parts of the building on 23-9-2010, 26-9-2010, 19-12-2011, 20-12- 2011, 21-11-2012 and 22-11-2012 respectively to remove the deviated parts of the building. While driving operations to remove the deviated parts of the building, the occupiers/developer requested the eviction team not to proceed with the eviction operation and they promised to remove deviated part of the building at their own risk, but the occupiers/developer did not keep their commitment. As a result the RAJUK authority as per section 9 of the Building Construction Act having authority cancelled approved plan on 10-12-2012 which was granted under section 3 of the Act. Section 9 of the Building Construction Act, 1952 (the Act, 1952) provides that, the sanction granted under section 3 or section 3C shall be liable to cancellation by the Authorized Officer or the Committee, as the case may be, for breach of any of the terms or conditions or making statement not correct under which such sanction was granted. The order passed under section 9 of the Building Construction Act, 1952 is appealable under section 15 of the said Act.
9. The land owner as respondent No. 4 has also filed an affidavit-in-opposition controverting the statements of the writ petition. Contentions of this answering respondent, in brief, are that the present petitioners instituted Title Suit No. 971 of 2012 before the learned Assistant Judge, 2nd Court, Dhaka praying to get registered deed of purchase relating to respective flats and it is still pending. The petitioners also applied to the Chairman, RAJUK, by letter dated 28-11-2012 (Annexure-G) for acquiring ownership in the flats of the building in question. In view of pendency of civil suit, the writ petition is not maintainable.
10. The land development agreement dated 11-1-2000 between the respondent No.5, Arafa Corporation Limited (developer) and the respondent No.4 (land owner), was not registered and also expired on 10-7-2002 and that the respondent No.5 (developer) did not take any effective step in due time for its extension or to execute any new agreement with the land owner (respondent No.4). On 6-5-2002 the developer (respondent No.5) collected signature of the land owner in a general power of attorney and that it was not registered and authenticated by any lawful authority and that it was cancelled on 15-9-2005. Pursuant to development agreement dated 11-1-2000 and the power of attorney dated 6-5-2002 (revoked on 15-9-2005), the land owner (respondent No.4) never handed over any possession or issued any allotment letter like Annexures-C and Cl series in favour of the petitioners and so those have no legal binding upon the land owner. Shiban Akbar (daughter of land owner) was appointed as attorney of land owner by registered power of attorney dated 7-7-2004. The said attorney issued letter dated 18-1-2005 to the petitioners' developer company (Arafa Corporation Ltd.) and other concern government officers stating the facts about unpaid compensation of the developer company, expiry of agreement and revocation of power of attorney between the land owner and the developer and present status of the building or flats in question.
11. The building layout plan dated 17-8-1999 and the cancellation thereof vide letter dated 10-12-2012 (impugned) (Annexures-H/1 and H2 respectively) show that those were issued in favour of the respondent No.4 (land owner) and that in the approval letter dated 17-8-1999 present petitioners were not the party and beneficiary. The RAJUK as a statutory authority following due process of law under the lawful obligation, legally cancelled the building layout plan by issuing show cause notice and that the letter of cancellation dated 10-12-2012 was issued on the ground that the building in question was constructed in violation and in contravention of the layout plan. Further, allegation of violation of natural justice is totally misconception of law. The petitioners are all trespassers and illegal occupiers in the demised building and so claiming notice relating to action of the RAJUK are totally mockery and false. The RAJUK did not commit any illegality and that mere construction of a building on a portion of land by any unauthorized occupant or trespasser or any developer company without any lawful authority does not create any title over the land in favour of them.
12. The petitioners have already instituted a suit for declaration and injunction against the respondents No.4 and 5 being Civil Suit No. 830 of 2009 (now renumbered as 971 of 2012). The respondents are contesting the suit by submitting written statements. The petitioners' right to entitlement of flats are under adjudication in the above mentioned civil suit. This answering respondent No.4 as land owner does not have any contractual obligation with the petitioners.
13. By filing supplementary affidavit, the land owner (respondent No.4) further states that earlier the respondent No. 5 (developer) filed writ petition No. 2730 of 2005 challenging two orders of the RAJUK dated 5-9-2004 and 19-4-2005 requiring to demolish constructed building and ultimately the respondent No. 5 did not proceed with the Rule due to which it was discharged for non-prosecution by order dated 10-8-2009.
14. Mr Moyeen Firoze, the learned Advocate appearing for the petitioners submits that the petitioners have been possessing the schedule flats by way of purchase from the respondent No. 5 (developer) but due to dispute between the developer and the land owner, the petitioners could not obtain the registered purchase deed and so they filed a suit before the competent civil court. He further submits that while the petitioners are in possession in the aforesaid flats, the RAJUK issued notice alleging some deviations in constructing the building and ultimately, in the year 2004 and 2005, the RAJUK demolished the deviated portions of the building and realized expenditures from the developer incurred for the demolition works. Therefore, the subsequent impugned order of the RAJUK, again alleging deviation is malafide. He further submits that due to dispute between the land owner and the developer, the land owner instructed the RAJUK to cancel the layout plan in order to dismantle the building for evicting the petitioners and the developer and therefore, the impugned order is collusive and malafide.
15. Mr Firoze also submits that the impugned order was issued under section 9 of the Building Construction Act, 1952 (the Act, 1952) and in order to issue such order the RAJUK is required to conduct an enquiry under section 3B of the said Act serving notices upon the owner, the occupier and the person in charge of the building. Although the petitioners are the admitted occupiers and the developer is admittedly in charge of the building (by constructing the building) but no such notices were ever served upon the petitioners or the developer. Therefore, the impugned order of cancellation of plan was issued in violation of mandatory provisions of the Act, 1952 and so, it warrants interference of this Court. He again submits that there is no circumstances available regarding the building as mentioned in section 3B(5) of the Act, 1952 and so the impugned order needs to be interfered by this Court under its judicial review.
16. Mr Imam Hasan, the learned Advocate appearing for the respondent No.2 (RAJUK) contends that on observance of all the required procedures under the Act, 1952, the impugned order was issued and so, it should not be interfered. He further contends that section 15 of the Act, 1952 incorporates provisions for preferring appeal against an order passed under section 9 of the Act, 1952 but by passing the said alternative forum, the petitioners have filed this misconceived writ petition.
17. Mr Zead-al-Malum, the learned Advocate appearing for the respondent No. 4 (land owner) after placing his affidavit-in-opposition and supplementary affidavit in-opposition contends as follows:
(A) The petitioners do not have any locus-standi to file this writ petition because;
- the agreement entered into between the land owner and the developer has already been expired long before their alleged purchase;
- before petitioners' alleged purchase the period of the letter of sanction for constructing building in question has already been expired in the year 2002;
- by the unregistered contract document the petitioners cannot claim title over the flats in question and the civil suit regarding petitioners claim of title is yet to be decided. Moreover, the power of attorney executed in favour of the developer has already been cancelled due to which he also filed civil suit.
(B) The petitioners or the developer did not receive any occupancy certificate from the RAJUK and so they are not the occupants in the register of the RAJUK. Therefore, question of serving notice upon them as occupants does not arise.
(C) Ms Shiban Akbar is the constituent attorney appointed by the land owner to whom the petitioners added in the suit. But they have not impleaded her in the writ petition and so, the writ petition is not maintainable due to non-joinder of relevant party.
(D) The writ petition involves disputed question of facts which cannot be adjudicated under this summary procedure.
(E) The respondent No.5 (developer) earlier filed writ petition challenging the notice of the RAJUK requiring to demolish the building and ultimately the Rule issued therein was discharged for non prosecution and therefore, on the same cause of action, the present writ petition is not maintainable.
(F) The petitioners do not press 2nd part of the Rule although it is the substantive part of the Rule. Therefore, due to nonexistent of substantive part of the Rule, the 1st part of the Rule is also liable to be discharged.
18. Both the parties, in support of their contentions, have referred to several precedents and laws, in particular, the petitioners' learned Advocate refers to the following cases:
The case of Abdus Sattar (Md) vs Bangladesh and others reported in 1 BLC (AD) 161, Jobon Nahar and others vs Bangladesh, through the Secretary, Ministry of Housing and Public Works. Department, Government of the People's Republic of Bangladesh and others reported in 49 DLR 108, Secretary Ministry of Works, Government of Bangladesh vs Hasner Jahan Ahad reported in 6 BLC (AD) 111, Mohammad Amir Hossain vs Authorised Officer; RAJUK and another reported in 9 BLT (HCD) 326, Dr. Nurul Islam vs Bangladesh reported in 33 DLR (AD) 201.
19. The respondent No.2 has also referred to an unreported case i.e a judgment and order dated 4-4-2018 passed in Writ Petition No. 5779 of 2015.
20. The learned Advocate for the respondent No. 4 (landowner) refers to the following cases:
The case of Major (Retd) Quazi Hasna Hena Begum vs Lt. Col. Kazi Mansurul Islam and others reported in 62 DLR (AD) 260, Chief Engineer Roads and Highways Directorate, Dhaka vs Advocate Asaduzzaman Siddique and others reported in 69 DLR (AD) 440, Metro Makers and Developers Ltd. vs Bangladesh Environmental Lawyers' Association Ltd (BELA) and others reported in 65 DLR (AD) 180, Md Sahidul Huq vs Chairman, Appellate Authority, Rajuk, Rajuk Bhaban, Dhaka and others reported in VI ADC 872, Begum Khaleda Zia vs Government of Bangladesh and others reported in 63 DLR 385 And Musarat Islam vs Government of the People's Republic of Bangladesh represented by the Secretary Ministry of Land and others reported in 70 DLR 569.
21. Dr. Md Shahjahan, the learned Advocate appearing for the respondent No.5 (developer) submits that he did not receive any notice relating to the impugned action and the order issued by the RAJUK and so the impugned cancellation of sanction was not done in accordance with the Act, 1952.
22. We have gone through the writ petition, affidavits in opposition separately filed by the respondents No. 2 and 4 and other materials on record including the cited cases.
23. To file the writ petition question of locus standi of the petitioners having been raised, we have to settle this issue first. In this regard, it appears that admittedly the landowner (respondent No.4) executed an agreement on 11-1-2000 with the developer (respondent No.5) for constructing a six-storied building (10 flats and ground floor parking) over the schedule land. Pursuant to said agreement, the landowner also executed a power of attorney empowering the developer to construct the building as well as to sell 7 (seven) flats thereof as it acquired pursuant to the agreement with the land owner. From the correspondences of the landowner and her daughter, it is also admitted position that in the meantime the building was constructed and Annexure-C series to the writ petition show that the petitioners entered into their respective agreements along with the allotment letters obtained from the respondent No.5 (developer). Indisputably the developer handed over possession of the flats of the schedule building to the respective petitioners on different dates in between 2003-2004 and since then they have been residing in the said building. From the correspondences as contained in Annexure-D1 to the writ petition, we find that the daughter of land owner as her new attorney addressed the petitioners as occupants in the building.
24. However, it appears that there are disputes between the land owner and the developer and thereby due to non executing of the sale deed in favour of the petitioners, they filed Title Suit No. 971 of 2012 before the competent civil court and Title Suit No. 952 of 2015 was also filed by the developer challenging revocation of power of attorney.
25. In the aforesaid situation, although Mr Zead Al Malum, the learned Advocate for the landowner (respondent No.4) submits that until any decision in the civil suit and there being no registered agreement, the petitioners cannot claim title over the flats in question and consequently they have no locus standi to file the writ petition.
26. In this regard, we have gone through the case of Comprehensive Holdings Limited and others vs MH Khan Monju and others reported in 69 DLR (AD) 420 wherein the apex Court held that although the agreement or allotment letter given by the developer company relating to real estate are not registered but the requirement of registration under the Transfer of Property Act and the Registration Act will not be applicable in this particular situation under special enactment i.e “রিয়েল এস্টেট উন্নয়ন ও ব্যবস্থাপনা আইন, ২০১০” (the Act, 2010). Relevant portions of the said ratio of our apex Court are as follows:
"It is also very significant to state that the developer issued the impugned letter dated 11-7-2010 to the plaintiff asking him to take back the booking money paid by him earlier after the Ain, 2010 came into effect, so the developer was legally obliged to follow the provisions of the Ain, 2010. And further, this law having been enacted after amendment was brought in the Transfer of Property Act, the Registration act and the Specific Relief Act vide sections 54A, 17A and 21A respectively in 2004 and no provision having been made therein making registration of the agreement for sale/purchase of a "real estate" compulsory, it could not be said that no right, title and interest accrued to the plaintiff over the two apartments and the two car parking spaces for non-existence of any registered deed of agreement for the purchase of the two apartments by the plaintiff as held by the trial Court."
27. In view of above ratio, it cannot be said that for want of registration, the documents executed between the developer and the petitioners relating to acquiring flats in question are invalid. However, since the petitioners have already filed the civil suit that would be decided on proper scrutiny and proof of their relevant documents. But at this stage, from all the correspondences and transactions, it cannot be said that the petitioners are not the occupants in this schedule property.
28. Although, Mr Zead-al-Malum submits that the petitioners or the developer have not obtained any occupancy certificate from the RAJUK but this requirement came into force after the Rules framed in the year, 2006 while the daughter of the land owner claiming attorney was addressing the petitioners as occupants in the year 2005. Moreover, from the notice of the RAJUK alleging deviations in the building issued in the year 2004, it is apparent that the building was definitely constructed before 2004 and the petitioners have been living there as occupants having admitted possession from the developer. Therefore, we are of the view that petitioners have locus standi to file this writ petition at least as occupants in the schedule building.
29. Now to determine propriety of the impugned order dated 10-12-2012 (Annexure-H to the writ petition) let us first read the same relevant portions of which are as follows:
“রাজধানী উন্নয়ন কর্তৃপক্ষ
অথরাইজড অফিসার-২এ এর কার্যালয়
মহাখালী জোনাল অফিস
মহাখালী, ঢাকা-১২১২
স্মারক নং ... তারিখ ...
প্রতি
মিসেস জাহানারা আকবর, প্লট নং ৪/এ
৪২/৩ নিউ ইস্কাটন রোড
শান্তিনগর লেন, রমনা
ঢাকা-১০০০
আপনার আবেদনের প্রেক্ষিতে নিম্নোক্ত জমিতে একটি ৬ (ছয়) তলা আবাসিক ইমারত এর নকশা অনুমোদন দেওয়া হয় (স্মারক নং- রাজউক/নঅঅ/ওস-১৮২৮/৯৯/১৮৭৬ তাঃ তারিখ- ১৭-৮-৯৯)
প্রস্তাবিত জমি/প্লট এর অবস্থান ও পরিমানঃ
(ক) সিটি কর্পোরেশন/পৌরসভা/থানা/মহল্লাঃ ঢাকা
(খ) সি,এস/আর,এস দাগনংঃ প্লট নং-১৯
(গ) মৌজা ও থানারনামঃ
(ঘ) ব্লক নংঃ
(ঙ) সিট নংঃ
(চ) ওয়ার্ড নংঃ
(ছ) সেক্টর নংঃ ৩ (প্ল্যান ১৩)
(জ) রাস্তারনামঃ ৭ সি
(ঝ) বাহুরমাপসহ জমি/প্লটের পরিমানঃ
(ঞ) জমি/প্লট ও বিদ্যমান বাড়ি/কাঠামোর বিবরণঃ ৬ (ছয়) তলা আবাসিক ইমারত
সাইট পরিদর্শন ও নথি পর্যালোচনা করে দেখা যায় যে, আলোচ্য প্লটে কলাম, সিঁড়ি, লিফট ডেভিয়েশন করে একটি ৬ (ছয়) তলা ভবন নির্মাণ করা হয়েছে। এ সকল ডেভিয়েশন অপসারণ করা হলে ভবনটি ঝুঁকিপূর্ণ হয়ে যাবে এবং জান-মালের ক্ষয় ক্ষতির সম্ভাবনা রয়েছে। ডেভিয়েশন অপসারণে আপনাকে পত্র দেয়া হলে আপনি তা অপসারণের আপনার রিসোর্স এর অভাব এর কথা জানিয়ে রাজউককে পত্র দেন এবং আইন অনুযায়ী নকশা বাতিলের বিষয়ে একমত পোষণ করেন। এমতাবস্থায় ৫-১২-২০১২ তারিখে রাজউক ভবনে অনুষ্ঠিত বিসি কমিটির সর্ব সম্মত সিদ্ধান্ত মোতাবেক ইমারত নির্মাণ আইন, ১৯৫২ এর ৯ ধারা এবং ঢাকা মহানগর ইমারত (নির্মাণ, উন্নয়ন, সংরক্ষণ ও অপসারণ) বিধিমালা, ২০০৮ এর বিধি ২৯(২)(খ) অনুযায়ী ভবনটির রাজউক/নঅঅ/৩সি-১৪৮২৮/৯৯/১৮৭৬ তাঃ তারিখ ১৭-৮-৯৯ স্মারকের নকশাটি বাতিল করা হলো।
এ সিদ্ধান্তের বিরুদ্ধে (Building Construction Act, 1952 (Act No. II of 1953) এর ১৫ ধারা অনুযায়ী বাতিলের তারিখ হতে ৩০ (ত্রিশ) দিনেরমধ্যে নির্ধারিত ফরমে আপিল করার সুযোগ রহিয়াছে।
অথরাইজড অফিসার-২এ
ও সদস্য সচিব, বিসি কমিটি ২এ
রাজউক, ঢাকা”
30. For better appreciation of the aforesaid impugned order, the provisions mentioned therein i.e section 9 of the Act, 1952 and the rule 29 (2) (kha) of “ঢাকা মহানগর ইমারত (নির্মাণ, উন্নয়ন, সংরক্ষণ ও অপসারণ) বিধিমালা, ২০০৮”(the Rules, 2008) are reproduced herein below:
“9.The sanction granted under (section 3 or section 3C) shall be liable to cancellation by the Authoriosed Officer or the Committee, as the case may be, for breach of any of the terms or conditions or making statements not correct under which such sanction was granted.”
“২৯। বিল্ডিং, স্থগিতকরণ অথবা অননুমোদিত কাঠামো ভাঙ্গিয়া দেওয়া, ইত্যাদি ----
(১) ---------------
(২) নির্মাণ অনুমতিপত্র স্থগিত বা বাতিল করা যাইবে, যদি-
(ক) সংশ্লিষ্ট জমি বা প্লটেরবিষয়ে কোন আইনগত জটিলতা দেখা দেয়;
(খ) অনুমোদনের শর্তাবলী ভঙ্গ করা হয়;
(গ) আবেদনপত্র বা অন্যান্য প্রযোজ্য ফরমসমূহে ভুল অথবা মিথ্যা তথ্য পরিবেশন করা হয়; এবং
(ঘ) ইমারত ব্যবহারে অসামঞ্জস্যতা দেখা দেয় এবং অনুমোদিত নকশার বিধি বহির্ভূত পরিবর্তন করা হয়।”
31. Since section 9 of the Act, 1952 provides provision for cancellation of sanction granted under section 3 of the said Act, for better understanding let us read the relevant portions of section 3 of the Act, 1952 which are as follows:
"3.(1) Notwithstanding anything contained in any other law for the time being in force, or in any agreement, no person shall, without the previous sanction of an Authorised Officer, construct or re construct or make addition or alternation to any building, or excavate or re-excavate any tank within the area to which this Act applies; and such sanction shall be subject to such terms and condition as the Authorised Officer may think fit to impose:
Provided that such sanction shall remain valid for three years from the date of sanction and on the expiry of the period, the application shall have to apply and obtain a fresh sanction.
1 (a)----------
Explanation:--- For the purpose of obtaining fresh sanction under sub-section (1) or sub-section (1a), no fresh sanction shall have to be obtained for the construction of buildings where the construction has been made up to 4 feet above plinth level,."
32. According to provisio to section 3 (1), the validity of a sanction is for 3 (three) years and on the expiry of the period, a fresh sanction is requried. But explanation of the said provision provides that if within the 3 years, the construction has been made upto 4 feet above plinth level, no fresh sanction shall have to be obtained for construction of building. From the above, it is clear that the force of sanction under section 3 of the Act, 1952 remains for 3 (three) years or till construction upto 4 feet above plinth level of the proposed building, whichever is earlier. If construction is completed upto 4 feet above plinth level, it is no matter as to whether the sanction has the validity period of 3 years and in other words sanctions validity is immaterial and that being so, after this stage of construction of the building, cancellation of sanction under section 9 of the Act, 1952 does not bear any effective value. Therefore, we hold that action of cancellation of sanction under section 9 of the Act, 1952 can be taken when it is alive having validity period i.e upto 3 (three) years or till construction of 4 feet above plinth level.
33. Here, the impugned order shows that the sanction was given on 17-8-1999 and so, after 3 (three) years it expired on 16-8-2002. On the other hand, admittedly the developer handed over possession of flats of the completed building from 2003 and, as such, it is beyond dispute that the minimum construction work requirement (4 feet above plinth level) was completed within the validity period (3 years) of sanction. Moreover, the impugned order does not claim the above time frame violation.
34. Pursuant to section 3(1) and its explanation, after completion of construction of 4 feet above plinth level, validity of sanction does not require and so, for the same reason, question of its cancellation does not arise after completion of the building. It would be more clear if we look at the provision of cancellation of sanction i.e section 9 of the Act, 1952 which specially spells out "sanction granted under section 3". Therefore, after construction of building, if any deviation is found from the terms or conditions of sanction, the punitive action can be taken under section 3B of the Act. Regard being had to the above, the impugned order purported to have been issued under section 9 of the Act, 1952 is misconceived and with a malafide motive.
35. Besides, if we read the impugned order it appears that the RAJUK cancelled the plan of the schedule building alleging deviation in constructing the building, in other words, for breach of terms or conditions of sanction. In section 9 of the Act, 1952 the word cancellation of plan does not appear and that there is no such separate provision for cancelling the plan but as per submission of the RAJUK since sanction was given along with plan, cancellation of plan amounts to cancellation of sanction. However, even if we accept this submission and if section 9 of the Act, 1952 is applied for cancellation of plan as per provision of the said section the RAJUK has to come to a finding as to whether there was any breach of terms or conditions of sanction. Since the impugned order purports deviation, it can be turmed as the breach of terms or conditions under the sanction. Therefore, in order to make finding as to breach of any of the terms or conditions referring to deviatious, the authority has to follow the procedure provided in section 3B of the Act, 1952 which has not been denied by the learned Advocate for the RAJUK and that section 3B of the Act, 1952 also refers to action for breach of terms or conditions of sanction granted under section 3 of the said Act.
36. Thus, in any view of the matter, after construction of building only recourse lies to the RAJUK is the action under section 3B of the Act, 1952. However, the learned Advocate for the RAJUK vehemently submits that following the procedure under section 3B of the Act, 1952 the impugned order was issued.
37. Therefore, let us see as to whether the procedure incorporated in section 3B of the Act, 1952 was followed in issuing the impugned order. To appreciate this issue, let us examine the section 3B of the Act, 1952 relevant portions of which are as follows:
"3B.—(1) Where it appears to the Authorised Officer or the Committee, as the case may be, that—
(a) any building has been constructed or re-constructed, or any addition or alternation to any building has been made, or any tank has been excavated or re-excavated, before or after the commencement of the Building Construction (Amendment) Ordinance, 1986 (Ordinance No. LXXII of 1986);
(b) any building is being constructed, or re-constructed, or any addition or alteration to any building is being made or any tank is being excavated or re-excavated.
Without obtaining the sanction under section 3, or in breach of any of the terms or conditions subject to which sanction was granted under that sanction, he or it may. by a notice, direct the owner. the occupier and the person in-charge of the building or the tank to show cause, within such period, not being less than seven days, as may be mentioned in the notice, why—
(i)The building or any portion thereof, whether constructed or under construction, as may be specified in the notice, should not be removed or dismantled; or
(ii)The tank or any portion thereof, whether excavated or under excavation, specified in the notice, should not be filled up; or
(iii)Further construction or re-construction of, or addition or alteration to, the building, or excavation or re excavation of the tank, should not be stopped.
(2) -----------
(3) Where, after considering the cause shown, if any, within the time mentioned in the notice and giving the person showing the cause a reasonable opportunity of being heard, or where no cause is shown within such time, the Authorised Officer or the Committee, as the case may be, after such enquiry as he or it deems fit, is satisfied that the building has been, or is being. constructed or re-constructed, or addition or alteration to the building has been, or is being, made, or the tank has been, or is being, excavated or re excavated without obtaining the sanction under section 3, or in breach of any of the terms and conditions subject to which sanction was granted under that section, he or it may, by an order in writing stating reasons therefore, direct the owner, the occupier and the person in-charge of the building or the tank to remove or dismantle the building or any portion thereof or to fill up the tank or any portion thereof as specified in the order within such time as may be fixed by him or to stop further construction or re construction, addition or alteration or excavation or re-excavation, addition or alteration or excavation or excavation or re-excavation, as the case may be; and otherwise shall make an order vacating the notice.
(4) ----------
(5) No order under this section shall be made directing any person to remove or dismantle any building or part thereof or to fill up any tank or part thereof unless it is found that—
(a) such building or part thereof has been constructed, or re-constructed, or such tank or part thereof has been excavated or re-excavated at a place or in a manner which is contrary to the master plan or development plan, if any, of the area in which the building or the tank is situated, or
(b) such building or part thereof cannot be re-constructed, or altered or such tank, or part thereof cannot be re-excavated, in accordance with the terms and conditions of the sanction alleged to have been breached, or
(c) such building or part thereof or such tank or part thereof causes any undue inconvenience in respect of use or occupation of any land or building or road or passage in the area adjacent to it, or
(d) sanction, if prayed for, could not be granted for the construction or re-construction of, or addition or alteration to, the building or excavation or re-excavation of the tank."
38. On a plain reading of the aforesaid provisions, it appears that before coming to the final decision under section 3B(1) of the Act, 1952, the authority is required to serve notice upon 3 (three) persons i.e the owner, occupier and the person in charge of the building in question. Here in this case admittedly, the developer (respondent No.5) constructed the building in question on the basis of the agreement and power of attorney (Annexures-A and B) and so, the developer is a person in charge of the building but no notice was served upon him although the RAJUK in the earlier occasion realized costs from this developer after demolishing the deviated portions of the building. Moreover, from the correspondences .and annexures as contained in the writ petition as well as in the affidavit-in-opposition, we held above that the petitioners are the occupiers in the schedule building. Therefore, notice is required to be served upon these occupiers (petitioners) and the person in charge (the developer) in order to come to the fair and proper decision as to the defect/deviations of the building. But admittedly these concerned persons have not been notified as per requirement of section 3B(1) of the Act, 1952.
39. Secondly, even notice would have been served upon those persons, after considering cause shown (if any) by the aforementioned persons or if no reply is submitted, yet the RAJUK is required in accordance with section 3B(3) of the Act, 1952 to conduct an enquiry before coming to final decision but here the respondent RAJUK has not asserted as to conducting any such enquiry before taking the decision under the impugned order.
40. What is more, relating to the building in question, earlier a notice was issued on 7-4-2005 wherein the RAJUK alleged some deviations in the following manner:
“রাজধানী উন্নয়ন কর্তৃপক্ষ
রাজউক ভবন, ঢাকা
স্মারক নং রাজউক/নঅঅ২/৩িস১৮২৮/৯৯/৫৬মু
তারিখ ৭-৪-০৫
প্রেরকঃ অথরাইজড অফিসার-২
নকশা অনুমোদন শাখা
রাজউক, ঢাকা
প্রাপকঃ মিসেস জাহানারা আকবর
প্লট ১৯, রোড নং ০৭সি, সেক্টরনং ০৩, উত্তরা, আ/এ
বিষয়ঃ ই,বি,বি,সি এ্যাক্ট ১৯৫২ ও (পরবর্তী সংশোধন ১৯৮৪) লংঘন করিয়া প্লট নং ১৯, রোড নং ৭ সি, সেক্টর নং ০৩, মৌজা উত্তরা আ/এ এ অনুমোদিত প্ল্যানের বহির্ভূত নির্মাণ প্রসঙ্গে।
অত্র দপ্তরের রেকর্ড পত্র হইতে প্রতীয়মান হয় যে, আপনি/আপনারা ইমারত নির্মাণ (সংশোধন) আইন ১৯৮৭ এর ৩(তিন) ধারা মোতাবেক অত্র দপ্তরের স্মারক নং রাজউক/নঅঅ/৩সি১২২৮/৯৯/১৮৭৬ তাঃ তারিখ ১৭-৮-৯৯ দ্বারা একখানা আবাসিক/বানিজ্যিক/শিল্প/গুদামঘর এর পর জানা যায় যে, আপনি/আপনারা নিম্ন বর্নিত খালি জায়গা রাখিয়া উল্লেখিত প্লট/দাগে/হোল্ডিং এ ইমারত নির্মাণ করিয়াছেন/করিতেছেন।
উত্তর দিকে ১.৫০ মিটার স্থলে ১.১৪ মিটার, দক্ষিণ দিকে ১.২৫ মিটার স্থলে ১.২৫ মিটার, পূর্ব দিকে ২.০০ মিটার স্থলে ১.৮২ মিটার ও পশ্চিমে ১.৫০ স্থলে ১.৫০ মিটার।
ইহা ছাড়া উত্তর দিকে ০.৯১ মিটার, দক্ষিণে ০.৩২ মিটার পূর্ব দিকে ০.১৫৩ পশ্চিমে ০.৫৫ মিটার বারান্দা বাড়ানো আছে। অনুমোদিত নকশার ব্যত্যয় ঘটাইয়া সিঁড়ির অবস্থান পরিবর্তন করা হইয়াছে।
অতএব, ইহা পরিস্কার ভাবে বুঝা যায় যে, আপনি উপরে উল্লিখিত আইনের বরখেলাপ করতঃ অনুমোদিত নকশার বহির্ভূত নির্মাণ করিয়াছেন।
উপরে বর্ণিত পরিস্থিতিতে আপনাকে/ আপনাদিগকে এই চিঠি জারীর ৭ (সাত) দিনের মধ্যে ইমারত নির্মাণ (সংশোধন) আইন ১৯৮৭ এর ৯ (নয়) ধারা মোতাবেক অনুমোদিত নকশা কেন বাতিল করা হইবে না এবং অনুমোদিত নকশার বহির্ভূত নির্মাণ কাজ কেন ভাঙ্গিয়া ফেলা হইবে না তাহার কারণ দর্শানোর নির্দেশ দেওয়া যাইতেছে।
অথরাইজড অফিসার-২
নকশা অনুমোদন শাখা
রাজউক, ঢাকা”
41. Ultimately, making enquiry about the entire constructed building, the RAJUK came to the final decision mentioning those deviations. Thus, issuing final notice demolished those deviated portions on 23-9-2010 and 26-9-2010 and the RAJUK realized incurred costs thereof (Annexure-F series) from the developer (respondent No.4). Relevant portions of the RAJUK's letter dated 03-10-2010 is quoted herein below:
“বিষয়ঃ প্লট/দাগ নং-১৯, রোড নং-৭সি, সেক্টর-০৩, উত্তরা, ঢাকাতে বিদ্যমান ইমারতের নকশা বহির্ভূত নির্মাণ কাজ ভাঙ্গা/অপসারণ বাবদ খরচের টাকা মাঃ...............পরিশোধ প্রসঙ্গে।
উপরোক্ত বিষয় ও সূত্রের প্রেক্ষিতে জানানো যাইতেছে যে, রাজউকের প্রথম শ্রেণীর ম্যাজিস্ট্রেট এর নেতৃত্বে আইন শৃংখলা রক্ষা বাহিনীর উপস্থিতিতে গত ২৩-৯-২০১০ ও ২৬-৯-২০১০ ইং তারিখ আলোচ্য হোল্ডিং-এ বিদ্যমান ইমারতের নকশা বহির্ভূত নির্মাণ কাজ ভাঙ্গিয়া অপসারণ করে, উক্ত ভাঙ্গা/অপসারণ কার্যক্রম পরিচালনার জন্য রাজউকের টাকা = ১,১৮,০০০ মাঃ খরচ হইয়াছে যাহা পরবর্তীতে নির্মাতা/ব্যবহারকারী কর্তৃক পরিশোধযোগ্য। ভাঙ্গা বা অপসারণ বাবদ সমস্ত খরচ প্রদান করিতে আইনগত ভাবে বাধ্য রহিয়াছেন।
এমতাবস্থায় রাজউক কর্তৃক খরচকৃত টাকা আগামী ১০ (দশ) দিনের মধ্যে চেয়ারম্যান, রাজউক বরাবরে পে-অর্ডার/ব্যাংক ড্রাফট এর মাধ্যমে অগ্রণী ব্যাংক, রাজউক ভবন শাখা, ঢাকায় এ. টি. ডি. হিসাব নং-৩৫/৩৬০০০৪৭ এ জমা প্রদান করার জন্য আপনাকে অনুরোধ করা হইল। ব্যর্থতায় ইমারত নির্মাণ আইন, ১৯৫২ এর ৭ ধারার ক্ষমতাবলে ১৮৯৮ সনের ফৌজদারী কার্যবিধির ৩৮৬ ধারার বিধান মোতাবেক উল্লিখিত টাকা আদায়ের ব্যবস্থা গ্রহণ করা হইবে।
অথরাইজড অফিসার
রাজধানী উন্নয়ন কর্তৃপক্ষ
মহাখালী, ঢাকা”
42. Therefore, the allegations of deviation works in the building in question became a past and closed issue. After long time (i.e after 2 years) how the RAJUK again bring new allegations of different deviations of the same building. It is more surprising, because without referring to any particular enquiry or investigation the allegation as to deviation of column of building has been brought which is impossible by outside examination. Moreover, the person (developer) who constructed the building, without notifying him only serving notice upon the land owner the impugned action was taken although admittedly the land owner was not at all involved with the construction work of the building.
43. Thus, we are led to hold that the impugned order of cancellation of building plan purported to have been issued under section 9 of the Act, 1952 and the rule 29 (2) (kha) of the Rules, 2008 was issued without following the legal procedures provided under the Act, 1952.
44. Again, if we look into the background of this order, it appears that there has been a long standing dispute between the developer and the land owner due to which the land owner is unwilling to accept her proportionate flats and she purportedly cancelled the power of attorney given to the developer. Consequently, the petitioners (bonafide purchasers from the developer's proportionate share) did not get registered deed of sale although admittedly they got possession and have been enjoying their respective flats. In the prevailing situation, all the parties are now fighting under the umbrella of civil suits. In the circumstances, inspite of earlier enquiry into the building and thereby taking action finally for deviation by the notice of the year 2004 - 2005, the RAJUK has again issued impugned order raising different allegation of deviation to the very root of the building i.e column of the building without any enquiry and show cause notice upon the concerned persons in order to demolish the building.
45. We find another aspect that, the impugned order itself reflects the land owner's interest to demolish the building as she wrote letter to the RAJUK for taking the impugned decision of demolition of building as a whole and accordingly, she consented to the decision of the RAJUK. Thus, it is apparent that the impugned order is an out come of the disputes exist between the land owner and the developer and at the connivance of land owner, the RAJUK issued the impugned order of demolition of the building alleging deviations although the allegations of deviation of the building was a past and closed issue by taking action long back upon enquiry of the building. Thus, on a past and closed issue of deviation, after 7 years of earlier action, it is absolutely malafide and an out come of disputes between the parties i.e the developer and the land owner. Considering all the above facts and circumstances altogether, we have no hesitation to hold that the impugned order was issued for achieving some collateral purposes and so it is malafide. This view of ours finds support from the case reported in AIR, 1964 (Cal) 265 wherein it is held.
"Malafide does not necessarily involve a malicious intention. It is enough if the aggrieved party establishes; (1) that the authority making the impugned order did not apply its mind at all to the matter in question or (2) that the impugned order was made for a purpose or upon a ground other that what is mentioned on the face of the order."
46. The important question raised by the learned Advocate for the RAJUK as to maintainability of the writ petition because there is a specific provision under section 15 of the Act, 1952 providing forum of appeal against the action under section 9 of the Act, 1952. But without availing the said forum, the petitioners have filed this writ petition. In this context, Mr. Moyeen Firoze, the learned Advocate for the petitioners replies that although the petitioners as admitted occupiers of the schedule building, are required to be notified but having not been done they were not aware about the impugned order and so they could not prefer appeal within the stipulated period of 30 days under section 15 of the Act, 1952. He strengthens his submissions relying upon the case of Secretary, Ministry of Works, Government of Bangladesh vs Hasner Jahan Ahad reported in 6 BLC (AD) 111. He also submits that malafide being apparent in passing the impugned order, the petitioners can maintain this writ petition without preferring appeal. In this context, Mr. Firoze has cited some cases, in particular, 49 DLR 108, 6 BLC (AD) 111, 2001 BLD (HCD) 365, 9 BLT (HCD) 326, 33 DLR (AD) 161.
47. We have also gone through the cited cases as referred to by Mr. Imam Hasan, the learned Advocate for the respondent No.2 wherein the High Court Division held that section 15 of the Act, 1952 has to be availed by preferring appeal against the action of RAJUK. However, in this regard, we have gone through cited case reported in 6 BLC (AD) 111 wherein the apex Court held as under:
"The High Court Division made the Rule absolute relying upon certain decisions, in the case of Saleha Begum vs Chairman, First Court of Settlement reported in 49 DLR 243 and in the case of Jobon Nahar and others vs Bangladesh reported in 49 DLR 108 wherein it was held that ordinarily the High Court Division under Article 102 of the Constitution will not interfere where there is equally effective and efficacious remedy available to a petitioner. Yet the existence of another remedy was not in every case bar to the exercise of power of the High Court Division under Article 102 of the Constitution and the Court may interfere if the circumstance demand such interference. The High Court Division found that this case was such a case in that the property in question did not come within the definition of abandoned property. No notice was served under section 7 of President's Order 16 of 1972 on the occupant of the building and the petitioner had no means of knowing that the property was being treated as an abandoned property. Further, it was found that the writ petitioner and her predecessor, which was Eastern Housing Limited, had never left the country or abandoned the property."
48. Relying on the aforesaid ratio, here we find that firstly, the petitioners are occupiers of the building in question but due to non service of notice upon them under section 3B (1) of the Act, 1952 they were not aware about the impugned order passed on 10-12-2012. Secondly, we held above that there was malafide intention of landowner to evict the petitioners from the building due to her pending dispute with the developer and so, the land owner herself consented to issue the impugned order alleging some deviations in the building. Thirdly, earlier the allegations of deviation of the said building has already been settled by issuing notice in the year 2004-2005 and by demolishing deviated parts at the costs realized from the developer. Considering all these 3 (three) aspects, we are of the view that the writ petition is quite maintainable without preferring appeal under section 15 of the Act, 1952. This view of ours finds support in the case of Unique Hotel and Resorts Ltd and others vs Bangladesh and others reported in 15 BLC 771, Dr Nurul Islam vs Bangladesh and others reported in 33 DLR (AD) 201, Mohammad Amir Hossain vs Authorised Officer, RAJUK and another reported in 9 BLT (HCD) 326 and 1981 BLD (AD) 140 = 33 DLR (AD) 201. In particular, the cases reported in 1 BLC (AD) 161, 15 BLC 771 and 9 BLT (HCD) 326 are related to RAJUK action wherein the High Court Division entertained writ petition without preferring appeal under section 15 of the Act, 1952. Among those decisions, in the case reported in 15 BLC 771 their Lordships held as under:
"To all intents and purposes, in our assessment, the Environment Directorate and the RAJUK's impugned Memos dated 26-8-2009 and 7-9-2009 respectively are unreasonable in the Wednesbury sense. As the said Memos Dated 26-8-2009 and 7-9-2009 are malafide and without jurisdiction, Dr SA Mahmood was not required to approach the Appellate Authority either under Section 14 of the “পরিবেশ সংরক্ষণ আইন, ১৯৯৫” or under Section 15 of the Building Construction Act, 1952 and he rightly approached the High Court Division directly under Article 102 of the Constitution."
49. Although, Mr. Zead-al-Malum, the learned Advocate submits that earlier a writ petition was unsuccessfully filed by the respondent No.5 (developer) and so, this writ petition is not maintainable on the same cause. We find that the earlier writ petition was filed by the developer i.e respondent No.5 and not the petitioners. Moreover, in the said writ petition, the earlier action of the RAJUK taken in the year 2004-2005 was challenged but in this writ petition subsequent action taken in the month of December, 2012, a new cause of action has been challenged. Further, we discussed above that the RAJUK took action earlier in the year 2004-2005 regarding deviations and though the developer filed the earlier writ petition but during pendency of the said writ petition, the RAJUK demolished deviated portions of the building and realized costs from developer incurred for the said demolition works. Therefore, there is no nexus between the previous writ petition and the present writ petition and so, we are unable to accept the submission of Mr Zead-al-Malum, the learned Advocate for the respondent No.4.
50. Secondly, since the land owner is contesting the Rule as respondent No.4 we hold that without impleading her daughter, Shiban Akbar, the writ petition is quite maintainable.
51. As we are adjudicating only the propriety of issuance of the impugned order issued by the RAJUK, there is no disputed question of facts to come to the decision relating to this issue.
52. Mr. Zead-al-Malum next submits that second part of the Rule is being not pressed, the Rule as a whole cannot sustain. In this regard, we find that two parts of the Rule are quite different. The first part of the Rule is relating to propriety of the notice of demolition of building dated 10-12-2012. On the other hand, by the 2nd part of the Rule the petitioners sought a direction upon the RAJUK to approve the building layout plan by accommodating deviations (if any) of the building. In the second part, the petitioners have deliberately used the words "if any" relating to deviation. Since we hold that the alleged deviations were not detected in accordance with law, the 2nd part of the Rule is redundant. Therefore, we are of the view that the first part of the Rule has no nexus with the second part of the Rule and without second part, the first part of the Rule can be settled. Hence, the submission of Mr. Zead Al Malum has got no legs to stand.
53. We have also gone through the cases as cited by Mr. Zead-al-Malum. The facts of 62 DLR (AD) 260 (relating to principles of natural justice) and 69 DLR (AD) 440 (construction without permission does not create title) are different, these are not applicable in this particular case. Further 65 DLR (AD) 180 settled the ratio that ownership rights should be subject to the requirements of the statutory law prevailing in the country. VI ADC 872 relates to the facts where construction was made beyond approved building plan detailed in the investigation report and that the learned Advocate for the petitioner could not show breach of legal provisions. Thus, the facts and circumstances of the aforesaid cases are distinguishable from those of the case in hand.
54. Regard being had to the above, we are led to hold that the impugned order was issued without compliance with the required law incorporated in the Act, 1952. Moreover, malafide and connivance of landowner is apparent in passing the impugned order. In view of above discussions, we find merit in first part of the Rule.
55. In the result, the Rule is made absolute in part. The cancellation of approved building layout plan vide memo No. RAJUK/NaMa:Tha-2A.BC-(Part) 1828/99/861 dated 10-12-2012 issued by the RAJUK relating to plot No.19 Road-7/C, Section-3, Uttara Model Town, Dhaka is hereby declared to be without lawful authority and of no legal effect.
Communicate a copy of this judgment and order to the respondents at once.
End.
High Court Division (Civil Revisional Jurisdiction)
Present:
Mr. Justice Mahmudul Hoque
Civil Revision No.91 of 2001
Tafiran Bewa and others
------------- Petitioners
VS
Joynal Abedin being dead his heirs: 1(a) Jahanara Begum and others
------- Opposite-Parties
Judgement Date : April 05, 2022
Counsels:
Humayun Kabir Sikder, Advocate
—For the Petitioners.
Moinuddin, Advocate
—For the Opposite-Party Nos.3-5, 6(a)-6(d), 7(a)-7(c), 8 and 9(ka)-9(ga).
Sikder Mahmudur Razi, Advocate
—For the Added-Opposite-Party Nos. 11-16.
Judgment
1. On an application under section 115(1) of the Code of Civil Procedure this Rule was issued at the instance of the petitioners calling upon the opposite party Nos.l-9 to show cause as to why the impugned judgment and decree dated 7-8-2000 passed by the learned Subordinate Judge (now Joint District Judge), 2nd Court, Bogura in Partition Appeal No.153 of 1994 allowing the appeal in part and thereby setting aside the judgment and decree dated 29-11-1988 passed by the learned Senior Assistant Judge, 1st Court, Bogura in Partition Suit No.600 of 1980 dismissing the suit should not be set-aside and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. Shorn of unnecessary details, fact of the case lies in a very short compus. The predecessor of the petitioners on 22-11-1980 instituted Partition Suit No.600 of 1980 in the Court of Munsif, 2nd Court, Bogura for partition in respect of his shares in the suit land. Subsequently, the suit was transferred to the court of learned Senior Assistant Judge, 1st Court, Bogura. The plaint case in brief is that the suit land belonged to one Sona Pramanik, Pona Pramanaik and Abir Pramanik in 4 annas, 4 annas and 8 annas share respectively; Abir Pramanik died leaving his wife Saimon Bewa and son Salimuddin. Salimuddin died leaving his mother Salmon Bewa who died leaving brother Mozahar and sister Kariman. Mozahar and Kariman transferred 111/2 sataks of land in favour of the predecessor of the petitioners by a registered sale deed dated 3-2-1959; Sona Pramanik died leaving his bother Pona Pramanik as his heir. Pona Pramanik died leaving his wife Zarina Khatun, son Joynal @ Bishu and daughter Zamiran. Zamiran died leaving her husband Khudhu Pramanik, the original plaintiff and the predecessor of the petitioners and consanguine brother Joynal @ Bishu; Zarina died leaving her 2nd husband Riaz and 3 sons Abdul, Abdul Quddus and Joynal. Joynal @ Bishu transferred 111/2 sataks of land in favour of Khudhu Pramanik (predecessor of the petitioners) by a registered sale deed dated 31-10-1958. Joynal @ Bishu also transfered 0-005 and 0-002 sataks of land in favour of the predecessor of the petitioners by 2(two) registered deeds dated 26-10-1972 and 6-3-1981 respectively. Riaz died leaving 5 sons Nafizuddin, Habibur, Kafiluddin, Nazrul and Budha Pramanik and 3 daughters Firoza, Surjayaban, Anwara and wife Ezatun Bewa. The heirs of Riaz transferred 0.001 satak of land in favour of the predecessor of the petitioners by a registered sale deed dated 9-10-1980; in the aforesaid manner the predecessor of the petitioners became the owner of 0.28 sataks land. On 12-5-1980 the predecessors of the petitioners asked the opposite-parties to partition the suit land by metes and bounds but they refused and hence, the present suit.
3. The opposite-party No.1 and the predecessor of opposite-party Nos.2-9 as defendant No.1-2 contested the suit by filing two separate written statements denying the material facts of the plaint. The defendant No.1 stated that he purchased 0.02 sataks of land from Abdul and Abdul Quddus, the sons of Zarina (wife of Pona Pramanik) by two registered sale deeds both dated 12-5-1980 from plot No.79. Pona Pramanik transferred his entire share during his life time. Defendant No.1 possessed half of the land of plot No.79 and the remaining half being possessed by the predecessors of opposite-party Nos.2-9 and he prayed for a saham in respect of the share in the suit land. Defendant No.2, predecessor of opposite party Nos.2-9 stated that the suit land originally belonged to Abir, Pona and Sona in 8 annas, 4 annas and 4 annas shares respectively. Abir died leaving wife Saimon and son Salimuddin. Solemuddin died leaving his mother Saimon, Saimon died leaving brother Mozahar and sister Kariman as her heirs. Mozahar and Kariman transferred 0.021/2 sataks of land in favour of the predecessor of opposite-party Nos.2-9 by a registered sale deed dated 2-11-1970. Pona transferred 0.05 sataks of land in favour of Tamizuddin by a registered sale deed dated 18-1-1938. Tamizuddin died leaving his wife Oziman, son Namir and daughter Takiran and Namir died leaving his wife Aziman and son Aziz. Aforesaid heirs of Tamizuddin transferred 0.05 sataks of land in favour of Kawser and Ahammed Ali by a registered sale deed dated 19-12-1960. Ahammad Ali purchased the said land in Benami of his daughter Farida. Kawser and Ahammad Ali transferred the said land in favour of the predecessors of the opposite-party Nos.2-9 by a registered sale deed dated 19-11-1962. In the aforesaid manner the predecessor of the opposite-party Nos.2-9 became co-sharer in respect of 0.071/2 sataks land and after purchase she had been enjoying and possessing the same by constructing a pucca house and a saw-mill thereon.
4. The trial court framed 8(eight) issues for determination of the dispute. In course of hearing, both the parties examined witnesses as PWs and DWs and also submitted documents in support of their respective claim which were duly marked as Exhibits. The trial court upon hearing by its judgment and decree dated 29-11-1988 dismissed the suit.
5. Being aggrieved by and dissatisfied with the impugned judgment and decree of the trial court, the plaintiff preferred Partition Appeal No.153 of 1994 in the Court of learned District Judge, Bogura. Eventually, the said appeal was transferred to the Court of learned Subordinate Judge (now Joint District Judge), 2nd Court, Bogura for hearing and disposal who upon hearing by the impugned judgment and decree dated 7-8-2000 allowed the appeal and decreed the suit in part by setting aside the judgment and decree passed by the trial court. At this juncture, the plaintiff-appellant-petitioners, moved this Court by filing this revisional application and obtained the present Rule and order of stay.
6. Mr Humayun Kabir Sikder, learned Advocate appearing for the petitioners submits that the trial court dismissed the suit on the ground of under valuation of the suit and finding no cause of action as well as finding that the plaintiff could not prove his title in the suit property, but the appellate court while allowing the appeal rightly discussed all the evidences both oral and documentary and found title of the plaintiff in the suit property and allowed saham in part giving 173/4 sataks only miscalculating total quantum of land and also allowed saham to the defendant No.2 for 71/2 sataks which is beyond her entitlement, as such, the appellate court has committed an error in the decision occasioning failure of justice.
7. Mr Moin Uddin, learned Advocate appearing for the opposite-party Nos.3-5, 6(a)-6(d), 7(a)-7(c), 8 and 9(a)-9(ga) submits that there is no conflict in the genealogy as stated by the plaintiff in their plaint with the statement made by the defendant No.2, but the defendant No.1 introduced a new story that Pona Pramanik is cousin brother of Abir Pramanik which has no basis at all and he does not inherit any property of Salimuddin. He further submits that though the trial court on technical ground dismissed the suit but the appellate court while allowing the appeal rightly held and observed that the plaintiff in suit are entitled to get 173/4 sataks of land and accordingly gave saham to the plaintiff and rightly held that defendant No.2 predecessor of the opposite-parties entitled to get 71/2 sataks land but in the operative portion of the order no saham given to the defendant No.2. As such, the appellate court adjudicated the matter in dispute piecemeally only giving a portion of the suit property in the saham of the plaintiff.
8. He further submits that the defendant No.2 though purchased 71/2 sataks of land from plot No.98 which contain only 5 sataks land but since all the property is under a single holding and khatian No. 97 the defendant No.2 can claim 71/2 sataks of land from total land under khatian No.97, as the plaintiff and defendant No.1 admitted that the defendant No.2 has been possessing a portion of plot No.79, as such, the defendant No.2 though purchased the property from plot No.98 she is entitled to get her share from other plots under the same khatian.
9. Mr Sikder Mahmudur Razi, learned Advocate appearing for the added-opposite-party Nos.11-16 submits that the genealogy given by the plaintiff in the plaint and supported by the defendant No.2 are not wholly correct. He submits that admittedly the suit property under khatian No.97 comprising 4(four) plots originally belonged to Abir Pramanik 8 annas, Sona Pramanik and Pona Pramanik 4 annas each. Abir Pramanik died leaving wife Saimon and son Salimuddin. Sona Pramanik died leaving Pona Pramanik. Thereafter, Salimuddin died leaving mother Saimon and uncle Pona Pramanik who is Abir's cousin and in the absence of Salimuddin his mother Saimon inherited 1/3rd share and Pona Pramanik inherited the rest share of the property of Salimuddin. But the plaintiff as well as defendant No.2 claimed that Salimuddin died leaving only mother Saimon who got entire share of Salimuddin which is beyond record. He further submits that the defendant No.1 in his written statement at paragraph 8 specifically given such genealogy which had not been controverted by the plaintiff or the defendant No.2 bringing any evidence contrary to the facts stated in the written statement. Moreover, PW 1, DW 2 and 3 in their statements supported the genealogy given by defendant No.1.
10. He further submits that the trial court on a technical ground without entering into the merit and facts of the case dismissed the suit but the appellate court though allowed the appeal but wrongly calculated the share of the parties, moreover, failed to decide the claim of the defendant No.1 who acquired the property by inheritance. He submits that according to genealogy given by defendant No.1, the plaintiff in suit entitled to get 21.773 sataks out of which admittedly 1 satak acquired by the government leaving balance of 20.773 sataks in the share of the plaintiff. The defendant No.1 is entitled to get 1-216 sataks but he purchased and then transferred 2 sataks to the added-opposite-party Nos.11-16 in excess of his share and defendant No.2 by purchase only entitled to get 5 sataks land though she purchased 71/2 sataks from plot No.98 which contain only 5 sataks land, but the appellate court by miscalculation of share allotted saham to the plaintiff for 173/4 sataks instead of 20.773 sataks and failed to give saham to the defendant Nos.1 and 2 for any quantum of land though in its judgment observed that the defendant No.2 is entitled to get 71/2 sataks in the holding by purchase. Hence, the trial court has committed illegality in dismissing the suit and the appellate court though decreed the suit in part committed error in calculation of the share of the contending parties and wrongly allotted less share to the plaintiff and failed to give saham to the defendant Nos. 1 and 2 as per their purchase.
11. Heard the learned Advocates of both the parties, have gone through the revisional application, plaint, written statement, evidences both oral and documentary and the impugned judgment and decree of both the courts below.
12. Admittedly, khatian No.97 plot Nos.79, 81, 83 and 98 contain 28 sataks of land. As per khatian Abir Pramanik son of Kadir Pramanik 8 annas, Sona Pramanik and Pona Pramanik 4 annas each, i.e, Abir Pramanik got 14 sataks and Sona and Pona Pramanik got 14 sataks. The plaintiff and the defendant No.2 claimed that Abir Pramanik died leaving wife Saimon and son Salimuddin and then Salimuddin died leaving his mother Saimon who inherited entire property left by Abir Pramanik. Thereafter, Saimon died leaving brother Mozahar and sister Kariman to inherit her.
13. On the other hand, defendant No.2 claimed that Sona Pramanik died leaving his full brother Pona Pramanik who got entire 14 sataks, then Pona Pramanik, during his life time, transferred 5 sataks of land under plot No.98 by a registered deed dated 18-1-1938 to one Tamizuddin Pramanik. Thereafter, Pona Pramanik died leaving wife Zarina, son Joynal and daughter Zamiran. Thereafter, Zamiran died leaving husband Khudu Pramanik, plaintiff of the suit and brother Joynal alias Bishu who inherited the share of Zamiran. Wife of Pona Pramanik named Zarina got second married with one Riaz Pramanik, she died leaving husband Riaz Pramanik, 2(two) sons by second husband namely Abdul and Abdul Quddus and one Joynal Abedin by her 1st husband. In the manner aforesaid Joynal Abedin alias Bishu inherited 5.25 sataks from father, 1.312 sataks from sister, 0.281 satak from mother totalling 6843 sataks, but he transferred 11.50 sataks land to the plaintiff by a registered deed dated 31-10-1958 which is more than his share. The plaintiff also purchased 2 sataks of land from plot Nos. 79, 81 and 83 from Joynal by a registered deed dated 6-3-1981. Earlier the plaintiff also purchased 1 satak of land by a registered deed dated 26-10-1972 from Joynal in excess of his share. The defendant No.2 also claimed that Riaz Pramanik died leaving 2 wives, 7 sons and 3 daughters. Aforesaid heirs of Riaz Pramanik transferred 1 satak of land by a registered deed dated 9-10-1980 to the plaintiff in excess of their share. Abdul and Abdul Quddus jointly inherited 0.058 sataks from Riaz Pramanik. The plaintiff can claim 19.878 sataks out of which 1 satak acquired by the government leaving 18.878 sataks and also admitted that the appellate court allotted saham to the plaintiff less than his share measuring 17.75 sataks instead of 18.878. The defendant No.2 though claimed that Pona Pramanik inherited no property from Salimuddin but could not prove the same.
14. The petitioner claimed that he is entitled to get 22.75 sataks in 3 suit plots by purchase and by inheritance and prayed for saham of the same. The defendant No.1 claimed that Salimuddin died leaving mother Saimon who got 1/3rd of his share and his uncle Pona Pramanik got the rest of his share and accordingly, Pona Pramanik got 7 sataks of his own, 7 sataks from his brother Sona and from Salimuddin 8.16 sataks totalling 22.16 sataks out of which during his life time he transferred 5 sataks of land of plot No.98 in the year 1938 to one Tamizuddin. After transfer Pona Pramanik had 17.16 sataks under plot Nos.79, 81 and 83 and died leaving wife Zarina, son Joynal and daughter Zamiran. Among them Zarina got 2.145 sataks, Joynal 10.01 sataks, Zamiran 5.005 sataks. Zamiran died leaving brother Joynal and husband Khudhu Pramanik of whom Joynal got 2.5025 sataks, Khudhu Pramanik got 2.5025 sataks. Zarina died leaving second husband Riaz, son Abdul and Abdul Quddus and Joynal who got 0.536 sataks each. Riaz died leaving Abdul and Abdul Quddus, along with other 5 sons, 3 daughters and wife. Abdul and Abdul Quddus got .144 satak the rest 0.392 sataks fell in the share of other heirs.
15. From perusal of evidences it appears that on the death of Abir Pramanik Saiman as wife got 1.75 sataks and as mother of Salimuddin got 4.08 sataks being 1/3rd of 12.25 sataks. Saimon died leaving brother Mozahar and sister Kariman who inherited entire share of Saimon measuring (4.08 + 1.75) = 5.83 sataks. In the manner aforesaid, Mozahar and Kariman got 5.83 sataks. Joynal alias Bishu by inheritance from father, mother and sister got (10.01 + 2.5025 + 0.536) = 13.0485 sataks, Khudhu Pramanik from his wife got 2.5025 sataks, Abdul and Abdul Quddus got 1.261 sataks, other heirs of Riaz got 0.392 sataks. The plaintiff Khudhu Pramanik by a registered deed No.16562 dated 31-10-1958 (Exhibit 2) purchased 11.5 sataks from Joynal Abedin alias Bishu from plot Nos.79, 81 and 83. Thereafter, he purchased 11.5 sataks of land from Mozahar and Kariman from plot Nos.79, 81 and 83 by registered deed No.1718 dated 3-2-1959 (Exhibit 1), wherein Mozahar and Kariman had title in 5.83 sataks only. Thereafter, the plaintiff purchased 1 satak of land from heirs of Riaz from the same plots by a registered deed No.19978 dated 9-10-1980 (Exhibit 3), whereas the vendor had title only in 0392 sataks. The plaintiff also purchased 2 sataks of land from same plots from Joynal Abedin by a registered deed No.5858 dated 6-3-1981 (Exhibit 4), wherein Joynal had no title to transfer as he transferred his share earlier to the plaintiff vide Exhibit 2. The plaintiff also purchased 1/2 satak of land from Joynal by a registered deed No.24949 dated 26-10-1972 (Exhibit 5), which is also beyond his share having no title to be transferred. Joynal in the manner stated above transferred in total 14 sataks of land by different deeds instead of his title in 13.0485 sataks. Nothing contrary to the facts could bring by the plaintiff and defendant No.2 to disprove the genealogy given by the defendant No.1.
16. As mentioned above the plaintiff is entitled to get 2.5025 sataks by inheritance from wife, 13.0485 sataks by purchase from. Joynal, 5.83 sataks by purchase from Mozahar and Kariman, 0.392 sataks by purchase from the heirs of Riaz Pramanik, totalling 21.773 sataks out of which 1 satak acquired by the government leaving 20.773 sataks in his share. Abdul and Abdul Quddus by inheritance only acquired 1.216 sataks of land but they transferred 2 sataks of land from plot No.79 to Joynal Abedin by registered deed Nos.12058 and 12060 both dated 12-5-1980 (Exhibits Ka and Ka(1) in excess of their share. Subsequently, said Joynal Abedin by a registered deed No.20319 dated 15-11-2000 assigned the same to father of the added-opposite-party Nos.11-16.
17. Defendant No.2 claim that Tamizuddin purchased 5 sataks of land from plot No.98 from Pona Pramanik by a registered deed No.272 dated 18-1-1938. Thereafter, heirs of Tamizuddin transferred the same to one Kawser Ali Sheikh and minor Farida Khatun by a registered deed No.23412 dated 31-12-1960 in which the plaintiff Khudhu Pramanik was an attesting witness. Subsequently, Kawser Ali and Farida Khatun transferred the said 5 sataks land under plot No.98 by a registered deed No.13984 dated 19-1-1962 (Exhibit Kha(1)) to defendant No.2, Sufia Khatun, predecessor of opposite-party Nos.2-9. Thereafter, as claimed by defendant No.2, she purchased 2.50 sataks of land under plot No.98 from Mozahar and Karimannessa by a registered deed No.24279 dated 2-11-1970 (Exhibit Kha).
18. From perusal of khatian No.97, it appears that in the khatian there are 4(four) plots, plot Nos.79, 5 sataks, 81, 2 sataks, 83, 16 sataks and 98 measuring 5 sataks totalling 28 sataks out of total land 5 sataks of land in plot No.98 transferred by Pona Pramanik during his life time in the year 1938 to one Tamizuddin. Subsequently, said 5 sataks of land purchased by defendant No.2, as such, there remains no property to be transferred by Karimannessa and Mozahar in the year 1970. Though the defendant No.2 claimed 71/2 sataks of land by purchase from plot No.98, there is no scope to give saham for the said quantum of land where plot No.98 only contain 5 sataks of land which was transferred by Pona Pramanik in the year 1938. Therefore, Mozahar and Kariman had no scope to transfer any property from plot No.98 to the defendant No.2. The defendant No.2 could have claimed such quantum of land if her deed contain all the 4(four) plots under khatian No.97 but in both the deeds of the year 1962 and 1970 (Exhibit Kha and Kha(1)) only plot No.98 has been mentioned. Therefore, the defendant No.2 though purchased 71/2 sataks of land by 2(two) registered deeds from Kawser Ali, Farida Khatun, Mozahar and Kariman but she is only entitled to get 5 sataks, purchased by registered deed of the year 1962 and by the deed of the year 1970 she acquired no more title in plot No.98.
19. Learned Advocate for the added-opposite-party Nos.11-16 by giving a genealogy candidly submits that the defendant No.1, Joynal Abedin though purchased 2 sataks of land from Abdul and Abdul Quddus, in fact, both the brothers were entitled to transfer only 1.216 sataks of land as per their share in the property but they transferred beyond their entitlement. And finally submits that as per genealogy and calculation of respective shares of the co-sharers the plaintiff only entitled to get 21.773 sataks under plot No.79, 81 and 83 out of which 1 satak acquired by the government leaving 20.773 sataks. Defendant No.1 is entitled to get 1.216 sataks under plot No.79 and defendant No.2 entitled to get 5 sataks under plot No.98. After distribution of the property there remains 0.011 sataks, the same is given in the share of defendant No. 1 (added defendant Nos.11-16) as they got less property than they purchased. But evidences led by the parties admitted that the defendant No.2 in possession of a portion of land under plot No.79 where she acquired no title by purchase.
20. Apart from this Mozahar and Kariman transferred their share in excess, to the plaintiff by registered deed dated 3-2-1959 (Exhibit 1) and after transfer of their share they had no title in plot No.98 to be transferred to the defendant No.2 on 2-11-1970 (Exhibit Kha). For easy understanding a table of inheritance and transfers made is given below:
| অজ্ঞাত | |||
| কাদের | তাবিয়া | ||
| আবির প্রামানিক ১৪শ. |
সোনা প্রামানিক ৭শ. |
পানা প্রামানিক ৭শ. |
|
| সায়মন (স্ত্রী) ১.৭৫শ. |
সলিমুদ্দিন (ছেলে) ১২.২৫শ. |
পানা প্রামানিক (চাচাত ভাই) ৭শ. |
|
| সায়মন (মা) ৪.০৮শ. |
পানা মাণিক ৮.১৬শ. |
সায়মন ১.৭৫+৪.০৮=৫.৮৩ |
|
| মোজাহার (ভাই) | করিমণ (বোন) | ||
| পানা মাণিক (৭+৭+৮.১৬)= ২২.১৬। ২২.১৬ হইতে পানা ৯৮ দাগে ১৯৩৮ সালে ৫ শতক বিক্রয় করে। পানা মাণিকের বাকী জমির পরিমাণ (২২.১৬-৫)= ১৭.১৬ (যা ৭৯/৮1/৮৩ দাগে) | |||
| জরিনা (স্ত্রী) ২.১৪৫ শ. |
জয়নাল ওরফে বিশু (ছেলে) ১০.০১ শ. |
জমিরন (মেয়) ৫.০০৫ শ. |
|
| জয়নাল ওরফে বিশু (ভাই) ২.৫০২৫ শ. |
খুদু মাণিক (স্বামী) ২.৫০২৫ শ. |
||
| জরিনা ২.১৪৫ শ. | |||
| দ্বিতীয় রিয়াজ (স্বামী) ০.৫৩৬ শ. |
আব্দুল (পুত্র) ০.৫৩৬ শ. |
আব্দুল কুদ্দুস (পুত্র) ০.৫৩৬ শ. |
জয়নাল ওরফে বিশু (১ম স্বামীর পুত্র) ০.৫৩৬ শ. |
| রিয়াজ ০.৫৩৬ শ. |
|||
| আব্দুল ও আব্দুল কুদ্দুস ও অন্য ৫ পুত্র, ৩ কন্যা ও ১ স্ত্রী (২য় স্ত্রী) | |||
| আব্দুল ও আব্দুল কুদ্দুস পাবে ০.১৪৪ শ. | অন্যান্য ওয়ারিশরা পাবে ০.৩৯২ শ. | ||
|
মাজাহার + করিমন = ৫.৮৩ শতক জয়নাল বিশু = ১০.০১ + ২.৫০২৫ + ০.৫৩৬ = ১৩.০৪৮৫ শ. খুদু প্রামাণিক = ২.৫০২৫ শ. আব্দুল ও আব্দুল কুদ্দুস = ১.২১৬ শ. রিয়াজের অন্যান্য ওয়ারিশ = ০.৩৯২ শ. |
|||
|
১) বাদী খুদু প্রামাণিক ১১.৫ শতক ক্রয় করে মাজাহার ও করিমন থেকে যার দাগ নং ৭৯/৮১/৮৩, দলিল নং ১৭১৮ তারিখ ৩-২-১৯৫৯ইং (টিকবে ৫.৮৩ শ.) [প্রদর্শনী-১] ২) বাদী ১১.৫ শতক ক্রয় করে জয়নাল বিশু থেকে যার দাগ নং ৭৯/৮১/৮৩, দলিল নং ১৬৫৬২ তাং ৩১-১০-১৯৫৮ইং (সবটুকু টিকবে) [প্রদর্শনী-২] ৩) বাদী ১ শতক ক্রয় করে রিয়াজের ওয়ারিশদের থেকে যার দাগ নং ৭৯/৮১/৮৩, দলিল নং ১৯৯৭৮ তাং ৯-১০-১৯৮০ ইং (টিকবে ০.৩৯২শ.) [প্রদর্শনী-৩] ৪) বাদী ২ শতক ক্রয় করে জয়নাল বিশু থেকে যার দাগ নং ৭৯/৮১/৮৩, দলিল নং ৫৮৫৮ তাং ৬-৩-১৯৮১ (টিকবে ১.৫৪৮৫ শ.) [প্রদর্শনী-৪] ৫) বাদী ০.৫ শতক ক্রয় করে জয়নাল বিশু থেকে যার দাগ নং ৭৯/৮১/৮৩, দলিল নং ২৪৯৪৯ তাং২৬-১০-১৯৭২ইং (টিকবে না) [প্রদর্শনী-৫] জয়নাল বিশু মোট বিক্রি করে ১৪ শতক (টিকবে ১৩.০৪৮৫ শতক) তাহলে বাদীর ৭৯/৮১/৮৩ দাগে মোট জমি [২.৫০২৫ (ওয়ারিশ) + ১৩.০৪৮৫ (খরিদ) + ৫.৮৩ (খরিদ) + ০.৩৯২ (খরিদ)] = ২১.৭৭৩ শতক (এক শতক একোয়ার হলে বাকী থাকে ২০.৭৭৩ শতক) ৬) আব্দুল ও আব্দুল কুদ্দুস ১২০৫৮ এবং ১২০৬০ নং দলিল তারিখ ১২-৫-১৯৮০ইং মূলে ৭৯ দাগ থেকে ২ শতাংশ জমি বিক্রয় করে ১নং বিবাদী জয়নাল আবেদীনের নিকট [প্রদর্শনী-ক ও ক(১)] পরবর্তীতে জয়নাল আবেদীন ২০৩১৯ নং দলিল তারিখ ১৫-১১-২০০০ইং মূলে ১১-১৬ নং বিবাদীর পিতার নিকট বিক্রি করেন (মূলতঃ আব্দুল ও আব্দুল কুদ্দুস = ১.২১৬ শতক এর মালিক) (১১-১৬ নং বিবাদীর দখল ৭৯দাগে) |
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|
মোট জমি দাড়ায়ঃ বাদীর ২০.৭৭৩ শতক একোয়ারকৃত ১ শতক ১নং বিবাদীর ১.২১৬ শতক ২নং বিবাদীর ৫ শতক মোট ২৭.৯৮৯ শতক |
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21. In view of the above situations, this Court finds that the appellate court while decreeing the suit in part miscalculated the share of the plaintiff as well as failed to give saham to the defendant Nos.1 and 2, as such, committed an error of law in the decision occasioning failure of justice.
22. Taking into consideration the above, this Court finds merit in the Rule as well as in the submissions of the learned Advocate for the petitioners.
23. In the result, the Rule is made absolute, however, without any order as to costs.
24. The judgment and decree of the trial court and appellate court are hereby set-aside and the suit is decreed in preliminary form in part allotting saham to the plaintiff for 20.773 sataks, saham to the assignee of the defendant No.1, the added-opposite-party Nos.11-16 for 1.227 sataks and 5 sataks to the defendant No.2.
25. The parties are hereby directed to get the property partitioned amicably within 60(sixty) days maintaining their respective possession so far as possible and practicable, failing which they will get the property partitioned through court in accordance with law.
26. Order of stay granted at the time of issuance of the Rule stand vacated.
Communicate a copy of the judgment to the Court concerned and send down the lower court records at once.
End.
High Court Division (Special Original Jurisdiciton)
Present:
Mr. Justice Zafar Ahmed
Writ Petition No. 6796 of 2022.
Abdul Khaleque (Md)
-------------- Petitioner
VS
Election Commission and others
--------------- Respondents
Judgement Date : August 11, 2022
Counsels:
Md Momtaz Uddin Fakir with Shah Monjurul Hoque and M. Sayed Ahmed, Advocates
-For the Petitioner
Tawhidul Islam, Advocate
--For the Respondent No.1
Fida M. Kamal, with Yousuf Hossain Humayun, Murad Reza, Robiul Alam and BM Elias, Advocates
---For the Respondent No.7.
Judgment
Zafar Ahmed, J:
1. In the instant writ petition, the petitioner has challenged the Notification dated 2-6-2022 (Annexure-G) issued under the purported signature of the respondent No. 3 on the instruction of the respondent No. 1 cancelling the candidature of the petitioner for the post of Mayor of Jhenaidah Paurashava General Election, 2022, which was scheduled to be held on 15-6-2022.
2. This Court, on 8-6-2022, issued a Rule Nisi and passed an interim order staying operation of the Notification dated 2-6-2022 (Annexure-G) for a period of 1(one) month.
3. Challenging the interim order of stay, the respondent Nos. 1 and 7 filed two separate Civil Petition For Leave To Appeal (CPLA) being Nos.1650 of 2022 and 1652 of 2022 respectively, which were dismissed by the Appellate Division on 12-6-2022. On the same day, the respondent No. 1, the Election Commission (in short, the 'EC') issued a Memo dated 12-6-2022 suspending the election. In the said Memo, the orders passed by this Division in the Writ Petition and the Appellate Division in CPLA were referred. Challenging the said Memo suspending the Election, the petitioner filed an application for issuance of supplementary Rule. This Court, on 19-6-222, issued a supplementary Rule Nisi.
4. The respondent No.1 (EC) contested the Rule by filing an affidavit-in-opposition. The respondent No. 7, namely, Md Qaiyum Shahriar Zahedee, who was another contesting candidate for the post of Mayor of Jhenaidah Pourashava, filed a power.
5. The Notification dated 2-6-2022 (Annexure-G) cancelling the candidature of the petitioner, which is the subject matter of the Rule, is reproduced below:
" গণপ্রজাতন্ত্রী বাংলাদেশ সরকার
বাংলাদেশ নির্বাচন কমিশন সচিবালয়
আইন শাখা
ज्ञापन
১৯ জ্যৈষ্ঠ ১৪২৯ বঙ্গাব্দ / ২ জুন ২০২২ খ্রিস্টাব্দ
নির্বাচন কমিশন ঘোষিত সময়সূচি অনুসারে ১৫ জুন ২০২২ তারিখে অনুষ্ঠিতব্য ঝিনাইদহ পৌরসভার নির্বাচনে মেয়র পদে একজন প্রতিদ্বন্দী প্রার্থী জনাব মোঃ আব্দুল খালেক ও তার সমর্থক কর্তৃক-
যেহেতু, মিছিল-শোভাযাত্রা করে ১৮ মে ২০২২ তারিখে প্রতিদ্বন্দী প্রার্থী জনাব মোঃ কাইয়ুম শাহরিয়ার জাহেদী এর ব্যবসা প্রতিষ্ঠানে ভাংচুর করার ঘটনা ঘটেছে, যা ইলেকট্রনিক ও প্রিন্ট মিডিয়া এবং বিভিন্ন সামাজিক যোগাযোগমাধ্যমে প্রকাশিত হয়েছে;
যেহেতু, জনাব মোঃ আব্দুল খালেক অপর প্রতিদ্বন্দী প্রার্থী জনাব মোঃ কাইয়ুম শাহরিয়ার জাহেদীর প্রচারাভিযানে বাধা প্রদান করেছেন;
যেহেতু, জনাব মোঃ আব্দুল খালেকের বিরুদ্ধে আচরণবিধি লংঘনের বাখা চাওয়ার পর তিনি ক্ষমা প্রার্থনা করেন এবং ভবিষ্যতে নির্বাচন আচরণ বিধিমালা মেনে চলবেন বলে অঙ্গীকার করেন;
যেহেতু, একজন মাননীয় নির্বাচন কমিশনার গত ২৯ মে ২০২২ তারিখে জেলা শিল্পকলা একাডেমী মিলনায়তনে উপস্থিত থেকে সকল প্রার্থীগণকে নির্বাচনী আচরণ মেনে চলার বিষয়ে মৌখিক অঙ্গীকার গ্রহণ করেন এতদসত্বেও জনাব মোঃ আব্দুল খালেকের সমর্থকগণ ১ জুন ২০২২ তারিখে অপর প্রার্থী জনাব মোঃ কাইয়ুম শাহরিয়ার জাহেদী ও তার সমর্থকগণকে আক্রমণ করে আহত করেন যা বিভিন্ন পত্রিকা ও সামাজিক মাধ্যমে ভিডিওতে প্রকাশ পায়;
যেহেতু, উল্লিখিত কার্যক্রম পৌরসভা (নির্বাচন আচরণ) বিধিমালা, ২০১৫ এর লংঘন একাধিকবার হয়েছে এবং উল্লিখিত ঘটনাসমূহ তদন্তের মাধ্যমে প্রমাণিত হয়েছে;
যেহেতু, প্রতিদ্বন্দী প্রার্থী হিসেবে পৌরসভা (নির্বাচন আচরণ) বিধিমালা, ২০১৫ এ বিধান লংঘন করেছেন;
সেহেতু, এক্ষণে, পৌরসভা নির্বাচন আচরণ) বিধিমালা ২০১৫ এর বিধি ৩২ অনুসারে মাননীয় নির্বাচন কমিশন ঝিনাইদহ পৌরসভার নির্বাচনের মেয়র পদে প্রতিদ্বন্দী প্রার্থী জনাব মোঃ আব্দুল খালেক এর প্রার্থীতা এতদ্বারা বাতিল করলেন। "
6. It is apparent for the Notification that the candidature of the petitioner was cancelled by the EC invoking the power given to it under Rule 32 of পৌরসভা (নির্বাচন আচরণ) বিধিমালা, ২০১৫ [Pourashava (Election Conduct) Rules, 2015, hereinafter referred to as ‘Rules, 2015’].
7. Rule 32 is quoted below:
"৩২। কমিশন কর্তৃক প্রার্থীতা বাতিল -(১) বিধিমালার অন্যান্য বিধানে যাহা কিছুই থাকুক না কেন, যদি কোন উৎস হইতে প্রাপ্ত রেকর্ড কিংবা লিখিত রিপোর্ট হইতে কমিশনের নিকট প্রতীয়মান হয় যে, মেয়র বা কাউন্সিলর পদে প্রতিদ্বন্দী কোন প্রার্থী বা তাহার নির্বাচনী এজেন্ট এই বিধিমালার কোন বিধান লংঘন করিয়াছেন বা লংঘনের চেষ্টা করিয়াছেন এবং অনুরূপ লংঘন বা লংঘনের চেষ্টার জন তিনি মেয়র, বা ক্ষেত্রমত, কাউন্সিলর নির্বাচিত হইবার অযোগ্য হইতে পারেন, তাহা হইলে কমিশন বিষয়টি সম্পর্কে তাৎক্ষণিক তদন্তের নির্দেশ প্রদান করিতে পারিবে।
(২) উপ-বিধি (১) এর অধীন তদন্ত রিপোর্ট প্রাপ্তির পর কমিশন যদি এই মর্মে সন্তুষ্ট হয় যে, কোন প্রতিদব্ন্দী প্রার্থী বা তাহার নির্বাচনী এজেন্ট বা তাহার নির্দেশে বা তাহার পক্ষে তাহার প্রত্যক্ষ বা পরোক্ষ সম্মতিতে অন্য কোন ব্যক্তি, সংস্থা বা প্রতিষ্ঠান এই বিধিমালার কোন বিধান লংঘন করিয়াছেন বা লংঘনের চেষ্টা করিয়াছেন এবং অনুরূপ লংঘন বা লংঘনের চেষ্টার জন তিনি মেয়র বা কাউন্সিলর নির্বাচিত হইবার অযোগ্য হইতে পারেন, তাহা হইলে কমিশন, তাৎক্ষণিকভাবে লিখিত আদেশ দ্বারা, উক্ত প্রতিদ্বন্দী প্রার্থীর প্রার্থীতা বাতিল করিতে পারিবেন।
(৩) উপ-বিধি (২) এর অধীন প্রদত্ত কোন আদেশ কমিশন, যথা শীঘ্র সম্ভব, সংশ্লিষ্ট প্রতিদ্বন্দী প্রার্থী বা তাহার নির্বাচনী এজেন্টকে এবং সংশ্লিষ্ট রিটার্নিং অফিসারকে অবহিত করিবে।
(৪) উপ-বিধি(২) এর অধীন প্রদত্ত আদেশ কমিশন সরকারি গেজেটে প্রকাশের ব্যবস্থা গ্রহণ করিবে।"
8. The words "প্রতিদ্বন্দী প্রার্থী" (contesting candidate) have been used in Rule 32. 'Contesting candidate' means a candidate who has been validly nominated for contesting the election for the post of Mayor or Councilor and who has not withdrawn his candidature [Rule 2(10) of Rules, 2015].
9. Rule 32 requires that the EC must pass an order, which could be made instantly, upon obtaining record from any source or written report, to enquire into the alleged violation of any provision of Rules, 2015 or attempt to do so by a contesting candidate or his election agent. Once the EC obtains the enquiry report and is satisfied to the effect that the contesting candidate or his election agent had violated any provision of Election Rules, 2015 or had attempted to do so which may disqualify him to be elected as Mayor or Councilor, the EC may cancel his candidature instantly by a written order. Rule 32 contains a non-obstante clause. The condition precedent to cancel the candidature of a contesting candidate under Rule 32 is to direct an enquiry to be conducted in respect of the alleged violation of Rules, 2015 and satisfaction of the EC based on the enquiry report.
10. Reverting back to the case in hand, the impugned notification refers to some incidents taken place on different dates including those taken place on 1-6-2022 as grounds for cancellation of candidature of the petitioner. It is stated in the said Notification that those incidents were proved through enquiry, but there is no reference of any specific enquiry report in the Notification.
11. In the affidavit-in-opposition filed by the EC, an enquiry report dated 17-5-2022 has been annexed as Annexure-2. The said report relates to incidents occurred on 15-5-2022 which was not mentioned in the impugned Notification. It further appears from the affidavit-in-opposition that (MI-6-2022, the Deputy Commissioner, Jhenaidah and Police Super, District Special Branch, Jhenaidah sent separate written reports to the EC in respect of the incident that occurred on 1-6-2022. The District Election Officer, Magura, who was the Returning Officer of Jhenaidah Pourashava General Election, 2022 sent 2(two) separate written reports, both dated 2-6-2022, to the EC regarding the same incident. However, those written reports were not the outcome of any enquiry ordered by the EC as contemplated in Rule 32. Hence, those cannot be treated as enquiry report.
12. The question remains whether the EC ordered any enquiry to be conducted in respect of the incident that took place on 1-6-2022. In order to get the answer, this Court, on 1-8-2022, directed the EC to transmit the original records to the Court which was complied with. Upon perusal of the original records, we did not find any order of enquiry as envisaged under Rule 32(1) passed by the EC. Rather, we found that the EC took the decision to cancel the candidature of the petitioner in an informal meeting based on the written reports referred to above which is not at all permitted under Rule 32.
13. At this juncture, Mr Fida M. Kamal, who appeared in the case on behalf of the respondent No. 7, refers to Section 23 of “স্থানীয় সরকার (পৌরসভা) আইন, ২০১৯ (in short, the 'Ain, 2009'), Rule 53(1) of “স্থানীয় সরকার (পৌরসভা) নির্বাচন বিধিমালা, ২০১০ (in short, 'Rules, 2010') and the case of AFM Shah Alam vs Mujibul Huq and others, 41 DLR (AD) 68 and submits that since the petitioner has statutory right under Section 23 of the Ain, 2009 read with Rule 53 of Rules, 2010 to challenge the impugned Notification before the Election Tribunal, the instant writ petition is not maintainable.
14. Section 23(1) of the Ain, 2009 states, “এই আইনের অধীন অনুষ্ঠিত কোন নির্বাচন বা গৃহীত নির্বাচনী কার্যক্রম বিষয়ে নির্বাচন ট্রাইব্যুনাল ব্যতীত কোন আদালত বা অন্য কোন কর্তৃপক্ষের নিকট আপত্তি উত্থাপন করা যাইবে না।” Rule 53(1) of Rules, 2010 provides, “ধারা ২৩ এর বিধান সাপেক্ষে, উপ-বিধি (২) এর অধীন নির্বাচনী দরখাস্ত দাখিল ব্যতীত, নির্বাচন সম্পর্কে কোন প্রশ্ন উত্থাপন করা যাইবে না।” Rule 53(2) provides, “কোন প্রতিদ্বন্দী প্রার্থী যে নির্বাচনে প্রার্থী ছিলেন সেই নির্বাচন চ্যালেঞ্জ করিয়া দরখাস্ত করিতে পারিবেন।”
15. In AFM Shah Alam, it was held, inter alia, that under Rule 70 of the Union Parishads (Election) Rules, 1983 read with Section 24 of the Local Government (Union Parishads) Ordinance, 1983 the EC has been vested with plenary, supervisory and discretionary jurisdiction to oversee that an election is conducted honestly, justly and fairly and in accordance with the provisions of the Ordinance and the Rules. In so doing it may pass any order, unless specifically barred, including an order for re-poll, acceptance/ consolidation of result, review etc. on the basis of materials before it. The nine appeals in Shah Alam were decided essentially on the question of nature and extent of the power of the EC under the Rule 70. On consideration of facts of the cases, the apex Court did not interfere with the direction for re-poll given by the EC.
16. In the instant case, the EC obtained written reports. The next step under Rule 32(1) of the Rules, 2015 was to direct an enquiry which was not done. Therefore, according to Rule 32 the matter ends there and the EC had no jurisdiction under the law to proceed further and cancel the candidature of the petitioner based on written reports and allegations contained therein, no matter how grave those allegations were. In this regard, we note that in respect of the incident occurred on 1-6-2022, the brother of the respondent No.7 (rival contesting candidate) lodged an FIR on 2-6-2022 with the concerned Police Station accusing 23 persons. However, the petitioner was not named as an accused in the said FIR. Be that as it may, the EC acted beyond jurisdiction which confers jurisdiction upon this judicial review Court to declare the action of the EC to have done without any lawful authority. This power is exclusively given to this judicial review Court under Article 102 of the Constitution. Since the EC violated the law which rendered the impugned Notification dated 2-6-2022 (Annexure-G) void in law, we hold that the same was passed without any lawful authority and is of no legal effect.
17. Rule 32 of Rules, 2015 has given the power to the EC to pass an instant order of enquiry (তাৎক্ষণিক তদন্তের নির্দেশ) and to cancel the candidature instantly (তাৎক্ষণিকভাবে ----- প্রার্থীতা বাতিল করিতে পারিবেন). Rule 32 has not incorporated the principle of `audi alteram partem' (hear the other side). In other words, Rule 32 does require the EC to give any notice to the contesting candidate before cancellation of his candidature, the rationale, as it appears, to address urgent circumstances to hold the election peacefully, which is one of the paramount considerations.
18. The basic principle of fair procedure, which includes the principle of audi alteram partem, requirers that before taking any action against a man, the authority should give him notice of the case and afford him fair opportunity to answer the case against him and to put his own case. In our constitutional scheme, a man has a right to his reputation which is protected by Article 31 of the Constitution. An order containing serious allegations casting stigma entitles the person affected to a notice and opportunity of being heard before the order is made (Barkatullah Khan vs Bangladesh, 57 DLR 302). Even when a statute is silent, notice has to be given if any person is sought to be affected in his right, interest, property or character (HFDM de Silva vs Bangladesh, 2 BLC 179).
19. The principle of audi alteram partem has given rise to many refinements and complexities. The principle is after all "no unruly horse, no lurking land mine". It cannot be placed in a strait-jacket. It does vary from case to case and from one fact-situation to another. There may be exceptional situations when the Court may ignore the non-service of the notice. For example, in UP Singh vs Board of Governor; AIR 1982 MP 59 where some students were guilty of gross violence against other students which called for immediate action as it created tension in the area, but notice could not be served in spite of the best efforts of the authority as they had absconded.
20. Sometimes it is argued that the case against a man is of such incontrovertible nature that it would have made no difference and the same conclusion would have to be reached even if notice and hearing would be given. This argument was decisively rejected by the House of Lords in Ridge vs Baldwin, [1964] AC 40. Professor Wade observed in Administrative Law, 9th ed. P. 718-19 that—
"in principle it is vital that the procedure and the merits should be kept strictly apart, since otherwise the merits may be prejudiced unfairly".
21. In view of the above discussions on the principle of audi alteram partem, we have no hesitation to hold that the contesting candidate against whom an enquiry is held under Rule 32 of Rules, 2015 should be given a notice before the final decision is made and giving the notice has to be read into the Rule, subject to exception which falls within the category of UP Singh vs Board of Governor (supra) scenario viz. notice cannot be served practically. No particular form of notice is the demand of law. All will depend on facts and circumstances of the case.
22. Rules, 2015 are silent as to who will conduct the inquiry under Rule 32 so far as it relates to candidate for the post of Mayor. Considering the position, responsibilities, honour and dignity attached to the post of Mayor, we are of the view that an officer, preferably drawn from the EC, whose rank and status commensurate with those of Pourashava Mayor, should be given the task of holding the enquiry under Rule 32.
23. In view of the foregoing discussions, the following orders are passed:
- The Notification dated 2-6-2022 (Annexure-G) cancelling the candidature of the petitioner is set-aside as being made without any lawful autority.
- So far as the supplementary Rule regarding suspension of election, vide Memo dated 12-6-2022 (Annexure-J) is concerned, the EC (respondent No. 1) is directed to hold the general election of Jhenaidah Pourashava, 2022 within the second week of September, 2022.
- After obtaining the enquiry report under Rule 32 of Rules, 2015, if the EC decides to proceed with the matter further, it must give a show cause notice to the contesting candidate before final decision is made, save and except in the situation indicated in the body of this judgment.
- The enquiry envisaged in Rule 32 so far as it relates to the contesting candidate for the post of Pourashava Mayor should be conducted by an officer, preferably drawn from the EC, whose rank and status commensurate with the post of Pourashava Mayor.
24. With the above observations and directions the Rule and the supplementary Rule are disposed of.
Communicate the judgment at once.
End.
High Court Division (Civil Revisional Jurisdiction)
Present:
Mr. Justice Md. Zakir Hossain
Civil Revision No. 32 of 2020.
Momin Ali (Md)
---------- Petitioner
VS
Md Din Islam and others
-------------- Opposite Parties
Judgement Date : February 27, 2022
Counsels:
Khair Ezaz Maswood, Senior Advocate with Md Hashmat Ullah Sheikh, Advocate
---- For the Petitioner
Md Mamun Aleem, Advocate
------- For the Opposite Party Nos. 1-7.
Judgment
1. At the instance of the petitioner, the Rule was issued to examine the legality and propriety of the impugned judgment and order dated 24-10-2019 passed by the learned District Judge, Dhaka in Civil Revision No. 145 of 2019 dismissing the same and thereby affirmed the order dated 12-3-2018 passed by the learned Senior Assistant Judge, 2nd Court and Arpita Shampatty Prattyrpan Tribunal, Dhaka in Arpita Shampatty Prattyrpan Case No. 3765 of 2013.
2. Facts leading to the issuance of the Rule may be stated, in brief, as follows:
The opposite party Nos.1-7 being plaintiff filed Arpita Shampatty Prattyrpan Case No. 3765 of 2013 for releasing the land as mentioned in the schedule to the plaint. Having received the summons, the defendant-Government entered appearance in the suit and submitted written statement denying the materials allegation set out in the plaint and after amendment of the plaint, the defendant filed additional written statement. During the pendency of the aforesaid suit, the instant petitioner claiming as lessee filed an application to be added as defendant under Order 1, rule 10(2) of the CPC. Upon hearing, the trial Court was pleased to reject the petition. Thereafter, the instant petitioner challenged the impugned order of the trial Court by way of revision and the learned District Judge upon hearing rejected the Revisional Application. Challenging the legality and propriety of the said order, the petitioner rushed to this Court and moved this application and obtained the Rule and stay thereto.
3. Mr Khair Ezaz Maswood, the learned Senior Advocate along with Mr Md Hashmat Ullah Sheikh, the learned Advocate appearing on behalf of the petitioner, submits that admittedly the petitioner is a lessee under the Government. He also submits that since the property as mentioned in the schedule to the plaint was treated as enemy property and thereafter, vested to the Government and the Government leased it out to the petitioner and since in 1973, the petitioner has been the possessing the property as lessee and, therefore, he is a necessary party. He further submits that if the petitioner-lessee is not made party, he will suffer irreparable loss and injury; thereafter, for final and complete adjudication, the instant lessee needs to be made necessary party. He relies on the decisions of the several cases of Waliullah Munshi vs Lodu Mia Patwary and others, reported in 38 DLR (AD) 308, Babar Ali Pramanik and others vs Mosar Ali Pramanik and others, reported in 45 DLR (AD) 120, Mst. Aleya Begum vs Mohiuddin Manik and others, reported in 1987 BLD 105, Afzal Hossain vs Tahera Khatun and another, reported in 40 DLR 528 and Azharul Islam vs Idris Ali, reported in 39 DLR 352.
4. Per contra, Mr Md Mamun Aleem, the learned Advocate on behalf of the opposite party Nos. 1-7, submits that lessee is not a necessary party to the suit and the lessee is also not in possession as per the report of the commissioner who held local inspection. His submission is on the decision of the cases of Sreemati Aroti Rani Paul vs Sree Sudarshan Kumar Paul and others, reported in 11 MLR (AD) (2006) 43 = 56 DLR (AD) 73 and Police Commissioner vs Dhaka Land (Pvt.) Ltd. and others, 9 BLT (AD) (2001) 64.
5. I have perused the entire materials on record and submission advanced by the learned Advocates of the parties and the LCRs and the legal question intricately involved in this case with great care and attention and seriousness as it deserves.
6. Now, the moot issue is—
Whether the lessee in possession is necessary party or proper party.
7. It cannot be denied that the Civil Court has got wide discretion to add or strike out the name of the parties in view of Order 1 rule 10(2) of the CPC. In the case of 38 DLR (AD) 308, the Appellate Division consisted of four Judges held that lessee in possession is a necessary party. In this respect for better appreciation, the relevant portion of the said judgment reported in 38 DLR (AD) 308, supra may be read thus:
"...This act of leasing out after treating the suit property as vested and non-resident had led to the creation of interest in favour of the lessee, the defendant-appellant, which now gives him the standing. The creation of such interest, he may quite legitimately claim, has cast an obligation upon him to protest it. If the defendant, particularly when he has been impleaded in the suit, now proceeds to protect his interest in the suit land, no exception can possibly be taken.
At the same time it may be necessary to point out that the lessee may have more reasons or urgency to protect his interest in the suit land than the lessor...."
8. In the case of 45 DLR (AD) 120 consisting of three judges, the Appellate Division held that only lessees in possession are necessary parties in a suit against the lessor.
9. In the case of 1987 BLD 105, the High Court Division held that in a suit for perpetual injunction, a lessee is a proper party. His presence also helps the plaintiffs in getting their claims effectively adjudicated and settled in presence of all the parties concerned. In this case, the High Court Division held that the lessee is a proper party in a suit for perpetual injunction.
10. In the case of 40 DLR 528, the High Court Division after considering the judgment reported in 38 DLR (AD) 308 along with other judgments held that the petitioner is a proper party whose presence is necessary for complete and effectual determination of the issues in the suit.
11. In the case of 39 DLR 352, the High Court Division held that a lessee in possession of the lease-hold property is a necessary party as contemplated in Order 1, rule 10(2), when a suit is brought against the lessor over the subject-matter of that property.
12. In the case of 11 MLR (AD) (2006) 43 = 56 DLR (AD) 73 consisting of two judges, the Appellate Division held:
"It further appears that neither the Government nor the Vested Property Authority challenged the decree of the trial Court and it is the defendant Nos. 6-8 being lessees of the Vested Property Authority for one year cannot have any locus-standi to challenge the decree or prefer an appeal against such decree. It is for the Vested Property Authority which can challenge the decree. We therefore hold that the defendant Nos. 6-8 being year to year lease holders had no locus-standi to prefer any appeal before the Appellate Court was well as in the High Court Division and, as such, the learned Single Judge of the High Court Division having failed to consider this aspect of the case, committed an error of law which resulted in an error in the decision causing failure of justice."
13. In the case of 9 BLT (AD) (2001) 64 consisting of four judges, the Appellate Division held to the effect:
"...In such cases allottee is not a necessary party before the Court of Settlement. The necessary party is Ministry of Housing and Public Works and they have been impleaded and in their presence release order was passed. There was no legal necessity to implead the present petitioner in the AP Case. The present petitioner cannot now question the validity of the judgment of the A.P. Case. The present petitioner rise and fall with their lessor and are bound by the judgment of the Court of Settlement...."
14. Now it is clear from the aforesaid judgments in majority of the cases, the Appellate Division as well as the High Court Division held that the lessee is a necessary party to the suit.
15. In the case of 11 MLR (AD) (2006) 43 = 56 DLR (AD) 73, the defendant Nos. 6-8 as lessees were parties to the suit and contested the same. After passing decree, the Government did not file any appeal; but the lessees attempted to challenge the decree by way of appeal, then the Appellate Division held that the lessees have got no locus standi to prefer appeal.
16. Every case has to consider its own merit, peculiar facts and circumstances and therefore, the Court must be very careful and cautious in applying judicial precedent. In this respect, I am tempted to discuss the observations of Lord Denning in the matter of applying judicial precedent which have become locus classicus:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J.) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.
Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost m thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."
17. In the case of One Bank Ltd. vs Chaya Developer (Pvt.) Ltd. and others, reported in 21 BLC (AD) 203, the Appellate Division distinguished between necessary party and proper party which may be read thus:
"The established principle of law is that either a necessary party or a proper party may be added in the suit. A necessary party is one in whose absence no effective decree can be passed. Whereas a proper party is one whose presence is not necessary for passing an effective decree. The presence of proper party facilities more effectual and complete adjudication of all the disputes and avoid multiplicity of proceeding between the parties. A proper party is one who is legally interested in the suit. A legally interested party is one whose rights have been adversely affected by any order of a court."
18. Order 1 rule 10(2) of the Code of Civil Procedure, 1908 (the CPC), has given ample power to the Court to add or strike out the name of the plaintiff or defendant, if they are necessary party to the suit or may strike out the name of plaintiff or defendant.
19. In the case of Ramesh Hirachand vs Municipal Corporation of Greater Bombay, (1992) 2 SCC 524, it was observed that two considerations especially will have to be kept in mind before exercising powers under Order 1 rule 10(2) of the CPC namely
- the plaintiff is a dominus litis i.e. he is the master of the suit. He is the best judge of his interest. It is, therefore, him to choose his opponent from whom he claims relief and, normally, the Court should not compel him to fight against a person whom he does not want to fight and from whom he claims no relief; and
- if the Court is satisfied that the presence of a particular person is necessary to effectively and completely adjudicate all the disputes between the parties, irrespective of the wishes of the plaintiff, the Court may exercise the power and join a person as party to the suit.
20. On perusal of the entire materials on record and the legal position intricately involved in this case and the backdrop of the case, it appears to me that the petitioner is a proper party to the suit, though he is not a necessary party to the suit; therefore, the impugned judgment and order of the learned District Judge passed in Civil Revisional Application affirming the order rejecting the petition for adding the petitioner as defendant suffers from illegality.
21. In the additional written statement, the Government admitted to the effect that the applicant Md Momin Ali, the Managing Director of Nabisko Biscuit and Bread Factory took lease of the property in question in 1973 and since then he has been dealing in business therein by paying up to date lease money.
22. The facts and circumstances of the cases of 11 MLR (AD) (2006) 43 = 56 DLR (AD) 73 and 9 BLT (AD) (2001) 64 are significantly distinguishable from the facts and circumstances of the case in hand. In the aforesaid two cases, the earlier judgments of the Appellate Division reported in 38 DLR (AD) 308 and 45 DLR (AD) 120 have not been considered.
23. It would not be advisable to draw any hide bound rules as to who are necessary party or proper party to a suit or proceeding. It may vary from case to case. Respectfully agreeing with the ratio and obiter of the cases reported in 38 DLR (AD) 308, 45 DLR (AD) 120 and 21 BLC (AD) 203, it is my considered view that the petitioner as a lessee for more than 48 years by paying regular lease money is a proper party for final and complete adjudication of the dispute arisen in the suit. Accordingly, I find substance in the Rule and hence, the Rule deserves to be made absolute.
24. In the result, the Rule is made absolute, however, without passing any order as to costs. The earlier order of stay thus stands vacated and recalled. Accordingly, the impugned judgment and order of the Courts below are set-aside. The petitioner's application for addition as defendant is allowed. The trial Court is also directed to dispose of the Arpita Shampatty Prattyrpan Case No. 3765 of 2013 within 6(six) months from the date of receiving the copy of the judgment and the added defendant has to file written statement within 1(one) months thereto. No unnecessary adjournment shall be entertained from either side.
Let a copy of the judgment along with LCRs be transmitted to the Court below at once.
End.
High Court Division (Criminal Revisional Jurisdiction)
Present:
Mr. Justice Md. Nazrul Islam Talukder
Mr. Justice K. M. Hafizul Alam
Criminal Revision No. 3497 of 2018.
Mirza Abbas Uddin Ahmed
----------- Accused-Petitioner
VS
State and another
----------- Opposite-Parties
Order Date : November 11, 2018
Counsels:
AJ Mohammad Ali with Md Nurul Huda, Advocates
—For the Accused-Petitioner.
AKM Amin Uddin, DAG with Helena Begum (Chaina), AAG
—For the State-Opposite-Parties.
Md Khurshid Alam Khan, Advocate
—For the Anti-corruption Commission.
Order
1. This is an application under section 10(1A) of the Criminal Law Amendment Act, 1958 filed by the accused-petitioner challenging Order No.79 dated 23-9-2018 read with Order No.80 dated 30-9-2018 passed by the learned Special Judge, Special Court No.6, Dhaka in Special Case No.13 of 2008 corresponding to ACC GR Case No.84 of 2007 arising out of Ramna Police Station Case No.35 dated 16-8-2007 under sections 26(2) and 27(1) of the Anti-Corruption Commission Act, 2004 purportedly reviewing his own order dated 3-4-2018, now pending before the said Special Judge, Court No.6, Dhaka.
2. It is alleged in the FIR that the Anti-Corruption Commission issued a notice dated 18-2-2007 upon the accused-petitioner requiring him to submit his wealth statement. The accused-petitioner having received the notice submitted his wealth statement along with the wealth statement of his wife and mother. Upon scrutinizing the said wealth statements, it is found that the accused-petitioner owned immoveable property worth Taka 1,84,80,000 and moveable property worth Taka 2,39,49,700. Having gone through the head wise statement, it is found that the income source shown in the wealth statement appears to be disproportionate to the known sources of income of the accused. Accordingly, the accused-petitioner and his wife Mrs. Afroza Abbas having disproportionate income of Taka 5,97,13,234 and concealment of properties of Taka 33,48,581 committed offences under sections 26(2) and 27(1) of the Anti-Corruption Commission Act, 2004 read with section 109 of the Penal Code, 1860 and Rule 15 Gha(5) of the Emergency Power Rules, 2007.
3. On 14-5-2008, the Anti-Corruption Commission after investigation having found prima-facie case submitted charge-sheet against the accused-petitioner and his wife under sections 26(2) and 27(1) of the Anti-Corruption Commission Act, 2004.
4. On 3-4-2018, the accused-petitioner submitted an application under section 94 of the Code of Criminal Procedure for calling for the records of Special Case No.5 of 2007 in order to show that the present special case No.13 of 2008 has been filed against the accused-petitioner on the same and identical fact of the earlier case and for this reason, the proceeding of Special Case No. 13 of 2008 is not maintainable in view of section 235(2)/236/403 of the Code of Criminal Procedure read with section 26 of the General Clauses Act, 1897 and Article 35(2) of the Constitution of the People's Republic of Bangladesh.
5. On 3-4-2018, the learned trial Judge upon hearing the parties allowed the application and passed an order for calling for the records of Special Case No. 05 of 2007.
6. On 23-9-2018, the accused-petitioner submitted an application before the trial court with a view to giving reminder as to calling for the records of Special Case No. 5 of 2007 having disposed of by the learned Judge of Special Court No. 3.
7. The learned trial judge by order No.79 dated 23-9-2018 disposed of the application reviewing his earlier order dated 3-4-2018 with observations that the subject-matter of the present case is different and separate from the subject-matter of the earlier case and that there is no bar to proceed with the present case in accordance with law and that the accused-petitioner shall be at liberty to produce and exhibit all the papers and documents as described in the application dated 3-4-2018 before the court if required and if so desired by him.
8. On 30-9-2018, the accused-petitioner submitted an application under section 403 of the Code of Criminal procedure read with section 26 of the General Clauses Act, 1897 for staying the proceeding of the present case and for disposing of the present case according to the provision of section 403 of the Code of Criminal procedure and section 26 of the General Clauses Act, 1897.
9. Upon going through the application and hearing the learned Advocates for the respective parties, the learned trial judge by order No.80 dated 30-9-2018 rejected the application with .a view that the subject matter of the present case is quite different and distinct from the subject-matter of the earlier case and the present case is not barred by the principle of double jeopardy as per provisions of section 403 of the Code of Criminal procedure and section 26 of the General Clauses Act, 1897.
10. Feeling aggrieved by impugned order No.79 dated 23-9-2018 and order No. 80 dated 30-9-2018, the accused-petitioner has Fled this application under section 10(1A) the Criminal Law Amendment Act, 1958 before this court.
11. At the very outset, Mr AJ Mohammad Ali, the learned Advocate appearing on behalf of the accused petitioner, submits that the accused-petitioner was earlier prosecuted under section 155/166 of the Income Tax Ordinance, 1984 read with section 15(Gha) of the Emergency Power Rules, 2007, and that the present case against the accused-petitioner under sections 26(2) and 27(1) of the Anti-Corruption Commission Act, 2004 has been arisen out of the same and identical matter and for this reason, the orders passed by the learned trial judge are not legal and they are not sustainable in the eye of law.
12. He next submits that as per provisions of section 235(2)/236/403 of the Code of Criminal procedure and Article 35(2) of the Constitution of the People's Republic of Bangladesh read with section 26 of the General Clauses Act, 1897, there is a bar to proceeding with the case originated from the same and identical facts and, as such, the present case filed against the accused-petitioner on the same and identical facts is not maintainable at all and on that panorama of the case, the impugned orders should be set-aside and the proceeding initiated against the accused-petitioner should not be continued for ends of justice.
13. He candidly submits that section 403 of the Code of Criminal Procedure bars a second trial on the self-same facts.
14. He then categorically submits that the accused had been earlier dealt with, convicted and sentenced by trial court and thereafter, the judgment and order of conviction and sentence were set-aside by the Supreme Court of Bangladesh, High Court Division and, as such, the trial on the same and identical subject-matter is barred by law as section 26 of General Clauses Act, 1897 also prohibits a second trial in respect of offences punishable under two or more enactments in respect of any act or omission which constitutes.
15. He points out that the learned trial judge by order dated 3-4-2018 allowed the application under section 94 of the Code of Criminal Procedure for calling for the records of Special Case No.5 of 2007 but he reviewed the same by the impugned order dated 23-9-2018 without assigning cogent reasons in support of the order and for this reason, the impugned order dated 23-9-2018 is not sustainable in the eye of law and the same is liable to be set-aside for ends justice.
16. He lastly submits that the learned trial judge failed to comprehend the spirit of the provisions of section 403 of the Code of Criminal procedure and section 26 of the General Clauses Act, 1897 and that being the reason, the impugned order dated 30-9-2018 should be set-aside for ends of justice.
17. On the other hand, Mr Md Khurshid Alam Khan, the learned Advocate appearing for the Anti Corruption Commission, very vehemently opposes the submissions made by the learned Advocate for the accused-petitioner and categorically submits that the earlier case was filed against the accused petitioner under sections 155 and 166 of the Income Tax Ordinance, 1984 read with Rule 5 Gha (5) of the Emergency Power Rules, 2007 at the instance of the Deputy Commissioner of Taxes and the present case has been filed against him under sections 26(2) and 27(1) of the Anti-Corruption Commission Act, 2004 at the behest of the Anti-Corruption Commission and, as such, it is crystal clear that the present case is quite different and the separate from the earlier case and, as such, the impugned orders passed by the learned trial judge are legal and proper as the same were rightly passed in accordance with law.
18. Mr Md Khurshid Alain Khan, in support of his contention, has referred to a decision in the case of Zamir Ahmed vs Government of the People's Republic of Bangladesh, represented by the Secretary, Ministry of Law and others reported in 21 BLC 200, wherein it has been laid down that the IT Ordinance is purely a law relating to realization of income tax and to prevent the evasion of tax which is completely distinct and separate offence under a different statute.
19. We have gone through the application under section 10(1A) of the Criminal Law Amendment Act, 1958 along with the prosecution materials annexed therewith. We have also gone through the supplementary affidavit and perused the materials annexed therewith. We have also given exclusive attention to the submissions advanced by the learned Advocate for the accused-petitioner and the learned Advocate appearing on behalf of the Anti-Corruption Commission. We have also considered their submissions to the best of our wit and wisdom. It is stated in the application that earlier Special Case No.5 of 2007 (previous Metropolitan Special Case No.60 of 2007) under sections 165 and 166 of the Income Tax Ordinance, 1984 for evasion of Taxes for the financial years starting from 1990-1991 to 2006-2007 was filed against the accused-petitioner and the same ended in a judgment convicting the accused-petitioner under sections 165 and 166 of the Income Tax Ordinance, 1984 and sentencing him to suffer simple imprisonment for 3(three) years under section 165 of the Income Tax Ordinance, 1984 and 5 (five) years under section 166 of the Income Tax Ordinance, 1984 with a fine of Taka 57,00,00, in default, to suffer rigorous imprisonment for 1(one) year more. On 8-3-2012, the aforesaid conviction and sentence were set-aside by the Supreme Court of Bangladesh, High Court Division in Criminal Appeal No.6464 of 2008 preferred by the accused-petitioner and thereby the accused-petitioner was acquitted of the conviction and sentence. On 16-8-2007, the FIR of the present Special Case No. 13 of 2008 was lodged by the Anti-Corruption Commission against the accused-petitioner under section 26(2) and 27(1) of the Anti-Corruption Commission Act, 2004 for acquiring properties disproportionate to his known sources of income. Now, it is argued on behalf of the accused-petitioner that since the present case has been filed against the accused-petitioner on the same and identical facts and offences, the continuation of the same is barred by section 235(2)/236/403 of the Code of Criminal procedure and Article 35(2) of the Constitution of the People's Republic of Bangladesh read with section 26 of the General Clauses Act, 1897 being hit by the principle of double jeopardy. Article 35(2) of the Constitution provides that no person shall be prosecuted and. punished for the same offence more than once. As per section 26 of the General Clauses Act, 1897, it is not permissible to punish the accused twice for the same offence. Section 235(2) of the Code of Criminal procedure, 1898 contemplates that if the acts alleged constitute an offence falling within two or more definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for each of such offences. Section 236 of the Code of Criminal Procedure provides that when an accused commits several offences for it creates doubt as to what offence has been committed by the accused, in that case, the accused may be charged with having committed all or any of such offences and tried at once. The underlying principle of section 403 of the Code of Criminal procedure is that if a person has been tried by a competent court for an offence and has been convicted or acquitted of such offence, he shall not be tried again for the same offence.
20. Now question arises as to whether the offences under sections 165 and 166 of the Income Tax Ordinance are same and identical with that of the offences under section 26(2) and 27(1) of the Anti-Corruption Commission Act, 2004. Before corning to a decision in this matter, we feel it convenient to know about the purpose of enactment of both the laws from the preamble of each law. The purpose and object of the Income Tax Ordinance, 1984 is to realize income-tax in respect of the total income of the income year or income years as the case may be of every person.
21. If any person makes a false statement in any verification in any return or in any other document in order to evade income tax, he will be guilty of an offence under section 165 of the Income Tax Ordinance Act, 1984 and if any person makes any concealment of income and deliberately furnishes inaccurate particular of his income, he will be liable for an offence under section 166 of the Income Tax Ordinance Act, 1984. The purpose and object of enactment of the Anti-Corruption Commission Act, 2004 is to prevent the corruption and the corrupt practices in the country and to conduct enquiry and investigation of cases of corruption and certain other offences and matters ancillary thereto. Section 26 of the Anti Corruption Com-mission Act, 2004 provides for the provision for issuance of notice in order to ascertain the property/wealth of a person to determine as to whether possession of those properties was disproportionate to his known sources of income. Section 27 of the Anti-Corruption Commission Act, 2004 contemplates that if any person obtains/acquires property which is disproportionate to his known sources of income, he will be liable for an offence under section 27(1) of the Anti-Corruption Commission Act, 2004.
22. From the aforesaid comparative study in between the two laws in terms of purpose and object as well as nature of offence and punishment, we are of the view that the purpose and object as well as the nature of offence and punishment under the Income Tax Ordinance 1984 are quite distinct and separate from those of the Anti-Corruption Commission Act, 2004. Under the aforesaid facts and circumstances and the provisions of law, the facts and offences disclosed in the present case against the accused-petitioner are not same and identical with that of the facts and offences of the earlier case already disposed of. Similar view has been taken in the case of Zamir Ahmed vs Government of the People's Republic of Bangladesh, represented by the Secretary, Ministry of Law and others reported in 21 BLC 200, wherein it has been laid down as follows:-
"The IT Ordinance is purely a law relating to realization of income tax and to prevent the evasion of tax which is completely distinct and separate offence under a different statute."
23. Apart from the aforesaid facts and circumstances of the case, it appears that the learned trial judge in the meantime has recorded the evidence of 23 prosecution witnesses and at present, the evidence of Investigating Officer as PW 24 is being recorded by the learned trial Judge. The aforesaid fact tends to show that the trial of the case is at the last stage and it will be concluded within a very short span of time.
24. It is argued on behalf of the Anti-Corruption Commission that the learned judge of the trial has been directed by the Appellate Division in Civil Petition for Leave to Appeal No.467 of 2011 to conclude the trial of the case as early as possibly but the accused-petitioner is trying to make a delay in disposing of the case resorting to different dillydallying tactics.
25. It is evident from the impugned orders that the accused-petitioner in order to show the subject-matter of both the cases same and identical produced the photocopy of the certified copy of the charge-framing order of Special Case No.5 of 2007 and the learned trial judge by the impugned orders directed the accused-petitioner to produce the necessary papers from his custody before the court if necessary. Following orders of the trial court, unlike the production of charge-framing order, the accused-petitioner in the similar way can produce the FIR along with other materials of Special Case No.5 of 2007 before the trial court if so desired since all the necessary materials are available in the custody of the accused petitioner.
26. It may be noted that the earlier case was disposed of long back in 2008 and at this stage, the prayer for calling for the records of Special Case No.5 of 2007 for the reasons as stated in the application is time-consuming and if allowed, it will lead to uncertainty about the disposal of the case for an indefinite period of time.
27. It may be mentioned that the court by exercising its inherent power can review/ rectify/undo any wrong/illegality/irregularity if occurred due to an inadvertent omission during the trial of the case.
28. From the facts and circumstances of the case and the forgoing discussions, we are led to hold that the grounds that have been taken for setting aside the impugned orders passed by the learned judge of the trial Court are not acceptable and sustainable in the eye of law since the provision of section 235(2)/236/403 of the Code of Criminal procedure and Article 35(2) of the Constitution of the People's Republic of Bangladesh read with section 26 of the General Clauses Act, 1897 are not applicable to the present proceeding.
29. Under the aforesaid circumstances, we do not find any merit in this application.
30. In consequence thereof, this revisional application is summarily rejected.
31. The learned trial judge is directed to proceed with the case in accordance with law and to conclude the trial of the case as early as possible preferably within 4 (four) months from the date of receipt of this order.
The office is directed to communicate the order to the learned Judge of the trial Court at once.
End.
High Court Division (Criminal Appellate Jurisdiction)
Present:
Mr. Justice Krishna Debnath
Mr. Justice K M Zahid Sarwar
Death Reference No.22 of 2016
With
Criminal Appeal No. 2230, 4011 & 5091 of 2016
and
Jail Appeal Nos. 65, 66 & 67 of 2016. (Arising out of Jail Appeal No. 68 of 2016)
State
--------
VS
Mahmudul Islam @ Islam and others
----------- Condemned-Prisoner-Appellant
Judgement Date : November 30, 2021
Counsels:
Shaheen Ahmed Khan, DAG with Shah Md Asraful Hoq (George), DAG with Mehadi Hasan (Milon), AAG with Md Hafizur Rahman, AAG with Md Faruk Hossain, AAG with Al-Mamun, AAG with Farida Pervin Flora, AAG
—For the State.
M.A. Muntakim with Chowdhury Shamsul Arifin with Md Esa, Advocates
—For the Convict-Appellant. [in Criminal Appeal No. 2230 of 2016]
Samir Kumar Chowdhury, Advocate
—For the Convict-Appellant. [in Criminal Appeal No. 4011 of 2016]
Mohammad Shishir Manir with Md Asad Uddin Mohammad Noab Ali, Advocates
— For the Convict-Appellant. [in Criminal Appeal No. 5091 of 2021 (arising out of Jail Appeal No. 68 of 2016)]
Hasna Begun, State Defence Lawyer
—For the Condemned-Prisoners.
Judgment
Krishna Debnath, J:
1. The Reference under section 374 of the Code of Criminal Procedure ("Code") has been placed before us for confirmation of sentence of death awarded of (1) Mahmudul Islam @ Islam, (2) Nazrul Islam @ Lal Miah, (3) Mizanur Rahman Chowdhury @ Mizan, (4) Sunil Das, (5) Md Hossen @ Sagor (absconded) and (6) Md Selim (absconded) passed by the learned Judge (District and Sessions Judge) of the Nari-o-Shishu Nirjatan Daman Tribunal No. 2, Chittagong in Nari-o-Shishu Case No. 721/2011 arising out of Double mooring Model Police Station Case No. 27 dated 13-5-2011 corresponding to GR Case No. 430/2011 convicting them under section 302/109 of the Penal Code and sentencing them to suffer rigorous imprisonment for life with a fine of Taka 1,00,000 under section 7 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 and sentencing Mahmudul Islam @ Islam, Md Hossen @ Sagor (absconded), Md Selim (absconded) and Md Nazrul Islam @ Lal Mia under section 201 of the Penal Code to suffer rigorous imprisonment for 7(seven) years and also to pay a fine of Taka 5,000, in default to suffer rigorous imprisonment for 1 (one) year more.
2. Criminal Appeal No. 2230 of 2016 and Jail Appeal No. 66 of 2016 have been filed by condemned prisoner-appellant Mizanur Rahman Chowdhury @ Mizan Chowdhury @ Mizan. Criminal Appeal No. 4011 of 2016 and Jail Appeal No. 65 of 2016 have been filed by Sunil Das, a condemned-prisoner-appellant. Criminal Appeal No. 5091 of 2021 and Jail appeal No. 68 of 2016 have been filed by the condemned prisoner-appellant Mahmudul Islam @ Islam and Jail Appeal No. 67 of 2016 has been filed by the condemned-prisoner-appellant Md Nazrul Islam @ Lal Miah.
3. All criminal and Jail Appeals were taken up together and heard along with the aforesaid death reference for disposal.
4. That the prosecution case in short is that one Papiya Sen, mother of the alleged victim lodged the instant FIR implicating the convict appellants before Doublemooring Police Station Chittagong under section 7/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 (amended 2003) along with sections 302 and 201 of the Penal Code which was registered as the Doublemooring Police Station Case No. 27 dated 13-5-11 and subsequently the same was registered as GR No. 430/2011. That it is stated that the informant is a primary school teacher and her son Hemel Das alias Supom a 15 (fifteen) years old boy passed SSC Examination from Chittagong Government High School. On 8-5-11 Hemel Das alias Supom went to Bandarban with condemned-prisoner-accused Islam. On 9-5-11 at about 10-00 am the informant Papiya Sen, mother of Hemel Das made a phone call to her son Hemel and knew that her son was on the way towards home from Bandarban. At 12-30 pm dated 9-5-11 the informant again called her son and got the phone switched off. On 12-5-11 accused Mahmudul Islam came to informant's residence and wanted to give some information about Hemel Das Supom and get him back on condition of getting 1,00,000 Taka. He also told that Hemel was with a boy named Sagor. But Hemel was traceless till 13-5-2011 and then informant Papiya Sen, the mother of victim Hemel Das lodged the FIR against unknown 4/5 persons.
5. Investigating Officer investigated the case. During investigations accused Mahmudul Islam and his brother Nazrul Islam were arrested. Accused Nazrul Islam made a confessional statement under section 164 of the Code. According to the statement of the aforesaid accused the dead body was recovered from Bandarban Nagajhiri Hill area. During investigation Investigating Officer also visited the place of occurrence, recorded the statements of the witnesses under section 161 of the Code, prepared seizure lists, index, inquest report, collected the Post-Mortem Report of deceased Hemel. On completion of investigation he submitted charge-sheet against Mahmudul Islam, Sunil Das, Mizanur Rahman Chowdhury @ Mizan, Muhammad Hossen @ Sagor, Nazrul Islam @ Lal Mia and Md Selim.
6. Thereafter observing all legal formalities learned judge of the trial Court framed charge against all the convict accuseds under section 7/8/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 along with 302/201 of the Penal Code which was read out and explained over to them and they pleaded not guilty and demanded trial. Accused Md Hossen @ Sagor and Md Selim being absconding the charge could not be read over and explained to them.
7. That the defence case in brief is that the prosecution has failed to prove their case against the convict appellant beyond all reasonable doubt. The prosecution could not make a strong bridge between the confessional statements of co-accuseds and circumstantial evidences to prove their case beyond all reasonable doubt.
8. The prosecution examined as many as 15 (fifteen) witnesses in support of the case. Learned judge of the trial court on consideration of the evidences on record convicted and sentenced the condemned prisoner-appellants as aforesaid.
9. We will now proceed to discuss the evidences.
10. PW 1 Papiya Sen is the informant of the case. She stated that she is a primary school teacher and her only son Hemel Das alias Supom passed SSC examination from Chittagong Government High School. On 8-5-11 Hemel Das alias Supom went to Bandarban with Islam. On 9-5-11 at about 10-00 am the informant Papiya Sen, mother of Hemel Das phoned her son Hemel and knew that her son was on the way towards home from Bandarban. At 12-30 pm dated 9-5-11 the informant again phoned her son and got the phone switched off. On 11-5-11 Mahmudul Islam came to Papiya Sen in her residence and wanted to give some information about Hemel Das Supom and get him back on condition of getting 1,00,000 Taka. He also told that Hemel was with a boy named Sagor. On 13-5-11 Papiya Sen, the informant filed the FIR under section 7/30 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 (amended 2003) along with section 302 and 201 of the Penal Code which was registered as the Doublemooring Police Station Case No. 27 dated 13-5-2011.
11. PW 2 Subol Das knows Papiya and her son Hemel Das Supom. On 10-5-2011 he heard about the occurrence from Papiya Sen, the mother of Hemel Das. On 14-5-2011 Mahmudul Islam, Nazrul Islam and he went to Bandarban with the police and from Panchari hill getting a pair of sandals, the police prepared a seizure-list. He is a witness of that seizure-list. On 14-5-2011 at 5-00 pm dead body of Hemel was recovered from the last part of Nagajhiri Hill. The police prepared the inquest report in his presence. He identified his signature thereon. He also identified accuseds Mahmudul Islam and Nazrul Islam in the dock.
12. PW 3 Tutul Sardar stated that on 15-5-2011 he met SI Sikandar with other police in their area. He heard that the police arrested two accuseds who kidnapped one boy and later killed him. He went to Nagajhiri hill to assist the police. The police got one pair of sandal and recovered the dead body according to the statements of the arrested accuseds. The police prepared the inquest report. He is the witness of seizure-list and inquest report. He identified the accuseds in the dock.
13. PW 4 Md Abdur Rahim stated that on 13-5-2011 the police came with a fat man and they went to the Tokkir hill and searched a dead body till 11-30 pm but no dead body was found. Then the police on 14-5-2011 asked him on a phone call to come to Bandarban Police Station. At 11-00 to 11-30 am the police brought another accused and with them he along with some other persons went to Nagajhiri hill. The accuseds disclosed no words to the police and the journalists. Then the police were ordered to give a search and they searched for approximately 3 hours. Then they got a pair of sandals and later the dead body. He was the witness of the inquest report. He identified the accused Mahmudul Islam and Nazrul Islam in the dock.
14. PW 5 Md Ripon is an ambulance driver. On 13-5-2011 the police brought an accused in his ambulance and went to Bandarban Tokkir Hill but no dead body was found. In the next very day according to the statements of the accuseds a pair of sandals was found. He was a seizure-list witness. The police seized it in his presence and prepared the seizure-list. He identified that accuseds in the dock.
15. PW 6 Shipon Uddin stated that he lives in the Tokkir hill area. On 13-5-2011 the police came with an accused and they all went for searching the dead body but no dead body was found. Then on 14-5-11 the police brought another accused and with them this witness along with some other persons went to Nagajhiri hill. After searching they got a pair of sandal and later the dead body was recovered. He identified the accuseds in the dock.
16. PW 7 Md Selim stated that on 14-5-2011 he saw the police on the road. The police went with one accused and after searching the dead body was recovered. The police prepared the inquest report and took the thumb impression of him.
17. PW 8 Uttam Sen is a formal witness. On 15-5-11 he stayed in Doublemooring Police Station. At 4-00 pm the police seized one red sando t-shirt, one red pant, one sky colored striped shirt. The police prepared a seizure-list and took his signature thereon.
18. PW 9 Brojendra Lal Nondi stated that Papiya Sen is the daughter of his sister. Hemel Das alias Supom went Bandarban with Islam. On 9-5-11 at about 10-00 am the informant Papiya Sen, mother of Hemel Das phoned her son Hemel and knew that his son was on the way towards home from Bandarban. At 12-30 pm dated 9-5-11 the informant again phoned her son and got the phone switched off. After 10-5-2011 Hemel Das was untraced. On 11-5-2011 Mahmudul Islam came to Papiya Sen's residence and wanted to give some information about Hemel Das Supom and get him back on condition of getting 1,00,000 Taka. He also told that Hemel was with a boy named Sagor. Later Mahmudul Islam was arrested. On 14-5-2011 Nazrul Islam, the brother of Mahmudul Islam was arrested. Nazrul Islam made a confessional statement. According to the statement of the accused Nazrul the dead body was recovered. Mahmudul Islam, Nazrul Islam, Sunil Das, Mizanur Rahman, Sagor and Selim were involved in killing the victim. He was also a seizure-list witness.
19. PW 10 Alsen Das stated that victim Supom is his friend and also a maternal cousin. He heard that Supom became untraced from 10-5-2011. He also heard that an accused named Mahmudul Islam came to the residence of Papiya Sen and demanded 1 lac Taka and on that condition wanted to give information about Hemel Das Supom. The police arrested Mahmudul Islam. On 14-5-11 the accused Nazrul was arrested and made a confessional statement of the occurrence. He identified accused Mahmudul Islam in the dock.
20. PW 11 Md Moinuddin said that Papiya Sen and Supom were their tenants. On 11-5-2011 Mahmudul Islam came to Papiya Sen in her residence and wanted to give some information about Hemel Das Supom and get him back on condition of getting 1,00,000 Taka. He also told that Hemel was with a boy named Sagor. Later Mahmudul Islam was arrested. On 14-5-2011 Nazrul Islam, the brother of Mahmudul Islam was arrested. He identified accused Mahmudul Islam in the dock.
21. PW 12 Doctor Md Habibur Rahman examined the dead body of deceased Hemel. During post mortem examination he found fully decomposed body and also found the following injuries:-
I) One ligature mark of leather belt around neck.
II) Cloth of shirt was present in the mouth and throat.
He opined that death was due to asphyxia as a result of strangulation by ligature and choking (obstruction of air passage by cloth), both of those were ante-mortem and homicidal in nature.
22. PW 13 Prodip Sen Gupta said that Papiya Sen and victim Supom are known to him. He heard about the occurrence. He stated that in his presence the police seized a SIM & Memory card from Mahmudul Islam's possession being in the house of Hemel and the police prepared a seizure-list in his presence. He signed thereon. He identified Mahmudul Islam, Nazrul Islam and Sunil Das in the dock.
23. PW 14 Md Jashim Uddin was the First Class Magistrate. He stated that he recorded the confessional statements of Mahmudul Islam and Nazrul Islam under section 164 of the Code after complying with all requirements of law. In cross-examination he stated that it is not a fact that he did not record the statements properly.
24. PW 15 Sekandar Ali was the investigating officer of the case and submitted the charge-sheet against Mahmudul Islam, Sunil Das, Mizanur Rahman, Md Hessen alias Sagor, Md Nazrul Islam alias Lal Mia and Md Selim Mia.
25. He stated that he took over the investigation of the case on 13-5-2011. He visited the place of occurrence, prepared sketch-map and index, arrested accused Mahmudul Islam and his brother Lal Mia alias Nazrul Islam and others and sent them before Judicial Magistrate for recording their confessional statement under section 164 of the Code, prepared inquest report, seizure-lists, collected the post mortem report, collected the confessional statements of Mahmudul Islam and his brother Lal Mia @ Nazrul Islam, recorded, the statements of witnesses under section 161 of the Code. He further stated that scrutinizing all papers connected with the instant case and observing all the formalities he submitted the charge-sheet against the aforesaid accuseds under sections 302/201 of the Penal Code.
26. These are all the evidences of the prosecution in support of the charge against the condemned prisoners.
27. Mr Shaheen Ahmed khan, learned Deputy Attorney-General with Mr SM Ashraful Hoque (George), learned Deputy Attorney-General with Mr Mehadi Hasan (Milon), learned Assistant Attorney-General with Mr Al Mamun, learned Assistant Attorney-General with Mr Md Hafizur Rahman, learned Assistant Attorney-General with Mr Md Faruk Hossain, learned Assistant Attorney-General & Ms. Farida Parvin Flora, learned Assistant Attorney-General appearing on behalf of the State placed before us the FIR, charge-sheet, the depositions of the witnesses, Post-Mortem Report, seizure-list, Inquest Report, confessional statements of Islam & Nazrul made under section 164 of the Code, judgment of the learned Judge of the Trial Court and other relevant materials on record.
28. Mr Shaheen Ahmed khan, learned Deputy Attorney-General submits that the learned Judge of the trial Court rightly relied upon the statements of the witnesses, confessional statements of Islam and Nazrul, circumstantial evidences, other materials on record and arrived at a correct decision against the condemned-prisoners. He referred the cases 16 DLR (1964) 558, MANU/SC/0254/1981, 12 DLR (SC) (1960) 43, 16 BLD (AD) (1996) 261 and 13 BLT (HCD) 2005, 137.
29. Mr Mohammad Shishir Manir learned Advocate appearing on behalf of the condemned-prisoner Mahmudul Islam @ Islam submits that the condemned-prisoner is totally an innocent person and he has not committed the crime as alleged by the prosecution. He further submits that in this case there is no eye-witness of the occurrence implicating the condemned-prisoner Mahmudul Islam @ Islam in the commission of murder. The prosecution tried to rely upon the circumstantial evidence and also on the confessional statements made by Islam and Nazrul. But, the confession made by Islam was neither true nor voluntary and that it was obtained by torture and coercion and the trial Court failed to take into account this aspect of the case as such, the condemned-prisoner-appellant Mahmudul Islam should he acquitted, he submits. He referred the cases The State vs Md Farid Karim 8 BLT (AD) 87, The State vs Mofizuddin and others 15 BLT (AD) 104, The State vs Most. Rowshan Ara Begum 2 CLR (2014) 358.
30. Mr MA Muntakim, learned Advocate appearing on behalf of the condemned-prisoner Mizanur Rahman Chowdhury @ Mizan Chowdhury @ Mizan submits that in this case prosecution examined 15 (fifteen) witnesses to prove their case but not a single word against the convict appellant was disclosed by PW 2-10, PW 12-13. The informant Papiya Sen as PW 1 asserted that the convict-appellant was involved with this case by hearsay evidence on the basis of statements under section 164 of the Code made by Mahmudul and Nazrul and PW II supported the statement of PW 1 who is a relative to her. He further submits that it is the established principle that the statement under section 164 of the Code cannot be used against any other co-accused without any aid of further corroborative evidence and circumstances. But in this case the trial Court only relied upon co-accused's statements made under section 164 of the Code and without any aid of other direct or circumstantial evidences convicted the condemned-prisoner appellants which is liable to be set-aside. He referred the case Majid Sheikh alias Majid vs State 11 BLC (AD) 149.
31. Mr Samir Kumar Chowdhury, learned Advocate appearing for the condemned-prisoner-appellant Sunil Das adopted the submission made by Mr MA Muntakim, the learned Advocate appearing for the condemned-prisoner-appellant Mizanur Rahman Chowdhury as above. He further submits that there is no eye-witness of the alleged occurrence in this case. The conviction of the condemned-prisoner Sunil Das is solely based on the judicial confessional statements of the co-accuseds; shall not be used as the sole basis of conviction in the absence of independent corroborative evidence, he added.
32. Ms. Hasna Begum, learned Advocate for State Defence appearing on behalf of absconding convicts Md Hossen @ Sagor and Md Selim and condemned-prisoner Nazrul Islam submits that the learned trial Court failed to consider that there was no eye-witness in the instant case. She further submits that without direct or strong circumstantial evidences it is not safe to convict a person only relying upon the confessional statements of co-accuseds and thus the impugned judgment and order of conviction and sentence upon Md Hossen @ Sagor (absconded) and Md Selim (absconded) is liable to be set-aside. She further submits that it appears that condemned-prisoner-appellant Nazrul Islam made a confessional statement under section 164 of the Code but on 6-3-2012 he filed an application to retract his statement. She further submits that in this case there is no eye-witness of the occurrence implicating the condemned prisoner Nazrul in the commission of murder. The so-called confessional statement of Nazrul was obtained by torture and coercion and it is not wise to rely only upon this so-called statement of condemned-prisoner Nazrul made under section 164 of the Code, she lastly submits. She referred the case Saley Akram alias Potash vs State 73 DLR (AD) 264.
33. Now in view of submissions and counter submissions of the learned Deputy Attorney-General for the State, learned Advocates for the appellants, State defence as above, let us review the relevant evidences and materials on record and scan the attending circumstances of the case to arrive at a correct decision as to whether the learned judge was justified in passing the impugned judgment and order of sentence.
34. It has been established by evidence of PW 12 Dr. Md Habibur Rahman and other witnesses that Hemel was killed as alleged by the prosecution and this is not disputed by the defence. The material point which called for determination is whether the condemned-prisoner-appellants and others committed the said murder.
35. In this case condemned-prisoner-appellants Mahmudul Islam and Nazrul Islam made confessional statements under section 164 of the Code. Let us see the aforesaid judicial statements:-
The confessional statement made by accused Mahmudul Islam under section 164 of the Code.
“ভিকটিম সুপম আমার শালক সোহেলের বন্ধু। এলাকার এক বিয়েতে ২ মাস পূর্বে সুপমের সাথে শালকের সূত্রে আমার পরিচয়ের পর থেকে আমার সাথে ভাল সম্পর্ক। প্রায় সময় দেখা সাক্ষাৎ হত। মোবাইলে টাকা দিতাম। ১,০০০ টাকা একবার হাওলাত ও দিই। সুপমের সাথে আমার পরিচয়ের পূর্ব থেকেই সুপমের চাচা সুনীল মুহরী পাড়ার চেয়ারম্যানের ছেলে মিজান আমাকে বলত যে তোমার শালকের সাথে তো সুপমের ভালো সম্পর্ক। একে ব্যবস্থা করে মেরে ফেল, তোমাকে ১০ লক্ষ টীকা দিব। এ কারণে আমি তার সাথে সম্পর্ক ভালো রাখি। প্রায় সময় যোগাযোগ হওয়ার এক পর্যায়ে সে আমাকে বান্দরবান তার চাচার বাড়িতে বেড়াতে যাওয়ার কথা বলে। আমিও তাকে যেতে বলি। গত ৮-৫-২০১১ ইং তারিখ আমি এবং সে বান্দরবান যাওয়ার কথা থাকলে আমি সকাল ১০-০০টায় গিয়ে বহদ্দারহাট টার্মিনাল থেকে বান্দরবানের ২ টি টিকেট করাই। সে না আসায় পরে টিকেট ফেরত দিই। সে ১১-৪৫ টার দিকে আসলে আমি বলি আজ আর যাবনা, আগামী কাল যাব। রাত ১০-০০ টা পর্যন্ত তার সাথে ঘুরে টাইগার পাস থেকে তাকে বিদায় দেয়ার সময় হঠাৎ একটি হাই এস গাড়ি নিয়ে সাগর, সেলিম, মিজান এবং সুনীল এসে বান্দরবান যেতে বলে। তখন মিজান ও সুনীল গাড়ির সকল ভাড়া চুকিয়ে দিয়ে চলে যায় এবং আমি, সুপম, সাগর ও সেলিম বান্দরবান চলে যাই। ১১-৩০ টার দিকে পৌঁছে একটি হোটেলে চা পানি খেয়ে মাছ বাজারের দিকে দিকে সুপমকে নিয়ে সাগর ও সেলিম চলে যায়। আমি অনেক কষ্টে রাত ২-০০ টার দিকে চট্টগ্রাম বাসায় চলে আসি। তার পরদিন সকাল ১০-০০ টায় আমি আবার বান্দরবান যাই। সারাদিন মেঘলা সহ অনেক জায়গায় সুপম আর আমি বেড়াই। রাত ৮-০০টার দিকে সাগর ও সেলিম এসে আমাদের চা খাওয়ায়, এক জায়গায় গান শুনি। ৯-৩০-১০-০০টার দিকে মদের একটি বোতল ও চানাচুর নিয়ে আমরা চারজন এবং অপরিচিত আরো ২ জন মিলে থানার পূর্বে একটি রাস্তা দিয়ে পাহাড়ে উঠে যাই। হেঁটে প্রায় দেড় মাইল পর্যন্ত গিয়ে জন মানবহীন একটি টিলার উপর উঠি। সুপমকে যাওয়ার পথে মদ খাওয়ানো হয়। এক পর্যায়ে সুপমকে সাগর একটি কাঠের টুকরা দিয়ে মাথায় বাড়ি দিলে সুপম ঘুরে পড়ে যায়। তখন সবাই মিলে তাকে চেপে ধরে। নজরুল সাগরের সাথে বান্দরবান থাকে। নজরুল সুপমের পা চেপে ধরে। অপরিচিত ২ জন অণ্ডকোষ চেপে ধরে। সুপমের বেল্ট খুলে গলায় সাগর পেঁচিয়ে ধরে। সেলিম কোষ চেপে ধরে বামাইয়া। অপরিচিত একজন সুপমের শার্ট খুলে তার সুখের ভিতর ঢুকিয়ে দেয়। অনেকক্ষণ চেপে ধরে মৃত্যু নিশ্চিত করার পর সবাই ধরে পাহাড়ের নিচে ছুঁড়ে মারে। অনেক নিচে পেড়ে পড়তে অনেক সময় লাগে। আমি সব ঘটনা দীড়িয়ে দেখে ভয় পেয়ে যাই। তারপর সবাই স্টেশনে এসে যার যার মতো চলে যাই। সেদিন রাতেই আমি চট্টগ্রাম চলে আসি। এর দুই দিন পর সাগর ফোন করে আমাকে সুপমের মায়ের কাছ থেকে টাকা নিয়ে আসতে বলে। সুপমের মা ও ফোন করে বললে আমি আমার শালক সোহেলসহ গেলে আমাদেরকে পুলিশ গ্রেফতার করে। এই আমার জবানবন্দি।”
The confessional statement made by accused Nazrul Islam under section 164 of the Code.
“গত ৯-৫-২০১১ ইং তারিখ আমি সাগরের সাথে রাজ মিস্ত্রীর কাজ করার সময় সুপম এবং ইসলাম (আমার ভাই) আমাদের কাছে যায় ৷ তখন এসেছে বলে জানায় ৷ সুপম ও ইসলাম সাগরের সাথে কথা বলে। সাগর তখন জানায় কাজ শেষ বিকালে সকলে একসাথে বেড়াতে যাব। সবাই যেন থাকে। মাগরিবের পর সবাই মিলে চা নাস্তা খাই, আমি, সুপম, সাগর, সেলিম, ইসলাম এবং অজ্ঞাত নামা আরো ২ জন যারা সাগরের সাথে কাজ করে সবাই মিলে চানাচুর ও টাইগার নিয়ে টংকির পাহাড়ের দিকে যাই। ওখান থেকে মদ নিয়ে সবাই খাওয়ার কথা। প্রায় তখন রাত সাড়ে ৮ টা। পাহাড়ের উপরে টাংকির পাহাড়ের কাছে যাওয়ার সাথে সাথে সাগর একটি গাছের টুকরা দিয়ে হঠাৎ সুপমের মাথায় বারি মারলে সে পড়ে যায়। তখন সবাই সুপমকে ধরে ফেলে। আমি ভয়ে কাপছিলাম। আমাকে সাগর ধরতে বলায় আমি সুপমের পা ধরে রাখি। সবাই মিলে চেপে ধরে। আমি কাপছিলাম বলে একজন ধরে আমাকে সরিয়ে ফেলে। চেপে ধরে কি সব করে তারা সুপমকে মেরে ফেলে। আমার ভাই কিছুদূরে দীড়িয়ে থাকে। আমি রাতে কম দেখি। পরে শুনি (অন্য আসামীরা বলে) সুপমের বেল্ট তার গলায় পঁচিয়ে এবং শার্ট দিয়ে মুখ চেপে ধরে হত্যা করে। সুপম মারা যাওয়ার পর তার লাশ ঝিঝিতে ছুঁড়ে মেরে ফেলে দিয়ে ৩ জন করে ভাগ হয়ে এক এক পাশ দিয়ে বান্দরবান বাজারে চলে আসি। যার যার মতো চলে যাই। ঘটনার মাস খানেক আগে সাগর আমাকে বলেছিল, চট্টগ্রামের একজন লোককে বেঁধে রাখলে ২/৩ লাখ টাকা দিবে। আমাকেও সাথে থাকতে বলে। আমি রাজি হইনি। সুপমের চাচা এবং চেয়ারম্যানের ছেলে মিজান সাগরের সাথে সুপমকে মেরে ফেলে আসার সময় কথা বলে। পরে আজিজ নগর থেকে পুলিশ আমাকে গ্রেফতার করে। এই আমার জবানবন্দী।”
36. It is now well settled principle of law that judicial confession if it is found to be true and voluntary can form the sole basis of conviction as against the maker of the same. In this case PW 14 Md Jashim Uddin, learned Judicial Magistrate recorded the statements of Mahmudul Islam and Nazrul Islam under section 164 of the Code. It transpires from the record that these confessions are not only inculpatory in nature but also true and voluntary. In view of the evidence of PW 14 Md Jashim who clearly stated that he recorded these statements on proper observation of legal formalities as prescribed under law. It further appears that there has been no note or mention by PW 14 Md Jashim about any allegation or complaint of Police torture or threat to him by the condemned-prisoner Mahmudul Islam and Nazrul Islam. PW 14 noted that- “আসামী অনুতপ্ত হয়ে স্বেচ্ছায় জবানবন্দী দেয়।”
37. In this case PW 1 Papiya Sen, the mother of victim Hemel stated that on 8-5-2011 Hemel went Bandarban with Islam (Mahmudul Islam). On 9-5-2011 at about 10 am Papiya phoned her son Hemel and knew that he was on the way to home from Bandarban. At 12-30 pm Papiya again phoned to her son but got the phone switched off. On 11-5-2011 Mahmudul Islam came to Papiya Sen in her residence and wanted to give some information about Hemel on condition of getting Taka 1 (one) lac. PW 9 Brojendra Lai Nandi, PW 11 Md Moinuddin and PW 10 Alsen Das corroborated this statement. On the other hand PW 2 Subol Das, PW 3 Tutul Sardar, PW 4 Md Abdur Rahim, PW 5 Md Ripon, PW 6 Shipon Uddin corroborated the prosecution case about recovery of dead body of Hemel and other circumstances of the prosecution case.
38. Considering the above facts and circumstances and evidences on record, we find that the prosecution has been able to prove the charge against the condemned-prisoner-appellants. Mahmudul Islam and Nazrul Islam beyond all reasonable doubt.
39. But it appears from the record that condemned-prisoner-appellants Sunil Das and Mizanur Rahman Chowdhury did not confess their alleged guilt before the Magistrate. It is an established principle that the statement under section 164 of the Code cannot be used against any other co-accused without an aid of further corroborative evidence and circumstance. Furthermore it appears from the record that Mahmudul Islam and Nazrul Islam filed petitions to retract their confessional statements made under section 164 of the Code. It is settled that a retracted confession of a co-accused cannot form only the basis of conviction unless it is corroborated by other strong reliable circumstantial evidence.
40. Similarly, convict-absconded-persons Md Hossen @ Sagor and Md Selim did not confess their guilty. Learned Deputy Attorney-General submits that the absconsion is a good ground for prosecution of guilt. But no decision could be cited by the learned Deputy Attorney-General showing that the absconsion of an accused has been held to be corroboration to the confessional statement of another accused as to base thereon conviction of the absconding accused. It is well settled that mere abscondence cannot always be a circumstance leading to the inference of guilt of the accused. It is not wise to rely only upon the statements of the co-accuseds made under section 164 of the Code in the absence of independent corroborative evidence.
41. In a case like this, the judgment would be based on facts, circumstances and evidences and not on imaginary possibilities. We are of the opinion that while coming to his conclusion the learned Judge of the Trial Court sustained the conviction of the aforesaid condemned-prisoner-appellants without applying his judicial mind.
42. Having regard to the above discussions of the facts and circumstances of the case and evidences on record and case laws referred to, we hold that prosecution has failed to prove this case according to principle of law and beyond reasonable doubt against the condemned-prisoner-appellants (1) Mizanur Rahman Chowdhury @ Mizan, (2) Sunil Das, (3) Md Hossen @ Sagor (absconded) and (4) Md Selim (absconded). So, they are entitled to be acquitted.
43. On the other hand, we find that prosecution has been able to prove the charge against the condemned-prisoner-appellants Mahmudul Islam @ Islam and Nazrul Islam @ Lal Miah beyond all reasonable doubt. But as regards the sentence passed against them, it appears from the record that there is no eye-witness of the alleged occurrence in this case. PW 14 Md Jashim, learned Magistrate recorded the statements of them under section 164 of the Code. He noted that “আসামী অনুতপ্ত হয়ে স্বেচ্ছায় জবানবন্দী দেয়”. So, on giving our careful consideration in disposal of the Death Reference and Appeals along with other factors as extenuating circumstances, we think that the ends of justice would be sufficiently met if we commute the sentence of death passed upon the aforesaid condemned-prisoners (1) Mahmudul Islam @ Islam and (2) Nazrul Islam @ Lal Miah under section 302/34 of the Penal Code to imprisonment for life.
44. In the result the Death Reference No. 22 of 2016 is rejected.
45. The Criminal Appeal No. 5091 of 2021 arising out of Jail Appeal No. 68 of 2016 and Jail Appeal No. 67 of 2016 are dismissed with modification of sentence.
46. The death sentence only under section 302/34 of the Penal Code of the Condemned-prisoners (1) Mahmudul Islam @ Islam and (2) Nazrul Islam @ Lal Miah are commuted to life imprisonment along with a fine of Taka 10,000 (ten thousand), in default to suffer rigorous imprisonment for a further period of 3(three) months.
47. Criminal Appeal Nos. 2230 of 2016, 4011 of 2016 and Jail Appeal Nos. 65 of 2016, 66 of 2016 are allowed. Condemned-prisoners Mizanur Rahman Chowdhury and Sunil Das be set at liberty at once if they are not wanted in connection with any other case.
48. The warrant of arrest against non-appellant absconded-convict Md Hossen @ Sagor and Md Selim be recalled.
Send down the Lower Court Record with a copy of this judgment at once for necessary action in accordance with law.
End.
High Court Division (Special Original Jurisdiciton)
Present:
Mr. Justice Moyeenul Islam Chowdhury
Mr. Justice J.B.M. Hassan
Writ Petition No. 7041 of 2015
Music Industries Owners’ Association of Bangladesh and another
------- Petitioners
VS
Secretary, Ministry of Cultural Affairs, Government of Bangladesh and anothers
------- Respondents
Order Date : August 02, 2017
Counsels:
Tanjib-ul Alam with Kazi Ershadul Alam, Advocates
-----For the Applicant.
Sheikh Fazle Noor Taposh with Mohammad Mahedi Hasan Chowdhuty, Advocates
---------- For the Petitioner Opposite-Parties.
Order
This is an application for addition of party.
2. Mr Tanjib-ul Alam, learned Advocate appearing on behalf of the applicant, submits that the applicant company is a subsidiary of Hungama Digital Media Entertainment Private Limited which is a company incorporated in India and the applicant-company represents its parent company in Bangladesh.
3. Mr Tanjib-ul Alam further submits that the parent company, that is to say, Hungama Digital Media Entertainment Private Limited is the largest Digital Media Company in South Asia and launched India's first and largest on-demand digital entertainment storefront which has over two and a half million pieces of content across genres and languages in the form of music tracks, movies, music videos and dialogue mobile contents such as ringtones and wallpapers.
4. Mr Tanjib-ul Alam next submits that the applicant-company has been engaged in importing contents such as Hindi film songs and Hindi songs of its parent company and distributing the same to different entities including mobile telecommunication service-providers in Bangladesh and the applicant-company had been helping the consumers of this country to relish and use the contents of its parent company through mobile telecommunication service-providers.
5. Mr Tanjib-ul Alam further submits that since the applicant-company has been importing the said contents in Bangladesh and as the interim order dated 9-7-2015 passed in the Writ Petition has been greatly affecting the business of the applicant-company, it is necessary to implead the same as a respondent in the instant Writ Petition.
6. Mr Tanjib-ul Alam also submits that although it has been stated in Article 54(c) of the Articles of Association of the applicant-company that the Managing Director, subject to the approval of the Board of Directors, is expressly authorized to exercise the powers to institute, conduct, defend, compound or abandon any legal proceeding by or against the Company or its officers or otherwise concerning the affairs of the Company and also to compound and allow of demands by or against the Company; but this Article 54(c) has not in any way restricted the power of the Board of Directors to authorize any non employee to act for and on behalf of the company in any proceeding in a, Court of law and for all practical purposes, the Board of Directors is the supreme authority of the company and its Managing Director is always subject to the control and supervision of the Board of Directors and given this scenario, the Board of Directors of the applicant-company is competent enough to authorize Md Iqbal Hossain, Managing Partner of Safe FI to act for and on behalf of the applicant-company in this proceeding before this Court.
7. Mr Tanjib-ul Alam also submits that the Board of Directors of the applicant-company gave a letter of authorization in favour of Md Iqbal Hossain on 7-10-2016 pursuant to a resolution of the Board of Directors dated 7-10-2016 authorizing him to act for and on behalf of the applicant-company in this proceeding; but Md Iqbal Hossain. Managing Partner of Safe Fl, signed the power on behalf of Safe FI and not on behalf of the applicant-company and this technical mistake stands cured by the subsequent resolution of the Board of Directors and the letter of authorization as evidenced by Annexure-'2' series to the Supplementary Affidavit dated 10-7-2017 filed on behalf of the applicant-company.
8. Mr Tanjib-ul Alam lastly submits that although Md Iqbal Hossain is not an officer or employee of the applicant-company; but even then, he has been legally authorized by the Board of Directors of the applicant-company to represent the company in this proceeding before this Court. In support of this submission, Mr Tanjib-ul Alam has drawn our attention to the decision dated 26-4-2012 in the case of Arun Kumar Singhania vs State of MP and others passed by the High Court of Madhya Pradesh and the decision dated 17-11-2008 in the case of National Small Industries Corporation Ltd. vs State (NCT of Delhi) and others passed by the Supreme Court of India which were downloaded from the website Manupatra.
9. Per contra, Mr Sheikh Fazle Noor Taposh, learned Advocate appearing on behalf of the petitioner opposite-parties, submits that Md Iqbal Hossain, Managing Partner of Safe FI, cannot represent the applicant-company in view of the fact that admittedly he is neither an officer nor a director nor an employee of the applicant-company and in that view of the matter, Md Iqbal Hossain cannot be authorized by the Board of Directors to represent the company in this proceeding before this Court.
10. Mr Sheikh Fazle Noor Taposh further submits that Order 29, rule I of the Code of Civil Procedure contemplates that in suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case and as Md Iqbal Hossain is not an employee or any officer or any director of the applicant-company, he is not able to depose to the facts of the case as a matter of course and in this perspective, the application for addition of party is liable to be rejected.
11. Mr Sheikh Fazle Noor Taposh next submits that unless Article 54 of the Articles of Association of the applicant-company is amended, Md Iqbal, a non-employee of the applicant-company, cannot be authorized by any resolution of the Board of Directors to represent the company in this case.
12. Mr Sheikh Fazle Noor Taposh also submits by referring to the decision in the case of Alauddin Masum vs Mosammat Aleya Begum and others reported in 23 BLT (AD) 1 = 67 DLR (AD) 136 that a necessary party is one without whom no order can be effectively made and a proper party is one whose presence is necessary for complete or final decision of the question involved in the matter and the Court is to determine whether the presence of the applicant-company is necessary for the disposal of the Rule.
13. We have heard submissions of the learned Advocate Mr Tanjib-ul Alam and the counter-submissions of the learned Advocate Mr Sheikh Fazle Noor Taposh and perused the application and the Affidavit-in Opposition filed there against and other relevant documents and Annexures annexed thereto.
14. Be that as it may, on 9-7-2015, this Court issued a Rule Nisi calling upon the respondents to show cause as to why the act of allowing the respondent Nos. 6-11 to use Hindi film songs, Hindi songs or Indian Bengali film songs or sub-continental film songs as ringtones or welcome tunes or any other value added services for mobile phones should not be declared to be without lawful authority and of no legal effect being violative of section 26(49) of the Import Policy Order, 2012-2014 and why the respondent Nos. 1-5 should not be directed to restrain the respondent Nos. 6-11 from using Hindi film songs, Hindi songs or Indian Bengali film songs or sub-continental film songs as ringtones or welcome tunes or any other value-added services for mobile phones and/or such other or further order or orders passed as to this Court may seem fit and proper.
15. Admittedly the applicant-company is a subsidiary of Hungama Digital Media Entertainment Private Limited which is a company. incorporated in India. In other words, the applicant-company represents its parent company in Bangladesh. It transpires from the averments made in the application for addition of party that the applicant-company has been engaged in importing contents such as Hindi film songs and Hindi songs of its parent company and distributing the same to different entities including mobile telecommunication service-providers in Bangladesh. So the operation of the applicant-company being a subsidiary of the Indian company in Bangladesh is ex-facie clear.
16. Precisely speaking, we are to see as to whether the presence of the applicant-company is necessary for proper and effectual adjudication of the Rule. In this connection, Mr Sheikh Fazle Noor Taposh has taken an initial objection to the competency of the applicant-company to file the instant application for addition of party. According to him, Md Iqbal Hossain, Managing Partner of Safe FL, cannot represent the applicant-company inasmuch as indisputably he is neither any employee nor any director nor any officer of the applicant-company and that being so, Md Iqbal Hossain cannot represent the applicant-company in this proceeding before this Court. It is also the contention of Mr Sheikh Fazle Noor Taposh that according to Article 54(c) of the Articles of Association of the applicant-company, it is only the Managing Director of the company who is authorized to institute, conduct, defend, compound or abandon any legal proceeding by or against the company or its officers or otherwise concerning the affairs of the company and also to compound and allow of demands by or against the company subject to the approval of the Board of Directors. Mr Tanjib-ul Alam concedes to the fact that as per Article 54 of the Articles of Association of the applicant-company, the Managing Director of the company has been authorized in that regard subject to the approval of the Board of Directors. However, the Board of Directors of a company is its supreme authority and the Managing Director is always subject to the control and supervision of the Board of Directors. Even the Board of Directors may pass any resolution or directive which is not specifically contemplated by the Articles of Association in the interest of the company, if the situation so demands. Although any non-employee of the applicant-company has not been specifically mentioned in Article 54 of the Articles of Association for authorization to represent the company in any legal proceeding; yet none the less, the Board of Directors, being the supreme authority of the company, has the right to authorize any non-employee of the company to represent it in any legal proceeding before any Court of law. What we are driving at boils down to this: Article 54 of the Articles of Association of the applicant-company has not in any way derogated from the authority of the Board of Directors to authorize Md Iqbal Hossain, Managing Partner of Safe Fl, to represent the applicant-company in this proceeding.
17. In the case of National Small Industries Corporation Ltd. vs State (NCT of Delhi) and others which was decided on 17-11-2008 by the Supreme Court of India, it was spelt out:
"If the payee is a company, necessarily the complaint should be filed in the name of the company. Section 142 of the NI Act does not specify who should represent the company, if a company is the complainant. A company can be represented by an employee or even by a non-employee authorized and empowered to represent the company either by a resolution or by a power of attorney."
18. In the rase of Arun Kumar Singhania vs State of MP and others which was decided by the High Court of Madhya Pradesh on 26-4-2012, it was observed:
"Indisputably, in the complaint as well as in the civil suit filed by the petitioner Arun Singhania, AK Agrawal has been impleaded as one of the persons in-charge of and responsible for conduct of business of the Company. Although, he claims that necessary authorization was given to him by way of resolutions dated 19-4-2010 and 10-2-2011 yet, it is well-settled that a company can be represented by an employee or even by a non-employee authorized and empowered to represent the company either by a resolution or by a power-of-attorney. Moreover, merely because the complaint is signed and presented by a person, who is neither an authorized agent nor a person empowered under the Articles of Association or by any resolution of the Board to do so, the same is no ground to quash the complaint since the defect is curable."
19. It is an admitted fact that Md Iqbal Hossain, Managing Partner of Safe FI, executed a power in this case on 23-2-2017. It is further admitted that on or before that date (23-2-2017), there was no Board resolution or any authorization of Md Iqbal Hossain by the Board to represent the applicant-company in this proceeding before this Court. In other words, the resolution of the Board of Directors of the applicant company and the authorization in favour of Md Iqbal Hossain are subsequent in point of time. At tile time of execution of the power by Md Iqbal Hossain, he was, as we see him, was not competent to represent the applicant-company in this case; but after passing of the subsequent resolution by the Board of Directors and rendition of the authorization in favour of Md Iqbal Hossain the initial defect in his competency to represent the company was cured and the action of Md lqbal Hossain in executing the power was ratified as evidenced by Annexure-'2' series to the Supplementary Affidavit dated 10-7-2017 filed on behalf of the applicant-company.
20. It is true that as per Order 29, rule 1 of the Code of Civil Procedure, in suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case. In this respect, it may be pointed out that the scope and purpose of a Writ Petition are manifestly different from a civil suit. The principles relating to addition of parties in a civil suit are not protanto applicable to a Writ Petition. This view finds support from the decision in the case of Moudud Ahmed vs Anwar Hossain Khan, Advocate and others reported in 1995 BLD (AD) 12. So we are led to hold that the principles relating to addition of party in a civil suit are not wholly applicable to the present proceeding of the Writ Petition. We have already found that even a non-employee can represent any company, if he is duly authorized by the Board of Directors of that company. Moreover, it is in the affidavit sworn by Md Iqbal Hossain that he is acquainted with the facts of the case. In such a situation, the invocation of Order 29, rule I of the Code of Civil Procedure will not be of any avail to Mr Sheikh Fazle Noor Taposh.
21. Undeniably the applicant-company is a subsidiary of Hungama Digital Media Entertainment Private Limited which is incorporated in India. In Bangladesh, the applicant-company is operating its business on behalf of the parent company Hungama Digital Media Entertainment Private Limited. If, for the sake of argument, the Rule is heard and made absolute on merit in the absence of the applicant-company, it will definitely be highly prejudiced. In the facts and circumstances of the case and in the premises made above, we find that the applicant-company is vitally interested in the subject matter of the Rule and that being so, the presence of the applicant is necessary for proper and effectual adjudication of the Rule. Accordingly, the application is allowed.
22. Let the applicant, namely, Hungama Bangladesh Private Limited represented by its authorized representative Md lqbal Hossain, Managing partner, Safe FI, 3rd Floor, House 39, Road 126, Gulshan South Avenue, Dhaka- 1212 be impleaded as respondent No. 12 to the Writ Petition.
Office is directed to amend the cause-title of the Writ Petition and the register accordingly.
End.
High Court Division (Statutory Original Jurisdiction)
Present:
Mr. Justice Muhammad Khurshid Alam Sarkar
Financial Institution Matter No. 01 of 2019.
Bangladesh Bank
---------- Petitioner
vs
People's Leasing and Financial Services Ltd. and others
-------- Respondents
Judgement Date : February 23, 2021
Counsels:
Tanjib-ul-Alam with Kazi Ershadul Alom, Advocates
—For the Petitioner
Mejbahur Rahman, Advocate
—For the official liquidator:
Gazi Mustaq Ahmed and a few other Advocates
—For the Borrowers.
Judgment
1. The substantive matter (i.e. Financial Institution Matter No. 01 of 2019) is about winding up of a Financial Institution of the country, named, People's Leasing and Financial Services Limited (PLFSL). In the process of adjudication of the substantive matter, this Court has been dealing with innumerable Miscellaneous Applications filed either by the Official Liquidator or by the general shareholders or by the former Directors, Executives and employees of the PLFSL or by the depositors or by the creditors or by the PLFSL's borrowers. In course of dealing with such applications, this Court endeavoured to identify the persons/entities liable for loss and damage of the PLFSL with an aim to recover the appropriate amount of compensation from them.
2. The Company Court, in the process of winding up of a company, is vested with onerous duties and armed with ample powers under sections 278 and 331 of the Companies Act to summon the suspected persons/entities for the purpose of assessing the quantum of each of person's/entity's liabilities (i.e. their roles in causing the loss and damage to the wound-up company) and, thereby, pass appropriate Orders/Directions, including any restrictive, prohibitive, injunctive and penal Orders, upon them for securing the recovery of the money/assets of the company under liquidation. In the said process, this Court has primarily, at first, passed a number of Orders/Directions upon the Directors' Bank Accounts and personal properties restricting them from dealing with the same. Subsequently, this Court asked the borrowers to submit their pay-plan before this Court. More than 1,000 (thousand) borrowers of the PLFSL have become defaulters in paying off their respective loans. Out of them, only around 300 (three hundreds) have been asked to appear before this Court on 23-2-2021 and 25-2-2021. The rest of the borrowers shall be directed to appear phase by phase in the future.
3. Pursuant to the Order passed by this Court on 21-1-2021, out of 143 persons/entities whose names and addresses contained in the Schedule-1 to the aforesaid order, 51 persons/ entities have appeared before this Court. While a few of them have come up with a prayer for reschedulement of their respective loans, most of them have sought for adjournment for filing proper affidavits stating their personal circumstances. The persons/entities who have already appeared before this Court by filing Vokalatnama are exempted from their personal appearance and the persons/entities who have failed to appear before this Court today are directed to appear before this Court on 9-3-2021. The borrowers of the PLFSL are hereby warned by this Court that if they fail to appear before this Court on the next fixed date, in that event, this Court will have no other option, but to pass an Order of arrest against each of them separately.
4. Since most of the borrowers of the PLFSL are expected to be available for the purpose of dealing with their respective loan-matters, this Court is of the opinion that without the aid of the Governor of Bangladesh Bank, Chairman of the Anti-Corruption Commission (ACC) and the Chairman of the Bangladesh Securities and Exchange Commission (BSEC), proper handling of the issues of the defaulted borrowers (persons and entities) and other suspected wrong-doers of the Peoples Leasing and Finance Limited (PLFSL), International Leasing and Financial Services Limited (ILFSL) and Bangladesh Industrial Finance Corporation Limited (BIFCL) may not be possible for this Court. Given that all the above mentioned three dignitaries of the State mostly remain busy with their pre-scheduled works, this Court is of the view that if they are invited to attend a meeting by connecting them virtually with this Court on a date after 2 (two) weeks in the afternoon, it would be a great assistance for this Court for a proper adjudication of a huge number of Miscellaneous Applications arising out of the cases of these three Financial Institutions.
5. It is pertinent to mention here that this Court always tries to avoid the need of presence of any Government officials in the Court-room or even through virtual devices, let alone the presence of the high dignitaries like the Chairman of ACC, Governor of the Bangladesh Bank and the Chairman of the BSEC, for, the Courts of this land usually seek to hear any party's version through their concerned lawyers. However, given the exigencies of the issues involved in these cases, this Court considers it appropriate to directly share the Court's view with them through any virtual platform.
6. There is only one Company Court for the entire Bangladesh and it has been a huge burden for this Court (the Company Bench) to deal with the cases of the Financial Institutions of this country. Only in the recent past, a few hundred Miscellaneous Applications with regard to various issues of PLFSL, ILFSL and BIFCL have been received by this Court at the cost of hampering the regular functions of the Company Court.
7. It is to be mentioned here that though it has been nearly 2 (two) years since the date of filing the winding up application by the Governor of Bangladesh Bank before this Court, there has not been any meaningful resolution of the quandaries that are being faced by the millions of general shareholders, thousands of depositors and hundreds of creditors. It is to be reminded here that this Court passed the Order of winding up on 14-7-2019 at the persistent insistence of the Bangladesh Bank, in an expectation that Bangladesh Bank would eventually come up either with a prayer for resuming of the regular business of the PLFSL through formation of a fresh Board of Directors or would present before this Court a scheme of amalgamation or would come up with some other proposal/s. On the other hand, no Charge Sheet has been filed by the ACC till date against the offenders of the crimes committed in the PLFSL and in other Financial Institutions of the country.
8. Thus, in order to help this Court in effective adjudication of the applications filed by the general shareholders, depositors, creditors and the borrowers of the People's Leasing and Financial Services Ltd (PLFSL), International Leasing and Financial Services Limited (ILFSL) and Bangladesh Industrial Finance Company Limited (BIFCL), which are the listed companies and whose lion portions of shares are being held by the general people of the country, in addition to the assistance of Bangladesh Bank as expected by this Court, cooperation from the Chairman of Bangladesh Securities Exchange and Commission (BSEC) is also needed about the formation of Board of Directors of these companies or for finding out any other path to run the aforesaid public listed companies. Further, since a number of criminal cases have been filed by the Anti-Corruption Commission (ACC), the concerned Investigating Officers (I0s) of the ACC are required to frequent the office of the aforesaid financial institutions in order to inspect the necessary papers and, also, since numerous Bank Accounts of the PLFSL's Directors, Executives, borrowers and other suspected persons have been frozen by the Orders of this Court or by the Orders of the Special Tribunal, and since PLFSL, ILFSL and BIFCL any time may require transfer of funds from the aforesaid frozen Bank Accounts for the purpose of either for carrying out their businesses or for complying with the Orders/Directions of the Court, therefore, in order to allow the PLFSL, 1LFSL and BIFCL to carry out their businesses without being hassled by the IOs of the ACC, this Court is of the view there should be combined and coordinated actions of the ACC, Bangladesh Bank and BSEC in dealing with the activities of the aforesaid listed financial companies.
9. On 4-2-2021, in this matter this Court passed a 9-page Order; operative part of the same is quoted below:
"In order to implement the aforesaid pious wishes of this Court and to take up the current dire issue of NJMCL, a combined effort is needed which must be coordinated by the Bangladesh Bank, ACC and BSEC. Keeping that purpose in view, the Governor of Bangladesh Bank, the Chairman of ACC and the Chairman of BSEC are directed to form a co-ordination committee consisting of high officials from each of the aforesaid statutory authorities within 40 (forty) days from date. The aforesaid committee, then, shall fix appropriate agenda (i.e. whether the companies which had taken loan from the PLFSL and ILFSL should be allowed to run by formation of new Boards of Directors or they should be wound up or some other measures will be considered) towards resolution of the dilemma of this Court in dealing with this matter and, thereby, resolve the crisis of the financial sector of this country."
10. And, thereafter, this Court has been informed by the learned Advocates of all the above-mentioned three statutory bodies that necessary steps are being taken to comply with the aforesaid Order dated 4-2-2021.
11. This Court finds it worthy to jot down here that while three organs of the State and the various Divisions/Departments/Directorates of Bangladesh normally conduct their respective routine works as per their own rules of business, customs and practices, however, at times, there may be exigencies to work collaboratively for the greater interest of the nation ignoring the trifling procedural technicalities. Our Father of the Nation has shown us how to carry out the most difficult tasks, such as, framing of our Constitution, establishing of the three organs for the State, enactment of all the relevant laws, making of necessary national policies, formation of different statutory bodies, structuring the armed forces, and what not— within a very short span of three and half years of his governance in a concerted effort without much emphasizing on issues of trivial State protocols. When the issue before the state-functionaries is regarding solution of a national crisis or development of the country, it is expected from the dignitaries of all the levels to reduce their respective paper works/procedures or field protocols as minimum as possible to contribute their maximum efforts towards building up the 'Sonar Bangla' for which the three millions martyrs of our sacred land have scarified their souls and nearly quarter million women of this great soil have lost their chastity, simply for honouring the call of the Father of the Nation for independence and emancipation of the people of this country.
12. By now, it has been 50 (fifty) years of our great independence through the above-mentioned glorious sacrifices and its golden jubilee is going to be celebrated in next few days and, at the same time, the nation has also been commemorating the centenary of our great Father of Nation Bangabandhu Sheikh Mujibur Ralunan. So, it is the normal expectation of the citizenry that we, the privileged class of the country, shall be mindful in carrying out our respective duties with most sincerity and utmost honesty without caring for frivolous paper works or field protocols or nominal procedures.
13. In the cases in hand, some scoundrels in the garb of businessmen in conspiring with the rogues of the financial sector of the country have looted the money of the general people, such as, of the general shareholders, creditors, depositors of this land which triggered filing of a few hundred applications by the depositors/creditors before this Court for winding up of a number of Financial Institutions. When the country is receiving recognition of acquiring financial solvency at the cost of hard work with unquestionable integrity of the Head of the Government from foreign countries and international bodies, it is really alarming for the nation to notice that a vested group is hatching plots to destabilize the economic growth of the country. Under the situation, every Constitutional Body, Statutory Body, Division, Department and Directorate is expected to work speedily and transparently, so that the wicked people of the country and the foreign critics do not find a clue to undermine our present economic status of solvency.
14. When the learned Advocate for Bangladesh Bank Mr Tanjib-ul Alam was asked as to why the Bangladesh Bank is taking such a long time (which is nearly 2 years) to come up with the solutions to the predicaments that are being experienced by the PLFSL and other Financial Institutions, in reply thereto, he informed this Court that Bangladesh Bank is trying its best to pursue the high-ups of the Ministry of Finance to accept the proposal put forward by Bangladesh Bank. Under the circumstances, this Court considers that it has now become obligatory for this Constitutional Court to directly consult with the heads of the relevant statutory bodies towards resolution of the impasse.
15. Accordingly, the Chairman of Anti-Corruption Commission (ACC), Governor of Bangladesh Bank and the Chairman of the Bangladesh Securities Exchange Commission (BSEC) are invited to attend a virtual meeting with this Court on 9-3-2021 at 2-30-3-30 pm. There shall not be presence of any lawyer or any other person at the time of the proposed conference. Given the pre-occupation of the above-named three dignitaries of the country, this Court suggests that they may discuss among themselves over telephone about their availability on the scheduled date and, after discussions among themselves, if any of the three dignitaries finds oneself to be unable to attend the proposed conference, in that event, none of them would be required to attend the proposed virtual conference with the Court; instead, an Executive Director of the Bangladesh to be nominated by the Governor of Bangladesh Bank, the Director-General of the ACC and Executive Director of the BSEC shall remain present in this Court in person on the same date and time.
16. Mr Khurshid Alam Khan, the learned Advocate for the ACC, Mr Tanjib-ul Alam, the learned Advocate for the Bangladesh Bank and Mr AM Masum, the learned Advocate for the BSEC are directed to take this Order by hand from the Bench Officer of this Court and communicate the same directly to the concerned dignitaries, so as to assist this Court towards expeditious disposal of the matter.
17. Further, the office is directed to communicate this Order to the Chairman of ACC, the Governor of Bangladesh Bank and the Chairman of BSEC at once by Fax/E-mail with the help of Registrar of this Court.
18. Office is directed to send a copy of this Order by Fax and Special Messenger to (1) the Principal Secretary to the Hon'ble Prime Minister, (2) the Secretary, Ministry of Finance, Banking Division and (3) the Secretary, Ministry of Law, Justice and Parliamentary Affairs for their perusal and necessary actions.
Let the matter be posted in the daily cause list on 9-3-2021 under the heading "For compliance".
End.
High Court Division (Special Original Jurisdiction)
Present:
Mr. Justice Md. Khasruzzaman
Mr. Justice Md. Iqbal Kabir
Writ Petition No. 6705 of 2020.
Dr. Mohammad Harun-or-Rahid and others
-------- Petitioners
VS
Government of the People's Republic of Bangladesh, represented by the Secretary, Ministry of Cultural Affairs, Departmental Promotion Committee for the Department of Public Libraries and others
----- Respondents
Judgement Date : July 28, 2022
Counsels:
Probir Neogi with Md Akram Uddin, Advocates
—For the Petitioner.
Bepul Bagmar, DAG
—For Respondent No.4.
Judgment
Md Khasruzzaman, J:
1. In an application under Article 102 of the Constitution, Rule Nisi was issued in the following terms:
"Let a Rule Nisi be issued calling upon the respondents to show cause as to why (i) the terms "এই বিধিমালা জারির পূর্বে” inserted in Serial 2 of the schedule appended "গণগ্রন্থাগার অধিদপ্তর (কর্মকর্তা ও কর্মচারী) নিয়োগবিধিমালা, ২০০৮" in relation to promotion to the post of (a) Principal Librarian (Deputy Director) (b) Principal Librarian-cum-Deputy Director; (ii) Notification bearing Memo No. 43.00.0000. 113.12.049.18.207 dated 03-8-2020 (Annexure-A) issued by the respondent No.5 promoting 3 Assistant Directors and a Librarian to the post of Principal Librarian-cum-Deputy Director/Principal Librarian (Deputy Director) excluding the petitioners from promotion of the said post and (iii) the Memo bearing No.43.26.0000.001.12.001. 2020-1636 dated 22-9-2020 (Annexure-A-1) issued by the respondent No.4 recommending the petitioners along with 13 others to be considered for promotion to the post of Senior Librarian instead of their earlier recommended post of Principal Librarian-cum-Deputy Director/Principal Librarian (Deputy Director) should not be declared to have been issued without lawful authority and of no legal effect and/or such other or further order or orders as to this Court may seem fit and proper should not be passed."
2. Facts necessary for disposal of the Rule Nisi in short are that initially, on 11-10-1995, the writ petitioners were appointed in the entry post of 'Assistant Librarian' in the Department of Public Libraries under the Ministry of Cultural Affairs under the Rules namely, 'The Officers and Employees (Public Libraries under the Sports and Culture Division) Recruitment Rules, 1983' and subsequently, on 30-10-2008 the writ petitioner Nos. 1 and 2 were promoted to the post of Assistant Director and writ petitioner No.3 was promoted to the post of Librarian in the Department of Public Libraries vide Annexures-B and B 1 respectively to the writ petition. In the meantime, new Rules namely, "গণগ্রন্থাগার অধিদপ্তর (কর্মকর্তা ও কর্মচারী) নিয়োগ বিধিমালা, ২০০৮" were promulgated through Gazette Notification dated 10-6-2008 regarding appointment, promotion and posting of the employees of the aforesaid department. Thereafter, Bangladesh Public Service Commission upon inquiry and proper scrutiny of the documents relating to 23 officers including the writ petitioners holding the same posts of Librarian/Librarian-Assistant Director/ Assistant Director with same grade in the said department recommended a gradation list of names and other particulars as per their respective seniority in their service which has been published by the respondent No.1 Ministry through publication of Gazette on 01-3-2016, vide Annexure-D to the writ petition. In the meantime, though the writ petitioners have achieved the eligibilities for promotion to the post of Principal Librarian-cum-Deputy Director, Principal Librarian (Deputy Director) and Principal Librarian upon fulfillment of 10 years tenure in their service, they were not enlisted/ recommended by the respondent No.4 in the list of 11 officers attached below to the Memo No. 43.26.0000.001.12.449.83.77 dated 19-1-2020 which has been forwarded to the meeting of the Departmental Promotion Committee(DPC) held on 23-2-2020 vide Annexure-E to the writ petition. Thereafter, on 13-7-2020 the respondent No.4 again prepared a list of 14 officers along with break-up of vacant posts to be filled up wherein the petitioners' names were shown in the below position of the said list of officers, vide Annexure G to the writ petition for consideration of the same by the Departmental Promotion Committee (DPC) in its meeting held on 19-7-2020. The writ petitioners under the apprehension of being inequality of opportunity served a notice demanding justice by their learned lawyer to the respondents on 26-7-2020 through registered post with A/D vide Annexure-H to the writ petition. Ultimately, the respondent No.1 has promoted 04(four) Officers from the said list to the post of Principal Librarian-cum-Deputy Director/ Principal Librarian(Deputy Director) without considering the case of the petitioners vide Notification dated 3-8-2020 (Annexure-A to the writ petition). Subsequently, the respondents, out of ulterior motive to deprive the writ petitioners from getting promotion to the post of Principal Librarian-cum-Deputy Director/Principal Librarian (Deputy Director), have recommended the names of the petitioners for promotion to the inferior post of Senior Librarian by the Memo No. 43.26.0000.001.12.001.2020-1636 dated 22-9-2020 vide Annexure-A-1 to the writ petition. Immediately thereafter, the writ petitioners filed representation dated 28-9-2020 before the respondent No.1 Ministry for withholding the process of their promotion in the inferior post of Senior Librarian vide Annexure-I to the writ petition. But, the respondents did not pay any heed to the same.
3. Under such circumstances, the petitioners have challenged the terms "এই বিধিমালা জারির পূর্বে” inserted in Serial 2 of the schedule appended “গণগ্রন্থাগার অধিদপ্তর (কর্মকর্তা ও কর্মচারী) নিয়োগ বিধিমালা, ২০০৮” in relation to promotion to the post of (a) Principal Librarian (Deputy Director) (b) Principal Librarian-cum-Deputy Director and also challenged Annexures-A and A-1 respectively to the writ petition and obtained Rule Nisi along with order of stay.
4. The Rule Nisi was opposed by the respondent No. 4 by filing an affidavit-in-opposition denying the material facts stated in the writ petition contending inter alia that it is true that the writ petitioners were appointed under the previous Service Rules of 1983 but, after promulgation of Service Rules, 2008 repealing the previous Rules of 1983, the appointment, promotion and posting of the employees of the Public Libraries including the writ petitioners will be guided as per the provision of the new Service Rules of 2008 and the writ petitioners being not eligible to be promoted to their claimed post their promotion as asked for were not considered by the authority, rather their names were recommended for promotion to the post of Senior Librarian and without availing this post, they filed this writ petition on some false and fabricated allegations and obtained the Rule Nisi which is liable to be discharged.
5. Mr Probir Neogi along with Mr Md Akram Uddin, the learned Advocates appearing on behalf of the writ petitioners submit that since the writ petitioners were initially appointed in the post of Assistant Librarian by notification dated 11-10-1995 and since they have been discharging their duties as such with unblemished service career they have acquired vested right, before the new Service Rules of 2008 came into force, to be considered for promotion to the post of Principal Librarian-cum-Deputy Director/Principal Librarian (Deputy Director) as per the provision of the Rules of 1983 and, as such, the right accrued under the previous Rules cannot be taken away by promulgation of the new Service Rules of 2008 and non consideration of the case of promotion of the writ petitioners by the respondent authority in the post of Principal Librarian-cum-Deputy Director/Principal Librarian(Deputy Director) is clear violation of the fundamental rights guaranteed under Articles 26, 27 and 29 of the Constitution. Mr Probir Neogi, the learned Advocate then submits that although the writ petitioners and other officers who were promoted to the post of Principal Librarian-cum-Deputy Director/Principal Librarian(Deputy Director) were appointed initially in the post of Assistant Librarian by the same notification on 11-10-1995 and gradation list of 23 officers were prepared and confirmed by the respondent Ministry on the recommendation of Bangladesh Public Service Commission by publication of the same in Gazette dated 1-3-2016 vide Annexure-D to the writ petition, the writ petitioners were not recommended for promotion to their lawful claimed posts and, as such, equality of opportunity as guaranteed under Articles 26, 27 and 29 of the Constitution has been infringed.
6. Referring to Annexure-A-1 to the writ petition the learned Advocate further submits that the writ petitioners were recommended for giving promotion in the inferior post of Senior Librarian upon deviating of their own recommendations for promotion in the post of Principal Librarian-cum-Deputy Director/Principal Librarian (Deputy Director) vide Annexure-G to the writ petition and, as such, the same is totally illegal, arbitrary, whimsical and unfairness of the authority concerned. Referring to Article 133 of the Constitution Mr Probir Neogi, the learned Advocate submits that it is admitted that the Hon'ble President shall have the right to make rules regulating the appointment and conditions of service of person in the service of the Republic but the same cannot be used as a shield to take away the vested right of a person in the service of the Republic already accrued in the meantime or cannot violate the fundamental rights of a person guaranteed under the Constitution. Referring to clause 6(c) of the General Clauses Act Mr Probir Neogi, learned Advocate also submits that although the Rules 1983, under which the writ petitioners have accrued vested right, has been repealed by the fresh legislation of new Rules of 2008, the wording of repeal will not affect the vested right of the writ petitioners already accrued under the enactment so repealed. He next pointed out that by introducing new Rules of 2008 'Senior Librarian' post has been inserted in the schedule to the Rules of 2008 which was absent in the schedule of the previous Rules of 1983 under which the petitioners have acquired vested right for getting promotion to their lawful claimed post and, as such, the writ petitioners cannot be recommended for promotion in the post of Senior Librarian which has been brought into place in Rules of 2008. In making the aforesaid submissions Mr Probir Neogi the learned Advocate argued that the writ petitioners have been discriminated in case of getting recommendation for promotion in the post of Principal Librarian-cum-Deputy Director/ Principal Librarian (Deputy Director) and thereby the respondents have violated the equality of opportunity as guaranteed under Articles 26, 27 and 29 of the Constitution. In support of his submissions, Mr Probir Neogi, the learned Advocate for the writ petitioners has relied on a decision in the case of Government of Bangladesh and another vs Md Ruhul Amin Munshi and another; 21 BLC (AC) 85.
7. Mr Bepul Bagmar, the learned Deputy Attorney-General appearing on behalf of the respondent No.4 submits that since the writ petitioners did not challenge the new Service Rules of 2008 so far it relates to incorporation of the post of Senior Librarian, their service will be regulated by the said Service Rules of 2008 not Service Rules of 1983 and without availing the post of Senior Librarian as per Rules of 2008 if they are promoted to the post of Principal Librarian-cum-Deputy Director/Principal Librarian (Deputy Director) as per Rules of 1983 then the very purpose of new Service Rules, 2008 will be frustrated. He next submits that since the writ petitioners are employed in the service of the Republic and since their claim is relating to the terms and conditions of their service, as such their case is only amenable to the Administrative Tribunal and without availing the aforesaid forum of Administrative Tribunal the present writ petition is not maintainable and the Rule Nisi issued therein is liable to be discharged. Referring to Article 133 of the Constitution of the People's Republic of Bangladesh, the learned Deputy Attorney-General submits that since as per the enabling provision of Article 133 of the Constitution the new Service Rules, 2008 has been promulgated it has got the force of law and, as such, the writ petitioners has rightly been recommended for promotion to the post of Senior Librarian. In making the aforesaid submissions, the learned Deputy Attorney-General has prayed for discharging the Rule Nisi.
8. We have heard the learned Advocates for both the parties, perused the writ petition, all other connected papers annexed thereto, the Service Rules of 1983, Service Rules, 2008 repealing that of 1983 and the decision cited above.
9. It appears from Annexure-B to the writ petition that 12(twelve) persons including the writ petitioners as well as the persons promoted to the post of Principal Librarian-cum-Deputy Director/ Principal Librarian (Deputy Director) were appointed in the post of Assistant Librarian in the Department of Public Libraries under the Ministry of Cultural Affairs on the recommendation of the Bangladesh Public Service Commission on 11-10-1995. Sub-sequently, the writ petitioners were promoted to the post of Librarian by notification dated 30-10-2008 vide Annexure-B-1 to the writ petition. In the meantime, as per the enabling provision to the proviso to Article 133 of the Constitution, "গণগ্রন্থাগার অধিদপ্তর (কর্মকর্তা ও কর্মচারী) নিয়োগ বিধিমালা, ২০০৮" has been promulgated by gazette notification dated 10-6-2008 upon repealing the previous Rules namely "Officers and Employees (Public Libraries under the Sports and Cultural Division) Recruitment Rules, 1983" and incorporating new post of Senior Librarian and imposing conditions of service in respect of appointment, promotion and posting of the employees of the said department. It appears from Annexure-D to the writ petition that the Ministry of Cultural Affairs confirmed the Gradation List of 23 Librarians including the writ petitioners by publishing the same in the Bangladesh Gazette on 1-3-2016 which has been prepared by Bangladesh Public Service Commission upon scrutiny of the relevant documents. In the said gradation list the writ petitioners were placed in serial Nos. 7, 8 and 9 respectively. But, without following the said gradation list the respondent No.4, Department of Public Libraries on 19-1-2020 forwarded a new list containing 11 Assistant Directors/Librarians excluding the writ petitioners to the Ministry of Cultural Affairs for giving promotion in the 06(six) vacant posts of Principal Librarian-cum Deputy Director/Principal Librarian (Deputy Director) as evident from Annexure-E to the writ petition. For the reasons best known to them the respondent No.4 Department of Public Libraries vide Annexure-G to the writ petition dated 13-7-2020 again prepared a list of 14 Assistant Directors/Librarians including the writ petitioners attached under agenda No.6 of the working paper/ minutes of the meeting dated 13-7-2020 wherein the writ petitioners were placed ,in serial Nos. 12, 13 and 14 i.e. in the below position of the said list for the purpose of promotion in the post of Principal Librarian-cum-Deputy Director/ Principal Librarian (Deputy Director). In such circumstances, on the apprehension that they will not be given promotion to the said post, the writ petitioners issued notice demanding justice on 26-7-2020. But ultimately, the respondent No.1- Ministry by the impugned notification dated 03-8-2020 has promoted three Assistant Directors and one Librarian from serial number 1, 2, 3 and 5 of the gradation list to the post of Principal Librarian-cum Deputy Director/Principal Librarian (Deputy Director) vide Annexure-A to the writ petition. But the writ petitioners names were referred to the Ministry for promotion in the post of Senior Librarian (Annexure-A 1 to the writ petition) although those who were promoted to the post of Principal Librarian-cum-Deputy Director/ Principal Librarian (Deputy Director) and the writ petitioners were standing on the same footings and their initial appointment in the post of Assistant Librarian has been made in one notification dated 11-10-1995.
10. This being the position of the case the writ petitioners filed this writ petition challenging the aforesaid actions as stated above and obtained the Rule Nisi on the grounds that they have acquired vested right to be considered for promotion in the post of Principal Librarian-cum-Deputy Director/ Principal Librarian (Deputy Director) under the provision of the previous Service Rules of 1983 and such vested right created under the previous Rules of 1983 cannot be taken away by enacting fresh Rules of 2008 and that since other four officers on similar footings were given promotion to the post of Principal Librarian-cum-Deputy Director/ Principal Librarian (Deputy Director) whereas the writ petitioners were recommended for promotion in the inferior post of Senior Librarian vide Annexure-A-1 to the writ petition which amounts to reduction in rank in the service of the writ petitioners, they were discriminated in case of promotion which is violative of Articles 26, 27 and 29 of the Constitution.
11. Admittedly the writ petitioners were appointed on 11-10-1995 initially in the post of Assistant Librarians under the Service Rules of 1983. It appears from Column-3 of the schedule to the Rules-1983 that an employee holding the post of Assistant Librarian for a period of three years would be eligible to be recommended for promotion in the post of Librarian/Assistant Director. It further appears from column No.2 of the schedule to the said Rules that an employee holding the post of Assistant Librarian for a period of 10 would be eligible to be recommended for promotion in the post of Principal Librarian, Deputy Director and Principal Librarian-cum-Deputy Director as evident from Annexure-J to the supplementary affidavit. As such, the writ petitioners claim that they have acquired vested right to get promotion under the previous Rules of 1983. From the record it appears that the writ petitioners were not promoted to their respective posts on due date of maturity of their service tenure. But, when they were waiting to be considered for promotion to their respective posts under the Service Rules of 1983, the Government promulgated new Service Rules of 2008 as stated above by notification dated 10-6-2008 repealing the previous Service Rules of 1983 by incorporating new qualifications and conditions of promotion. It also appears that a new post titled as "Senior Librarian' has been placed in column No.3 of the schedule. However, the writ petitioners were promoted to the post of Librarian vide notification dated 30-10-2008. Although from the date of joining in the post of Assistant Librarian on 11-10-1995 the due date of maturity for promotion of the writ petitioners in the next post of Librarian is on 11-10-2005 on completion of requisite period of 10 years service in the post of Assistant Librarian.
12. From the above, we are of the view that the writ petitioners have acquired vested right of promotion under the previous Service Rules of 1983. Right created under the Rules of 1983 cannot be curtailed or taken away by subsequent promulgation of Service Rules-2008. It is well settled that any rule made under the proviso to Article 133 of the Constitution can be both prospective and retrospective but it cannot be used to take away the vested rights of a person in the service of the Republic or it cannot violate fundamental rights of a person guaranteed in the Constitution. Moreover, as per provision of section 6(c) of the General Clauses Act, 1897 the vested right acquired by the writ petitioners under the previous Service Rules of 1983 is not affected on the ground of repeal of the same by the subsequent promulgation of Service Rules of 2008.
13. Reliance may be made in the case of Government of Bangladesh and another vs Md Ruhul Amin Munshi and another, 21 BLC (AD) 85 wherein it has been held in paragraph-19 as under:
“......... there is no power to make a rule under the proviso to Article 133 of the Constitution which affects the vested rights of a person or contravenes independent constitutional provisions or violates fundamental rights as enshrined in Articles 26, 27 and 29 of the Constitution. Moreover, retrospectivity will be arbitrary and unconstitutional if the date from which retrospective effect is given has no reasonable nexus with the provisions contained in the amending rules. In other words, rights or benefits (e.g. as to pay, seniority or right to be considered for promotion) which have been already accrued or earned under the existing Rules cannot be taken away by changing the Rules with retrospective effect or by making new Rules with retrospective effect."
14. In view of the aforesaid decision it is clear that the writ petitioners vested right of getting promotion to the next higher posts as claimed under the previous Service Rules of 1983 is saved and unaffected even after the subsequent Service Rules of 2008 has been promulgated on 10-6-2008 upon repealing the earlier Rules.
15. Now comes to the question of arbitrariness and discrimination in case of promotion to the writ petitioners as submitted by the learned Advocate for the writ petitioners.
16. It appears from the initial appointment letter dated 11-10-1995 that the persons those who have been promoted by the impugned Annexure-A to the writ petition and the writ petitioners were appointed by the same office notification in the post of Assistant Librarian. Annexure-D to the writ petition i.e. Gradation List prepared by the Bangladesh Public Service Commission and approved and affirmed by respondent No.1 Ministry through publication of the same in the Gazette Notification, on perusal of which it appears that there are as many as 23 Librarians in the said list wherein the persons, those who were given promotion by impugned Annexure-A to the writ petition, appear to have placed in serial Nos. 1, 2, 3 and 5 and the writ petitioners appear to have placed in serial Nos. 7, 8 and 9. So, it can be said that the Department of the Public Libraries would fill up the vacancies if any from the persons named in this gradation list because the very purpose/object of preparing the gradation list is to ascertain and fix up " ........ সহকারী পরিচালক ও লাইব্রেরিয়ান/সহকারী পরিচালক পদে কর্মরত কর্মকর্তাদের জ্যেষ্ঠতা তালিকা নির্ধারণের লক্ষ্যে....” But, subsequently on 19-1-2020 the respondent No.4, Department of Public Libraries forwarded and recommended 11 persons for promotion in the vacant post of Principal Librarian (Deputy Director) and Principal Librarian-cum-Deputy Director without forwarding and recommending the names of the writ petitioners without appreciating the fact that the writ petitioners have acquired vested right of getting promotion in the said post along with others. However, we have noticed from Annexure-F to the writ petition that the matter of non referring the annual confidential report of Ms. Sonia Chowdhury, one of the writ petitioners was discussed by the Departmental Promotion Committee (DPC) and on investigation one of the officers has been held liable for non referring the annul confidential report of the writ petitioners. So, it appears that the respondents with a view to deprive the writ petitioners from promotion did not recommend the names of the writ petitioners in the letter dated 19-1-2020 vide Annexure-E to the writ petition. Subsequently, interestingly the names of the writ petitioners were enlisted in Serial Nos. 12 to 14 of the list of 14 officers attached under agenda No.6 of the letter of minutes of the meeting vide Annexure-G to the writ petition.
17. From the above it is clear that the respondents did not act in accordance with law with regard to the promotion of the writ petitioners. As such, the writ petitioners issued notice demanding justice not to discriminate the writ petitioners from promotion and not to take pick and choose policy for depriving them from promotion. Ultimately, the authority by the impugned notification dated 3-8-2020 has promoted the others on similar footing without considering the case of the writ petitioners. Eventually, treating the writ petitioners differently, although they were placed similarly with those who have been promoted by the impugned notification, the respondents recommended their names to be promoted in the post of Senior Librarian which is arbitrary and total discrimination in case of promotion of the writ petitioners.
18. In order to maintain equality of opportunity in public employment the method of selection should be such as to exclude the possibility of arbitrariness or pick and choose. Equality of opportunity in the matter of employment does not mean equality only in respect of initial appointment. The words 'in respect of employment' are wide enough to include all matters in relation to employment, both prior and subsequent to initial appointment. It includes the conditions of service pertaining to the office to which appointment is made i.e., salary, periodical increments, revision of pay, promotion, terms of leave, gratuity, pension, age of superannuation in the service. In guaranteeing equality of opportunity to all members of the service of the Republic Article 29 of the Constitution really gives effect to the equality before the law and equal protection of law guaranteed by Article 27 of the Constitution. In respect of promotion, the question of equality of opportunity comes in only when the employees belong to the same grade or category.
19. In the present case, as we have noticed that on similar footing and grade other four persons were promoted to the post of Principal Librarian (Deputy Director) and Principal Librarian-cum-Deputy Director by the impugned Annexure-A to the writ petition and since the writ petitioners have a vested right under the previous Rules of 1983 to get similar treatment, non consideration of promotion of the writ petitioners to the post of Principal Librarian (Deputy Director) /Principal Librarian-cum-Deputy Director by recommending them to be promoted in the post of Senior Librarian vide Annexure-A-1 to the writ petition is discriminatory to the writ petitioners which is liable to be declared to have been done without lawful authority and of no legal effect.
20. It appears that out of the persons named in gradation list vide Annexure-D to the writ petition serial Nos. 1, 2, 3 and 5 have already been promoted by the impugned notification vide Annexure-A to the writ petition. Persons named in serial No. 4 and 6 are no more in the service because of death and retirement vide Annexure-G to the writ petition. Now turn for promotion will automatically come to the writ petitioners whose names are placed in serial Nos. 7 to 9 of the gradation list which has been prepared by the authority on recommendation of the Bangladesh Public Service Commission.
21. In such circumstances, the writ petitioners are entitled to be considered for promotion in the post of Principal Librarian (Deputy Director)/Principal Librarian-cum-Deputy Director in the Department of Public Libraries under the Ministry of Cultural Affairs since right has been accrued in favour of them in view of the provision of the previous Service Rules, 1983 and since the impugned terms and condition inserted in Serial 02 of the schedule appended "গণগ্রন্থাগার অধিদপ্তর (কর্মকর্তা ও কর্মচারী) নিয়োগ বিধিমালা, ২০০৮" is not applicable in the facts and circumstances of the present case.
22. In the aforesaid position there is no necessity of disturbing anything on the first and second parts of the Rule Nisi. But, so far the 3rd part of the Rule Nisi i.e. the impugned order dated 22-9-2020 as to recommending the names of the writ petitioners to be promoted in the post of Senior Librarian is required to be declared to have been made without lawful authority and of no legal effect so far it relates to the writ petitioners only.
23. In view of the discussions made hereinabove and in view of the decision as referred to above, we are constrained to hold that the submissions of the learned Advocate for the writ petitioners have substance and, as such, the Rule Nisi is liable to be made absolute.
Accordingly, the Rule Nisi is made absolute. As such, the Memo bearing No. 43.26.0000.001. 12.001.2020-1636 dated 22-9-2020 (Annexure-A-1) issued by the respondent No. 4 recommending the petitioners along with 13 others to be considered for promotion to the post of Senior Librarian instead of their earlier recommended post of Principal Librarian-cum-Deputy Director/Principal Librarian (Deputy Director) are declared to have been made without any lawful authority and of no legal effect. The ad interim order of stay granted at the time of issuance of the Rule on 20-10-2020 is hereby recalled and vacated.
End.
High Court Division (Special Original Jurisdiciton)
Present:
Mr. Justice Farah Mahbub
Mr. Justice S. M. Maniruzzaman
Writ Petition No. 14355 of 2017.
East West Property Development (Pvt.) Ltd. (An Enterprise of Bashundhara Group)
------ Petitioner
VS
Customs, Excise and VAT Appellate Tribunal, Dhaka and others
------- Respondents
Judgement Date : April 21, 2022
Counsels:
Munshi Moniruzzaman, Advocate with Yousuf Khan Rajib. Advocate with M. Mushfiqur Rahman, Advocate
—For the Petitioner.
Samarendra Nath Biswas, DAG with Md Abul Kalam Khan Daud, AAG with Md Ali Akbar Khan, AAG with Md Asaduzzaman, AAG and Md Modersher Ali Khan, AAG
—For the Respondents-government.
Judgment
Farah Mahbub, J:
1. This Rule Nisi was issued under Article 102 of the Constitution of the People's Republic of Bangladesh, calling upon the respondents to show cause as to why the impugned order dated 26-9-2017 passed under Nathi No. CEVT/Case(Cus)-534/2017/632 by the respondent No.1 dismissing the respective appeal under section 194 of the Customs Act, 1969 (Annexure-P) should not be declared to have been passed without lawful authority and hence, of no legal effect.
2. In view of the statements so made in the instant writ petition Mr Yousuf Khan Rajib, the learned Advocate appearing for the petitioner by filing a separate application with a prayer for issuance of No Objection Certificate regarding sale/transfer of the vessel in question submits that during pendency of the writ petition respondent No.3 on behalf of the respondent No.2 vide order dated 22-5-2018 directed all the Sea Port/Airport/ Land Port and Customs Division of Bonded Warehouse to stop releasing any goods imported by the petitioner on the ground of failure to deposit the demanded amount in the government treasury. However, upon allowing the application filed by the petitioner, this Hon'ble Court vide order dated 4-6-2018 stayed operation of the said order dated 22-5-2018 for a period of 6(six) months and that said order of stay has been extended from time to time. He further submits that challenging the said order of this Hon'ble Court the respondent concerned moved the Appellate Division by filing Civil Petition for Leave to Appeal No.2764 of 2018 which was ultimately dismissed vide order dated 26-7-2018 (Annexure 4 to the application for direction).
3. In this regard, he also submits that the vessel in question was build in January,1996 and that in the meantime, it has become 26 years old and became unsuitable to be used; moreover, all the certificates regarding ship operation have also expired on 8-3-2022 (Annexure-5). In view of the stated position, he submits, the petitioner has entered into a Memorandum of Agreement to sale the vessel to one M/s King Steel, as scrap vessel. However, since a demand of VAT amounting to Taka 15,15,22,309.62 has been made by the respondent No.2 in connection with the vessel in question, the petitioner made an application to the respondent No.2 on 2-3-2022 with a prayer to issue a "No Objection Certificate" in order to sale/transfer the said vessel upon accepting a Bank Guarantee on the entire demand. Said respondent vide order dated 7-3-2022 rejected the same stating, inter alia, that since instant writ petition is pending before this Hon'ble Court, he cannot accept the bank guarantee and issue "No Objection Certificate" as prayed for.
4. Meanwhile, he further submits, the petitioner in compliance of the order passed by the Tribunal concern has deposited Taka 3,78,80,577.40 vide Pay Order No. 3116725 dated 13-4-2022 of Bank Asia Ltd., Bashundara Branch, Dhaka i.e., 25% of the entire demanded amount and also furnished a bank guarantee bearing No.015BG000222 dated 13-4-2022 covering an amount of Taka 11,36, 41,732.22 issued by the Social Islami Bank Ltd. Panthapah Branch which is equivalent to 75% of the demanded amount.
5. In view of the said context, he submits that upon making necessary direction upon the Tribunal concern to hear the appeal on merit upon re-calling the impugned order dated 26-9-2017 a direction be also given by this Hon'ble Court for the cause of justice and equity as to issuance of "No Objection Certificate" by the authority concern while disposing of the present Rule.
6. The issue in question as to the exercise of power of discretion by the Customs, Excise and VAT Appellate Tribunal under the 2nd proviso to section 194 of the Customs Act, 1 969 in dispensing with the deposit either unconditionally or subject to such condition as it may deem fit to impose, has already been resolved by a larger Bench of this Division in writ petition No.12424 of 2017 along with 1 1(eleven) other writ petitions observing, inter alia, as follows-
"..... A careful and close reading of the 2nd proviso of section 194 leaves no room for doubt that the power to dispense with the deposit, either unconditionally or upon imposition of conditions, has been left to the "sole discretion of the Tribunal."
It is the cardinal rule of interpretation that the words used in a statute are to be interpreted as it is, and not what they ought to be. The Legislature, in their wisdom, and in our view quite correctly stipulated that the discretion to allow dispensation with the deposit is vested only with the Tribunal. This is apparent from the very last sentence, which reads, "it may dispensed with such deposit, either unconditionally or submit to such conditions as it may deem fit and proper.(emphasis added on the word "it"), the Legislatures have very clearly expressed their intention that it is the Tribunal and the Tribunal alone which is vested with the sole authority to dispense with the deposit or otherwise accept an appeal upon such conditions as it deems fit to impose with regard to such deposit. The use of the word "it", in our view, implies that the jurisdiction or authority of this Court to interfere in matters of granting exemption on the ground of hardship has been excluded.
In our view, this Court does not have the jurisdiction to substitute its own decision for that of the Tribunal in granting exemption in respect of the applications for hardship filed by the respective petitioners. In other words, the 2nd proviso of section 194 of the Act vests absolute and total authority upon the Tribunal .to decide the question of hardship, giving due consideration to each and every case on merit"
7. Said observations and findings are still in operation.
8. In view of the above observations, being squarely applicable in the present case, we find no reason to interfere with the impugned order dated 26-9-2017 passed by the respondent No. I in dismissing appeal under Nothi No. CEVT/Case (Cus)-534/2017/632 for non-deposit under section 194 of the Customs Act, 1969 (Annexure-F).
9. However, fact remains that pending disposal of the instant Rule on 13-12-2022 the petitioner in compliance of the direction so given earlier by the respondent No.1 i.e., the Tribunal concern has already deposited 25% of the demanded amount in cash as is apparent from Annexure-10 to the supplementary affidavit and 75% in bank guarantee of the demanded amount, as contained in Annexure-1 I of the application for direction.
10. Considering the said factual position as to compliance of the direction given by the Tribunal by depositing the required amount which tantamounts to covering the entire demanded amount and also, for the cause of justice and equity the respondent No.1 i.e., the Tribunal is hereby directed to hear the appeal under Nothi No. CEVT/Case(Cus)-534/2017/ 632 upon re-calling the order dated 26-9-2017 so far dismissing the appeal for non deposit of the required amount under the Customs Act,1969, on merit in accordance with law preferably within a period of 6(six) month from the date of receipt of the copy of this judgment and order.
11. At the same time, upon allowing the application for issuance of no objection certificate a direction is accordingly given upon the respondent No.2 to issue a No Objection Certificate regarding sale/transfer of the vessel namely MV Bashundhara-8 (Ex. MV ATRO-3), in accordance with law within a period of 7(seven) working days from the date of receipt of the copy of this order.
12. With the above observations and directions, this Rule is accordingly disposed of.
13. There will be no order as to costs.
Communicate the judgment and order to the respondents concern at once.
End.
High Court Division (Special Original Jurisdiciton)
Present:
Mr. Justice Farah Mahbub
Mr. Justice S. M. Maniruzzaman
Writ Petition No. 14355 of 2017.
East West Property Development (Pvt.) Ltd. (An Enterprise of Bashundhara Group)
------ Petitioner
VS
Customs, Excise and VAT Appellate Tri-bunal, Dhaka and others
------- Respondents
Judgement Date : April 21, 2022
Counsels:
Munshi Moniruzzaman, Advocate with Yousuf Khan Rajib. Advocate with M. Mushfiqur Rahman, Advocate
—For the Petitioner.
Samarendra Nath Biswas, DAG with Md Abul Kalam Khan Daud, AAG with Md Ali Akbar Khan, AAG with Md Asaduzzaman, AAG and Md Modersher Ali Khan, AAG
—For the Respondents-government.
Judgment
Farah Mahbub, J:
1. This Rule Nisi was issued under Article 102 of the Constitution of the People's Republic of Bangladesh, calling upon the respondents to show cause as to why the impugned order dated 26-9-2017 passed under Nathi No. CEVT/Case(Cus)-534/2017/632 by the respondent No.1 dismissing the respective appeal under section 194 of the Customs Act, 1969 (Annexure-P) should not be declared to have been passed without lawful authority and hence, of no legal effect.
2. In view of the statements so made in the instant writ petition Mr Yousuf Khan Rajib, the learned Advocate appearing for the petitioner by filing a separate application with a prayer for issuance of No Objection Certificate regarding sale/transfer of the vessel in question submits that during pendency of the writ petition respondent No.3 on behalf of the respondent No.2 vide order dated 22-5-2018 directed all the Sea Port/Airport/ Land Port and Customs Division of Bonded Warehouse to stop releasing any goods imported by the petitioner on the ground of failure to deposit the demanded amount in the government treasury. However, upon allowing the application filed by the petitioner, this Hon'ble Court vide order dated 4-6-2018 stayed operation of the said order dated 22-5-2018 for a period of 6(six) months and that said order of stay has been extended from time to time. He further submits that challenging the said order of this Hon'ble Court the respondent concerned moved the Appellate Division by filing Civil Petition for Leave to Appeal No.2764 of 2018 which was ultimately dismissed vide order dated 26-7-2018 (Annexure 4 to the application for direction).
3. In this regard, he also submits that the vessel in question was build in January,1996 and that in the meantime, it has become 26 years old and became unsuitable to be used; moreover, all the certificates regarding ship operation have also expired on 8-3-2022 (Annexure-5). In view of the stated position, he submits, the petitioner has entered into a Memorandum of Agreement to sale the vessel to one M/s King Steel, as scrap vessel. However, since a demand of VAT amounting to Taka 15,15,22,309.62 has been made by the respondent No.2 in connection with the vessel in question, the petitioner made an application to the respondent No.2 on 2-3-2022 with a prayer to issue a "No Objection Certificate" in order to sale/transfer the said vessel upon accepting a Bank Guarantee on the entire demand. Said respondent vide order dated 7-3-2022 rejected the same stating, inter alia, that since instant writ petition is pending before this Hon'ble Court, he cannot accept the bank guarantee and issue "No Objection Certificate" as prayed for.
4. Meanwhile, he further submits, the petitioner in compliance of the order passed by the Tribunal concern has deposited Taka 3,78,80,577.40 vide Pay Order No. 3116725 dated 13-4-2022 of Bank Asia Ltd., Bashundara Branch, Dhaka i.e., 25% of the entire demanded amount and also furnished a bank guarantee bearing No.015BG000222 dated 13-4-2022 covering an amount of Taka 11,36, 41,732.22 issued by the Social Islami Bank Ltd. Panthapah Branch which is equivalent to 75% of the demanded amount.
5. In view of the said context, he submits that upon making necessary direction upon the Tribunal concern to hear the appeal on merit upon re-calling the impugned order dated 26-9-2017 a direction be also given by this Hon'ble Court for the cause of justice and equity as to issuance of "No Objection Certificate" by the authority concern while disposing of the present Rule.
6. The issue in question as to the exercise of power of discretion by the Customs, Excise and VAT Appellate Tribunal under the 2nd proviso to section 194 of the Customs Act, 1 969 in dispensing with the deposit either unconditionally or subject to such condition as it may deem fit to impose, has already been resolved by a larger Bench of this Division in writ petition No.12424 of 2017 along with 1 1(eleven) other writ petitions observing, inter alia, as follows-
"..... A careful and close reading of the 2nd proviso of section 194 leaves no room for doubt that the power to dispense with the deposit, either unconditionally or upon imposition of conditions, has been left to the "sole discretion of the Tribunal."
It is the cardinal rule of interpretation that the words used in a statute are to be interpreted as it is, and not what they ought to be. The Legislature, in their wisdom, and in our view quite correctly stipulated that the discretion to allow dispensation with the deposit is vested only with the Tribunal. This is apparent from the very last sentence, which reads, "it may dispensed with such deposit, either unconditionally or submit to such conditions as it may deem fit and proper.(emphasis added on the word "it"), the Legislatures have very clearly expressed their intention that it is the Tribunal and the Tribunal alone which is vested with the sole authority to dispense with the deposit or otherwise accept an appeal upon such conditions as it deems fit to impose with regard to such deposit. The use of the word "it", in our view, implies that the jurisdiction or authority of this Court to interfere in matters of granting exemption on the ground of hardship has been excluded.
In our view, this Court does not have the jurisdiction to substitute its own decision for that of the Tribunal in granting exemption in respect of the applications for hardship filed by the respective petitioners. In other words, the 2nd proviso of section 194 of the Act vests absolute and total authority upon the Tribunal .to decide the question of hardship, giving due consideration to each and every case on merit"
7. Said observations and findings are still in operation.
8. In view of the above observations, being squarely applicable in the present case, we find no reason to interfere with the impugned order dated 26-9-2017 passed by the respondent No. I in dismissing appeal under Nothi No. CEVT/Case (Cus)-534/2017/632 for non-deposit under section 194 of the Customs Act, 1969 (Annexure-F).
9. However, fact remains that pending disposal of the instant Rule on 13-12-2022 the petitioner in compliance of the direction so given earlier by the respondent No.1 i.e., the Tribunal concern has already deposited 25% of the demanded amount in cash as is apparent from Annexure-10 to the supplementary affidavit and 75% in bank guarantee of the demanded amount, as contained in Annexure-1 I of the application for direction.
10. Considering the said factual position as to compliance of the direction given by the Tribunal by depositing the required amount which tantamounts to covering the entire demanded amount and also, for the cause of justice and equity the respondent No.1 i.e., the Tribunal is hereby directed to hear the appeal under Nothi No. CEVT/Case(Cus)-534/2017/ 632 upon re-calling the order dated 26-9-2017 so far dismissing the appeal for non deposit of the required amount under the Customs Act,1969, on merit in accordance with law preferably within a period of 6(six) month from the date of receipt of the copy of this judgment and order.
11. At the same time, upon allowing the application for issuance of no objection certificate a direction is accordingly given upon the respondent No.2 to issue a No Objection Certificate regarding sale/transfer of the vessel namely MV Bashundhara-8 (Ex. MV ATRO-3), in accordance with law within a period of 7(seven) working days from the date of receipt of the copy of this order.
12. With the above observations and directions, this Rule is accordingly disposed of.
13. There will be no order as to costs.
Communicate the judgment and order to the respondents concern at once.
End.
High Court Division (Criminal Miscellaneous Jurisdiction)
Present:
Mr. Justice A. S. M. Abdul Mobin
Mr. Justice Md. Atoar Rahman
Criminal Miscellaneous Case No. 22665 of 2016.
Lebu Miah (Md)
----- Convict-Petitioner
VS
State
-------- Opposite Party
Judgement Date : June 23, 2022
Counsels:
Abdur Rahman, Advocate
—For the convict-Petitioner.
Sujit Chatterjee, DAG with Md Anichur Rahman, Mohammad Abdul Aziz Masud and Md Shah Newaj, Assistant Attorneys General
— For the Opposite party.
Judgment
Md Atoar Rahman, J:
1. This Rule was issued at the instance of the convict-petitioner Md Lebu Miah on an application under section 561A of the Code of Criminal Procedure, 1898 calling upon the opposite party to show cause as to why the impugned judgment and order dated 1-10-2012, passed by the learned Judge, Nari-o-Shishu Nirjatan Daman Tribunal No 2, Gaibandha (hereinafter called the tribunal) in Nari-o Shishu Nirjatan Case No 327 of 2005, arising out of OR No 152 of 2005, corresponding to Polashbari Police Station Case No 13, dated 19-7-2005, convicting him under sections 9(1) and 13 of the Nari-o Shishu Nirjatan Daman Ain, 2000 (hereinafter called the Ain) and sentencing only under section 9(1) to suffer rigorous imprisonment for life and to pay a fine of taka 1,00,000 (one lakh), in default to suffer rigorous imprisonment for 3(three) years more, should not be quashed and or such other or further order or orders passed as to this court may seem fit and proper.
2. The short facts for the purpose of disposal of the Rule are that the informant Mosammat Beauty Begum on 3-5-2005 filed a petition of complaint before the tribunal against the convict-petitioner Lebu Miah alleging, inter alia, that she was a poor woman and her daughter namely Mosammat Sajeda Khatun was a maiden girl and an autistic as well as dumb, who could communicate and understand language by sign; that the convict-petitioner was a cousin of her daughter who used to visit her house frequently; that on 26-10-2004 at about 8-00 pm having found her alone at the house he forcibly deflowered her without her consent and consequently she became pregnant; that the victim disclosed the matter to the informant who informed the same to the father of the convict-petitioner. He though gave assurance her to arrange marriage of the victim with his son but delayed to do so; that while he was informed about the pregnancy of the victim he advised for abortion, but the informant did not agree with his ill advice; that afterwards she informed the matter to the local elite persons who took a decision for marriage between them; that though the convict-petitioner's father initially agreed with the verdict but having killed the time eventually on 29-4-2005 refused to obey the same which led the informant to file the petition of complaint before the tribunal along with the medical report.
3. Having examined the complainant learned judge of the tribunal sent the complaint-petition to the Officer-in-Charge, Polashbari Police Station with directions for recording a regular case treating the same as a first information report and to submit police report thereof. On the basis of such directions Polashbari Police Station Case No 13, dated 19-7-2005 under section 9(l) of the Ain against the convict-petitioner was started.
4. Md Mofiz Uddin Shekh, Sub Inspector to the Polashbari Police Station was appointed investigating officer of the case, who on completion of the investigation submitted police report on 3-8-2005 against the convict-petitioner recommending his trial under sections 9(1)/13 of the Ain.
5. On the basis of such police report the learned judge of the tribunal on 25-8-2005 took cognizance of offences under sections 9(1)/13 of the Ain against the convict-petitioner. As the convict petitioner was fugitive from very beginning, the trial against him was held in absentia. At the commencement of the trial on 24-6-2007 charges were framed under the provisions of the above law.
6. To bring home the charges the prosecution examined as many as seven witnesses. The learned judge of the tribunal on consideration of the evidence and materials on record having found the convict petitioner guilty under sections 9(1) and 13 of the Ain, convicted and sentenced him in absentia by the impugned judgment and order dated 1-10-2012 as stated above.
7. Having been arrested on 15-5-2016 the convict-petitioner finding no other alternative filed the instant application under section 561A of the Code of Criminal Procedure for quashing the impugned judgment and order of conviction and sentence and obtained the present Rule.
8. Mr Abdur Rahman, the learned advocate, appearing on behalf of the convict-petitioner contends that the informant submitted the petition of complaint before the tribunal with an affidavit stating that the concerned police station had refused to accept her first information report. But the learned judge of the tribunal having violated the provisions of section 27(1Ka)(Ka) of the Ain sent the petition back to the same authority who once had refused to record the case. Therefore, order of taking cognizance of the offences against the convict-petitioner by the learned judge of the tribunal on the basis of the police report, submitted by the same police station, was illegal, which is nothing but abuse of the process of the court. In support of his submissions, he refers the case of Sirajul Islam @ A Suban vs State and others, 17 BLC 740.
9. Mr Rahman further submits that the convict-petitioner had no knowledge about the case and the trial was held in absentia without following the mandatory provisions of law, which vitiated the trial as well as whole proceedings and, as such, judgment and order of conviction and sentence cannot be sustained in law. It is his contention that the tribunal published a notification on 30-7-2006 for appearance of the accused before the tribunal within fifteen days in only one daily newspaper named the 'Daily Ghaghat' in violation of the provisions of section 21 of the Ain. But law requires publication of the notification must be at least in two daily newspapers and fixing time for appearance of the accused must be at least thirty days from the date of publication of the notification.
10. Mr Rahman further submits that the prosecution could not succeed in proving its case beyond all reasonable doubt by adducing legal evidence and the conviction has been based on `no evidence.' In support of his contention he submits that out of seven prosecution witnesses PW 1 is the informant, PWs 2, 3 and 4 are relatives of the informant who are naturally interested witnesses and there is no eye witness of the occurrence. On the other hand, the alleged victim (PW 5) was deaf and dumb and, as such, as per the decision of the case of Morshed (Md) @ Morshed @ Md Morshed Alam vs State, 53 DLR 123 her evidence cannot be relied upon. Moreover, the learned judge of the tribunal accepted the written statement as her evidence which was not written in the open court as requires under section 119 of the Evidence Act.
11. The learned advocate on behalf of the convict-petitioner finally submits that the whole proceeding against the convict-petitioner is a nullity and, as such, the impugned judgment and order of conviction and sentence is liable to be quashed.
12. Mr Sujit Chatterjee, learned Deputy Attorney-General with Mr Md Anichur Rahman, Mr Mohammad Abdul Aziz Masud and Mr Mohammad Shah Newaj, learned Assistant Attorneys General appearing on behalf of the State submits that the learned judge of the tribunal did not commit any error of law sending the complaint-petition back to the officer-in-charge of the concerned police station for recording a regular case. The notification for appearance of the convict-petitioner before the tribunal was duly published in accordance with the provisions of law. The learned judge was perfectly justified in passing the impugned judgment and order of conviction and sentence on the basis of the cogent and reliable legal evidence and, as such, the impugned judgment and order does not call for interference by this court.
13. We have heard the submissions of the learned advocates for both the sides and perused the petition, supplementary affidavits, record of the case along with impugned judgment and order of the conviction and sentence.
14. As regards sending the complaint-petition to the concerned police station by the tribunal for recording a regular case, we have examined the relevant provisions along with section 27 of the Ain as well as judgment of the case of Sirajul Islam @ A Suban vs State and others, 17 BLC 740, referred by the learned advocate of the convict-petitioner and another judgment of the case of Anjuara Khanam Anju vs State and another, 68 DLR 466, that is very much relevant to proper adjudication of the matter.
15. In the Sirajul Islam @ A Suban's case, father of the alleged victim lodged a petition of complaint before the Nari-o-Shishu Nirjatan Daman Tribunal, Hobiganj against the respondent Nos 2-4 under sections 7/9(1)/30 of the Ain. Having received the petition of complaint, the learned judge of the tribunal examined the complainant and sent the same to the Officer-in-Charge, Shaistagonj Police Station to inquire and report. Thereafter the complainant producing the victim before the tribunal prayed for recording her statement under section 22 of the Ain. He also prayed for medical examination of the victim to ascertain the allegation of rape and assault committed upon her and also for ascertaining her age. But the learned judge of the tribunal did not pass any order. Afterwards one sub inspector, Shaistagonj Police Station, submitted an inquiry report stating that no prima-facie case was found against the accused persons and prayed for their discharge. The complainant filed a naraji petition against the said inquiry report. The learned judge of the tribunal rejecting the naraji petition accepted the inquiry report and discharged the accused persons. The complainant challenged the order of the tribunal by filing an appeal before this Division. A Division Bench allowed the appeal and directed the learned judge of the tribunal to examine the complainant-appellant under section 27(1Ka)(Ka) of the Ain and proceed with the case in accordance with law by its judgment dated 13 May 2009 holding that the tribunal was not empowered to direct a police officer to inquire into the complaint and submit a report as per the provisions of section 27(1Ka)(Ka) of the Ain as the expression 'any person' in this section did not include any 'police officer.'
16. In the above mentioned decision we find that since the expression 'any person' under sub section (1Ka) does not include any 'police officer' the tribunal is not empowered on receipt of the petition of complaint to direct any police officer to inquire into the same and submit his report under clause (Ka) of sub section (1 Ka) of section 27 of the Ain. But in the case of our hands though a petition of complaint was submitted under sub-section (1Ka) of section 27 of the Ain the tribunal did not give direction to inquire into the complaint-petition" and submit inquiry report, rather it directed the officer-in-charge of the concerned police station for recording a regular case treating the same as an FIR, so that the investigating officer after thorough investigation could submit police report under section 173 of the Code of Criminal Procedure. It has already been mentioned that on the basis of such direction a regular case was started against the convict-petitioner and the investigating officer having found a prima-facie case submitted police report (charge-sheet) under section 173 of the Code of Criminal Procedure against him with a recommendation of his trial under sections 9(1)/13 of the Ain. On the basis of such charge-sheet, the tribunal took cognizance of the offences under sub-section (1) of section 27 of the Ain.
17. More so, in the above cited case the order of sending the complaint-petition to the officer-in-charge of the concerned police station for holding inquiry was challenged at the earliest opportunity by the complainant himself who had been refused by the same police station/ police officer to accept the FIR. If the order of the tribunal had not been challenged the complainant would have been deprived of seeking justice and the very purpose of the special law i.e. the Ain would have been frustrated. But in case of refusal to recording a regular case on the basis of an FIR by any police station, if the tribunal in such a situation sends the complaint-petition to the concerned police station for inquiry and to submit a report under clause (Ka) of sub section (1Ka) of section 27 of the Ain or in the alternative for recording a regular case treating the same as an FIR, it will not be harmful in any manner for an accused and there is no question of his/her deprivation or grievance. The inherent spirit of the relevant provisions of law for ensuring to bring the offender to book that is for the benefit of a complainant only but not for an accused, who yet to come to the scenario and question of refusal from his/her legal right does not arise at all. Therefore, in the present case the convict-petitioner is neither in a position to challenge the order of the tribunal regarding sending the complaint-petition to the concerned police station nor he can challenge the same. On the other hand, the complainant herself did not challenge the order of the tribunal.
18. In view of the matter we are of the view that the facts of the cited Sirajul Islam's case (supra) and that of the case in our hands are not similar and, as such, decision of the said case has no manner of application in the present case.
19. In the Anjuara Khanam Anju’s (supra) case, the basic question of maintainability of a naraji petition within the scheme of section 27 of the Ain was raised. Ultimately the issue along with other related issues was addressed by a Full Bench of this Division constituted by the hon'ble Chief Justice under the provisions of rule 11 of chapter 11, read with rule 1 of chapter VII, of the Supreme Court of Bangladesh (High Court Division) Rules 1973. During hearing along with other related cases the case of Sirajul Islam (supra) was also cited. The Full Bench having discussed elaborately sections 18, 25, 27 and 28 along with the preamble of the Ain, relevant laws as well as cited cases by both the sides decided all the issues separately. Among those issues whether the tribunal is empowered to send the complaint-petition to the concerned police station for recording a regular case treating the same as an FIR was settled in following manner:
"48.3. On receipt of the complaint the Tribunal may, if thinks fit, without direction for inquiry as contemplated under sub-clause (Ka) of section 27(1Ka) and send the complaint-petition back to the police station for recording a regular case, with direction to cause the investigation to be made by any competent police officer, other than the one who refused to accept the complaint, or direct any other investigating agency to investigate."
20. It is pertinent to mention that as per the provisions of rule 7 of the chapter VII of the Supreme Court of Bangladesh (High Court Division) Rules 1973, above mentioned decision of the Full Bench upon the point of law is binding upon all Division Benches and judges sitting singly.
21. In the present case we have already seen that having recorded a regular case treating the petition of complaint as an FIR the same was endorsed to Md Mofiz Uddin Shekh, Sub Inspector of Polashbari Police Station for investigation of the case. He on completion of the investigation having found a prima facie case submitted police report under section 173 of the Code of Criminal Procedure on 3-8-2005 against the convict petitioner recommending his trial under sections 9(1)/13 of the Ain. There was no allegation that the complainant (informant) was refused by Sub Inspector Md Mofiz Uddin Shekh to accept the complaint-petition.
22. In the light of discussions as above, we are of the opinion that the learned judge of the tribunal did not commit any error of law by sending the petition of complaint back to the concerned police station with a direction for recording a regular case treating the same as an FIR and submit police report after proper investigation.
23. Regarding submission of non-compliance of section 21 of the Ain, we have carefully examined the tribunal's record along with connected papers. It appears that the contention of the learned advocate of the convict-petitioner that publication of notification in only one daily newspaper namely, the 'Daily Ghaghat' is not correct. The record shows that apart from the `Daily Ghaghat' the notification was duly published in another daily newspaper namely, the Thorer Dak' on 9-8-2006 which is still attached with the tribunal's record. Another contention of the learned advocate for the convict-petitioner with regard to the fixing time for appearance in the publication is not based in terms of the provisions of law. The provisions of section 21 of the Ain provide that the notification shall be published at least in two daily newspapers and fixing time for appearance shall not be exceeding thirty days and, as such, fixing fifteen days for appearance of the convict-petitioner in the notification is well within the law. Thus, we do not find violation of any of the provisions of section 21 of the Ain in publishing the notification for appearance of the convict-petitioner before the tribunal to face the trial.
24. With regard to the submission of Mr Rahman that conviction was based on 'no evidence', we have examined the evidence adduced by the prosecution. Naturally, except the victim Mosammat Sajeda Khatun (PW 5) there is no eye-witness of the occurrence. It is the specific case of the prosecution that after the occurrence the victim implicating the convict-petitioner disclosed the matter to her mother, the informant. She being an autistic and dumb person conveyed the incident to her mother by sign. The informant in turn informed the same to the father of the convict-petitioner, who assured her of arrange their marriage. But when he heard the news of pregnancy of the victim started dillydally and consequently a local shalish was held. It is also the prosecution case that during investigation the victim gave birth to a male baby, who died at the age of five months. The informant testified as PW 1 who narrated the whole FIR story. PW 2 Md Harun-Or-Rashid, PW 3 Md Al-Amin and PW 4 Golam Mostafa in their evidence corroborated the evidence of PW 1. Although PW 2 is a son of the informant but PWs 3 and 4 are local independent witnesses. PW 6 Dr AKM Shamsuzzoha examined the victim on 28-4-2005 through Ultra Sonogram test and found her pregnant for twenty six weeks. On perusal of the victim's evidence, it appears that she deposed as PW 5 on 11-1-2009. She being a dumb person gave her evidence by writing in the open court under the provisions of section 119 of the Evidence Act wherein she depicted the occurrence. On examination of the tribunal's record we do not find the victim (PW 5) is both dumb and deaf. In the case of Morshed (Md) @ Morshed @ Md Morshed Alarn vs State, 53 DLR 123, cited by the learned advocate on behalf of the convict-petitioner, it was observed that it is very risky to relay on the evidence of a deaf and dumb witness. Since, in the present case we do not find that the PW 5 is a both deaf and dumb, the observation, made in the said case, is not applicable. In view of the discussion made above, we are unable to accept the contention that the conviction and sentence awarded upon the petitioner was based on 'on evidence'.
25. Considering the foregoing discussions we are of the view that the Rule cannot succeed and therefore, the same is liable to be discharged.
26. In the result, the Rule is discharged and the order granted at the time of issuance of Rule, staying realization of fine, is hereby vacated.
Let the tribunal's record along with a copy of this judgment and order be sent to the learned Judge, Nari o-Shishu Nirjatan Daman Tribunal No.2, Gaibandha at once.
End.
High Court Division (Special Original Jurisdiction)
Present:
Mr. Justice Syed Refaat Ahmed
Mr. Justice Md. Shohrowardi
Writ Petition No. 17383 of 2017.
MIR Cement Limited
------- Petitioner
VS
Bangladesh and others
------- Respondents
Judgement Date : December 09, 2021
Counsels:
Md Abdul Halim, Advocate with AM Jamiul Hoque, Advocate
—For the Petitioner.
Samarendra Nath Biswas, DAG with Nasima K. Hakim, DAG Ali Akbor Khan, AAG
—For the Respondents-government.
Judgment
Syed Refaat Ahmed, J:
1. In this Application under Article 102 of the Constitution a Rule Nisi was issued on 4-12-2017 calling upon the Respondents to show cause as to why the impugned Demand-cum-Show Cause Notice dated 11-9-2017, as evidenced by Annexure-H, issued by the Respondent No. 3, Commissioner of Taxes, LTU under section 37(2)() and (el) read with section 55(1) of the VAT Act, 1991 and demanding unpaid VAT of Taka 6,55,36,615 shall not be declared to be without lawful authority and to be of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. The Petitioner is a registered and incorporated cement producing company in Bangladesh. Upon an exercise of search and seizure conducted in October, 2016 of the Petitioner's business premises, the Large Taxpayers Unit ("LTU"), VAT upon an evaluation, thereafter, of the Petitioner's seized documents calculated and concluded that the Petitioner had evaded VAT amounting to Taka 11,11,12,549 in violation of various provisions of the VAT Act, 1991 ("Act") and NBR General Order No. 06/ Mushak/2016 dated 2-6-2016. Consequentially, the Respondent No. 3 issued a show cause notice under section 55(1) of the Act, as to why the said amount of Taka 11,11,12,549 should not be collected from the Petitioner. That notice came to be challenged by the Petitioner in Writ Petition No. 6436 of 2017 in which an ad interim order of stay was issued by this Court. That stay order of 21-5-2017 gave rise to CPLA No. 2359 of 2017 in which the Appellate Division disposed of the CPLA by discharging the underlying Rule in the said Writ Petition vide its order dated 27-7-2017 on the ground that "the customs authority made the final demand. In that view of the matter, the rule has become infructuous". It is noted that the said final demand as evidenced in the letter dated 25-7-2017 for the period 13-2-2012 to 12-2-2017 was for a considerably reduced amount of Taka 4,55,75,935 against which the Petitioner preferred an appeal before the VAT Appeal Tribunal upon payment of the requisite statutory deposit.
3. It is against this backdrop that the Petitioner is now aggrieved by the issuance of a show cause notice dated 11-9-2017 under Annexure-H pertaining to the amount of Taka 6,55,36,615 for the period commencing January, 2010 and ending 12-2-2012 containing significantly an acknowledgment therein that the previous demand of 25-7-2017 for Taka 4,55,75,935 for the period from February, 2012 to February, 2017 had been issued in exclusion of the presently cited figure bearing in mind that the said figure of Taka 6,55,36,615 pertains to an admittedly time-barred claim. That notwith-standing the Respondent No. 3, Commissioner of Taxes in this cryptic order, as is impugned in this Writ Petition, requires the Petitioner to explain as to why penal action should not be taken against it under "section 37(2) clause (Qt)" of the Act for the previously unpaid but admittedly time-barred claim of Taka 6,55,36,615 in the following discordant and self-contradictory terms:
“সূত্রোস্থ ৫নং পত্রের মাধ্যমে ১৭-৭-১৭ খ্রিঃ তারিখ প্রতিষ্ঠানকে শুনানীতে আহবান করা হয় এবং সূত্রোক্ত ৭ নং পত্র মারফত টাইম বার্ড জনিত কারণে জানুয়ারী, ২০১০ হইতে ১২-২-২০১২ পর্যন্ত সময়ে অপরিশোধিত রাজস্ব বাবদ ৬.৫৫,৩৬,৬১৫ টাকা ব্যতীত ১৩-২-২০১২ হতে ১২-২-২০১৭ সময়ে মূসক ফাঁকি বাবদ ৪,৫৫,৭৫,৯৩৪ টাকা আদায়ের জন্য চূড়ান্ত দাবিনামা জারি করা হয়। এমতাবস্থায়, আপনার প্রতিষ্ঠান কর্তৃক অনুয়ারী, ২০১০ হতে ১২-২-২০১২ পর্যন্ত সময়ে অপরিশোধিত রাজস্ব বাবদ ৬,৫৫,৩৬,৬১৫ টাকা যথাসময়ে পরিশোধ না করায় কেন আপনার বিরুদ্ধে মূল্য সংযোজন কর আইন, ১৯৯১ এর ধারা ৩৭ এর গ্রহণ করা হবে না তা এই পত্র জারির ৭ (সাত) দিনেরমধ্যে এ দপ্তরকে জানানো জন্য অনুরোধ করা হলো।”
4. The Petitioner having objected to the issuance of this notice through a written explanation of 17-10-2017, the concerned Respondents, the Petitioner asserts on oath, conducted a hearing on 13-11-2017 leading the Petitioner to apprehend that an illegal demand notice would imminently be issued. The Petitioner now apprehends the Respondents shall now embark on resorting to punitive measures as threatened under the Act for the admittedly time-barred amount of Taka 6,55,36,615. It is the Petitioner's contention that the Respondent No. 3, Commissioner of Taxes, LTU having admitted categorically in the impugned order that the time-barred claim of Taka 6,55,36,615 cannot now be enforced cannot in the same breath go ahead and threaten to subject the Petitioner to punitive measures by reference to "section 37(2) clause (91)" especially given further that this provision had not been written into the Act and, therefore, was not applicable during the period in question.
5. Predicated on the above circumstances, and there being no other speedy, efficacious and alternative remedy available against the grievance caused the Petitioner upon issuance of the impugned order dated 11-9-2017, the Petitioner has filed this Writ Petition under Article 102 of the Constitution.
6. The general contention of the Respondent No. 3, Commissioner of Taxes, LTU through an Affidavit in-Opposition filed is one of acknowledgment of all the facts asserted by the Petitioner stressing, however, and seemingly in disputing the Petitioner's contention otherwise, that given that the Petitioner did not appear on the date of hearing scheduled the authority has passed no final order as yet as could have given rise to any grievance, thereby, making this Writ Petition premature. It is contended further that the Petitioner must await a final order and as per section 42 of the Act take resort of the statutorily prescribed appellate forum as necessary. Beyond such assertions, this Court notes, there is precious little of substantive significance in the Affidavit-in-Opposition to assist this Court in a comprehensive consideration and disposal of the relevant issues arising in this Writ Petition.
7. Upon a consideration of the pleadings on record and the oral submissions made for both sides, this Court notes at the outset of the established jurisprudence of this Court concerning the illegality of time barred claims and equally significantly of such claims not being able to sustain or justify consequential claims of any sort. In other words, once a claim is acknowledged or determined to be time-barred, no residual right stems from the same to base a consequential claim, e.g., a claim to a penalty for non payment of the same. In that regard, the learned Advocate for the Petitioner, Mr Md Abdul Halim has aptly relied on the ratio decidendi of the judgment of this Court in Provati Insurance vs Commissioner of Customs reported in 17 BLC 450 where this Court held as below at paragraph 8 at page 453:
"It is apparent from the demand notice (Annexure-13') and the adjudicating order dated 20-8-2003 (Annexure-`E') that the demand was made on 30-12-2001 for the alleged evasion of tax for the period of July, 1998 to December, 1998. It is also evident that the said notice was issued under Section 55(1) of the Act which provides for a three-year period for serving the notice demanding VAT. The same is the case with the other set of impugned orders evident in the demand notice dated 24-3-2002 (Annexure-'F') and the adjudicating order dated 20-8-2003 (Annexure-'G') as related to payments for the period of January, 1999 to March, 1999. Notices as these may be issued for recovery of VAT payments remaining outstanding but not paid, or insufficiently paid, or wrongly refunded or adjusted with the period of three years computed from the date on which such VAT stands payable but is not paid, or is insufficiently paid, or wrongly refunded or adjusted. But in the instant case the impugned notices were issued on dates claiming VAT and other additional taxes as penalty for periods that fell wholly beyond the period for which these may legitimately be issued and are, therefore, to the deemed as barred by law as the claimed amounts have not been demanded within the period of three years as legally mandated. Since the demand so made is barred by law, the additional tax in the form of penalty shall consequentially be bad in law and not demandable."
8. Predicated on the above, this Court is, therefore, inclined to consider the Petitioner's prayer for a favourable intervention and make the Rule absolute.
9. It is, therefore, crystal clear to this Court that the impugned attempt at imposing a penalty on a time barred claim is devoid of all legal sanction and must, therefore, be adjudged by this Court as being illegal and to be of no legal effect. Indeed, the Respondent No. 3 is found to have had no lawful authority reposed in him at any material time to threaten to resort to penal sanctions under the Act.
10. That said, there is one residual issue that this Court feels constrained to address. Upon a perusal of the records it transpires that the Respondent No. 3, Commissioner of Taxes, LTU had issued a show cause notice dated 13-2-2017 under section 55(1) of the Act for payment of evaded VAT amounting to Taka 11,11,12,549 having provided therein a detailed account of evaded VAT for the period January 2010 to August 2016. After issuance of the said notice dated 13-2-2017, the Respondent No. 3, however, issued a final demand dated 25-7-2017 under section 55(3) of the Act for a significantly reduced amount having fallen due over a span of a modified period relative to the show cause notice of 13-2-2017. The demand made on 25-7-2017 was, accordingly, for the reduced amount of Taka 4,55,75,935 for the period commencing from 13-2-2012 down to 12-2-2017. Notably, therefore, in the final demand dated 25-7-2017 the Respondent No. 3 had excluded Taka 6,55,36,615 shown earlier to be due otherwise for the period computed from January 2010 to 12-2-2012 as being time-barred by ostensibly relying upon the ratio decidendi of the judgments in Hotel Zakaria International (Pvt) Ltd. vs Customs Excise & VAT Appellate Tribunal (Writ Petition No. 3604 of 2002), China Bangla Ceramic Industries Ltd. vs Secretary, International Resource Division (Writ Petition No. 4177 of 2009) and British American Tobacco Bangladesh Limited vs National Board of Revenue (Writ Petition No. 2848 of 2015) that declared that evaded VAT cannot be demanded beyond the limitation period specified under section 55(1) of the Act.
11. A perusal of the said order of the Respondent No. 3 dated 25-7-2017 reveals, accordingly, that the Respondent No. 3 affirmed that evaded VAT cannot be demanded beyond the statutorily specified five year period as being time barred. But curiously after issuance of the said section 55(3) demand dated 25-7-2017, suddenly and surprisingly by the impugned order dated 11-9-2017 issued apparently under section 37(2) of the Act, the Respondent No. 3 has threatened the Petitioner with punitive action for having failed to pay within the appropriate time the time-barred VAT amount of Taka 6,55,36,615 even when the admittedly time- barred claimed had abated by the terms of the impugned order dated 11-9-2017.
12. A juxtaposition of the two successive orders of the Respondent No. 3 dated 25-7-2017 and 11-9-2017 unavoidably creates, therefore, the impression that at the time of issuance of the section 55(3) demand of 25-7-2017 the Respondent No. 3 and the Petitioner company may have colluded for mutual gain leading the Respondent No. 3 to exclude a lump sum VAT amounting to Taka 6,55,36,615 without following any statutorily prescribed objective criteria of assessment and re-evaluation, thereby, causing considerable loss to the public exchequer. That apprehension gains support, in our view, through the issuance of the impugned order dated 11-9-2017 by the Respondent No. 3 as reflects a probable scenario of the relationship between the said Respondent No. 3, Commissioner of Taxes, LTU and the Petitioner having gone awry.
13. For want of a satisfactory explanation coming through from the pleadings or submission made as to the actual reason behind the issuance of those two successive orders for such considerably varied amounts, this Court deems it prudent to refer the matter of the highly discordant, irregular and spurious actions of Mr Mohd. Matiur Rahman who in his capacity as Commissioner of Customs, LTU at the material times issued all three orders dated 13-2-2017, 25-7-2017 and 11-9-2017 to be inquired into by the Respondent No. 2, National Board of Revenue. We draw the NBR's attention specifically in that regard for initiating disciplinary proceedings and also in regard to the fact that it may in the alternative refer the matter concerning Mr Mohd. Matiur Rahman to the Anti-Corruption Commission.
14. Resultantly, upon finding merit in the Application based on established jurisprudence of this Court and substance in the Rule Nisi issued, this Court makes the Rule absolute subject, however, to the observations and direction above.
15. There is no order as to costs.
Communicate this Judgment and Order at once.
End.
High Court Division (Civil Revisional Jurisdiction)
Present:
Mr. Justice Mahmudul Hoque
Civil Revision No. 860 of 2015.
Abdul Motin and another
------ Defendant-Petitioners
VS
Md Elias and others
-------- Plaintiff-Opposite Parties
Judgement Date : July 14, 2016
Counsels:
Syed Mohammad Zaved Parvez, Advocate
—For the Petitioners.
Md Hashmat Ullah Sheikh, Advocate
---For the Opposite Party Nos. 1 to 5.
Judgment
1. This Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and order dated 21-1-2015 passed by the Senior Assistant Judge, Dhamrai, Dhaka in SCC Suit No. 1 of 2012 allowing the application under Order VI, rule 17 of the Code of Civil Procedure should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.
2. Briefly stated, the facts of the case for disposal of this Rule, are that, the opposite parties as plaintiff filed SCC Suit No. 1 of 2006 before the SCC Judge and Assistant Judge, 3rd Court, Dhaka against the petitioner as defendant praying for a decree of eviction. When the suit was proceeding towards disposal, at the stage of recording evidence the plaintiffs filed an application for amendment of the plaint in the following terms:
"আরজির ৫নং পৃষ্ঠায় ৬ নং অনুচ্ছেদের পের নিম্ন লিখিত কথা গুলি “উল্লেখ্য গত ৮-৩-০৬ তারিখে ইস্যুকৃত সম্পত্তি হস্তান্তর আইনের ১০৬ ধারার নোটিশ ডাক যোগে গত ৮-৩-০৬ ইং তারিখে এবং কন্টিনেন্টাল কুরিয়ার সার্ভিসের মাধ্যমে গত ৯-৩-০৬ ইং তারিখে বিবাদীর প্রতি প্রেরণ করা হয় কিন্তু কুরিয়ার সার্ভিসের মাধ্যমে প্রেরিত নোটিশ বিবাদীগণের উপর গত ১১-৩-০৬ ইং তারিখে জারী হইলেও বিবাদীগণ ডাক পিয়নের সাথে যোগসাজশে ডাকেযোগে প্রেরিত নোটিশ গত ৯-৩-০৬ ইং, ১২-৩-০৬ ইং, ১৩-৩-০৬ ইং এবং ১৪-৩-০৬ তারিখে যথাক্রমে 'Not found' এবং 'Not known' মর্মে ফেরত পাঠায়” কথাগুলো যোগ হইয়া আরজি সংশোধিত হইবে।"
3. Against the prayer for amendment of the plaint the defendant-petitioners filed written objection on 2-5-2011. The trial Court after contested hearing by the impugned order allowed the application for amendment of the plaint. At this stage, the petitioners moved this Court by filing this application under section 25 of the Small Cause Courts Act, 1887 and obtained the present Rule and order of stay.
4. Mr Syed Mohammad Zaved Parvez, the learned Advocate appearing for the petitioners submits that the amendment brought by the plaintiffs in the plaint has changed the nature and character of the suit as well as the cause of action and, as such, the order passed by the trial Court allowing the application for amendment is bad in law and liable to be set-aside.
5. Referring to the amendment as occurred in proviso to the Order VI, rule 17 of the Code of Civil Procedure on 24-9-2012, he further submits that after commencement of the trial amendment of the plaint is not allowed by the law. In the instant case, the trial of the case has already been commenced and at the midst of trial, the plaintiff opposite parties filed an application for amendment of the plaint and the trial Court allowed the same without appreciating the amendment brought in Order 6, rule 17 of the Code of Civil Procedure and, as such, the impugned order is liable to be set-aside.
6. Mr Md Sajjadur Rahman, the learned Advocate appearing for the opposite parties submits that in the plaint at para 6 of the plaint it has been stated that a notice under section 106 of the Transfer of Property Act was served upon the defendant through Courier Service, but inadvertently service of notice by post has not been stated. At the time of recording deposition of PW1, when the postal receipt and acknowledgement due was produced before the Court for making the same exhibits, the defendant petitioners have raised objection regarding those documents on the ground that no statement has been made to that effect in the plaint. Consequent upon which the plaintiff-opposite parties filed an application for amendment of the plaint incorporating the statement that the said notice was also sent by post. The trial court upon consideration of the facts and circumstances of the case, allowed the application for ends of justice. By the said amendment the nature and character of the suit has not in any way changed and the cause of action also remains intact and, as such, the trial Court committed no error of law resulting any error in the decision occasioning failure of justice.
7. Heard the learned Advocates for the parties, gone through the application, the impugned order, plaint in suit and other Annexures annexed thereto.
8. Before entering into the merit of the order we need to see the provision of law relating to pleadings. Pleadings shall mean plaint and written statement. Order VI, rule 2 of the Code of Civil Procedure speaks about the pleading which runs thus:
Rule 2.—Pleading to state material facts and not evidence. Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums and numbers shall be expressed in figures.
9. Rule 2 of Order VI of the Code of Civil Procedure specifically mentioned that the material facts to be stated in the plaint. According to rule 2, a plaint shall contain a statement in a concise form of the material facts on which the party relies for his claim or defence, as the case may be. It means that the plaint shall contain only material facts. In the instant case, there is a clear averments made in the plaint at paragraph 6 of the plaint that a notice under section 106 of the Transfer of property Act was served upon the defendant. It is sufficient on the part of the plaintiff to adduce evidence in respect of service of such notice either through courier service or by post. Though, the plaintiffs did not states in the plaint that the notice under section 106 of the Transfer of property Act was sent by post, still they are entitled in law to produce such documents and adduce evidence in this regard. Inclusion of statements regarding mode of service of section 106 notice by way of amendment of the plaint is in this Court's view has not changed the nature and character of the suit as well as cause of action.
10. The primary aim of the court is to try the case on its merits and ensure that the rule of justice prevails. For this the need is for the true facts of the case to be placed before the court so that the court has access to all the relevant information in coming to its decision. Therefore, at times it is required to permit parties to amend their plaints. The court's discretion to grant permission for a party to amend his pleading lies on two conditions, firstly, no injustice be done to the other side and secondly, the amendment is necessary for the purpose of determining the real questions in controversy between the parties.
11. From a perusal of the impugned judgment and order, it appears that the trial court while allowing the application for amendment exhaustively discussed the facts and laws and considering the facts and circumstances of the case, allowed the same and by the said amendment the defendants have nothing to lose, but they can file additional written statement if so advised.
12. Taking into consideration the above, this Court finds no merit in the Rule as well as in the submissions of the learned Advocate for the petitioners calling interference of this Court.
13. In the result, the Rule is discharged, however, there will be no order as to costs. The trial Court is directed to proceed with the case and to dispose of the same within shortest possible time preferably within 3(three) months from the date of receipt of copy of this judgment.
14. The order of stay granted at the time of issuance of the Rule stands vacated.
Communicate a copy of this judgment to the Court concerned.
End.
High Court Division (Special Original Jurisdiciton)
Present:
Mr. Justice Zafar Ahmed
Mr. Justice Md. Akhtaruzzaman
Writ Petition No. 7143 of 2021
Samia Rahman
.........Petitioner
Vs.
The Government of the People’s Republic of Bangladesh and others
.......Respondents
Judgement Date : August 04, 2022
Counsels:
Mr. Hassan M.S. Azim with Mr. Ashfaqur Rahman, Advocates
…..For the Petitioner
Mr. Naim Ahmed with Mr. Shahin Alam, Advocates
.... For the Respondent Nos.2 and 6
Judgment
Md. Akhtaruzzaman, J.
1. In an application under Article 102 of the Constitution of the People’s Republic of Bangladesh, the Rule was issued on 05.09.2021 calling upon the respondents to show cause as to why the impugned decision of the respondent No.3 Syndicate as contained in the Memo No. রিজ: শা-১/৩৯২৫১ dated 15.02.2020 (Annexure-A) issued under signature of the respondent No.6 Registrar, University of Dhaka purportedly demoting the petitioner with stigma from the post of Associate Professor of the Department of Mass Communication and Journalism of the University of Dhaka to the post of Assistant Professor for a period of 2(two) years with effect from 28.01.2021 pursuant to a resolution adopted in its meeting held on 28.01.2021 shall not be declared to be without lawful authority and is of no legal effect and as to why the respondent Nos. 2-4, 6-7 shall not be directed to grant all usual service as well as financial benefits to the petitioner with effect from 28.01.2021 and /or such other or further order or orders as to this Court may seem fit and proper.
2. Facts, relevant for disposal of the Rule, in brief, are that the petitioner was an Associate Professor of the Department of Mass Communication and Journalism of the University of Dhaka (hereinafter, the ‘University’). She along with one Syed Mahfujul Haque Marjan, Lecturer of the Department of Criminology of the University submitted an Article titled “A new Dimension of Colonialism and Pop Culture: A Case Study of the Cultural Imperialism” for publication in the Social Sciences Review of the University which was eventually published in the December 2016 issue of the Social Sciences Review of the Dhaka University Studies, Part D, Volume 33, No. 2 (Annexure ‘B’). After publication of the Article, one Alex Martin, Administrative Assistant of the Chicago Journal, submitted a complaint before the Vice-Chancellor of the University by an e-mail dated 15.09.2017 stating that the Article published by the petitioner is plagiarized from an Article titled “The Subject and Power” written by Michel Foucault published in Volume 8, Number 4, Summer 1982, pages 777-795, of the Chicago Journal (Annexure ‘E’). The Syndicate of the University formed an Enquiry Committee consisting of 5(five) members vide its decision dated 27.09.2017. The said Enquiry Committee held meetings on several days, notice was issued and the petitioner was interviewed by the Enquiry Committee. The petitioner also filed written representation dated 22.11.2017 before the Enquiry Committee. The Enquiry Committee submitted its report on 28.10.2019 with a finding that the allegation of plagiarism is true. The Syndicate of the University considered the report and constituted a Tribunal on 29.10.2020 consisting of 3(three) members. One of the members was to be nominated by the petitioner as her representative. The petitioner nominated her representative. The Tribunal issued a show cause notice to the petitioner on 24.12.2020. The petitioner replied to the same on 02.01.2021. The Tribunal held several meetings on the issue and after due consideration, submitted its report on 25.01.2021 recommending minor punishment of withholding promotion as well as increase of salary for one year to be awarded to the petitioner. Eventually, the report of the Tribunal was placed before the Syndicate, which on 28.01.2021, considered the same and decided to demote the petitioner from the post of Associate Professor to the post of Assistant professor for a period of two years. The co-author of the disputed Article, the respondent No.9 was also punished by the Syndicate on the same date. His promotion was withheld for 2(for) two years to be counted from the date of his joining after expiration of his study leave. Thereafter, the petitioner filed an application before the Hon’ble Chancellor of the University on 08.03.2021 which is still pending.
3. In the backdrop of the aforesaid facts and circumstances, the petitioner filed the instant writ petition and obtained the instant Rule.
4. The respondent Nos. 2 and 6 contested the Rule by filing an affidavit-in-opposition.
5. Mr. Hassan M.S. Azim, the learned Advocate appearing for the petitioner takes us through the writ petition as well as the annexures thereto, the materials on record and submits that the impugned decision of the Syndicate of the University demoting the petitioner with stigma from the post of Associate Professor to the post of Assistant Professor for a period of 2(two) years is clearly violative of the principles of natural justice inasmuch as despite repeated prayers, the petitioner was never furnished with copies of the enquiry report as well as the decision of the Tribunal to enable her to set up an effective defence.
6. According to Mr. Azim the impugned decision is bad in law for the reason that the same passed on the basis of a fake e-mail without verifying its authenticity with an ulterior motive to tarnish her image and to destroy her career as a brilliant journalist and educationist.
7. The learned Advocate of the petitioner further submits that there was no signature of the petitioner to be found in the relevant records and the petitioner was also not given a copy of the comment and feedback of the reviewer ever and thus, she was specifically targated by a vested quarter for the purpose of humiliation and harassment.
8. Mr. Azim further submits that the so-called show cause notice dated 24.12.2020 issued by the Tribunal was violative of Regulation 7(a) read with Regulation 11 of the Enquiry Committee and Tribunal (Teachers and Officers) Regulations, 1980 which categorically provides that Syndicate shall frame charge and specify therein the penalty proposed to be imposed, which was not done in the case of the petitioner, and, as such, the said show cause notice cannot be termed as a statutory show cause notice.
9. Mr. Azim next submits that in the absence of any rules or regulations defining plagiarism, imposition of the penalty in question upon the petitioner was a high feat of arbitrariness in the facts and circumstances of the case.
10. Mr. Azim also contends that in any view of the matter, the long delay of about 6(six) months in disposing of the appeal filed by the petitioner before the Hon’ble Chancellor on 08.03.2021 would be deemed to have been rejected and the petitioner cannot be reasonably expected to wait for an indefinite period for disposal of the Appeal by the Hon’ble Chancellor. The impugned decision is liable to be set aside and the petitioner is entitled to have all her service as well as financial benefits restored with effect from 28.01.2021 as before inasmuch as the same is violative of the fundamental rights of the petitioner as guaranteed under Articles 27, 31 and 40 of the Constitution.
11. In support of his submissions, the leanred Advocate relied upon the decisions reported in 69 DLR (AD) 10, 22 BLD (AD) 102, 11 BLT (AD) 221 and 8 ADC 289.
12. Per contra, Mr. Naim Ahmed, appearing with Mr. Shahin Alam, learned Advocates for the Respondent Nos. 2 and 6 submits that the instant writ petition involves resolution of disputed questions of facts which cannot be decided in writ jurisdiction and accordingly the writ petition is not maintainable. He next submits that the petitioner has failed to exhaust the alternative remedy of appeal before the Hon’ble Chancellor of the University as provided in Article 52 of the Dhaka University Order, 1973. Mr. Ahmed also submits that the provision of appeal under Article 52 of the Dhaka University Order 1973 is an equally efficacious remedy and, as such, while the statutory appeal is pending, it cannot be ‘deemed to have been rejected’ and for that reason, the instant writ petition is not maintainable. Mr. Ahmed further submits that there is no requirement under any law/rule/regulation of the University under which the signature of the author is required at the time of submitting any Article for publication in the University Journal. Mr. Ahmed next submits that the petitioner admitted in her letter dated 05.02.2017 that she was primarily responsible as the main researcher to correct the mistakes in the Article and further that she sent the draft and she was responsible to follow up the matter and she should have stopped the publication. In view of such clear admission, the writ petitioner has no ground to challenge the impugned decision of the Syndicate. According to Mr. Ahmed, admittedly the complaint of plagiarism was first raised in February 2017 which is well before the e-mail dated 15.09.2017 of Mr. Alex Martin. The allegation of plagiarism has been found to be true after following proper procedure through the Enquiry Committee and the Tribunal and, as such, the question of authenticity of the email of Mr. Alex Martin is not relevant and the same will not vitiate the proceedings - Mr. Ahmed adds. The learned Advocate also contends that any claim with respect to genuineness of Mr. Alex Martin and the e-mail leads to questions of fact which cannot be decided in writ jurisdiction. The learned Advocate further submits that the principles of natural justice were not denied since the petitioner had opportunity to present her case verbally and in writing before the Enquiry Committee and the Tribunal which she did. The learned Advocate also submits that the petitioner was issued show cause notice by the Tribunal clearly stating the allegations against her and she nominated her representative to sit as a member of the Tribunal and the said representative took part in the proceedings of the Tribunal and put his signature in the report of the Tribunal without any dissent. Mr. Ahmed further contends that the Syndicate framed charge in general terms. Thereafter, the Tribunal in its notice dated 24.12.2020 stated the allegations in details allowing her to defend her case properly. Mr. Ahmed finally submits that the Syndicate has discretion to accept or reject the recommendations of the Tribunal and the said power of the Syndicate, being a statutory power, cannot be curtailed or challenged under judicial review. In Support of his submission, the learned Advocate relied upon the decision reported in 44 DLR (AD) 305.
13. For appreciating the arguments as advanced before us, at first we would like to quote the relevant provision of Article 52 of the Dhaka University Order, 1973 which is reproduced as under:
“52(1) An appeal against the order of any officer or authority of the University affecting any person or class of persons in the University may be made by petition to the Chancellor who shall send a copy on receipt of the petition thereof to the officer or authority concerned and shall give such officer or authority an opportunity to show cause why the appeal should not be entertained.
(2) The Chancellor may reject any such appeal or may, if he thinks fit, appoint an Enquiry Commission consisting of such persons as are not officers of the University or members of any authority thereof, to enquire into the matter and to submit to him a report thereon.
(3) The Chancellor shall, on receipt of the Enquiry Commission’s report, send a copy thereof to the Syndicate and the Syndicate shall take the report into consideration and shall, within three months of the receipt thereof, pass a resolution thereon which shall be communicated to the Chancellor, who shall then take such action on the report of the Enquiry Commission and resolution of the Syndicate as he may think fit.
(4) An Enquiry Commission appointed under clause (2) may require any officer or authority of the University to furnish it with such papers or information as are, in the opinion of the Enquiry Commission, relevant to the matter under enquiry, and such officer or authority shall be bound to comply with such requisition.”
14. On perusal of the materials on record, it appears that being aggrieved by and dissatisfied with the impugned Memo, the petitioner preferred an appeal under section 38(5) of the First Statutes of the University under the Schedule to the Dhaka University Order, 1973 before the Hon’ble Chancellor on 08.03.2021 through registered mail but till date, the petitioner has not heard anything from the office of the Hon’ble Chancellor.
15. The main allegation brought against the petitioner by the respondents is that the she submitted the disputed Article titled “A New Dimension of Colonialism and Pop Culture: A Case Study of the Cultural Imperialism” for publication in the Social Sciences Review of the University where she was joint author with respondent No. 9 which was plagiarized from the Atricle titled “The Subject and Power” written by Michel Foucault published in Volume 8, November, 4, Summer 1982, Pages 777-795 of the Chicago Journal.
16. In order to inquire into the allegations, the Syndicate formed a 5-member Enquiry Committee. The Pro-Vice-Chancellor of the University was the convernor of the Committee. The members were full Professors of the University drawn from different departments. The relevant portions of the enquiry report read as under:
“পর্যালোচনাঃ
Oxford Dictionary অনুযায়ী Plagiarism is “The practice of taking someone else’s work or ideas and passing them off as one’s own”. Merriam-Webster Online Dictionary-এর মতে Plagiarize verb অর্থ : (a) to steal and pass off (the ideas or words of another) as one’s own: (b) use (another’s production) without crediting the source to commit literary theft: (c) present as new and original an idea or product derived from an existing source. . . .
তদন্ত কমিটি উল্লিখিত প্রবন্ধটি পরীক্ষা-নিরীক্ষা করে দেখতে পায় যে,
(১) প্রবন্ধটির ৬০টি অনুচ্ছেদেরমধ্যে প্রায় ৪৮টি অনুচ্ছেদ হুবহু কপি করা হয়েছে। তমধ্যে Colonialism to Cultural Imperialism: Edward Said (পৃষ্ঠা: ৮৭-৯১) অংশে Edward Said রচিত Culture and Imperialism বইয়ের বিভিন্ন অংশ থেকে প্রবন্ধটিতে অবিকল ২৭% হুবহু তুলে দিয়েছেন। এছাড়াও Michel Foucault-র “The Subject and Power” প্রবন্ধ থেকেও আনুমানিক পঁাচ পৃষ্ঠা (৩০%) সরাসরি কপি করা হয়েছে। এমনকি Foucault কে নিয়ে Ryan Jocobs- -এর লেখা থেকেও কোন রেফারেন্স ছাড়াই নিজেদের লেখায় (৫%) সরাসরি কপি করেছেন। আলোচিত অংশগুলো বাদ দিলে প্রবন্ধাটির আর তেমন কিছুই অবশিষ্ট থাকে না। Turnitin এই প্রবন্ধটিতে বিভিন্ন সোর্স থেকে আনীত প্রায় ৭০% টেক্সটের মিল পেয়েছে।
(২) লেখকদ্বয় Edward Said বা Michel Foucault লেখােক সরাসরি নিজেদের বলে চালিয়ে দেয়ার চেষ্টা করেন নি বলে দাবী করেন। প্রবন্ধে Said I Foucault- -এর নাম যথাক্রমে ২৪ বার ও ২৮ বার উল্লেখ করা হয়েছে। তবে, সাইটেশনের নিয়মানুযায়ী সরাসরি উদ্ধৃতির ক্ষেত্রে শব্দসীমা থাকে। লেখকদ্বয় অনুমোদিত শব্দসীমা লংঘন করে অবলীলায় পাতার পর পাতা সরাসরি কপি করেছেন যা নিয়ম বহির্ভূত হয়। এছাড়াও, তারা প্রবন্ধে Ryan Jocobs-এর রেফারেন্স দেন নি। লিখিত বক্তব্যে ও সাক্ষাৎকারে তারা তাদের অজ্ঞতার কথা বলেছেন। সাংবাদিকতার শিক্ষার্থী ও তদুপরি সাংবাদিকভার অভিজ্ঞ থাকায় তাদের এই অজ্ঞতার যুক্তিটি গ্রহণযোগ্য নয়। এছাড়াও, লিখিত বক্তব্যে তারা একজন আরেকজনকে দোষারোপ করে প্রকারান্তরে তাদের বিরুদ্ধে আনীত অভিযোগ স্বীকার করে নিয়েছেন।
(৩) এখানে বিশেষভাবে উল্লেখ্য যে, এই প্রবন্ধটির রিভিউয়ার স্বযং এতে মৌলিক অসংগতি রয়েছে বলে উল্লেখ করেছিলেন। রিভিউ রিপোর্ট লেখকদের সরবরাহ করা হয়েছিল কিনা এবং সে আলোকে লেখাটিতে প্রয়োজনীয় সংশোধন করা হয়েছিল কিনা সেটি স্পষ্ট নয়। এ বিষয়ে কোন দালিলিক প্রমাণও নই। প্রবন্ধটি জমা করা থেকে শুরু করে রিভিউ এবং তৎপরবর্তীতে চূড়ান্তভাবে গ্রহণ ও ছাপানোর কার্যক্রমে তৎকালীন এডিটরিয়াল বোর্ডের রেকর্ড সংরক্ষণে দুর্বলতা/ঘাটতি রয়েছে।
(৪) যদিও প্রবন্ধটির শিরোনাম ছিল “A New Dimension of Colonislism and Pop Culture: A Case Study of the Cultural Imperialism”, প্রবন্ধটির মূল অংশে কোথাও Pop শব্দটি একবারও ব্যবহার করা হয় নি। এছাড়া, পৃ, ৮৬ তে একটি উদ্ধৃতি অসম্পূর্ণ রয়েছে। এমন একটি দুর্বল ও মানহীন প্রবন্ধ কীভাবে Social Science Review- তে ছাপা হলো তা কমিটির কাছে বিস্ময়ের। কমিটি মনে করে যে, এডিটরিয়াল বোর্ড দায়িত্ব পালনে ব্যর্থ হয়েছে।
সর্বোপরি, প্রবন্ধটিতে Edward Said রচিত Culture and Imperialism ও Critical Inquiry জার্নালের Michel Foucault রচিত প্রবন্ধ “The Subject and Power” থেকে বহুলংেশ হুবহু কপি করা হয়েছে। যথাযথভাবে শব্দায়িত করা কিংবা নিয়মানুযায়ী সরাসরি উদ্ধৃতির ক্ষেত্রে অনুমোদিত শব্দসীমার মাত্রা লেখকদ্বয় অনুসরণ করেন নি। এছাড়াও, Foucault- কে নিয়ে Ryan Jocobs-এর লেখা থেকে রেফারেন্স ছাড়াই কপি করা হয়েছে। লিখিত বক্তব্য ও সাক্ষাৎকারে তারা উভয়েই বর্ণিত প্রবন্ধে যথাযথ সাইটেশন দেয়া হয়নি বলে স্বীকার করেছেন। তারা তাদের প্রবন্ধটি Social Science Review - থেকে প্রত্যাহার করে নিতে বলেছিলেন কিন্তু তাদেরদাবীর কোন প্রমাণপত্র দেখাতে পারেন নি। মিসেস সামিয়া রহমান সাক্ষাৎকারে(২২-১১-২০১৯) বলেন, ডিন অফিস তার অভিযুক্ত প্রবন্ধটি হারিয়ে ফেলেছে। কিন্তু ডিন অফিসে প্রবন্ধটি সংরক্ষিত ছিল। এমতাবস্থায়, তদন্ত কমিটি মনে করে যে, Alex Martin-এর অভিযোগটির সত্যতা রয়েছে।
লেখকদ্বয় উল্লেখ করেন যে, তারা আরও বেশ কয়েকটি প্রবন্ধ যৌথভাবে রচনা করেছেন। তাই সেটি বিবেচনায় নিয়ে তদন্ত কমিটি এই লেখকদ্বয়ের রচিত আরও ৩টি প্রবন্ধ তদন্তের অধিকতর গ্রহণযোগ্যতার জন্য খতিয়ে দেখা সমীচীন বলে মনে করে। ফলস্বরূপ, তাদের যৌথভাবে রচিত আরও ৩টি প্রবন্ধে নিম্নলিখিত গরমিল রয়েছে বলে কমিটির নিকট প্রতীয়মান হয়:
(১) ২০১৩ সালে Social Science Review -এর ৩০ তম ভলিউমে প্রকাশিত “Talk Shows in Bangladeshi TV Channels: Audience Perceptions and Perspectives” শীর্ষক প্রবন্ধেটিতে তারা বিভিন্ন উৎস থেকে একাধিক অনুচ্ছেদ যথাযথ সাইটেশন ছাড়া সরাসরি কপি করেছেন।
(২) Social Science Review - থেকে প্রকাশিত লেখকদ্বয়ের আরেকটি প্রবন্ধে তারা মোট ২৬টি অনুচ্ছেদ হুবহু অন্যদের লেখা থেকে কপি করেছেন। “Journalism, New Media and their Consequences: Perspective Bangladesh” শীর্ষক এই লেখায় Turnitin ব্যবহার করে ৬৪% টেক্সট সিমিলারিটি পাওয়া গেছে। এখানে তারা ম্যাক ডইজ-এর “The web and its journalisms: Considering the consequences of different types of newsmedia online” প্রবন্ধ থেকে সরাসরি কপি করেছেন।
(৩) লেখকদ্বয়ের একসাথে আরেকটি Mass Communication and Journalism নামের একটি ওপেন এক্সেস জার্নাল থেকে প্রকাশিত হয়। “Role of Mass Media in Setting Agenda and manufacturing Consent: A Study on Wars to Rise of Radical Group (Hefajat-e Islam) in Bangladesh”-”-শীর্ষক লেখাটির একটি উল্লেখযোগ্য অংশ সাইটেশন ছাড়াই একাধিক উৎস থেকে সরাসরি তুলে দেওয়ার প্রমাণ মিলেছে। উল্লেখ্য, বর্ণিত জার্নালটি একটি চিহ্নিত প্রিডেটরি প্রকাশক কর্তৃক প্রকাশিত হয়।
মিসেস সামিয়া রহমান ও সৈয়দ মাহফুজুল হক মারজান ঢাকা বিশ্ববিদ্যালয়ের শিক্ষক হিসেবে কর্মরত আছেন। তাদের যৌথভাবে লিখিত/প্রকাশিত অভিযুক্ত প্রবন্ধটি ছাড়াও আরও ৩টি প্রবন্ধে সাইটেশনে ঘাটতিসহ হুবহু কপি করার অভিযোগ সত্য। তাদের এই ধরনের কর্মকাণ্ডের ফলে ঢাকা বিশ্ববিদ্যালয়ের শিক্ষকদের ও ঢাকা বিশ্ববিদ্যালয়ের একাডেমিক ভাবমূর্তি ভীষণভাবে ক্ষুন্ন করেছে। এছাড়াও, বিষয়ট নিয়ে গণমাধ্যমে ব্যাপক সমালোচনা হয়েছে। সর্বোপরি শিক্ষার্থীদের কাছে শিক্ষক হিসেবে কেবলমাত্র নিজেদের মর্যাদাহানি হয়নি সমগ্র শিক্ষক সমাজের ভাবমূর্তি নিয়ে সমালোচনা অব্যাহত আছে।
কমিটি আরও ধরতে পায় যে, যদি Alex Martin অভিযোগ না করতেন তাহলে হয়তো বিষয়টি ধরা পড়তো না। এভাবে হুবহু কপি করে প্রবন্ধ প্রকাশ করে একাডেমিক সুবিধা নেয়া চাকুরী শৃংখলার পরিপন্থি এবং নৈতিক স্খলন। ভবিষ্যতে এ ধরনের কাজ ঢাকা বিশ্ববিদ্যালয়ের শিক্ষকরা যেন বিরত থাকেন সেজন্য কঠোর আইনী পদক্ষেপ/সিদ্ধান্ত গ্রহণ করা উচিত বলে কমিটি মনে করে।
কমিটির সুপারিশ
অভিযোগ সংক্রান্ত সুপারিশ:
Alex Martin কর্তৃক গণযোগাযোগ ও সাংবাদিকতা বিভাগের সহযোগী অধ্যাপক মিসেস সামিয়া রহমান এবং ক্রিমিনোলজি বিভাগের প্রভাষক সৈয়দ মাহফুজুল হক মারজান লিখিত প্রবন্ধটিতে Plagiarism-এর যে অভিযোগ করা হয়েছে তা কমিটির কাছে সঠিক বলে প্রতীয়মান হয়েছে। গণযোগাযোগ ও সাংবাদিকতা বিভাগের সহযোগী অধ্যাপক মিসেস সামিয়া রহমান ও ক্রিমিনোলজি বিভাগের প্রভাষক সৈয়দ মাহফুজুল হক মারজান তাদের যৌথনামে প্রকাশিত প্রবন্ধসমূহে ধারাবাহিকভাব ও অবলীলায় অন্য প্রবন্ধ থেকে সাইটেশনের নিয়মনীতি অনুসরণ না করে কপি/পেস্ট করে গেছেন। এমতাবস্থায়, অভিযুক্ত শিক্ষকদের বিরুদ্ধে পরবর্তী ব্যবস্থা গ্রহণের জন্য বিষয়টি সিন্ডিকেটে পেশ করা হলো।
প্রবন্ধটি প্রত্যাহারের সুপারিশ:
প্রবন্ধটিতে যেহেতু Plagiarism-এর অভিযোগ প্রতীয়মান হয়েছে সেহেতু অভিযুক্ত প্রবন্ধটি Social Science Review থেকে প্রত্যাহার করার বিষয়ে কমিটি সুপারিশ করছে। লেখাটি প্রত্যাহার করা হলো মর্মে Social Science Review -এর পরবর্তী কোন সংখ্যায় তা প্রকাশের প্রয়োজনীয় ব্যবস্থা গ্রহণের সুপারিশ করা হলো।
এডিটরিয়াল বোর্ডের জন্য সুপারিশ :
অভিযুক্ত প্রবন্ধটি জমা দেয়া থেকে শুরু করে রিভিউ, চূড়ান্তভাবে গ্রহণ ও ছাপানোর প্রক্রিয়াতে অজ্ঞতা ও অদক্ষতা রয়েছে। এক্ষেত্রে, যথাযথ রেকর্ড সংরক্ষণে তৎকালীন এডিটরিয়াল বোর্ডের দুর্বলতা ছিল। লেখাটি কে জমা দিয়েছিল সে বিষয়ে অথারদের মধ্যে মতদ্বৈততা রয়েছে এবং তদন্ত কমিটির কাছেও বিষয়টি স্পষ্ট নয়। এতদসত্বেও, তারা কেউ অথারশিপ প্রত্যাহার করেন নি। এডিটরিয়াল বোর্ডকে প্রবন্ধ জমা থেকে শুরু করে প্রকাশনা পর্যন্ত দালিলিক প্রমাণপত্র সংরক্ষণের বিষয়ে কমিটি সুপারিশ করছে। প্রতিটি মূল প্রবন্ধে পান্ডুলিপি জমাদান, রিভিউ সম্পাদন ও চূড়ান্তভাবে গ্রহণের তারিখ ছাপানোরবিষয়ে সুপারিশ করা হলো।
Plagiarism নীতিমালা সংক্রান্ত সুপারিশ:
ঢাকা বিশ্ববিদ্যালয়েরকিছুসংখ্যক শিক্ষকদেরমধ্যে সাম্প্রতিককালে অন্যের প্রবন্ধ থেকে যথাযথ সাইটেশন ব্যতীত কপি/পেস্ট করার (Plagiarism) প্রবণতা লক্ষ্য করা যাচ্ছে যা দুঃখজনক। Plagiarism একটি গুরুতর অন্যায় ও নৈতিক স্খলন। ঢাকা বিশ্ববিদ্যালয়ের শিক্ষকদের কাছ থেকে দেশ এবং জাতি কখনো এই ধরনের কর্মকাণ্ড প্রত্যাশা করেনা। Plagiarism রোধ করার নিমিত্তে দ্রুত একটি সুনির্দিষ্ট নীতিমালা প্রণয়নের বিষয়ে তদন্ত কমিটি সুপারিশ করেছে। এছাড়াও, নবীন শিক্ষকদের স্কলারলি আর্টিকেল রাইটিং পাবলিশিং এথিকস ও সাইটেশন ব্যবহারবিষয়ে প্রশিক্ষণ প্রদান করা জরুরী বলে কমিটি মনে করে।”
17. It appears from the report of the Enquiry Committee that the allegation of plagiarism in publishing the alleged Article is true. It was found that out of 60 paragraphs, 47 paragraphs were copied in full. In one part of Article under the sub-title “Colonialism to Cultural Imperialism: Edward Said” (pages 87-91), the petitioner copied 27% from various part of the book “Culture and Imperialism” written by Edward Said. Furthermore, more or less 5(five) pages of about 30% were copied from the Article “The Subject and Power” written by Michel Foucault. The Enquiry Committee also found that about 5% was copied from the writings of Ryan Jocob without any reference. The Enquiry Committee observed that the software Turnitin found 70% of the text to be copied from various sources. The Committee also recommended to frame appropriate rules by the University to prevent plagiarism in publishing Articles by the teachers and the researchers of the University.
18. The Syndicate of the University considered the above mentioned report of the Enquiry Committee and constituted a Tribunal consisting of 3(three) members. A Professor of Department of Law of the Univeristy was the Convenor of the Tribunal whereas another Professor of the University and an Advocate nominated by the petitioner as her representative under the relevant rule were members of the Tribunal. The Tribunal issued show cause notice to the petitioner and she replied to the same. The Tribunal held 4(four) meetings on different dates. After due consideration, it submitted its report on 25.01.2021, the relevant portions of which are reproduced below:
“ট্রাইবুনাল-এর পর্যালোচনা
ট্রাইবুনাল অভিযোগকারী Alex Martin কর্তৃক প্রেরিত ই-মেইলের কপি, তদন্ত কমিটির রিপোর্ট, অভিযুক্ত প্রবন্ধ, মিসেস সামিয়া রহমান ও সৈয়দ মাহফুজুল হক মারজান-এর কারণ দর্শানো নোটিশের জবাব, সামাজিক বিজ্ঞান অনুষদের ডিন কর্তৃক প্রেরিত তথ্যসমূহ, Plagiarism-এর সংজ্ঞা এবং সংশ্লিষ্ট প্রবন্ধটির Turnitin report পরীক্ষা-নিরীক্ষা ও পর্যালোচনা করে ট্রাইবুনাল দেখতে পায় যে:
(১) অভিযুক্ত প্রবন্ধটিতে ৬০টি অনুচ্ছেদের মধ্যে পায় ৪৮টি অনুচ্ছেদ কপি করা হয়েছে। তমধ্যে Colonialism to Cultural Imperialism: Edward Said (পৃষ্ঠা:৮৭-৯১) অংশ Edward Said রচিত Culture and imperialism বইয়ের বিভিন্ন অংশ থেকে প্রবন্ধটিতে ২৭% কপি করা হয়েছে। এছাড়াও, Michel Foucault-র ”The Subject and Power” প্রবন্ধ থেকেও আনুমানিক পঁাচ পৃষ্ঠা (৩০%) কপি করা হয়েছে। এমনকি, Foucault- - কে নিয়ে Ryan Jocobs- এর লেখা থেকেও কোন রেফারেন্স ছাড়াই নিজেদের লেখায় (৫%) কপি করা হয়েছে। Turnitin পদ্ধতির মাধ্যমে দেখা যায় এই প্রবন্ধটিতে বিভিন্ন সোর্স থেকে আনীত প্রায় ৭০% টেক্সটের মিল আছে।
(২) লেখকদ্বয় Edward Said বা Michel Foucault লেখােক সরাসরি নিজেদের বলে দাবী করেননি সত্য। তবে, সাইটেশনের নিয়মানুযায়ী সরাসরি উদ্ধৃতির ক্ষেত্রে শব্দশীমা থাকে, কিন্তু লেখকদ্বয় সেটা অনুসরণ করেননি। যদিও লেখকদ্বয় তাদের লিখিত বক্তব্যে বলেছেন, প্রবন্ধটি Michel Foucault এবং Edward Said এর তাত্ত্বিক কাজের একটি তুলনামূলক বিশ্লেষণ, প্রবন্ধটির কোথাও Edward Said বা Michel Foucault বক্তব্যকে নিজেদের বক্তব্য বলে দাবি করেননি। প্রবন্ধাটির শেষের দিকে Edward Said বা Michel Foucault-এর রেফারেন্সও দেয়া হয়েছে। আর্টিকেলটিতে সাইটেশনের ভুল আছে, তবে সম্পূর্ণ অনিচ্ছাকৃত এবং সাইটেশন ত্রুটি বলে বিবেচনা করা যায়। অভিযুক্ত আর্টিকেলটি ২০১৬ সালে সাবমিট করা হয়। সেই সময়ে ঢাকা বিশ্ববিদ্যালয়ে টারনিটিন সফটওয়্যারের সুবিধা ছিলো না। যদি থাকতো তাহলে এই অনিচ্ছাকৃত ভুলগুলো ধরা পড়ত। এমন একটি দুর্বল ও মানহীন প্রবন্ধ কীভাবে Social Science Review জার্নালে ছাপা হলো তা ট্রাইব্যুনালের নিকট বোধগম্য নয়। রিভিউয়ার ও এডিটরিয়াল বোর্ড অবশ্যই তঁাদের দায়িত্ব সঠিকভাবে পালন করতে ব্যর্থ হয়েছেন এবং এজন্য তঁারা দায় এড়াতে পারেন না। এধরনের ভুলের জন্য এডিটর ও এডিটোরিয়াল বোর্ডকে অভিযুক্ত করা উচিৎ ছিল বলে ট্রাইবুনাল মনে করে।
(৩) অভিযোগকারী Alex Martin) এর পরিচয়টা ট্রাইবুনাল-এর নিকট পরিস্কার নয়। ২০১৬ সালের ডিসেম্বর মাসে Social Science Review জার্নালটি ঢাকা বিশ্ববিদ্যালয়ের সামাজিক বিজ্ঞান অনুষদের একটি নিজস্ব অফ লাইন জার্নাল। তাহলে কিভাবে এই অভিযুক্ত জার্নালের কপি Chicago Journal এর Alex Martin- এর নিকট হস্তগত হলো এ বিষয়ে ট্রাইবুনাল সন্দেহ পোষণ করে। এ ছাড়া তদন্ত কমিটি Alex Martin- নামে কোন ব্যক্তি Chicago Journal-এর পক্ষে অভিযোগটি আদৌ করেছেন কিনা সে বিষয়ে কোন অনুসন্ধান করেনি। ট্রাইব্যুনালের নিকট ই-মেইলটি যথেষ্ট সন্দেহজনক বলে মনে হয়।
(৪) তদন্ত কমিটি অভিযুক্ত প্রবন্ধটির জন্য এককভাবে লেখকদ্বয়কে দায়ী করেছেন। কিন্তু অভিযুক্ত প্রবন্ধটি জমা দেয়া থেকে শুরু করে রিভিউ, চূড়ান্তভাবে গ্রহণ ও ছাপানোর প্রক্রিয়াতে অজ্ঞতা ও অদক্ষতা রয়েছে বলে প্রত্যক্ষভাবে প্রতীয়মান হয়েছে। এক্ষেত্রে এডিটরিয়াল বোর্ড তঁাদের দায়িত্ব যথাযথভাবে পালন করেননি। ট্রাইবুনাল মনে করে, লেখকদ্বয় যেমন প্রবন্ধটি লেখার জন্য দায়ী ঠিক সমভাবে রিভিউয়ার এবং এডিটরিয়াল বোর্ডের সদস্যবৃন্দকে সাক্ষাৎকারে না ডেকে শুধুমাত্র লেখকদ্বয়কে অভিযুক্ত করায় ন্যায়বিচার পরাহত হয়েছে বলে ট্রাইবুনাল বিবেচনা করছে।
(৫) তদন্ত কমিটি কেবল লেখকদ্বয়ের সাক্ষাৎকার নিয়ে তঁাদের অভিযুক্ত করেছে। এডিটোরিয়াল বোর্ড, রিভিউয়ারদের সাক্ষাৎকারে না ডেকে এবং Alex Martin এর অভিযোগের ভিত্তি অনুসন্ধান না করে প্রতিবেদন দেয়ায় প্রতিবেদনের নিরপেক্ষতা এবং ভিত্তি দুর্বল বলে ট্রাইব্যুনালের কাছে প্রতীয়মান হয়েছে।
(৬) ট্রাইবুনাল আরও দেখতে পায় যে, তদন্ত কমিটি শুধুমাত্র Social Science Review-এর ২০১৬ সংখ্যায় আরো কিছু প্রবন্ধের মন্তব্য করেছে যা প্রয়োজন ছিল না।
(৭) ট্রাইবুনাল আরও দেখতে পায় যে, যদিও লেখকগণ অভিযুক্ত প্রবন্ধটিতে প্রতি পাতায় ফুট নোট উল্লেখ করেনি কিন্তু প্রতি প্যারায় উদ্ধৃতির পূর্বে Michel Foucault এবং Edward Said এর নাম উল্লেখ করেছেন। এ ছাড়া প্রবন্ধটির শেষেও Michel Foucault এবং Edward Said -এর রেফারেন্স দিয়েছেন। প্রবন্ধের কোথাও Michel Foucault এবং Edward Said -এর কোন উদ্ধৃতিকে লেখকদ্বয়ের নিজের উদ্ধৃতি বলে দাবি করেননি। তাই তঁাদের এ কার্যক্রমকে সরাসরি Plagiarism -এর অভিযোগে অভিযুক্ত করা যায়না।
(৮) ট্রাইবুনাল দেখতে পায়, অভিযোগটি উত্থাপিত হয় ২০১৭ সালে, তদন্ত শেষ হয় ২০১৯ সালে এবং ট্রাইব্যুনাল গঠিত হয় অক্টোবর ২০২০ সালে। এতদীর্ঘ ময়াদী তদন্তের ফলে এ বিষয়টি নিয়ে সামাজিক যোগাযোগ মাধ্যমে বিভিন্নভাবে বিশ্ববিদ্যালয়ের তদন্ত প্রক্রিয়া নিয়ে প্রশ্ন উত্থাপন করার সুযোগ পেয়েছে এবং একইভাবে অভিযুক্ত শিক্ষকদের সামাজিক যোগাযোগ মাধ্যমে মিডিয়া ট্রায়াল হয়েছে যা কখনো ন্যায়বিচারের জন্য কাম্য নয়। এতদীর্ঘ সূত্রিতা মূলতঃ ন্যায় বিচারকে পরাভূত করেছে এবং সংশ্লিষ্ট ব্যক্তিদের প্রতি ন্যায়বিচার পাবার ক্ষেত্রেও বঁাধার সৃষ্টি হয়েছে।
ট্রাইবুনাল উপরোক্ত সার্বিক বিষয় পর্যালোচনা করে নিম্নোক্ত সুপারিশ প্রদান করছে:
(১) গণযোগাযোগ এবং সাংবাদিকতা বিভাগের সহযোগী অধ্যাপক মিসেস সামিয়া রহমান ও ক্রিমিনোলজি বিভাগের প্রভাষক সৈয়দ মাহফুজুল হক মারজান কর্তৃক যৌথভাবে লিখিত “A New Dimension in Colonialism And Pop Culture: A Case Study of the Cultural Imperialism” নামক প্রবন্ধটির সাথে Edward Said রচিত “Culture and Imperialism”- The University of Chicago Press কর্তৃক প্রকাশিত Critical Inquiry জার্নালের “The Subject and Power” by Michel Foucault. Vol. 8, No-4 Summer, 1982 মিল থাকায় তঁাদের অভিযুক্ত প্রবন্ধটি গবেষণা প্রবন্ধ হিসেবে বিবেচনা করা যায় না বিধায় তা Social Science Review জার্নাল থেকে বাতিল করার সুপারিশ করছে।
(২) গণযোগাযোগ ও সাংবাদিকতা বিভাগের সহযোগী অধ্যাপক মিসেস সামিয়া রহমান ও ক্রিমিনোলজি বিভাগের প্রভাষক সৈয়দ মাফুজুল হক মারজান কর্তৃক যৌথভাবে লিখিত “A New Dimension in Colonialism And Pop Culutre: A Case Study of the Cultural Imperislism” নামক প্রবন্ধটির সাথে Edward Said রচিত “Culture and Imperialism”- The University of Chicago Press কর্তৃক প্রকাশিত Critical Inquiry জার্নালের “The Subject and Power” by Michel Foucault. Vol. 8, No-4 Summer, 1982 মিল থাকায় অনিচ্ছাকৃত ভুলের জন্য অভিযুক্ত শিক্ষকদ্বয়ের আগামী ১ (এক) বছর পদোন্নতি থেকে বিরত রাখা এবং প্রত্যেকের ১ (এক) টি করে বাৎসরিক বেতন বৃদ্ধি স্থগিত করার সুপারিশ করছে। এ সুপারিশ উভয়ের ক্ষেত্রে একই সময় শুধু এক বছরের জন্য কার্যকর হবে। উল্লেখ্য, যেহেতু গবেষণা প্রবন্ধ প্রকাশের জন্য জমা দেয়ার পর রিভিউয়ার এর মতামত গবেষকদের নিকট প্রেরিত হয়নি/সংশোধনের সুযোগ পায়নি (গবেষকদ্বয়ের স্বীকারোক্তি ও তদন্ত প্রতিবেদনের উদ্ধৃতি অনুযায়ী), রিভিউয়ার ও এডিটোরিয়াল বোর্ড দায়িত্ব পালনে অদক্ষতার পরিচয় দিয়েছে এবং একই সঙ্গে অভিযোগ উত্থাপন, তদন্ত থেকে ট্রাইব্যুনালে নিস্পত্তি হওয়া পর্যন্ত ৩ বছরের অধিক সময় অতিবাহিত হয়েছে তাই তঁাদের অপরাধমার্জনা দৃষ্টিতে বিবেচনা করে শাস্তি লঘুকরার সুপারিশ করা হলো।
(৩) ভবিষ্যতে তঁাদের কোন গবেষণায় এই ধরনের ভুল থাকলে তঁাদের বিরুদ্ধে কঠোর শাস্তিমূলক ব্যবস্থা গ্রহণ করা হবে বলে তঁাদের সতর্ক করার সুপারিশ করছে।
(৪) সামাজিক বিজ্ঞান অনুষদের জার্নাল প্রকাশের ক্ষেত্রে অনুষদের ডিন মহোদয়ের মাধ্যমে এডিটিরয়াল বোর্ড, রিভিউয়ার এবং সংশ্লিষ্ট সকলকে গবেষণা কর্ম সম্পাদন এবং প্রকাশনার সকল বিধি মেনে চলতে ও গবেষণা সংশ্লিষ্ট সকল নথিপত্র যথাযথভাবে সংরক্ষণ করতে অনুরোধ করে পত্র দেয়ার সুপারিশ করছে। ভবিষ্যতে প্রকাশিত কোন প্রবন্ধ নিয়ে প্রশ্ন উত্থাপিত হলে, এডিটোরিয়াল বোর্ড ও রিভিউয়ারদের জবাবদিহিতার আওতায় আনা হবে মর্মে সতর্কতা পত্রও দেয়ার সুপারিশ করছে।
(৫) ভবিষ্যতে ন্যায়বিচারের স্বার্থে যে কোনো অভিযোগ দায়েরের পর থেকে অনুসন্ধান, তদন্ত এবং বিচার প্রক্রিয়া সম্পন্ন করার ক্ষেত্রে সুনির্দিষ্ট সময় (সর্বোচ্চ ৩ মাস) অনুসরণ করতে জোর সুপারিশ করছে।”
19. From the above it is evident that admittedly Social Science Review Journal of the University is an off-line Journal and it has no on-line version. Tribunal apprehended about the identity of the complainant, i.e., Alex Martin and his knowledge about the alleged Article since it was not published in any on-line journal. It is a matter of concern that before 2017 no software (Tarnitin) was procured by the University authority to detect plagiarism. The Tribunal observed that though the authors of the alleged Article had copied some texts of the Articles published by Michel Foucault and Edward Said which fell under plagiarism but they did not claim the same as their own research work and, as such, the authors (including the present petitioner) should not be prosecuted for plagiarism. The Tribunal also opined that in the process of prosecuting the authors for the alleged act of plagiarism the principles of natural justice was denied. The Tribunal finally recommended minor punishment of withholding promotion for one year and withholding increase of salary for one year and further to caution them in publishing Articles in future.
20. The report of the Tribunal was placed before the Syndicate in its meeting held on 28.01.2021. The relevant portion of the decision of the Syndicate dated 28.01.2021 is reproduced below:
“সিদ্ধান্ত : (১) ট্রাইবুনালের প্রতিবেদন সর্বসম্মতিক্রমে গ্রহণ করা হলো।
(২) ট্রাইবুনাল-এর প্রতিবেদনের আলোকে গণযোগাযোগ ও সাংবাদিকতা বিভাগের সহযোগী অধ্যাপক মিসেস সামিয়া রহমান-এর বিরুদ্ধে আনীত Plagiarism-এর অভিযোগ প্রমাণিত হওয়ায় সিন্ডিকেট সিদ্ধান্তের তারিখ অর্থাৎ ২৮-০১-২০২১ তারিখ হতে তাঁকে ২(দুই) বছরের জন্য সহযোগী অধ্যাপকের পদ থেকে সহকারী অধ্যাপক পদে পদাবনতি (demotion) করা হলো।
(৩) ক্রিমিনোলজি বিভাগের লেকচারার জনাব সৈয়দ মাহফুজুল হক মারজান এর বিরুদ্ধে আনীত Plagiarism-এর অভিযোগ প্রমাণিত হওয়ায় শিক্ষাছুটি শেষে তিনি বিভাগে যোগদান করার পর ২(দুই)বছর কোন ধরনের পদোন্নতি প্রাপ্য হবেন না।
(৪) গণযোগাযোগ ও সাংবাদিকতা বিভাগের সহযোগী অধ্যাপক মিসেস সামিয়া রহমান ও ক্রিমিনোলজি বিভাগের প্রভাষক জনাব সৈয়দ মাহফুজুল হক মারজান কর্তৃক যৌথভাবে প্রকাশিত “A New Dimension in Colonialism And Pop Culture: A Case Study of the Cultural Imperialism ” নামক প্রবন্ধটির সাথে Edward Said রচিত “Culture and Imperialism”- The University of Chicago Press কর্তৃক প্রকাশিত Critical Inquiry জার্নালের “The Subject and Power” by Michel Foucault. Vol. 8, No-4 Summer, 1982 মিল থাকায় তাদের অভিযুক্ত প্রবন্ধটি গবেষণা প্রবন্ধ হিসাবে বিবেচনা করা যায় না বিধায় তা Social Science Review জার্নাল থেকে বাতিল করা হোক।
(৫) ভবিষ্যতে তাঁদের কোন গবেষণায় এই ধরনের ঘটনা ঘটলে তঁাদের বিরুদ্ধে কঠোর শাস্তিমূলক ব্যবস্থা গ্রহণ করা হবে বলে তঁাদেরকে সতর্ক করা হোক।
(৬) সামাজিক বিজ্ঞান অনুষদের জার্নাল প্রকাশের ক্ষেত্রে অনুষদের ডিন মহোদয়ের মাধ্যমে এডিটিরয়াল বোর্ড, রিভিউয়ার এবং সংশ্লিষ্ট সকলকে গবেষণা কর্ম সম্পাদন এবং প্রকাশনার সকল বিধি মেনে চলতে ও গবেষণা সংশ্লিষ্ট সকল নথিপত্র যথাযথভাবে সংরক্ষণ করতে অনুরোধ করে পত্র দেয়ার সুপারিশ করছে। ভবিষ্যতে প্রকাশিত কোন প্রবন্ধ নিয়ে প্রশ্ন উত্থাপিত হলে, এডিটরিয়াল বোর্ড ও রিভিউয়ারদের জবাবদিহিতার আওতায় আনা হবে মর্মে সতর্কতা পত্রও দেয়া হোক।
(৭) ভবিষ্যতে ন্যায় বিচারের স্বার্থে যে কোনো অভিযোগ দায়েরের পর থেকে অনুসন্ধান, তদন্ত এবং বিচার প্রক্রিয়া সম্পন্ন করার ক্ষেত্রে সুনির্দিষ্ট সময় (সর্বোচ্চ ৩ মাস) অনুসরণ করা হোক।
(৮) এতদ্বিষয়ে সকল তদন্ত কমিটির পূর্ণাঙ্গ প্রতিবেদন তদন্ত শাখায় সংরক্ষিত থাকবে।”
21. On perusal of materials on record, it is evident that the Tribunal in principle decided to impose a lesser punishment to the petitioner on the grounds that although the petitioner could not be held liable for plagiarism, but the Article in question cannot be termed as a research Article and that the petitioner made unintentional mistakes in the said Article as coauthor. The Syndicate of the University, on the other hand, accepted the report of the Tribunal in toto, but found the petitioner guilty of plagiarism without assigning any reason whatsoever and awarded the impugned major punishment demoting the petitioner from the post of Associate Professor to the post of Assistant Professor. The learned Advocate of the petitioner rightly points out that the decision of the Syndicate is unreasonable in Wednesbury sense.
It is extremely regrettable to mention here that the Syndicate of a century old educational institution, like Dhaka University, in its resolution dated 28.01.2021 has most callously used undesirable mixture of elegant and inelegant words. Apart from this, spelling mistakes and errors in sentence construction are also found which appear to be very unpleasant.
22. Mr. Azim, the learned Advocate of the petitioner submits that show cause notice dated 24.12.2020 issued by the Tribunal was violative of Regulation 7(a) read with Regulation 11 of the Enquiry Committee and Tribunal (Teachers and Officers) Regulations, 1980 which categorically provides that the respondent No. 3 Syndicate shall frame a charge and specify therein the penalty proposed to be imposed, which was not done in the case of the petitioner.
23. In reply to the above submission, Mr. Naim Ahmed, the learned Advocate representing the respondent Nos. 2 and 6 submits that as per reports of the Enquiry Committee as well as the Tribunal, the petitioner was found guilty of plagiarism and the matter was duly conveyed to the petitioner and, as such, the petitioner was not at all denied to defend the case effectively. Mr. Ahmed further submits that in filing the present Writ Petition the provisions of Section 45(5) of the First Statutes was not followed. But on a query by us Mr. Ahmed admitted that actually charge against the accused was not framed by the Syndicate under Regulation 7(a) of the Enquiry Committee and Tribunal (Teachers and Officers) Regulations, 1980 and the Syndicate also did not specify the penalty proposed to be imposed to the petitioner which is a requirement of law.
24. In this respect Regulation 7(a) of the Enquiry Committee and Tribunal (Teachers and Officers) Regulations, 1980 is reproduced below:
“7 (a) The Syndicate shall frame a charge and specify herein the penalty proposed to be imposed and refer it to the Committee for enquiry and report along with a statement of the allegations on which the charge is based. [Emphasis given]
(b) On receipt of the reference from the Syndicate the Committee shall communicate the charge to the accused together with the statement of the allegations and require him to submit, within seven days from the day the charge is communicate to him, written statement of his defence and to show cause at the same time why the penalty proposed should not be imposed on him and also state whether he desires to be heard in person.
(c) The Committee shall hear oral evidence as to such of the allegations as are not admitted and consider documentary evidence relevant or material in regard to the chare. The accused shall be entitled to cross-examine the witnesses against him, to give evidence in person and to have such witnesses called for the defence as he may wish in writing. The person presenting the case in support of the charge shall be entitled to cross-examine the accused and the witnesses examined in his defence.
Provided that the Committee may, for reasons to be recorded in writing, refuse to call a particular witness or to summon or admit a particular evidence.”
25. Regulation 12 reads as under:
“The committee shall hear oral evidence as to such of the allegations as are not admitted and considered documentary evidence relevant or materials in regard to the charge. The accused shall be entitled to cross examine the witnesses against him, to give evidence in person and to have such witnesses called for the defense as he/she may wish in writing. The person presenting the case in support of the charge shall be entitled to cross examine the accused and the witnesses examined in his defense.”
26. So, from the above it appears that framing charge as well as specification of penalty proposed to be imposed by the Syndicate upon the petitioner are mandatory requirements to initiate a departmental proceeding. Upon receiving the reference from the Syndicate the Enquiry Committee shall communicate the charge to the concerned accused together with the statements of allegations and request him/her to submit, within 7(seven) days from the day the charge is communicated to him/her, a written statement of his/her defense and to show cause at the same time why the penalty proposed should not be imposed on him/her and also states whether he/she desires to be heard in person or not.
27. After framing the charge by the Syndicate the Tribunal shall take into consideration of the charges framed, the evidence on record, both oral and documentary, including the additional evidence, if any, accepted by it and recommend such action against the accused as it may deem fit. In the case in hand, admittedly no formal charge was framed which is sine quo non to start a formal departmental proceeding.
28. The learned Advocate of respondent Nos. 2 and 6 mainly argued on the point of maintainability of this writ petition and submits that without exhausting the statutory alternative remedy, the petitioner has invoked the writ jurisdiction which is not at all maintainable in the eye of law. In support of the argument, the learned Advocate refers to the case of Dhaka University v. Md. Mahinuddin reported in 44 DLR (AD) 305, wherein the Appellate Division of the Supreme Court of Bangladesh has observed:
“Mr. Amirul Islam contends that the procedure of appeal to the Chancellor is lengthy and cumbersome, and the High Court Division is also of the same view. We do not find any substance in this contention, for, remedy by appeals is quite simple and speedy, particularly when a time limit has been given for the opinion of the Syndicate on the report of the Enquiry Commission. An application under Article 102 of the Constitution is maintainable if the High Court Division is satisfied that no other equally efficacious remedy is provided by law. Here, the remedy available by appeal to the Chancellor is efficacious and speedy. Mr. Amirul Islam next contends that when the High Court Division, in its discretion, has found that the alternative remedy by appeal to the Chancellor is not equally efficacious, then, such discretion should not be interfered with by this Court, and in support of this contention the learned Counsel has referred to a decision of the Indian Supreme Court in the Case of Zila Parishad, Moradabad V. M/S. Kundan Sugar Mills, Amroha, : MANU/SC/0259/1967 : AIR 1968 SC 98. It is true that if the High Court Division is satisfied by exercising its discretion judicially that the alternative remedy provided in a particular case is not adequate and effective, then, such discretion can hardly be interfered with. But in this case the High Court Division did not apply properly their mind to law and facts of the case and it misconceived the whole matter as to provisions of Article 52 wrongly holding the opinion that Chancellor's decision on the appeal is dependent upon the opinion of the University Authority who had passed the impugned order. The respondents in their concise statement alleged that "appeal to the Chancellor is appeal from." This is palpably wrong and is found to be based on misconception of the law relating to the present case. As such, the discretion exercised by the High Court Division is not found to be discretion exercised judicially.
The question as to maintainability of the writ petitions is thus found to have been wrongly decided by the High Court Division.”
29. In the instant case, prior to referring the allegations to the Enquiry Committee set up by the Syndicate for enquiry into the allegations brought against the petitioner, the Syndicate omitted to frame a formal charge against the petitioner with a statement of the allegations on which the charge is based and also specifying therein the penalty proposed to be imposed in terms of Regulation No. 7 of the Enquiry Committee and Tribunal (Teachers and Officers) Regulations, 1980 and hence, the entire exercise by the respondent No. 2 University of Dhaka and its officials leading up to the purported demotion of the petitioner in service by the Syndicate is void ab-initio and, as such, non est in the eye of law, rendering the said purported demotion to be without lawful authority and is of no legal effect. Moreover, under section 45(5) of the First Statute of the University of Dhaka only those orders of the Syndicate which are passed on the recommendation of the Tribunal are appealable, whereas, in the instant case, since the impugned order of demotion of the petitioner in service was passed by the Syndicate without any recommendation of the Tribunal, there is no appealable order from the Syndicate and, hence, no question of preferring any appeal under Article 52 of the Dhaka University Order, 1973 arises and, thus, there is no applicability of the decision reported in 44 DLR (AD) 305 in the facts and circumstances of the case in hand.
30. The Tribunal categorically found that the petitioner cannot be made accused for direct plagiarism, but the Syndicate demoted the petitioner for plagiarism which is absolutely baseless and whimsical inasmuch as the Syndicate can only punish someone based on the findings of facts arrived at by the Tribunal.
31. Admittedly, the petitioner was not provided with any of the reports of either the Enquiry Committee or the Tribunal and, as such, the petitioner was not given an effective opportunity to prefer an appeal against the Syndicate’s decision to demote her which is also a grave violation of the principles of natural justice and, thus, in our view, there is no bar in filing a writ petition under Article 102 of the Constitution against such decision of the Syndicate.
32. The observance of the principles of natural justice is not an idle formality. A meaningful opportunity to defend oneself must be given under any circumstances to its truest sense and, in the instant case, the respondents sought to show ceremonial observance of the principles of the natural justice as an eye wash for an ulterior purpose without affording any real opportunity to the petitioner to defend herself by not furnishing the enquiry report as well as the report of the Tribunal. It appears that the impugned decision of the Syndicate is vitiated by bias and malafide inasmuch as while the petitioner was awarded with a major punishment with the stigma of plagiarism but despite repeated requests, she was not given a copy of the enquiry report. The Syndicate did not care to consider the long delay in completing the enquiry.
33. We know that since the decision in Ridge v. Baldwin [(1964) AC 40], principles of natural justice should be applied to judicial, quasi-judicial and administrative proceedings, but even before this decision, the rules of natural justice were being applied in this Country to administrative proceedings which might affect the person, property or other rights of the parties concerned in the dispute. [Ref. Faridsons Ltd. v. Pakistan, 13 DLR (SC) 233]. It was held in the case of University of Dacca v. Zakir Ahmed [16 DLR (SC) 722] that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting the person or property or other right of the parties concerned. In the case of Abul A’la Moudoodi v. West Pakistan, [17 DLR (SC) 209], it was observed that the principles of natural justice should be deemed incorporated in every statute unless these are excluded expressly or by necessary implication by any statute. In the case of Abdul Latif Mirza v. Government of Bangladesh [31 DLR (AD) 1] the Appellate Division observed: “It is now well-recognized that the principles of natural justice is a part of the law of the counry.”
34. In the case of Assessing Officer, N’ganj Range v. B.E. Ltd., reported in 1 BLD (AD) (1981) 450, the Appellate Division further observed:-
“As we have found the impugned action without jurisdiction, the question of availing statutory alternative remedy does not arise. We are of opinion that the High Court Division has rightly held that the Wirt Petition was maintainable.”
35. In the case of Khan Md. Abdur Rashid v. Bangladesh Open University, [Writ Petition No.6184 of 2008, date of judgment 04.08.2022] this Court observed:
“The cardinal principle of natural justice requires that before imposition of major penalty, copy of the inquiry report has to be supplied to the concerned employee [Government of Bangladesh and others vs. Md. Tariqul Islam, 25 BLC (AD) 131]. This principle is so trite that it is deemed to be embedded into the statute, even the statute is silent about it; the purpose being to afford a reasonable opportunity to the employee to explain his position. Therefore, the obligation to supply inquiry report in cases of imposition of major penalty is not an idle formality.”
36. Since the Syndicate’s decision to demote the petitioner was passed without following the prescribed procedure as laid down in Regulation No. 7 of the Enquiry Committee and Tribunal (Teachers and Officers) Regulations, 1980, the question of availing alternative remedy does not arise at all in any view of the matter and, as such, the impugned order dated 28.01.2021 issued by respondent Nos. 2 and 6 purporting the petitioner demoting from the post of Associate Professor to Assistant professor in the Department of Journalism and Mass Communication, University of Dhaka is liable to be declared to have been done without lawful authority which is also void-ab-initio and coram non judice.
37. Now, we can turn our eyes on the matter of plagiarism and the role of Dhaka University in preventing such types of academic corruption persuaded by some of the teachers/researchers are concerned.
38. Whether or not the Article was plagiarized is absolutely an academic question of fact which cannot be decided in writ jurisdiction. But being influenced by our conscience we would like to make some observations so that the authority of Dhaka University should take positive steps to prevent plagiarism as well as took appropriate measures in conducting research works by the concern research students and teachers of the University in upholding the prestige and image of the century old University of the country. In the alleged Article the Enquiry Committee and the Tribunal found that 48 paragraphs out of 60 paragraphs were copied without footnotes or references. The Committee further observed that the software Turnitin found 70% of the text to be copied from various sources which is well above the accepted limit of 15%.
39. Plagiarism simply means copying the work of another author without acknowledgment. The petitioner admitted (Paragraph 47 of the Writ Petition) that there was deviation with respect to footnotes and references. She also admitted verbally before the Enquiry Committee that there was ‘lack of proper citation’. Plagiarism is nothing but a failure to give proper citations and using the work of another writer without acknowledgement.
40. University of Oxford defines the term ‘Plagiarism’ as presenting someone else’s work or ideas as one’s own, with or without their consent, by incorporating it into own work without full acknowledgement. All published and unpublished materials, whether in manuscript, printed and electronic form, are covered under this definition. Plagiarism may be intentional or reckless, or unintentional. Under the regulations for examinations, intentional or reckless plagiarism is an offence.
41. Stanford University, USA has defined the term plagiarism as under: ‘Use without giving reasonable and appropriate credit to acknowledging the author or source, of another person’s original work, whether such work is made up of code, formulas, ideas, language, research, strategies, writing or other form.’
42. According to Princeton University, “Plagiarism is presenting someone else’s work or ideas as his own, with or without their consent by incorporating it into his work without full acknowledgement.”
43. Oxford University Library also defined the term as: “Appropriating another person’s ideas or words (spoken or written) without attributing those word or ideas to their true source.”
44. University of Cambridge further gave definition of plagiarism as: ‘Submitting as one’s own work, irrespective of intent to deceive, that which derives in part or in its entirety from the work of others without due acknowledgement.’
45. The tendency of plagiarism without proper citation is noticed among some number of teachers and/or researchers of Dhaka University which bleeds our conscience. Plagiarism is a serious wrongdoing and moral lapse. The country as well as the nation never expect such activities from the teachers of the universities in general and the Dhaka University in particular. The Enquiry Committee has recommended formulating specific policy to prevent plagiarism. In addition, the Committee felt it necessary to train the new teachers on ethics, scholarly article writing, the use of citations and publishing.
46. Plagiarism means using someone else’s works or ideas without properly crediting the original author. Some common examples of plagiarism include:
- paraphrasing a source too closely including a direct quote without quotation marks;
- copying elements of different sources and pasting them into a new document;
- turning in someone else’s work as own work;
- copying large pieces of text from a source without citing that source;
- taking passages from multiple sources, piecing them together, and turning in the work as own work; and
- copying from a source but changing a few words and phrases to disguise plagiarism.
47. Plagiarism is an intellectual crime. Plagiarism is essentially theft and fraud committed simultaneously. It is considered theft because the writer takes ideas from a source without giving proper credit to the author. It is considered fraud because the writer represents the ideas as her or his own.
48. It is expected that before awarding any punishment against any teachers/officers of the Univeristy, the concerned authority should act in accordance with law giving opportunity of being heard and also provide him/her the copy of the enquiry report so that the latter can take meaningful defence.
49. It is further expected that the Dhaka University authority should immediately procure the latest version of the software to detect and prevent plagiarism and also adopt the best practices in this regard. It is our further expectation that the Dhaka University authority should discuss the matter in its Academic Council and after full deliberation should set the formula/criterion to conduct meaningful research work as well as acceptable percent of other persons work as reference in pursuing the individual research work upon according approval from the Syndicate.
50. In view of the above discussion and consideration of the facts and circumstances of the case as well as materials on record, our dispassionate view is that the impugned Memo dated 15.02.2020 (Annexure-A to the Writ Petition) is liable to be declared to have been issued without lawful authority and is of no legal effect and the same is liable to be set aside as being void-ab-initio and coram non judice.
51. In the result, the Rule is made absolute without any order as to cost. The impugned Memo dated 15.02.2020 is hereby declared as done without lawful authority and is of no legal effect.
52. The respondent Nos. 2-4 and 6-7 are directed to grant all usual service as well as financial benefits to the petitioner with effect from 28.01.2021 forthwith.
53. Communicate the judgment at once.
End.
High Court Division (Special Original Jurisdiciton)
Present:
Mr. Justice Naima Haider
Mr. Justice Khizir Ahmed Choudhury
Writ Petition No. 7878 of 2014.
Bangladesh Legal Aid Services and Trust (BLAST) and others
-------- Petitioners
VS
Secretary, Ministry of Public Administration, Government of Bangladesh and others
------- Respondents
Judgement Date : August 25, 2019
Counsels:
ZI Khan Panna, with Aynunnahar Siddiqua, Advocates
—For the Petitioners.
Amit Talukder, DAG Toufiq Sajawar Partho, AAG
—For the Respondent No. 1.
Ishrat Hasan, Advocate
—For the Respondent No. 5.
M. Belayet Hossain, Advocate
—As an intervener.
Judgment
Naima Haider, J:
1. This application filed by Bangladesh Legal Aid and Services Trust/BLAST in the nature of Public Interest Litigation (PIL) has been filed to ensure that appropriate actions are taken to ensure the fundamental rights of equality between women and men. The petitioners felt aggrieved by the continued inclusion of a provision in the prescribed marriage registration forms (kabinnamah) (BG Form Nos. 1600 and 1601), which perpetuates discrimination between women and men, and also by the failure to require photographs of the parties to be submitted when registering marriages. Under Muslim law as applicable in Bangladesh, marriages are required to be registered in the prescribed form (the Kabinnamah) pursuant to section 3 and 5 of The Muslim Marriages and Divorce (Registration) Act, 1974 ["The 1974 Act"] read with Rule 28(1)(a) of the Muslim Marriages and Divorces Registration Rules, 1974 ["The 1974 Rules"]. The rules have been further amended in 2009.
2. The distressing matter of fact is that after conclusion of the registration procedure of marriage by the parties, Form No. 1600 is kept with the Kazi's office and Form No. 1601 is provided to the parties. Both forms at clause No. 5 require the bride to make a statement as to her marital status and her sexual history, specifically stating whether she is unmarried or virgin/ widowed/divorced. In contrast, the forms at clause Nos.21 and 22 respectively, only require the groom to make a statement regarding a subsisting marriage, but do not require any statement as to whether he is a widower/divorced /previously married or is a virgin.
3. Such a clause targeting the women in particular and which is so discriminating and arbitrary that it has created inequality between bride and groom as only the bride is required to provide her personal information regarding marital status, sexual history etc. which is being robustly violative of fundamental rights, in particular the prohibition on discrimination on grounds of sex, the right to be treated in accordance with law, as guaranteed under Articles 27, 28 and 31 of the Constitution. Interference with such privacy also violates a women's right to personhood and dignity as protected by Articles 31 and 32 of the constitution.
4. Inclusion of the Word "Kumari" instead of "Unmarried" is humiliating and degrading the women's personhood and dignity as protected by Articles 32of the constitution and contradicts with Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) inasmuch as it has the effect of discrimination against women on the basis of sex, also impairing the dignity of woman by invading upon their privacy. This Court issued Rule in the following terms:
"Why the entry No. 5 in Forms No. 1600 and 1601 should not be declared to be without lawful authority and of no legal effect being discriminatory against women on the ground of sex and marital status in violation of Articles 28, 31 and 32 of the Constitution, and as to why the respondents should not be directed to take necessary action:
(i) to amend the Bangladesh Forms No. 1600 and 1601 (kabinnama), by omitting the use of the word "Kumari" in respect of brides, and,
(ii) to ensure that information regarding marital status (never married/ married but divorced/marriage subsisting/) is required in respect of both men and women without any discrimination, and
(iii) to impose a mandatory requirement for both the bride and groom to affix their respective photos to these forms, and
iv) to produce National ID Card at the time of registration of marriage."
5. Mr ZI Khan Panna, the learned senior advocate appearing for the Petitioner with learned advocate Ms. Aynunnahar Siddiqua submits that the writ petition has been filed bona fide in the public interest to ensure that appropriate actions are taken to ensure the fundamental rights of equality between women and men, the impugned inclusion of a provision in the prescribed marriage registration forms (kabin-namah) (BG Form Nos. 1600 and 1601), which perpetuates discrimination between women and men, and also by the failure to require photographs of the parties to be submitted when registering marriages. He further submits that after conclusion of the registration procedure of marriage by the parties, Form No. 1600 is kept with the Kazi's office and Form No. 1601 is provided to the parties, both forms at clause No. 5 require the bride to make a statement as to her marital status and her sexual history, specifically stating whether she is unmarried or virgin/ widowed/divorced, in contrast, the forms at clause Nos.21 and 22 respectively, only require the groom to make a statement regarding a subsisting marriage, but do not require any statement as to whether he is a widower/divorced/ previously married or is a virgin.
6. Learned advocate for the Petitioner vehemently submits that the impugned requirement is so discriminating and arbitrary that it has created inequality between bride and groom as only the bride is required to provide her personal information regarding marital status, sexual history etc. which is being robustly violative of fundamental rights, in particular the prohibition on discrimination on grounds of sex, the right to be treated in accordance with law, as guaranteed under Articles 27, 28 and 31 of the Constitution and interference with such privacy also violates a women's right to personhood and dignity as protected by Articles 31 and 32 of the constitution.
7. Mr Amit Talukder, the learned Deputy Attorney-General entered appearance by filing affidavit-in opposition on behalf of the respondent No. 1.
8. The case of the respondent No. 1 is that the Rule 10 of the Muslim Family Law Rules, 1961 as framed under the Muslim Family Ordinance, 1961 provided a prescribed form No. II wherein at serial No.5 the words virgin/ maiden/widow or divorced were inserted. Thereafter, under Rule (1) (Ka) of the Muslim Marriage and Divorce Registration Rules, 2009 has formed under the Muslim Marriage and Divorce (Registration) Act, 1974 provided a prescribed form as Form-Gha wherein at Serial No.5, the similar words were inserted as virgin/ maiden/widow or divorced lawfully.
9. Mr Amit Talukder, the learned Deputy Attorney-General appearing on behalf of the respondent No. 1 submits that prescribed Forms for registering marriage (kabin-Nama) has been inserted under the provision of Rules 27(1)(Ka) in the Muslim Marriages and Divorces Rules, 2009 which has no intention to hurt the privacy of women.
10. Mr Ishrat Hasan, the learned Advocate entered appearance by filing affidavit in opposition on behalf of the respondent No. 5.
11. The case of the respondent No. 5 is that the right to freedom of religion is an important right of the citizens of every modern state and article 41(1)(a) of the Constitution of the People's Republic of Bangladesh protects the citizen's fundamental right freely to profess, practice, and propagate religion. The protection given to this right is not absolute. It is subject to law, public order and morality as article 41(1) itself denotes. The freedom enunciated in this article 41 is a personal freedom. It is a freedom which a person can claim for his personal exercise at will. The freedom guaranteed in this article is the right of any person to entertain such religious views as appeal to his individual conscience without interference by any person or power, civil or ecclesiastical, is as fundamental in a free state as is the right life and liberty. Religion, in this article, includes all form of belief in the existence of superior beings exercising power over human beings by violation, and imposing rules of conduct, with regards in the present life as well as with future rewards and punishments in life hereinafter. The religion under the constitution need not be theistic. Citizens irrespective of their religious beliefs are entitled to the right envisaged in this article. All shall enjoy equal constitutional guarantee. Among religions our constitution adopted Islam as the state religion of the Republic at the same time ensuring equal status and equal right in the practice of the Hindu, Buddhist, Christain and other religions. Whereas, religion of a person is his own belief, contention of inequity cannot be applied here.
12. Mr ishrat Hasan, the learned Advocate appearing on behalf of the respondent No.5 submits that the petitioner alleges this term "Kumari" is humiliating, unreasonable and degrading and at the same time violative of fundamental rights protected by articles 31 and 32 of the Constitution. The respondent No.5 disagrees with this contention. In Bangladesh sexual intercourse between an adult man and adult women is not offence. So, if any women had sexual intercourse before marriage and give birth to a child remaining unmarried later marriages someone hiding existence of her child and then the consequences would be adverse. The man to whom she is married will put her to a grave dispute regarding the parentage of child and she may face the litigation of fraud. Another consequence is that if she is one month or two months pregnant at the time of marriage and after her marriage according to section 112 of the Evidence Act, 1872 the husband will be the father of the child. Then question DNA test will arise and ultimately litigation.
13. In the midst of the bearing, this Court felt it necessary to invite one/more advocates to assist this Court on the issues of Islamic family laws and jurisprudence, one of the learned advocates of the Bar, namely, Mr M Belayet Hossain voluntarily came forward and expressed his intention to act as an intervener in this matter. Accordingly, we have allowed him to assist this Court.
14. The intervener learned advocate Mr M Belayet Hossain submits that the issues involved in this Rule touch the Constitutional regime of equality, privacy and freedom of religion. He submits that this Court should, in disposing of the Rule, examine the essentials of a valid Muslim marriage, legal and shareeah characteristics of an Islamic wedlock. He has categorically submitted that the essentials of a muslim marriage are that there should be a proposal, made by or on behalf of the parties to the marriage, and acceptance of the proposal by or on behalf of the other, in the presence of two witnesses who must be sane adult Muslims, at one meeting, although traditional Islamic family law does not require a marriage to be registered, the 1961 Ordinance, 1974 Act, 1975 Rules and 2009 Rules require a muslim marriage to be compulsorily registerable, failure to register a marriage has been made an offence, the solemnization of marriage if validly effected might not be affected for non-registration of the marriage, but the non registration of the marriage causes a doubt on the solemnization of the marriage itself, although marriage may be presumed from prolonged and continued cohabitation as was held in ALM Abdullah vs Rokeya Khatoon reported in 21 DLR 213. He further draws our attention to the decision reported in 8 ADC (2011) 855 (Momtaz Begum vs Anowar Hossain) wherein the Appellate Division observed that marriage among Muslims is not a sacrament but purely a civil contract, marriage brings about a relationship based on and arising from a permanent contract for intercourse and procreation of children between a man and a woman. A marriage contract, as a civil institution, rests on the same footing as other contracts. Though generally solemnized with recitation form the Qur'an, no specific ceremonies or religious rites are necessary for contracting a valid marriage, nor is evidence in writing required. Thus, deletion of the impugned word or re-phrasing the same in a more sensible way will not in any way affect the personal laws of the Muslim citizens inasmuch no religious script made the impugned disclosure in public a requirement for validity of a marriage, rather the principles of Islamic jurisprudence do not sanction publicity of one's sexual history or disclosure of such a private issue in a public document, he submits.
15. Mr M. Belayet Hossain argues that the submission made on behalf of the added respondent to the extent that 'the word—kumari-should be there to determine the issue of consent in a marriage as a girl who has not experienced sexual cohabitation in the past must not be married to a man without her consent' is misconceived inasmuch the conduct of a girl of a tender age in wedlock is observed by her wakil/guardian and the witnesses to the ceremony who are required to put their signatures in the impugned kabinnama on being satisfied that the essential ingredients of the marriage have been satisfied, and the other clauses of the impugned kabinnama e.g. clauses 7, 8, 11, 19 are sufficient to deal with the issue of consent of the girl, the kazis appointed for the purpose of registration of Muslim marriages are required to follow the legal and shariah principles in respect of the conditions and warranties to be satisfied in a wedlock and generally they explain the same before the parities/their agents or wakils/guardians. Thus making a provision for mandatory disclosure of a fact vis-a-vis sexual experience/in experience of a girl is a superfluous act. Moreover, since the impugned term takes different meanings at different places should be deleted from such a public document that carries solemnity, sanctity and religious fabrics. He submits —'obviously The Muslim Personal Law (Shariat) Application Act, 1937 [Act No. XXVI of 1973] made provision for the application of the Muslim Personal Law (Shariat) to Muslims in Bangladesh, and by the Laws Continuance Enforcement Order, 1971 all laws that were in force in Pakistan, continued to be in force in Bangladesh (this provision was substituted by Article 149 of the 1972 Constitution), therefore, Bangladesh inherited all personal laws along with the citizens' personal laws, but no personal law sanctions mandatory disclosure of a sexual history in a written document or in a marriage session/ceremony, rather Islam discourages disclosure of a very private issue to members of the public', therefore, the deletion of the term—kumari—from the impugned kabinnama will not affect any provision of the personal laws of Muslims.
16. He finally submits, additionally, that in a society where hundreds of child marriages (with or without taking consent from girls) are taking place despite there being strict application of the restraining laws, where forced sexual intercourse/ rape etc. takes place at urban and rural areas, forcing a girl to disclose her sexual history in that circumstance in a duly solemnized marriage ceremony (on repudiation of the previous marriage in cases of forced/child marriage or in a wedlock of a rape victim) is out and out a degrading treatment towards her and that attracts the Constitutional provisions of right to privacy, right to be treated equally and in accordance with law, moreover, public policy or social morality prohibits such an arrangement in a formal written declaration.
17. We have considered the submissions advanced by the learned advocates, perused the petition, affidavits-in-opposition, application for addition of party, provisions of the relevant laws, judgments and the extracts taken from the books written by the scholars in the relevant fields.
18. This Court is of the view that since the issue of Muslim marriage is primarily guided by the personal laws of the Muslim citizens of the Republic and since the 1937 Act recognized the personal laws (Shariat) of Muslims as laws of the land and since the framers of the 1972 Constitution did guarantee the right to practice and propagate religions in the Republic, it should not examine the constitutional legitimacy of the impugned entry made into the Kabinnama without considering the legal and jurisprudential aspects of Islamic/muslim marriage (in Arabic Nikah) in the instant context. Thus, we will be examining the constitutional, legal and Islamic jurisprudential aspects of the issues in question, additionally, we will take international obligation vis-à-vis the non-discriminatory treatment towards women into consideration in disposing of the Rule.
Issues for determination by this Court
19. In the above premises, we will deal with the following:
a) Whether the impugned entry is violative of the equality right of the women of the Republic or whether such an insertion has affected the non-discriminatory character of the Constitution of the People's Republic of Bangladesh ;
b) Whether deletion/rephrasing of the impugned entry will in anyway infringe violate any marriage to be entered into by muslim male and female under Mohamedan Law.
Pathology of the impugned entry:
20. The relevant part of the impugned kabinnama is inserted below:
"বাংলাদেশ ফরম নং-১৬০১ (ফরম ‘ঘ’)
সত্যায়িত প্রতিলিপি
কনের জন্য /বরের জন্য নিকাহনামা [বিধি ২৭(১)(ক) দ্রষ্টব্য] মুসলিম বিবাহ ও তালাক (নিবন্ধন) বিধিমালা, ২০০৯ এর বিধি ২৮(১)(ক) অনুযায়ী বিবাহ ফরম
..................
৫। কন্যা কুমারী, বিধবা অথবা তালাকপ্রাপ্তা নারী কি না?..............
২১। বরের কোন স্ত্রী বর্তমানে আছে কি না এবং থাকিলে অন্য বিবাহে আবদ্ধ হইবার জন্য বর ১৯৬১ সালের মুসলিম পারিবারিক আইন অধ্যাদেশ মোতাবেক সালিসী কাউন্সিলের অনুমতি লইয়াছে কি না?...........
২২। অন্য বিবাহে আবদ্ধ হইবার জন্য সালিসী কাউন্সিলের নিকট হইতে বরের নিকট প্রেরিত অনুমতি পত্রের নম্বর ও তারিখ...........
[বাংলাদেশ ফরম ও প্রকাশনা অফিসের মুদ্রণাদেশ নং-৪৩/২০১২-২০১৩ ] সীল"
21. The Muslim Family Laws Ordinance, 1961 (Ordinance No. VIII of 1961) promulgated to give effect to certain recommendations of the then Commission on Marriage and Family Laws ["the 1961 Ordinance"] in its section 5 made a provision for registration of marriages which was omitted by section 15 of the Muslim Marriages and Divorces (Registration) Act, 1974 (Act No. LII of 1974) ["the 1974 Act"]. Pursuant to the promulgation of the 1961 Ordinance, the Muslim Family Laws Rules, 1961 were framed ["the 1961 Rules"]. Form -II appended to the said Rules was called Nikah-Nama that contained in clause (5) the following : ........ (5) Whether the bride is a maiden , a widow or a divorcee Translated in Bangla as (৫) কনে কুমারী, বিধবা অথবা তালাকপ্রাপ্তা নারী কিনা
And for the bridegroom, there was no such provision, although in clause (21) it required "Whether the bride-groom has any existing wile..."
22. Subsequently, on 24th July, 1974, the 1974 Act came into being, pursuant to which on 1st July, 1975, the Muslim Marriages and Divorces (Registration) Rules, 1975 ["the 1975 Rules"] were framed by the then Government of the People's Republic of Bangladesh. Form E[nikahnama in Bangla] appended to the 1975 Rules contains a clause namely clause 5 that runs as follows:
"(৫) কনে কুমারী, বিধবা অথবা তালাকপ্রাপ্তা নারী কিনা"
23. In contrast, the forms at clause Nos.21 and 22 respectively, only require the groom to make a statement regarding a subsisting marriage, but do not require any statement as to whether he is a widower/divorced /previously married or is a virgin.
24. The Government vide SRO No. 201-Ain/2009 framed new Rules namely মুসলিম বিবাহ ও তালাক (নিবন্ধন) বিধিমালা, ২০০৯ ["the 2009 Rules"] by virtue of section 14 of the 1974 Act repealing the earlier rules/1975 Rules. Although the previous rules had been repealed, the form suggested therein contains the similar clause. Form Gha appended to the 2009 Rules reads, amongst the others, the following :
"(৫) কনে কুমারী, বিধবা অথবা তালাকপ্রাপ্তা নারী কিনা ?..............
২১। বরের কোন স্ত্রী বর্তমানে আছে কি না এবং থাকিলে অন্য বিবাহে আবদ্ধ হইবার জন্য বর ১৯৬১ সালের মুসলিম পারিবারিক আইন অধ্যাদেশ মোতাবেক সালিসী কাউন্সিলের অনুমতি লইয়াছে কি না?...........
২২। অন্য বিবাহে আবদ্ধ হইবার জন্য সালিসী কাউন্সিলের নিকট হইতে বরের নিকট প্রেরিত অনুমতি পত্রের নম্বর ও তারিখ..........."
25. Although Muslim marriages and divorces are compulsorily registerable under laws now in force in Bangladesh, Hindu marriages have not been made compulsorily registerable as such under the newly enacted laws namely হিন্দু বিবাহ নিবন্ধন আইন, ২০১২ came into force on 27th January, 2013 and হিন্দু বিবাহ নিবন্ধন বিধিমালা, ২০১৩ came into force on 27th January, 2013. Clause 6 of the Form Gha appended to the Rules 2013 reads :
"৬। কন্যা কুমারী অথবা বিধবা কিনা?.........."
26. Now we should look into the dictionary meaning of the word - কুমারী. Bengali — English Dictionary, published by the Bangla Academy, June , 1994 defines the word at page 133 as under:
.n. 1. an unmarried girl of marriageable age, a virgin, a maiden. 2. Woman who remains single after the conventional age of marrying, a spinster, 3. A daughter : state of being a virgin; virginity...'
27. Oxford Advanced Learner's Dictionary, 7th Edition, 2005, Oxford University Press defines the word 'virgin' as: 'a person who has never had sex', and defines 'spinster' as " ..(old fashioned, often disappointing) a woman who is not married , especially an older woman who is not likely to many [this word should not now be used to mean simply a woman who is not married.. "
History of Bangladesh in respect of Registration of Muslim Marriages in this Region :
28. We have perused the relevant pages of Muslim Law in India and abroad authored by Dr. Tahir Mahmood (one of the most celebrated legal scholars in this sub-continent), he has summed up the history [at pages 53-65] of legislation in the field of muslim marriage and divorce in this region in a precise manner and style. Dr Mahmood writes
‘......... A Kazis Bill was introduced in the central legislature in 1879 with a long Statement of Objects and Reasons explaining why the government's power to appoint official kazis had been withdrawn, what problems its action had created, and why it was being resumed, the Kazi, in this country; before the advent of British rule, appears to have performed certain other duties, partly of a secular and partly of a religious nature. The principal function of these Kazis seems to have been preparing, attesting and registering deeds of transfer of property, celebrating marriages, and performing other rites and ceremonies. It is not apparent that any of these duties were incumbent on the Kazi as such. It is probable that the customary performance of them by him arose rather from his being a public functionary and one known by his official position to be acquainted with the law, than form his having, as Kazi, a greater claim to perform them than anyone else.
Such was the position of the Kazi in this country under Native Government. On the introduction of the British rule, Judges and Magistrates took the place of Kazis, and the Kazi in his judicial capacity disappeared. But the British Government, though no longer recognizing the judicial functions of the Kazi did not abolish the office. By certain Regulations passed from time to time the appointment of Kazi-ul Kuzat and Kazis by the State was provided for and the performance of their non-judicial duties was recognized by law.’
29. We note from the submission made by Mr M Belayet Hossain that currently there are Muslim Marriages and Divorce Registration Acts in force in six States of India for voluntary registration of marriages and divorces among the local Muslims. The States are: West Bengal, Bihar, Jharkhand, Assam, Orissa and Meghalaya. The parent Law among these is the old Bengal Mohammedan Marriage and Divorce Registration Act, 1876 which is now in force in the first three of the names States. The Orissa legislature re-enacted in 1949, with some changes, the old Bengal law of 1876 titles The Orissa Mohammedan Marriage and Divorce Registration Act, 1949 it extends to the whole State. The Assam legislature had enacted a similar law in 1935 titled: The Assam Moslem Marriage and Divorce Registration Act.
30. The 1876 Act made elaborate provisions for voluntary registration of marriages and divorces with the so-called Mohammedan Registrars, laid down their powers and function, and provided forms for registration by them. It empowered the provincial governments to make rules to provide other details for carrying out the purposes of the Act, which were soon issued. The Act was of an administrative nature and clarified the nature of its provisions in the following words:
Nothing in this Act contained shall be construed to:
(a) render invalid merely by reason of its not having been registered any Mohammedan marriage or divorce which could otherwise be valid;
(b) render valid by reason of its having been registered any Mohammedan marriage or divorce which could otherwise be invalid;
31. The most important provision of the Act was the one requiring the Mohammedan Registrars to periodically transmit their records to the District Registrars. The system was to be helpful in maintaining official records of marriages among the Muslims. The provision was borrowed mutatis mutandis, from the Christian Marriage Act 1872.
32. Unlike the Bengal Act of 1876, The Kazis Act does not provide any form for certification of marriages by the kazis. The kazis, both official and private, do keep forms of nikahnama [marriage agreement] but there is no uniform or standard form used for this purpose everywhere. The basic things mentioned in every nikahnama are names, age, parentage and address of parties and the amount and nature of dower. The document is signed by the parties or their vakils [guardians or their nominees] and gawahs [witnesses]. and authenticated by the kazi. The documents carry great weight as proof of marriage. Evidence of the kazis preparing nikahnama and the witnesses signing them is considered to be satisfactory proof of marriage.
33. The UN Convention for Elimination of all Forms of Discrimination against Women promulgated in 1979 required all state parties to introduce measures for compulsory registration of marriages. The Indian government ratified the Convention but with some reservations in that matter. From 2006 onward the Supreme Court of India [without mentioning the government's reservation on the CEDAW provision] repeatedly issued directions that registration of all marriages among all communities should be made compulsory throughout India. Seema vs Ashwini kumar, AIR 2006 SC 1158.
34. Pre-Independence and Post-Independence positions in Bangladesh: Muslim Family Laws Ordinance: The Bengal, Bihar and Orissa Mohammedan Marriage and Divorce Registration Act, 1876 had remained in force in East Pakistan after the partition of India. No such law existed in any of the provinces of British India which as a result of partition of India in 1947 had become West Pakistan, and now constitute the whole of Pakistan. Only the central Kazis Act was extended to some places Under the Muslim family Laws ordinance promulgated by the federal government in Pakistan in 1961, and made applicable to both West and East Pakistan, section 5 provided for compulsory registration of all marriages in the country. Non registration would be punishable offence but will not affect the validity of marriage. After the creation of Bangladesh as a new State in 1972 the Ordinance remained in force there.
35. New Bangladesh Act: In 1973 Bangladesh amended the old Mohammedan Marriages and Divorces Registration of 1876, and next year replaced it with a new Muslim Marriage and Divorce Registration Act 1974. The new Act repealed section 5 of the Muslim Family Laws Ordinance of 1961 [relating to registration of marriages] in its application in Bangladesh. Statutory rules under the new Act were framed in 1975 and amended on several occasions as we have seen above. Currently the 2009 Rules are in force.
36. Although the said States of the Union of India made several provisions for voluntary registration of muslim marriages, enactment of such law was halted in Jammu and Kashmir. THE JAMMU AND KASHMIR MUSLIM MARRIAGES REGISTRATIONACT, 1981 (Act No. XXII of 1981) was enacted in 1981 providing for compulsory registration, but had to be soon withdrawn due to stiff opposition by community leaders. Dr. Mahmood observes:
There is a feeling in Muslim religious circles that compulsory registration of a religious marriage would have the effect of converting it into a civil marriage no more to be governed by the personal law, due to which they have not been in favour of it. Their understanding of the matter is absolutely incorrect and they need to be properly educated about it. Whatever be the position of registration of marriages, voluntary or compulsory, it is merely an administrative process having nothing to do with any substantive aspect of marriage. Registration does not change a religious marriage into a civil marriage and even after registration it continues to be governed by the personal law of the parties.
37. It appears the SCHEDULE prescribed by the Act [under sections 2(a) and 3]. Contents to be maintained in a nikah registration form :
1. Place of marriage (with sufficient particulars to locate the Place.) 2. (a) Full name of the bride-groom. (b) His age. (c) His place of residence. (d) Address. (e) Full name of bridegroom's father. (f) Whether father is alive or dead. (g) Civil condition of the bridegroom at the time of marriage whether—Un-married, Widower Divorced Married, and if so, how many wives are alive. (h) Signature or thumb impression of the bridegroom/ Vakil/Guardian according as the Nikah was performed in person by the bridegroom or through his Vakil or Guardian. 3. (a) Full name of the bride. (b) Her age. (c) Her place of residence. (d) Address. (e) Full name of the bride's father. (f) Whether father is alive or dead. (g) Civil condition of the bride at the time of marriage whether—Un-married Widow Divorced. (h) Signature or thumb impression of the bride/Vakil/Guardian according as the Nikah was performed in person by the bride or through her Vakil or Guardian.
38. We may now have a look at the relevant parts of the Form used in registration of Muslim marriages in West Bengal. For ready reference the same is quoted below :
Schedule to the 1876 Act Muslims
(See sections 6 and 11)
Form A
Book I
Register of Marriages (as prescribed by section 6 of the Act for the voluntary registration of Mohammadan Marriages and Divorces).
4. Whether the bride is a spinster, a widow or divorced by a former husband and whether she is adult or otherwise.
5. [Name of the guardian of the bride-groom (if the bride-groom be a minor) and that of the guardian's father, with specification of the guardian's residence, and of the relationship in which he stands to the bride-groom.]
6. [Name of the guardian of the bride (if she be a minor) and that of his father, with specification of his residence, and the relationship in which he stands to the bride.]
39. The form used in West Bengal for registration of Muslim marriages uses the word -'spinster' in place of kumari, considering the definition given by the Oxford Dictionary (quoted above) it may be reasonably concluded that both `virgin' and 'spinster' are equally degrading.
Constitutional aspects and international obligations in respect of gender equality: is the impugned entry to the kabinnama violative of the Constitutional and international obligations?
40. Ours is a Constitutional democracy where constitutionalism and rule of law prevail. In its preamble, and in Part II and III, the Constitution clearly spelt out the type of society that was the dream of the framers and the leaders of the independence movement. The preamble declared that it shall be a fundamental aim of the State to realise through the democratic process a socialist society, free from exploitation a society in which the rule of law, fundamental human rights and freedom, equality and justice, economic and social, will be secured for all citizens.
41. Article 7 says, "The Constitution is the Supreme law of the Republic and if any law is inconsistent with the Constitution, the other law, shall to the extent of the inconsistency, be void." Article 11 provides that the Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of human person shall be guaranteed. Further, our Constitution in Article 27 in clear and unambiguous terms provides that All citizens are equal before law and are entitled to equal protection of law. Article 26 reads: All existing law inconsistent with the provisions of this Part shall, to the extent of such inconsistency, become void on the commencement of this Constitution.
42. Constitution not only guarantees equality of all citizens irrespective of sex, religion etc, but also provides for special arrangements for the backward classes. Article 28 provides: (1) The State shall not discriminate against any citizen on grounds only on religion, race, caste, sex or place of birth: (2) Women shall have equal rights with men in all spheres of the State and of public life; (3) No citizen shall, on grounds only of religion, race, caste, sex or place of birth be subjected to any disability, liability, restriction or condition with regard to access to any place of public entertainment or resort, or admission to any educational institution. (4) Nothing in this article shall prevent the State from making special provision in favour of women or children or for the advancement of any backward section of citizens.
43. Article 31 guarantees treatment in accordance with law, right to PRIVACY etc. It reads:
“....... To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen , wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law ..........”
44. Now we should be looking into the international obligations of the Government of the People's Republic of Bangladesh vis-à-vis gender equality, equal protection of law, non-discriminatory treatment towards women members of the Republic. Bangladesh ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1984 and has submitted seven progress reports on its implementation and participated in meetings of the Committee on the Elimination of All Forms of Discrimination Against Women (herein after the Committee).
45. The Eighth Periodic Report of the Government of the People's Republic of Bangladesh Submitted Under Article 18 in 2015 contains, inter cilia:
‘....... 34. In addition to legal measures to maintain equality, equal protection of law; and non discrimination, institutions and measures are in place as follows:
35. National Council for Women and Children Development (NCWCD): National Council for Women Development (NCWD), chaired by the Honorable Prime Minister and consisting of representatives of government, civil society, and women's organizations was merged in 2009 with the National Council for Child Development (NCCD) and was named the National Council for Women and Children Development (NCWCD). The NCWCD provides policy guidance and monitors the implementation of critical policy decisions on women's and children's development.
36. Ministry of Women and Children Affairs (MOWCA): MOWCA is the nodal ministry for gender governance and acts as the lead ministry in promoting gender equality. MOWCA coordinates the response by all government agencies to the needs and priorities of women and implements policies and programme& through its three agencies, Department of Women Affairs (DWA), Jatiya Mohila Shangstha (JMS) and Bangladesh Shishu Academy (BSA). A Policy Leadership and Advocacy Unit (PLAU) provides technical support to MOWCA in coordinating women's advancement activities within the Government. The Annex D shows the existing institutional mechanism.
37. Other mechanisms: Other institutional mechanisms such as Parliamentary Standing Committee for MOWCA and Women In Development Focal Point (WIDFP), WIDFP Implementation and Evaluation Committee (WIDFPIEC), Women In Development Focal Point Coordination Committee (WIDFPCC) and Women In Development Focal Point Network Committee (WIDFPNC) are in place. The WIDFPs of all ministries lead to address gender concerns within the policies and plans of their respective ministries.
38. Development Plans: Equality is promoted through implementation of development plans. The Perspective Plan (2010-2021) provides framework for the implementation of the Government's Vision 2021....”
46. In that premises, we are of the view that the Government is pledge bound to and under an obligation to protect the rights of women and to ensure gender equality in all spheres of the Republic.
47. The content and ambit of the great equalising principle enunciated in article 27 is wide. There can be no doubt that it is a founding faith of the Constitution, our apex Court in several decisions have held that it is the pillar on which rests securely the foundation of our democratic Republic. It was held in Shayara Bano vs Union of India reported in (2017) 9 SCC 1 that Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits.
48. We coincide with what was pointed out by the majority in EP Royappa vs State of TN reported in (1974) 4 SCC 3:
‘........... From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14....'
49. Nariman, J holds in Shayara Banos case Article 14 (our article 27) strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied."
50. We are of the view that the fundamental right to equality guaranteed under Articles 27, 28 and 31 of the Constitution, manifested within its fold equality of status. Gender equality, gender equity and gender justice are values intrinsically entwined in the guarantee of equality under the Constitutional realm, the rights of a Muslim women to human dignity, social esteem and self-worth are vital facets of a woman's right to life with dignity, under Articles 27, 28, 31 and 32 of the Constitution. It was submitted that gender justice was a constitutional goal of overwhelming importance and magnitude, without accomplishing the same, half of the country's citizenry, would not able to enjoy to the fullest—their rights, status and opportunities. That gender equality and the dignity of women are non-negotiable, they are necessary not only to realise the aspirations of every individual woman, who is an equal citizen of this country, but also, for the larger well-being of society and the progress of the nation, one-half of which is made up by women. The basic structure permeates equality of status and opportunity. Personal laws are derived not from the Constitution but from the religious scriptures. Human rights and fundamental freedom have been reiterated by the Universal Declaration of Human Rights. Democracy, development and respect for human rights and fundamental freedoms are interdependent and have mutual reinforcement. It was held in the Triple Talaq Case (mentioned above): the human rights for women, including girl child are, therefore, inalienable, integral and 'indivisible part of universal human rights. The full development of personality and fundamental freedoms and equal participation by women in political, social, economic and cultural life are concomitants for national development, social and family stability and growth, culturally, socially and economically. All forms of discrimination on grounds of gender is violative of fundamental freedoms and human rights." We take the view that Articles 26, 27, 28, 31 are inseparable part of the basic structure of the Constitution. These values the right to equality, non-discrimination and the right to live life with dignity forms (he bedrock of the Constitution. Furthermore, gender equality and dignity for women is an inalienable and inseparable part of the basic structure of the Constitution, the most fundamental facet of equality under the Constitution was gender equality and gender equity. Thus we do not find any difficulty in striking out the impugned entry from the impugned kabinnama.
51. The next issue we like to deal with is PRIVACY. Although the word has not been used in our Constitution as it is, it is implied in the words and phrases of Articles 11 and 32 as dignity, reputation and privacy are part and parcel of right to life. It was held in Govind vs State, reported in AIR 1975 SC 1378:
‘.......... The right to privacy in any event will necessarily have to go through a process of cast by case development. Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right we do not think that the right is absolute a right to privacy is itself a fundamental right...'
52. Similarly in Mr 'X' vs Hospital 'Z', reported in AIR 1999 SC 495, it was held:‘......... Right of privacy may apart from contract, also arise out of a particular specific relationship which may be commercial, matrimonial, or even political. As already discussed above. Doctor-patient relationship, though basically commercial, is professionally, a matter of confidence and therefore, Doctors are morally and ethically bound to maintain confidentiality. In such a situation, public disclosure of even true private facts may amount to an invasion of the Right of Privacy which may sometimes lead to the clash of one person's right to be let alone" with another person. Disclosure of even true private facts has the tendency to disturb a person's tranquility. It may generate many complexes in him and may even lead to psychological problems. He may thereafter, have disturbed life all through. In the face of these potentialities and as already held by this Court in its various decisions referred to above. The Right of Privacy is an essential component of right to life envisaged by Article 21. The right however is no absolute and may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others...'
53. It was held in R. Rajagopal vs State of TN reported in AIR 1995 SC 264 :
‘.......... The right to privacy as an independent and distinctive concept originated in the field of Tort Law, under which a new cause of action for damages resulting from unlawful invasion of privacy was recognized. This right has two aspects which are but two faces of the same coin: (1) the general law of privacy which affords a tort action for damages resulting from an unlawful invasion of privacy and (2) the constitutional recognition given to the right to privacy which protects personal privacy against unlawful governmental invasion. In recent times, however, this right has acquired a constitutional status ..........’
54. In a recent judgment of one of this Court's Division Bench [6 CLR (HCD) (2018) Nurjahan Ruzi vs Bangladesh (per Mr Syed Refaat Ahmed, J)] the issue of right to privacy has been discussed. The Court held :
‘......... It is this Court's finding that such balance was indeed not struck in the facts by the Respondent No.6 and this stemmed from not only a misconceived requirement of disclosure of personal status by the applicant-Petitioner but also a misdirected inquiry into the primacy of her marital status in the facts. It is here that this Court finds that the requirement under the law is of a disclosure of marital status current and extant-as-evident from an existing sate of wedlock at the material time i.e., on the date of submission of the application of External Cadet Sub-Inspector It appears to this Court that the Respondents have veered towards an unauthorized scrutiny on that latter circumstance, thereby, unduly, unreasonably and unfairly burdening the petitioner with an obligation of disclosure not sanctioned or required in law.'
55. As we note from the submission made by the learned Counsel Mr Hossain, dignity and privacy are important values promoted by Islamic faith. It was submitted : ‘....... It is the girl's right to make a decision concerning her marriage, and her father or guardian is not permitted to override her objections or ignore her wishes. Prying into other peoples' private affairs and spying on their secrets is not permitted, even if they are engaged in sin, as long as long as they do it privately and not openly. Uqbah then said, 'Woe to you! Do not do that, for I heard the Messenger of Allah (peace be on him) say, If one conceals the private affairs (of others), it is like reviving a girl who has been buried alive from her grave. [The Lawful and the Prohibited in Islam By Dr. Yusuf al-Qaradawi at pages 314-316, 321-322] . The Islamic jurist further writes : During the Farewell pilgrimage the Prophet (peace be on him) addressed the asembly of Muslims, saying, Your lives, your honour, and your property are as sacred to each other as the sacredness of this your day, in this your month, and in this your city.
56. The impugned forms at clause No. 5 require the bride to make a statement as to her marital status and her sexual history, specifically stating whether she is virgin/widowed/divorced should be re-phrased for the sake of removal of the degrading and discriminatory entries. The forms at clause Nos.21 and 22 respectively, only require the groom to make a statement regarding a subsisting marriage, but do not require any statement as to whether he is a widower/ divorced /previously married or is a Celibate. It is discriminating and arbitrary and created inequality violating the said provisions of the Constitution, negating the CEDAW obligations. Such requirements are violative of fundamental rights, in particular the prohibition on discrimination on grounds of sex, the right to be treated in accordance with law, as guaranteed under Articles 27, 28 and 31 of the Constitution. Interference with such privacy also violates a women's right to personhood and dignity as protected by Articles 31 and 32 of the constitution. Inclusion of the Word "Kumari" instead of "Unmarried" is humiliating and degrading to the woman's personhood and dignity as protected by Articles 32 of the Constitution and contradicts with the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) inasmuch as it has the effect of discrimination against woman on the basis of sex, also impairing the dignity of woman by invading upon their privacy.
57. However, since the Government vide SRO No. 84-Ain/2011 dated 10th April, 2011 inserted the following to the impugned kabinnama forms, the other terms of the Rule (with respect to the identities of the parties to a marriage etc.) are not required to be dealt with:
"৩। [জন্ম নিবন্ধন সনদ/জাতীয় পরিচয়পত্র/জুনিয়র স্কুল সার্টিফিকেট (জে.এস.সি) বা মাধ্যমিক স্কুল সার্টিফিকেট (এস.এস.সি) বা সমমানের পরীক্ষার সনদপত্র/মাতা, পিতা বা আইনগত অভিভাবক প্রদত্ত বয়স সংক্রান্ত হলফনামা অনুযায়ী বরের বয়স...............
৬। [জন্ম নিবন্ধন সনদ/জাতীয় পরিচয়পত্র/জুনিয়র স্কুল সার্টিফিকেট (জে.এস.সি) বা মাধ্যমিক স্কুল সার্টিফিকেট (এস.এস.সি) বা সমমানের পরীক্ষার সনদপত্র/মাতা, পিতা বা আইনগত অভিভাবক প্রদত্ত বয়স সংক্রান্ত হলফনামা অনুযায়ী কনার বয়স............"
This Court's declaration:
58. In view of the position expressed above, we are satisfied that this is a case which presents a situation where this Court should exercise its discretion to issue appropriate directions under Article-102 of the Constitution.
Thus the entry No. 5 in Forms No. 1601 is hereby declared to be without lawful authority and of no legal effect being discriminatory against women on the ground of sex and marital status in violation of Articles 28, 31 and 32 of the Constitution; The Respondents are hereby directed to take necessary action (preferably within a period of 6 (six) months from the date of receipt of a copy of this judgment) :
(i)to amend the entry No.5 in Bangladesh Forms No. 1601 (ফরম-খ) (Form-Kha) (kabinnama) appended to the Rules, by omitting the word "Kumari" in respect of brides, and be replaced with the following:
"5. Marital Status of the Bride: [Unmarried/ Divorced/Widow?
...... [In Bangla: কন্যা অবিবাহিতা বিধবা অথবা তালাকপ্রাপ্তা নারী কিনা]
to insert the following in the said forms: "21. Marital Status of the Bridegroom: [Married/Unmarried/Divorced/Widower?] In Bangla : বর বিবাহিত/অবিবাহিত/তালাকপ্রাপ্ত/বিপত্নীক কিনা in the beginning of entry No. 21 keeping the existing sentence intact.
59. With these observations and directions, the Rule is disposed of.
60. The office is directed to communicate the order at once.
61. No order as to costs.
Khizir Ahmed Choudhury, J:
I have gone through the judgment authored by my lord Ms. Justice Naima Haider and I fully agree with the findings and ultimate result of the instant Rule but I would like to dwell some aspects which has bearing in the instant Rule.
63. In Form having framed under "Muslim Marriage and Talak Registration Rules 2009", some discriminatory remarks has been inserted in clause 5 which militates with clause 21 of the said form having clearly dealt in the findings of the judgment. Article 26 of the constitution of the People Republic of Bangladesh also clearly prohibits from making any law inconsistent with any provisions of the part 111 titled as "fundamental rights" which runs as follows:
1. All existing law inconsistent with the provisions of this Part shall, to the extent of such inconsistency, become void on the commencement of this Constitution.
2. The state shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void.
3. ...........
64. As per Article 152 of the Constitution "Muslim Marriage and Talak registration rules 2009" is also law and, as such, remarks made in column 5 of form "Gha" to the effect that "কন্যা কুমারী" being discriminatory cannot be sustained.
65. Apart from this Article 27 also stipulates that all citizens are equal before law and are entitled to equal protection of law. Article 28 also postulates that the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth and also stipulates that woman shall have equal rights with men in all spheres of the state and public life. Equally, Article 31 mandates that all citizens will enjoy protection of law and to be treated in accordance with law and only in accordance with law.
66. Another important aspect is that under Mohammadan law Muslim Marriage is a contract and it is necessary that the men or someone on his behalf and the women or someone on her behalf should agree to the marriage at one meeting and the said agreement should be witnessed by two adult witnesses. It can be termed a Civil contract but with passage of time and changed circumstances registration of marriages has became necessary and consequently in our country "the Muslim Marriage and divorce Registration Act 1974" has been enacted wherein section 3 of the said act finds provision for registration of marriages and also Nikah Registers are entrusted for registration of marriages and divorces. Consequent to the said act successive rules have been framed under which marriage and divorce are registered under specific forms and presently it is being done under " ফরম ‘ঘ’ মুসলিম বিবাহ ও তালাক (নিবন্ধন) বিধিমালা, ২০০৯ এর বিধি ২৮(১) (ক) অনুযায়ী বিবাহ রেজিস্টারী বহি”, So as the terms referred to in the said form Gha namely "কন্যা কুমারী" is not mandate of Muslim law, it should be deleted for harmonizing the status of bride and bride groom.
Consequently, from all perimeters it is amply clear that remarks made in clause 5 in form “ঘ” namely "কন্যা কুমারী " is clearly discriminatory and against the avowed spirit of our constitution and, as such, this inconsistent remark requires to be deleted.
End.
High Court Division (Special Original Jurisdiciton)
Present:
Mr. Justice Kashefa Hussain
Mr. Justice Kazi Zinat Hoque
Writ Petition No. 1820 of 2016.
Jubair Ahmmed, BSc
------ Petitioner
VS
Government of the People's Republic of Bangladesh and others
------ Respondents
Judgement Date : August 28, 2022
Counsels:
Sherder Abul Hossain, Advocate with Md Ashraful Islam, Advocate with Tanjil Mahmud, Advocate
—For the Petitioner.
Noor-us-Sadik Chowdhury, DAG with Prahlad Debnath AAG with Md Hafizur Rahman AAG with Farida Parvin Flora, AAG
--For the Respondents Nos. 1-7.
Md Musharraf Hossain Mozumder, Advocate
—For the Respondent No. 9.
Judgment
Kashefa Hussain, J:
1. Supplementary affidavit do form part of the main petition.
2. Rule Nisi was issued calling upon the respondents to show cause as to why the impugned latter vide Memo No. Shakha-9/IM-26/2008/38 dated 21-1-2016 issued by the respondent No. 3 denied to permit the petitioner to transfer the Plot No. 50 , Block-A, Measuring an area of 5 Kathas of Mouza Jhilongjha Upazila-Cox's Bazar, Cox's Bazar Sea Beach Area (Annexure-H) should not be declared to have been made without any lawful authority and is of no legal effect and as to why the respondents Nos. 1-7 should not be directed to permit the petitioner to transfer the plot No. 50, Block-A, Measuring an area of 5 Kathas of Mouza Jhilongjha Upazila-Cox's Bazar, Cox's Bazar Sea Beach Area and/or such other or further order or orders passed as to this Court may seem fit and proper.
3. The petitioner Jubair Ahammed B.Sc, son of late Moulavi Mir Ahamed and late Zobaida Khanam, of Village-West Pukuria, Badar Khali, Post Office-Badarkhali, Police Station-Chakaria, District-Cox's Bazar is the citizen of Bangladesh. The respondent No. 1 is the Secretary, Ministry of Housing and Public Works, Bangladesh Secretariat, Shahbag, Dhaka-1000, the respondent No. 2 is the Additional Secretary (Development-2) Ministry of Housing and Public Works, Bangladesh Secretariat, Shahbagh, Dhaka-1000, the respondent No. 3 is the Joint Secretary (Development-2) Ministry of Housing and Public Works, Bangladesh Secretariat, Shahbagh, Dhaka- 1000, the respondent No. 4 is the Chief Engineer, Directorate of the Housing and Public Works, Purta Bhaban, Segun Bagicha, Dhaka, the respondent No. 5 is the Senior Assistant Secretary (Development-2) Ministry of Housing and Public Works, Bangladesh Secretariat, Shahbag, Dhaka-1000, the respondent No. 6 is the Executive Engineer, Public Works Division, Cox's Bazar, the respondent No. 7 is the Sub-Divisional Engineer, Public Works Sub-Division-1, Cox's Bazar, the respondent No. 8, Md Mamun Islam, son of late Al-haj Zahirul Islam, of Tekpara, Burmese School Road, Police Station and District-Cox's Bazar is the citizen of Bangladesh and the respondent No. 9, Md Moinuddin osn of late Abdur Rashid of the village West Para Shaplapur, Post Office- Shaplapur-4700, PS-Moheshkhali, District-Cox's Bazar is the citizen of Bangladesh.
4. The petitioners' case inter alia is that Member Secretary and Superintendent Engineer of the Allotment Committee Chittagong Public Works Circle-1, allotted the plot No. 50, Block-A, Measuring an area of 5 Kathas, of Mouza-Jhilongjha, Upazila-Cox's Bazar, Cox's Bazar Sea Beach Area to the petitioner vide Memo No. 1109 dated 8-6-1979. That subsequently the respondent No. 6 Executive Engineer, Public Works Division, Cox's Bazar executed and registered Lease Deed No. 7524 dated 20-1-1980 for 99 years in favour of the petitioner Jubaur Ahammed B.Sc and handed over possession to him. That the petitoner appointed Mr Zahibur Islam, son of late Abdur Rahim Sikder, of Burmese Primary School road, Cox's Bazar as power of Attorney vide registered deed No. 472 dated 22-2-1995 for developing the land but the predecessor of the respondent No. 8 failed to develop the schedule land. That the appointed power of attorney holder had failed to develop the schedule land and failed to construct a six storied residential building in the last 12 years and in the meantime the lessee Mr Zahirul Islam died in 2006 and thereafter his successors could not reach in a decision with the petitioner to settle the matter. Though the petitioner tried to sit with them in Cox's Bazar Bar Association in several times but in vain. That the petitioner finding no other way cancelled the Irrevocable Power of Attorney on 11-9-2009 vide registered deed No. 25-12-2007. That the petitioner filed Mutation Case No. 1205 of 2006 and mutated his name in the B S. Khatian No. 4706 and the petitioner has been paying rents to the concerned authority regularly. That the petitioner filed an application to the respondents for permission to sell the allotted plot, against the said application to the Ministry of Housing and Public Works and the ministry issued a letter to the Executive Engineer, Cox's Bazar vide Memo No. sha-9/1- M- 26/2008/302 dated 7-5-2008 to send elaborate report regarding the ownership of the land. That the respondent No. 6 enquired the matter and submitted his report on 21-8-2008 to the respondent No. 4 Chief Engineer, Directorate of the Housing and Public Works, Purta Bhaban, Segun Bagicha, Dhaka vide Memo. 341/3(2) dated 21-8-2008.
5. That on 14-1-2015 the petitioner filed an application to the respondent No.2 Additional Secretary (Development 2) praying for permission to sell the scheduled property but the respondents did not pay any heed against the said application. That thereafter the petitioner filed another application for sale of the schedule property on 06-1-2016 to the respondent No.3 Joint Secretary but the respondents did not pay any heed. That on 20-1-2016 the petitioner sent a Notice Demanding Justice through registered post with acknowledgement document and by special messenger to the respondents No.1-3 and prayed that the respondents permit the petitioner to sell the schedule property. That the respondent No. 3 issued a letter vide memo No. Shakha-9/1M-26/2008/38 dated 21-1-2016 to the petitioner denying to permit to transfer the schedule land with a malafide and arbitrary intention. That the said letter is impugned herein. Hence the writ petition.
6. Learned Advocate Mr Mr Sherder Abul Hossain, Advocate with Mr Md Ashraful Islam, Advocate with Mr Tanjil Mahmud, Advocate appeared for the petitioner while learned DAG Mr Noor Us Sadik Chowdhury along with Mr Prahlad Debnath AAG along with Mr Md Hafizur Rahman, AAG along with Ms. Farida Parvin Flora, AAG appeared for the respondent Nos. 1-7 and learned Advocate Mr Md Musharraf Hossain Mozumder appeared for the respondent No.9 .
7. Learned Advocate for the petitioner submits that the final refusal in not allowing him to transfer the property vide memo no. Shakha-9/1M-26/2008/38, dated 21-1-2016 which is Annexure -H issued by the respondent No. 3 is without lawful authority and not sustainable. He agitates that the respondent No. 3 by his order dated 21-1-2016 refusing to allow the petitioner to transfer the property is arbitrary and is a slip shod order. He draws attention to Annexurer H and submits that the respondent No. 3 did not anywhere mention in his order their reason for not allowing the petitioner to transfer his property. He contends that admittedly the petitioner is still a lessee having being allotted the land in 1980 and has been continuing as a lawful lessee since over a period of 40 years. Upon a query from the bench regarding the respondent's contention as to some pending suits between the instant petitioner and some other individuals (persons), the learned Advocate for the petitioner agitated that whatever suit/case may be pending between the petitioner and some other individual/person do not concern the respondent Nos. 1-7 at all. He argues that such pending suit involve issues which are disputed matter of fact to be decided in the concerned civil court. He agitates that so far the respondents are concerned admittedly the petitioner still a lessee and the land is duly mutated in his name upon payment of rent, taxes, DCR etc. and which is clear from Annexure E of the writ petition. He draws attention to Annexure E which is an enquiry conducted by the respondents. He contends that nowhere in the enquiry report is there any negative indication or remark on any malafide nor any latches on the part of the petitioner. He continues that from the enquiry report it is clear that the property pursuant to allotment was duly mutated in the petitioners name followed by payment of rent, taxes, DCR etc in the name of petitioner who is the lawful and admitted lessee.
8. Upon another query from this bench regarding the respondent's contention that clauses 19 and 17 of the Lease Deed dated 27-12-1980 was not complied with, he argues that nowhere in the enquiry report nor by way of any other evidences could it shown be that clauses 19 and 17 was not complied with.
9. Regarding the issue of power of attorney granted by the petitioner to some other person subsequent to allotment, the learned Advocate for the petitioner strenuously argued that Power of Attorney is a legal right and which does not require any permission from the respondents. He submits that subsequent to any allotment of property power of attorney can be lawfully granted to any person for sake of convenience whatsoever for purpose of construction of building or any other reason. He reiterates that since after 40 years of the original allotment admittedly the petitioner is still a lawful lessee therefore the respondents have no legal right in not allowing him to transfer the property moreover without assigning any valid reason. He further submits that the allotment has not been cancelled and which is contemplated in clause 22 of the lease deed in the event of any default by the petitioner. He continues that therefore it is evident that the petitioner pursuant to the allotment by granting another person power by way of power of attorney to construct building on his behalf whatsoever, however did not deviate or otherwise depart from the terms of the deed. He submits that since the allotment has not been terminated therefore it is to be presumed that clauses 19 and 20 and also 22 of the lease deed was complied with. He argued that therefore it is the lawful right of the petitioner to obtain permission from the Respondents. He agitates that the respondent no. 3 without assigning any reason by way of slip shod order arbitrarily and whimisically refused the petitioner. He concludes his submission upon assertion that the Rule bears merit ought to be made absolute for ends of justice.
10. On the other hand, learned AAG Mr Prahlad Devnath appearing for the respondent No. 1-7 by way of filing affidavit in opposition opposes the Rule. From the affidavit in opposition he however mainly submits on some factual matters pertaining to some suits pending between the petitioner and some other individuals/persons. He submits that since some suits are pending between the petitioner and some others therefore pending the suit the respondents are not in a position to transfer the land. He further submits that the petitioners did not comply with some relevant clauses of the lease deed which stipulate a time of 2(two) years from the date of allotment to construct on the leased land and therefore the petitioner may not be allowed to lawfully transfer the property. He further submits that the petitioner did not act lawfully since he granted power of attorney to some other person after allotment of the property and further there are some pending suits between the petitioner and some other persons in the lower court. He made some other factual submissions regarding the reason of the respondents refusal not to allow the petitioner to transfer the land. Upon a query from this bench as to whether the respondents still acknowledge the petitioner as their lessee? the learned Assistant Attorney-General however concedes and admits that the petitioner is still a lessee of the government(Respondents). He concludes his submission upon assertion that however the Rule bears no merits ought to be discharged for ends of justice.
11. The learned Advocate for the respondent No. 9 who is the purchaser of the property from the petitioner substantively support the contention of the learned Advocate for the Respondents and concludes his submission upon assertion that the Rule bears no merit and ought to be made Absolute for ends of justice.
12. We have heard the learned Advocates for all sides, perused the application and materials on records. It is an admitted fact by both the parties that whatever the reason of refusal to transfer may be however the petitioner is still a lessee of the government since 1980.
13. For purpose of proper disposal of the Rule we have examined the lease deed which has been annexed as Annexure-A and which is dated 20-10-1980. For our purpose we have examined Clauses 3, 19, 20 and 22 of the lease deed. Clauses 3, 19, 20 and 22 of the lease deed reproduced hereunder:
"(3) That the constructions to be made on the demised property shall not cover more than two-thirds of the demised property and within two years from the date of commencement of the lease or within such further time as the Lessor may allow in his discretion, the tenant shall complete the building on the demised property of a house with all necessary outhouses, boundary marks , drains and appurtenance for the purpose of a residence including a septic tank of a pattern approved by the Chief Engineer, Public Works Department."
"(19) That the tenant shall not sell, charge, mortgage, exchange, gift away otherwise assign, sublet, encumber or in any way part with or dispose of the demise property or any part thereof before the construction of the buildings, outhouses and appurtenances hereby covenanted to be erected."
"(20) That subject to the provision of clause 19, the tenant shall be at liberty to transfer or sublet subject to the conditions of these presents the whole of the demised property subject to the obligation that the transfer shall be registered in the office of such authority as may be appointed by the lessor, and unless this is done the lessor will not be bound to recognise or accept any person as tenant of the demised property in place of the transferor."
14. Clause 3 of the lease deed contemplate that the property pursuant to being allotted t42 the lessee the lessee must construct on at least /3rd within a period of 2(two) years. Clause 19 and 20 of the lease deed also consist of similar provision. Clause 19 of the lease deed contemplate that in the absence of constructing house in the property the petitioner shall not have any right to transfer the property. Clause 20 of the lease deed however contemplate that subject to construction by way of building etc. in the land the lessee (tenant) shall be at liberty to transfer or sublet the property in whole or in part thereof whatsoever and in the case of transfer, the property shall be duly registered. It also contemplates that in the absence of registration the lessor shall not be bound to acknowledge the new transferee or new lessee whatsoever.
15. We have particularly perused clause 22 of the lease deed which contemplates that in case of failure to construct building within the stipulated time of 2(two) years, if any lessee fails to perform his part within that time the respondents shall be at liberty to terminate the lease and following such termination shall proceed accordingly with the relevant laws.
16. Now as mentioned above in this case the petitioner admittedly is still a lessee and which is conceded and admitted by the respondent government. In our considered opinion since the petitioner is admittedly still a lessee since 1980 and since his allotment has not yet been cancelled therefore it may be presumed and concluded that the petitioner did not deviate from the prescribed clause. We may safely presume that the petitioner followed the conditions in clause Nos. 3, 4, 19, 20 and other relevant clauses of the lease deed. It is only reasonable and logical to hold that if the petitioner was not in compliance with the conditions and terms of the lease deed, the lease deed would have been terminated by dint of clause 4 of the lease deed. But however the petitioner in this case is till date a lawful and legal lessee as admitted by the respondents.
17. Truly enough permission is required in accordance with the lease deed and under the other relevant laws. Before transferring any property the lessee is required to obtain permission from the concerned authority. However it must be borne in mind that refusing to allow transfer a property cannot be done arbitrarily and particularly in this case the petitioner has been an allottee since 1980 and a lawful lessee. While his refusing to be allowed permission to transfer his property the respondents must assign a cogent reason. In this case it is clear by way of Annexure-H dated 21-1-2016 that the respondents did not assign any reason. The order dated 21-1-2016 which is annexure-H denying the petitioner to allow him to transfer is a slip shod order with no explanation at all. Further we have examined the enquiry report (Annexure E). Upon careful examination of the findings of the enquiry report dated 21-8-2008 we do not find any negative comment against the present petitioner. It appears that the enquiry report expressly stated that pursuant to the allotment the lessee (petitioner here) have been paying taxes, DCR etc.
18. As to the power of Attorney being granted to some other person it is common knowledge that a power of attorney is a common factor and is often granted by the owner to some other person to construct/ sell or otherwise supervise the property for sake of convenience. We do not find anywhere anything in any other law which may indicate that permission is required from the respondents/authorities to grant power of attorney. Apparently the enquiry report found that there is a construction building also thereupon in the demised land. Therefore it may be safely concluded that the petitioner complied with the conditions/terms of the lease deed. Since the lease is still continuing and has not been cancelled therefore it is evident that the petitioners complied with the rules and conditions.
19. The learned AAG on behalf of the respondents agitated that there are some pending suits between the petitioner and some other person and for that reason transfer of the property to any other person is not possible.
20. It is a settled principle of law that property may be transferred by any person/ lessee/owner whatsoever to some other person even pending a suit. However it is also a settled principle of law that if there are any pending cases involved in that event the purchaser shall purchase or otherwise obtain the property from the transferor with all its rights and liabilities attached to such property whatsoever. Therefore the transferor may purchase the property and shall be transposed in the possession of the original lessee and he shall purchase the property pending any suit and the fate of the original suit shall decide the fate of the subsequent transferee of the property. Therefore the purchaser shall purchase the property bearing in mind that the fate of the property shall be decided depending on the fate of the suit.
21. From the foregoing discussions made above and under the facts and circumstances we are of the considered view that we do not see any legal bar nor any other bar as to why the petitioner cannot transfer the property to any other person. The respondent No. 3 by his slip shod order dated 21-1-2016 which is annexed as Annexure-H in the writ petition committed illegality in not allowing the petitioner to transfer the Plot No.50, Block-A, measuring an area of 5 Kathas of Mouza Jhilongjha, Upazila-Cox's Bazar, Cox's Bazar Sea Beach Area. He gave a slip shod and non speaking order. We find merit in this Rule.
22. In the result, the Rule is made absolute with direction and relying on the observations made above. The impugned letter vide Memo No. Shakha-9/IM-26/2008/38 dated 21-1-2016 issued by the respondent No. 3 which is marked as Annexure-H in the writ petition is hereby declared without lawful authority and if of no legal effect. The respondent Nos. 1-7 are hereby directed to permit the petitioner to transfer the Plot No. 50 , Block-A, Measuring an area of 5 Kathas of Mouza Jhilongjhc Upazila-Cox's Bazar, Cox's Bazar Sea Beach Area within a period of 90(ninety) days from the date of receiving of this judgment. Communicate this judgment at once.
End.
High Court Division (Civil Miscellaneous Jurisdiction)
Present:
Mr. Justice Md. Rezaul Hasan
First Miscellaneous Appeal No. 33 of 2021
With
Civil Rule No. 104(FM) of 2020.
City Bank Limited, represented by its Managing Director
------- Appellant
VS
SM Delwar Hossain
------- Respondent
Judgement Date : September 27, 2021
Counsels:
Md Sameer Sattar, Advocate
—For the Appellant.
Md Akteruzzaman, Advocate
—For the Respondent.
Judgment
Md Rezaul Hasan, J:
1. This appeal is directed against the impugned judgment and order No. 34 dated 22-1-2017, passed by the Additional District Judge, 2nd Court, Bogura, in Miscellaneous Review Case No. 02 of 2014 (arising out of Civil Revision No.24 of 2013) allowing the Review and, thereby, giving effect to the order No.13 dated 21-1-2013, passed by the Senior Assistant Judge, 1st Court, Bogura, in Civil Suit No.390 of 2011.
2. Facts, relevant for disposal of this First Miscellaneous Appeal, in brief, are that, one SM Delowar Hossain filed Civil Suit No.390 of 2011 before the court of 1st Assistant Judge, Bogura, against the Managing Director, City Bank Limited and 3 others, praying for declaration that the termination order dated 14-7-2011, whereby the services of the plaintiff has been ended, is illegal, collusive, without jurisdiction, void, malafide, ineffective and not binding upon him. The plaintiff has also prayed for direction for payment of his salary as well as other reliefs, which he may be entitled to as per law. The case of the plaintiff is that, he was appointed as "Cash Sorter" on 27-9-1990, on probation, and thereafter his service was confirmed on 4-5-1991. Subsequently, the Bank has promoted him to the post of Senior Cash Officer. Later on, he was transferred to Bogura Branch against the post of "Chief Retailer". His further case is that, he has rendered his services with the satisfaction of the superior authority and has been enjoying his salary and other benefits accordingly. But, on 13-7-2011, when the plaintiff went to join his duty at Bogura Branch, he was prevented from joining and was asked to go to the Head Office. He then went to the Head Office of the Bank. But, Mr Jabed Amin and Head of Policy Ms. Khil Khil Newaj detained him and compelled him to submit a resignation letter. Further case of the plaintiff is that, he lodged a GD entry on 23-7-2011, wherein he has stated all these facts and he was removed from the services in the name of termination, most arbitrarily and inhumanly and without issuing any prior notice. In these circumstances, causes of action has arisen and he was compelled to file this suit.
3. The defendants contested in the suit by filing written statement, on 26-11-2012, in which, they have denied all allegations made in the plaint and stated their own case at paragraph No. 10 of the written statements. The defence case, in brief, is that, the Bank is a juristic person and that it has a Service Rule applicable to the bank employees. According to that Service Rule, the Bank can terminate the services of any employee, including the plaintiff, as per clause 9.2.3, which is the privilege of the employer. Further case of the defendant was that, the plaintiff was not dismissed from his services and he was paid 3(three) month's salary, in lieu of 3(three) months notice period and was given other benefits as were admissible as per law. Accordingly, the plaintiff has no case, nor any cause of action to file this suit and he is not entitled to get any relief as prayed for.
4. Along with the written statement, the defendants have filed an application under Order VII, rule 11 of the Code of Civil Procedure, 1908, (Annexure-D) for rejection of the plaint alleging that, the plaintiff has been terminated as per the Service Rules of the bank and he was given all service benefits as per the Service Rules and that it was a termination simpliciter. Therefore, the plaint is liable to be rejected.
5. The trial court heard the parties on this application for rejection of the plaint. It was of the opinion that, the plaintiff has served in the Bank for long period and there was no adverse remarks on his service report. The trial court has also recorded that no notice was served upon the plaintiff, nor he was given any opportunity to show cause. On these findings, the trial court had rejected the application for rejection of the plaint, vide its judgment and order dated 21-1-2013.
6. Against the said judgment and order of the trial court, the Bank preferred Civil Revision No. 24 of 2013, before the District Judge, Bogura. Being transferred, the Civil Revision No. 24 of 2013 was heard by the Additional District Judge, 2nd Court, Bogura, who, in presence of both the parties, had allowed the civil revision by its judgment and order dated 23-3-2014, on contest, and had set-aside the judgment and order of the trial court dated 21-1-2013. Against the said order of the lower revisional court, the plaintiff has filed Miscellaneous Review Case No. 2 of 2014 before the same court (Additional District Judge, 2nd Court, Bogura). The lower revisional court, after hearing the review petition, vide it's judgment and order dated 22-1-2017, has allowed the application for review, set-aside the judgment and order dated 21-1-2013, passed revision, and upheld the judgment and order dated 21-3-2013 of the trial court.
7. Being aggrieved by the said judgment and order of the revisional court dated 22-1-2017, the Bank has filed this application under section 115(4) of the Code of Civil Procedure, 1908, which was subsequently converted into First Miscellaneous Appeal No. 33 of 2021 by an order dated 4-12-2019, whereupon the Civil Rule No. 104(FM) of 2020 has been issued.
8. Both the First Miscellaneous Appeal No. 33 of 2021 and Civil Rule No. 104(FM) of 2020 have been taken up for analogous hearing and disposal.
9. Learned Advocate Mr Sameer Satter appeared for the defendant-appellant. He, having placed the Memo of Appeal alongwith other documents annexed thereto, 1st of all submits that, a mere perusal of the termination letter will show that, this was termination simpliciter and the plaintiff was given service benefit in lieu of 90 days notice period as well as other benefits admissible in This case. He also submits that, termination of service is a privilege of the employer and this is permitted by Clause No. 9.2.3 of the Service Rules of the Bank. He next submits that, this suit filed by the plaintiff is not maintainable and if a terminated employee is allowed to file a suit then it will open a flood-gate to file several cases, while termination is a mode recognized to relieve on from his job. He also submits that, the trial court has utterly failed to understand the legal aspect of this case and it had erroneously passed the order dated 21-1-2013. He also submits that, no stigma or any kind of blame has been imposed upon the plaintiff. Therefore, he continues, the plaintiff had no cause of action, moreso when he has been paid all his service benefit as per Rules and Regulations of the Bank. He next submits that, the revisional court has discussed the case of both the parties as well as it had considered the decisions cited before it and had arrived at a correct judgment and order dated 23-3-2014. But, the learned Advocate submits that, the revisional court ought not to have admitted the Review Case No. 02 of 2014 in as much as the condition laid down in Order 47 of the Code of Civil Procedure, for entertaining an application for review, did not exist in this case. Moreover, the said Review Petition No. 02 of 2014 has not been filed upon any of the grounds enumerated in the Code of Civil Procedure, 1908, and, therefore, the revisional court, in admitting the Review Petition No.02 of 2014, has exercised a jurisdiction not vested in it and the impugned judgment and order dated 22-10-2017, whereby it has set-aside it's own judgment and order dated 23-3-2014 passed in Civil Revision No.24 of 2013. He next submits that, once the revisional court has passed the order dated 24-10-2013 it has become functus-officio. Therefore, the learned Advocate submits that, in passing the impugned judgment and order dated 22-1-2017, passed in Review Petition No. 02 of 2014, the lower revisional court has committed grave error of law, that has resulted in error in the decision passed as well as it has occasioned in a serious failure of justice. Moreover, it has created a bad precedence by setting aside it's own order in purported exercise of the review jurisdiction when none of the grounds were available. He concludes that, this appeal has merit and the same may kindly be allowed.
10. Learned Advocate Mr Md Akter-uz-zaman has appeared on behalf of the respondent-opposite party. He, on the other hand, submits that, the trial court has rightly passed the judgment and order dated 21-1-2013, whereby it has rejected the application for rejection of the plaint. He next submits that, the order dated 21-1-2013 of the trial court is a speaking order and the plaintiff served in the Bank for a long period and there is no earthly reason to terminate his service and his termination is not in the interest of the Bank. He next submits that, the revisional court, vide it's judgment and order dated 23-3-2014, passed in Civil Revision No. 24 of 2013, although set-aside the order of the trial court in Review Petition No. 02 of 2014, it has reassessed the entire case of the parties and has rightly allowed the review application on contest and thereby it has secured the ends of justice. As such, the impugned judgment and order passed by the court below, in exercise of it's review jurisdiction, do not call for any interference by this Court. He next submits that, the plaintiff is an officer of the Bank and was promoted to the higher post because of his meritorious career and an employee cannot be left to the caprices of the Bank Management. Moreover, the learned Advocate proceeds on that, the Bank has not given any release letter to the plaintiff which shows a clear case of malafide exercise of the power. He next submits that, the defendants have violated the direction given in the BRPD Circular Letter No. 07 dated 28th May, 2015, issued by Bangladesh Bank. Besides, he further submits that, the defendants have denied to the plaintiff the opportunity to re-pay the house loan by installments to be deducted from his salary during continuation of his service and has denied to him his livelihood. He concludes that, this appeal has no merit and the same is liable to be dismissed and the Civil Rule No. 104(FM) of 2021 may kindly be discharged.
11. I have heard the learned Advocates appearing for both the parties, perused the Memo of Appeal, application for stay and the documents annexed to the petition and other materials on record.
12. I find from the termination letter that it is apparently a termination simpliciter and the plaintiff was given service benefit in lieu of 90 days notice period.
13. In the light of the facts and circumstances of this case, as revealed from the pleadings of the parties and the materials available in the record, I have taken into consideration the BRPD Circular Letter No. 07 dated 28th May, 2015, that reads as follows:
“ব্যবস্থাপনা পরিচালক/প্রধান নির্বাহী,
বাংলাদেশে কর্মরত সব তফসিলী ব্যাংক
প্রিয় মহোদয়,
ব্যাংকে পরিপালনের জন্য কতিপয় নির্দেশনা প্রসঙ্গে।
সাম্প্রতিককালে লক্ষ্য করা যাচ্ছে যে, ব্যাংকিং সময়সূচীর পরে কার্য দিবস শেষে কর্মকর্তা-কর্মচারী বিশেষ করে মহিলা কর্মকর্তা/কর্মচারীদেরকে ব্যাংকে অবস্থানের জন্য বাধ্য করা হচ্ছে। তাছাড়া, তফসিলী ব্যাংকের কর্মকর্তাগণের নিকট হতে চাকুরীতে ইস্তফা, অযৌক্তিক বরখাস্তকরণ কিংবা অপসারণ এবং পরবর্তী আর্থিক সুবিধা প্রাপ্তিতে হয়রানিসহ বিভিন্ন বিষয়ে অসংখ্য অভিযোগ উত্থাপিত হচ্ছে। ফলে বিভিন্ন রকমের জটিলতার উদ্ভব হচ্ছে বা সুষ্ঠু মানব সম্পদ ব্যবস্থাপনার ক্ষেত্রে অন্তরায়।
এতদ্সূত্রে ব্যাংক কর্তৃক পরিচালিত বিভিন্ন নিয়মাচার পর্যালোচনান্তে এ মর্মে সিদ্ধান্ত গৃহীত হয়েছে যে, ব্যাংকিং সময়সূচীর পরে অর্থাৎ সন্ধ্যা ৬.০০ ঘটিকায় কার্য দিবস শেষে ব্যাংকে অবস্থানের জন্য বাধ্য করা যাবে না। বিশেষ অফিসীয় প্রয়োজনে যদি কোন মহিলা কর্মকর্তা/কর্মচারীদেরকে ব্যাংকিং সময়সূচীর পরেও ব্যাংকে অবস্থান করতে হয় তবে তাদেরকে উপযুক্ত নিরাপত্তা ও পারিশ্রমিক প্রদান করতে হবে।
আরো উল্লেখ্য, ব্যাংক কর্তৃক যথেচ্ছভাবে ঢালাওভাবে কর্মকর্তা/কর্মচারী ছাঁটাই রদ করতে হবে। নিয়োগকালে পেশাদারিত্বের সাথে প্রার্থী যাচাই-বাছাই করতে হবে। নিয়োগকৃত কর্মকর্তা/কর্মচারীদেরকে প্রয়োজনীয় প্রশিক্ষণের মাধ্যমে উপযুক্ত করে গড়ে তুলতে হবে। এছাড়া, ব্যাংকের কর্মকর্তাগণের চাকুরীতে ইস্তফা, চাকুরী হতে বরখাস্তকরণ কিংবা অপসারণ এবং পরবর্তী আর্থিক সুবিধা প্রাপ্তির ক্ষেত্রে International Labour Organazation Conventions, বাংলাদেশ শ্রম আইন, ২০০৬ ও সময়ে সময়ে বাংলাদেশ ব্যাংক প্রদত্ত নির্দেশনার যথাযথ প্রতিফলন ঘটিয়ে ব্যাংকের সার্ভিস রুলস সংশোধন করতঃ তার যথাযথ পরিপালন নিশ্চিত করতে হবে। এ নির্দেশ অবিলম্বে কার্যকর হবে।”
14. This BRPD Circular Letter No. 07 dated 28th May, 2015, has' been issued by the Bangladesh Bank in'exercise of the powers vested in it, by clause (Ka) and (Gha) of sub-section (1) of section 45 of the Bank Company Act, 1991, that stipulates as follows:
“৪৫। (১) বাংলাদেশ ব্যাংক যদি এই মর্মে সন্তুষ্ট হয় যে,—
(ক) জনস্বার্থে, বা
(খ) ...............
(গ) ..............
(ঘ) কোন ব্যাংক-কোম্পানীর যথাযথ ব্যবস্থাপনার নিশ্চিত করার জন্য সাধারণভারে সকল ব্যাংক-কোম্পানীকে, অথবা বিশেষ কোন ব্যাংক-কোম্পানীকে নির্দেশ প্রদান করার প্রয়োজন,
তাহা হইলে বাংলাদেশ ব্যাংক যথাযথ নির্দেশ জারি করিতে পারিবে এবং সংশ্লিষ্ট ব্যাংক-কোম্পানী উক্ত নির্দেশ পালান করিতে বাধ্য থাকিবে।”
15. Therefore, as per provisions of sub-section (1) of section 45 of the Bank Companies Act, 1991, the BRPD Circular No. 7 dated 28-5-2015 has the force of law and the directions given in it are mandatory and shall prevail over the Service Rules of all Banks. The Banks are legally bound to comply with all the directions given in this circular as well as to amend their Services, if so required, to bring them in conformity to these directions given by the Bangladesh Bank.
16. I have also taken into consideration that, the termination latter letter was issued before issuance of the circular. But, it does not permit an arbitrary action, nor would protect any colorable action of any kind. Here, the bank is the employer, while the plaintiff as well as all other employees and officials (executives and non-executives) all are employees of the bank. Hence, in all cases of termination, discharge, removal or dismissal it has to be proved that the action was taken bonafide and the interest of the Bank, which is substantially run by public money.
17. Every authority, whosoever, must exercise the powers vested in it to secure the end for which such power has been vested. No colorable exercise of power is sustainable in law. No power can be exercised without a guideline or on a pick and choose basis or in violation of legitimate expectation of a person aggrieved by exercise of such powers. The master and servant Rule, that served the interest of the capricious masters of the colonial era and had governed the private sector employment for decades, should now yield to the principles of fair play legitimate expectation and access to justice.
18. Inspite of all these facts, the paramount and consistently adopted principle is that, whoever is vested with any power is duty bound to exercise such power bonafide, fairly, and to further the causes for which such power has been vested. Each and every power is an entrustment. It cannot be exercised by anyone merely for the reason that such power is available in his or her hands. One, who exercises any power, must also prove that the exercise of such powers was not intended to settle any personal issue, nor tainted by any personal or other bias, not abrupt, not peculiar, nor based on pick and choose, not arbitrary. Onus to prove that such power has been exercised bonafide is on him who exercised the power. Any exercise of such power, in a public company, to victimize any person shall not be indulged by any court of law as in the case of the services under any public or statutory body.
19. The learned Advocate for the bank submits that, the plaintiff is a worker and he ought to have follow the procedure laid down in the Labour Act, 2006, before filing this suit, while he should have filed the case before the labour court. The learned Advocate for the plaintiff submits that, he is not a worker, rather he is an officer of the bank, since subsequently he has been promoted to the post of an officer. However, these are matter to be raised before and decided by the trial court.
20. Be that as it may, in view of the discussion made above, I am of the opinion that, the petition for rejection of plaint was not competent in this case and was rightly rejected by the trial court. Because, the petition for rejection of the plaint was based on the defence case and defence material, not on the averments made in the plaint. A petition for rejection of the plaint should be considered only with reference to averments made in the plaint. However, the trial court may frame, in an appropriate case, issue of law and decide the maintainability point as per provisions of Rule (2) of Order 14 of the. Code of Civil Procedure, 1908.
21. The bank should issue release order in favour of the plaintiff in as much as it has asserted that this was a case of termination simpliciter.
22. In view of the discussion recorded above, this appeal and civil Rule should be disposed of.
Order
Accordingly, the FMA No. 33 of 2021 and the Civil Rule No. l04(FM) of 2020 are disposed of.
The trial court is directed to decide the maintainability point, as per Rule (2) of Order 14 of the Code of Civil Procedure, 1908, immediately, if such an issue of law is pressed before it. Otherwise, it should dispose of this case within 60 (sixty) working days from the date of receipt of this judgment and order.
The Bank is further directed to issue release order to the plaintiff within 30 (thirty) working days from the date of receipt of this judgment and order and to submit an affidavit of compliance.
The order of stay granted earlier by this court is hereby vacated.
In exercise of the power vested in this Court under Article 112 of the Constitution of the Peoples Republic of Bangladesh, the General-Manager, BRPD, Bangladesh Bank, is directed to examine or cause to examine the Service Rules of all Banks to ensure that the Banks have complied with the directions given in BRPD Circular No. 07 dated 28-5-2015, since it has the force of law as per clause (Ka) and (Gha) of sub-section (1) of section 45 of the Bank Company Act, 1991. They should submit a compliance report within next 90 (ninety) working days to this Court, through the Registrar of this Court. However, if so prayed for, this time limit may be extended by the court for just reason.
This judgment shall not have any bearing on the merit of the case. The trial court shall decide the issues on merit and independently.
Let copies of this judgment be sent to the Governor, Bangladesh Bank, to the Registrar of the High Court Division, Supreme Court of Bangladesh and to the General-Manager, BRPD, Bangladesh Bank, information and doing the needful.
No order as to cost.
Copies of this judgment also be sent to the courts below at once.
End.
High Court Division (Civil Miscellaneous Jurisdiction)
Present:
Mr. Justice Md. Rezaul Hasan
First Miscellaneous Appeal No. 33 of 2021
With
Civil Rule No. 104(FM) of 2020.
City Bank Limited, represented by its Managing Director
------- Appellant
VS
SM Delwar Hossain
------- Respondent
Judgement Date : September 27, 2021
Counsels:
Md Sameer Sattar, Advocate
—For the Appellant.
Md Akteruzzaman, Advocate
—For the Respondent.
Judgment
Md Rezaul Hasan, J:
1. This appeal is directed against the impugned judgment and order No. 34 dated 22-1-2017, passed by the Additional District Judge, 2nd Court, Bogura, in Miscellaneous Review Case No. 02 of 2014 (arising out of Civil Revision No.24 of 2013) allowing the Review and, thereby, giving effect to the order No.13 dated 21-1-2013, passed by the Senior Assistant Judge, 1st Court, Bogura, in Civil Suit No.390 of 2011.
2. Facts, relevant for disposal of this First Miscellaneous Appeal, in brief, are that, one SM Delowar Hossain filed Civil Suit No.390 of 2011 before the court of 1st Assistant Judge, Bogura, against the Managing Director, City Bank Limited and 3 others, praying for declaration that the termination order dated 14-7-2011, whereby the services of the plaintiff has been ended, is illegal, collusive, without jurisdiction, void, malafide, ineffective and not binding upon him. The plaintiff has also prayed for direction for payment of his salary as well as other reliefs, which he may be entitled to as per law. The case of the plaintiff is that, he was appointed as "Cash Sorter" on 27-9-1990, on probation, and thereafter his service was confirmed on 4-5-1991. Subsequently, the Bank has promoted him to the post of Senior Cash Officer. Later on, he was transferred to Bogura Branch against the post of "Chief Retailer". His further case is that, he has rendered his services with the satisfaction of the superior authority and has been enjoying his salary and other benefits accordingly. But, on 13-7-2011, when the plaintiff went to join his duty at Bogura Branch, he was prevented from joining and was asked to go to the Head Office. He then went to the Head Office of the Bank. But, Mr Jabed Amin and Head of Policy Ms. Khil Khil Newaj detained him and compelled him to submit a resignation letter. Further case of the plaintiff is that, he lodged a GD entry on 23-7-2011, wherein he has stated all these facts and he was removed from the services in the name of termination, most arbitrarily and inhumanly and without issuing any prior notice. In these circumstances, causes of action has arisen and he was compelled to file this suit.
3. The defendants contested in the suit by filing written statement, on 26-11-2012, in which, they have denied all allegations made in the plaint and stated their own case at paragraph No. 10 of the written statements. The defence case, in brief, is that, the Bank is a juristic person and that it has a Service Rule applicable to the bank employees. According to that Service Rule, the Bank can terminate the services of any employee, including the plaintiff, as per clause 9.2.3, which is the privilege of the employer. Further case of the defendant was that, the plaintiff was not dismissed from his services and he was paid 3(three) month's salary, in lieu of 3(three) months notice period and was given other benefits as were admissible as per law. Accordingly, the plaintiff has no case, nor any cause of action to file this suit and he is not entitled to get any relief as prayed for.
4. Along with the written statement, the defendants have filed an application under Order VII, rule 11 of the Code of Civil Procedure, 1908, (Annexure-D) for rejection of the plaint alleging that, the plaintiff has been terminated as per the Service Rules of the bank and he was given all service benefits as per the Service Rules and that it was a termination simpliciter. Therefore, the plaint is liable to be rejected.
5. The trial court heard the parties on this application for rejection of the plaint. It was of the opinion that, the plaintiff has served in the Bank for long period and there was no adverse remarks on his service report. The trial court has also recorded that no notice was served upon the plaintiff, nor he was given any opportunity to show cause. On these findings, the trial court had rejected the application for rejection of the plaint, vide its judgment and order dated 21-1-2013.
6. Against the said judgment and order of the trial court, the Bank preferred Civil Revision No. 24 of 2013, before the District Judge, Bogura. Being transferred, the Civil Revision No. 24 of 2013 was heard by the Additional District Judge, 2nd Court, Bogura, who, in presence of both the parties, had allowed the civil revision by its judgment and order dated 23-3-2014, on contest, and had set-aside the judgment and order of the trial court dated 21-1-2013. Against the said order of the lower revisional court, the plaintiff has filed Miscellaneous Review Case No. 2 of 2014 before the same court (Additional District Judge, 2nd Court, Bogura). The lower revisional court, after hearing the review petition, vide it's judgment and order dated 22-1-2017, has allowed the application for review, set-aside the judgment and order dated 21-1-2013, passed revision, and upheld the judgment and order dated 21-3-2013 of the trial court.
7. Being aggrieved by the said judgment and order of the revisional court dated 22-1-2017, the Bank has filed this application under section 115(4) of the Code of Civil Procedure, 1908, which was subsequently converted into First Miscellaneous Appeal No. 33 of 2021 by an order dated 4-12-2019, whereupon the Civil Rule No. 104(FM) of 2020 has been issued.
8. Both the First Miscellaneous Appeal No. 33 of 2021 and Civil Rule No. 104(FM) of 2020 have been taken up for analogous hearing and disposal.
9. Learned Advocate Mr Sameer Satter appeared for the defendant-appellant. He, having placed the Memo of Appeal alongwith other documents annexed thereto, 1st of all submits that, a mere perusal of the termination letter will show that, this was termination simpliciter and the plaintiff was given service benefit in lieu of 90 days notice period as well as other benefits admissible in This case. He also submits that, termination of service is a privilege of the employer and this is permitted by Clause No. 9.2.3 of the Service Rules of the Bank. He next submits that, this suit filed by the plaintiff is not maintainable and if a terminated employee is allowed to file a suit then it will open a flood-gate to file several cases, while termination is a mode recognized to relieve on from his job. He also submits that, the trial court has utterly failed to understand the legal aspect of this case and it had erroneously passed the order dated 21-1-2013. He also submits that, no stigma or any kind of blame has been imposed upon the plaintiff. Therefore, he continues, the plaintiff had no cause of action, moreso when he has been paid all his service benefit as per Rules and Regulations of the Bank. He next submits that, the revisional court has discussed the case of both the parties as well as it had considered the decisions cited before it and had arrived at a correct judgment and order dated 23-3-2014. But, the learned Advocate submits that, the revisional court ought not to have admitted the Review Case No. 02 of 2014 in as much as the condition laid down in Order 47 of the Code of Civil Procedure, for entertaining an application for review, did not exist in this case. Moreover, the said Review Petition No. 02 of 2014 has not been filed upon any of the grounds enumerated in the Code of Civil Procedure, 1908, and, therefore, the revisional court, in admitting the Review Petition No.02 of 2014, has exercised a jurisdiction not vested in it and the impugned judgment and order dated 22-10-2017, whereby it has set-aside it's own judgment and order dated 23-3-2014 passed in Civil Revision No.24 of 2013. He next submits that, once the revisional court has passed the order dated 24-10-2013 it has become functus-officio. Therefore, the learned Advocate submits that, in passing the impugned judgment and order dated 22-1-2017, passed in Review Petition No. 02 of 2014, the lower revisional court has committed grave error of law, that has resulted in error in the decision passed as well as it has occasioned in a serious failure of justice. Moreover, it has created a bad precedence by setting aside it's own order in purported exercise of the review jurisdiction when none of the grounds were available. He concludes that, this appeal has merit and the same may kindly be allowed.
10. Learned Advocate Mr Md Akter-uz-zaman has appeared on behalf of the respondent-opposite party. He, on the other hand, submits that, the trial court has rightly passed the judgment and order dated 21-1-2013, whereby it has rejected the application for rejection of the plaint. He next submits that, the order dated 21-1-2013 of the trial court is a speaking order and the plaintiff served in the Bank for a long period and there is no earthly reason to terminate his service and his termination is not in the interest of the Bank. He next submits that, the revisional court, vide it's judgment and order dated 23-3-2014, passed in Civil Revision No. 24 of 2013, although set-aside the order of the trial court in Review Petition No. 02 of 2014, it has reassessed the entire case of the parties and has rightly allowed the review application on contest and thereby it has secured the ends of justice. As such, the impugned judgment and order passed by the court below, in exercise of it's review jurisdiction, do not call for any interference by this Court. He next submits that, the plaintiff is an officer of the Bank and was promoted to the higher post because of his meritorious career and an employee cannot be left to the caprices of the Bank Management. Moreover, the learned Advocate proceeds on that, the Bank has not given any release letter to the plaintiff which shows a clear case of malafide exercise of the power. He next submits that, the defendants have violated the direction given in the BRPD Circular Letter No. 07 dated 28th May, 2015, issued by Bangladesh Bank. Besides, he further submits that, the defendants have denied to the plaintiff the opportunity to re-pay the house loan by installments to be deducted from his salary during continuation of his service and has denied to him his livelihood. He concludes that, this appeal has no merit and the same is liable to be dismissed and the Civil Rule No. 104(FM) of 2021 may kindly be discharged.
11. I have heard the learned Advocates appearing for both the parties, perused the Memo of Appeal, application for stay and the documents annexed to the petition and other materials on record.
12. I find from the termination letter that it is apparently a termination simpliciter and the plaintiff was given service benefit in lieu of 90 days notice period.
13. In the light of the facts and circumstances of this case, as revealed from the pleadings of the parties and the materials available in the record, I have taken into consideration the BRPD Circular Letter No. 07 dated 28th May, 2015, that reads as follows:
“ব্যবস্থাপনা পরিচালক/প্রধান নির্বাহী,
বাংলাদেশে কর্মরত সব তফসিলী ব্যাংক
প্রিয় মহোদয়,
ব্যাংকে পরিপালনের জন্য কতিপয় নির্দেশনা প্রসঙ্গে।
সাম্প্রতিককালে লক্ষ্য করা যাচ্ছে যে, ব্যাংকিং সময়সূচীর পরে কার্য দিবস শেষে কর্মকর্তা-কর্মচারী বিশেষ করে মহিলা কর্মকর্তা/কর্মচারীদেরকে ব্যাংকে অবস্থানের জন্য বাধ্য করা হচ্ছে। তাছাড়া, তফসিলী ব্যাংকের কর্মকর্তাগণের নিকট হতে চাকুরীতে ইস্তফা, অযৌক্তিক বরখাস্তকরণ কিংবা অপসারণ এবং পরবর্তী আর্থিক সুবিধা প্রাপ্তিতে হয়রানিসহ বিভিন্ন বিষয়ে অসংখ্য অভিযোগ উত্থাপিত হচ্ছে। ফলে বিভিন্ন রকমের জটিলতার উদ্ভব হচ্ছে বা সুষ্ঠু মানব সম্পদ ব্যবস্থাপনার ক্ষেত্রে অন্তরায়।
এতদ্সূত্রে ব্যাংক কর্তৃক পরিচালিত বিভিন্ন নিয়মাচার পর্যালোচনান্তে এ মর্মে সিদ্ধান্ত গৃহীত হয়েছে যে, ব্যাংকিং সময়সূচীর পরে অর্থাৎ সন্ধ্যা ৬.০০ ঘটিকায় কার্য দিবস শেষে ব্যাংকে অবস্থানের জন্য বাধ্য করা যাবে না। বিশেষ অফিসীয় প্রয়োজনে যদি কোন মহিলা কর্মকর্তা/কর্মচারীদেরকে ব্যাংকিং সময়সূচীর পরেও ব্যাংকে অবস্থান করতে হয় তবে তাদেরকে উপযুক্ত নিরাপত্তা ও পারিশ্রমিক প্রদান করতে হবে।
আরো উল্লেখ্য, ব্যাংক কর্তৃক যথেচ্ছভাবে ঢালাওভাবে কর্মকর্তা/কর্মচারী ছাঁটাই রদ করতে হবে। নিয়োগকালে পেশাদারিত্বের সাথে প্রার্থী যাচাই-বাছাই করতে হবে। নিয়োগকৃত কর্মকর্তা/কর্মচারীদেরকে প্রয়োজনীয় প্রশিক্ষণের মাধ্যমে উপযুক্ত করে গড়ে তুলতে হবে। এছাড়া, ব্যাংকের কর্মকর্তাগণের চাকুরীতে ইস্তফা, চাকুরী হতে বরখাস্তকরণ কিংবা অপসারণ এবং পরবর্তী আর্থিক সুবিধা প্রাপ্তির ক্ষেত্রে International Labour Organazation Conventions, বাংলাদেশ শ্রম আইন, ২০০৬ ও সময়ে সময়ে বাংলাদেশ ব্যাংক প্রদত্ত নির্দেশনার যথাযথ প্রতিফলন ঘটিয়ে ব্যাংকের সার্ভিস রুলস সংশোধন করতঃ তার যথাযথ পরিপালন নিশ্চিত করতে হবে। এ নির্দেশ অবিলম্বে কার্যকর হবে।”
14. This BRPD Circular Letter No. 07 dated 28th May, 2015, has' been issued by the Bangladesh Bank in'exercise of the powers vested in it, by clause (Ka) and (Gha) of sub-section (1) of section 45 of the Bank Company Act, 1991, that stipulates as follows:
“৪৫। (১) বাংলাদেশ ব্যাংক যদি এই মর্মে সন্তুষ্ট হয় যে,—
(ক) জনস্বার্থে, বা
(খ) ...............
(গ) ..............
(ঘ) কোন ব্যাংক-কোম্পানীর যথাযথ ব্যবস্থাপনার নিশ্চিত করার জন্য সাধারণভারে সকল ব্যাংক-কোম্পানীকে, অথবা বিশেষ কোন ব্যাংক-কোম্পানীকে নির্দেশ প্রদান করার প্রয়োজন,
তাহা হইলে বাংলাদেশ ব্যাংক যথাযথ নির্দেশ জারি করিতে পারিবে এবং সংশ্লিষ্ট ব্যাংক-কোম্পানী উক্ত নির্দেশ পালান করিতে বাধ্য থাকিবে।”
15. Therefore, as per provisions of sub-section (1) of section 45 of the Bank Companies Act, 1991, the BRPD Circular No. 7 dated 28-5-2015 has the force of law and the directions given in it are mandatory and shall prevail over the Service Rules of all Banks. The Banks are legally bound to comply with all the directions given in this circular as well as to amend their Services, if so required, to bring them in conformity to these directions given by the Bangladesh Bank.
16. I have also taken into consideration that, the termination latter letter was issued before issuance of the circular. But, it does not permit an arbitrary action, nor would protect any colorable action of any kind. Here, the bank is the employer, while the plaintiff as well as all other employees and officials (executives and non-executives) all are employees of the bank. Hence, in all cases of termination, discharge, removal or dismissal it has to be proved that the action was taken bonafide and the interest of the Bank, which is substantially run by public money.
17. Every authority, whosoever, must exercise the powers vested in it to secure the end for which such power has been vested. No colorable exercise of power is sustainable in law. No power can be exercised without a guideline or on a pick and choose basis or in violation of legitimate expectation of a person aggrieved by exercise of such powers. The master and servant Rule, that served the interest of the capricious masters of the colonial era and had governed the private sector employment for decades, should now yield to the principles of fair play legitimate expectation and access to justice.
18. Inspite of all these facts, the paramount and consistently adopted principle is that, whoever is vested with any power is duty bound to exercise such power bonafide, fairly, and to further the causes for which such power has been vested. Each and every power is an entrustment. It cannot be exercised by anyone merely for the reason that such power is available in his or her hands. One, who exercises any power, must also prove that the exercise of such powers was not intended to settle any personal issue, nor tainted by any personal or other bias, not abrupt, not peculiar, nor based on pick and choose, not arbitrary. Onus to prove that such power has been exercised bonafide is on him who exercised the power. Any exercise of such power, in a public company, to victimize any person shall not be indulged by any court of law as in the case of the services under any public or statutory body.
19. The learned Advocate for the bank submits that, the plaintiff is a worker and he ought to have follow the procedure laid down in the Labour Act, 2006, before filing this suit, while he should have filed the case before the labour court. The learned Advocate for the plaintiff submits that, he is not a worker, rather he is an officer of the bank, since subsequently he has been promoted to the post of an officer. However, these are matter to be raised before and decided by the trial court.
20. Be that as it may, in view of the discussion made above, I am of the opinion that, the petition for rejection of plaint was not competent in this case and was rightly rejected by the trial court. Because, the petition for rejection of the plaint was based on the defence case and defence material, not on the averments made in the plaint. A petition for rejection of the plaint should be considered only with reference to averments made in the plaint. However, the trial court may frame, in an appropriate case, issue of law and decide the maintainability point as per provisions of Rule (2) of Order 14 of the. Code of Civil Procedure, 1908.
21. The bank should issue release order in favour of the plaintiff in as much as it has asserted that this was a case of termination simpliciter.
22. In view of the discussion recorded above, this appeal and civil Rule should be disposed of.
Order
Accordingly, the FMA No. 33 of 2021 and the Civil Rule No. l04(FM) of 2020 are disposed of.
The trial court is directed to decide the maintainability point, as per Rule (2) of Order 14 of the Code of Civil Procedure, 1908, immediately, if such an issue of law is pressed before it. Otherwise, it should dispose of this case within 60 (sixty) working days from the date of receipt of this judgment and order.
The Bank is further directed to issue release order to the plaintiff within 30 (thirty) working days from the date of receipt of this judgment and order and to submit an affidavit of compliance.
The order of stay granted earlier by this court is hereby vacated.
In exercise of the power vested in this Court under Article 112 of the Constitution of the Peoples Republic of Bangladesh, the General-Manager, BRPD, Bangladesh Bank, is directed to examine or cause to examine the Service Rules of all Banks to ensure that the Banks have complied with the directions given in BRPD Circular No. 07 dated 28-5-2015, since it has the force of law as per clause (Ka) and (Gha) of sub-section (1) of section 45 of the Bank Company Act, 1991. They should submit a compliance report within next 90 (ninety) working days to this Court, through the Registrar of this Court. However, if so prayed for, this time limit may be extended by the court for just reason.
This judgment shall not have any bearing on the merit of the case. The trial court shall decide the issues on merit and independently.
Let copies of this judgment be sent to the Governor, Bangladesh Bank, to the Registrar of the High Court Division, Supreme Court of Bangladesh and to the General-Manager, BRPD, Bangladesh Bank, information and doing the needful.
No order as to cost.
Copies of this judgment also be sent to the courts below at once.
End.
High Court Division (Civil Appellate Jurisdiction)
Present:
Mr. Justice Sheikh Hassan Arif
Mr. Justice Ahmed Sohel
First Miscellaneous Appeal No. 178 of 2019
With
Civil Rule No. 272 (FM) of 2019
With
Civil Revision No.52 of 2020.
Mostafizur Rahman (Md)
------- Plaintiff-Appellant
VS
Amin Maria and others
Defendant ------- Respondents
Judgement Date : December 08, 2021
Counsels:
Probir Neogi, Senior Advocate with Md Mozammel Hossain, Advocate
—For the Plaintiff Appellant.
Md Monzur Alam Khan, Advocate
—For the Opposite Party Nos. 1 & 3 and Respondent Nos. 1 & 3.
Dipayan Saha with Purnindu Bikash Das, Advocate
—For the Petitioner.
Md Monzur Alam Khan, Advocate
—For the Opposite Party No.1.
Judgment
Sheikh Hassan Arif, J:
1. Since the questions of law and facts involved in the aforesaid appeal and civil revision are almost same, and they have arisen from the same suit between the same parties, the same have been taken up together for hearing and are now being disposed of by this common judgment.
1.1 First Miscellaneous Appeal No. 178 of 2019 is directed, at the instance of the plaintiff in Title Suit 500 of 2018, against Order No. 08 dated 19-2-2019 passed by the First Court of Joint District Judge, Dhaka in the said suit thereby rejecting the application seeking temporary injunction filed by the plaintiff.
1.2 Rule in Civil Revision No. 52 of 2020 was issued, at the instance of the same plaintiff in the same suit, calling upon the opposite parties to show cause as to why the Order No. 17 dated 17-10-2019 passed by the said Court in the said suit, namely Title Suit No. 500 of 2018, thereby allowing an application filed by the defendant No.1 under sections 7 and 10 of the Arbitration Act, 2001 and thereby staying all further proceedings of the said Title Suit.
2. Background Facts:
2.1 Since the appellant and the petitioner in both the appeal and civil revision are same person, namely the plaintiff in the title suit concerned, we will refer him as plaintiff in this matter for the sake of convenience in our discussion.
2.2 Facts, relevant for the disposal of the appeal and Rule, in short, are that the appellant/petitioner, as plaintiff, filed the said Title Suit No. 500 of 2018 against the land owner and two developers seeking Specific Performance of Contract dated 10-4-2014 (Annexure-D in Civil Revision) between the plaintiff and the said two developers and land owner in respect of some flats and proportionate land as mentioned in schedule "Ka" and "Kha" to the plaint.
2.3 The case of the plaintiff, in short, is that the defendant No.1, being owner of 5 katha land as mentioned in 'Ka' schedule to the plaint, entered into a registered development agreement, being No. 8801 dated 28-7-2011, with defendant No.2 developer company (in short "Nagor Vision") to develop the said property. Accordingly, an irrevocable power of attorney giving extensive power was executed by the land owner (defendant No.1) on the same day in favour of the said developer (Nagar Vision). That during continuation of construction, since Nagor Vision fell into financial crisis, it entered into another development agreement with defendant No. 4-developer vide registered deed No. 9364 dated 13-10-2013 for development of the said property. Subsequently, when the defendant Nos. 1-5 could not continue with the construction/development work because of financial crisis, they executed a registered Baina with the plaintiff on 10-4-2014 for transfer of the developer's portion of the land and flats in favour of the plaintiff. That, as per the terms of the said Baina, the plaintiff paid the entire money, namely Taka 2,74,22,996.45. However, since the defendants were still unable to complete the development work, the plaintiff paid further amount of Taka 56,77,003.55 and, accordingly, the plaintiff paid in total Taka 3,31,00,000. That, in the meantime, the construction of the building has been completed and the land owner (defendant No.1) has got her portion of 50% flats as well as car parking spaces in possession and rented out some of them to the tenants. However, the defendants started delaying in giving registered kabala in favour of the plaintiff in respect of the remaining 50% of flats and lands and, accordingly, the plaintiff issued legal notice, but got no positive response. Thus, the plaintiff has filed the said suit seeking Specific Performance of the said Baina dated 10-4-2014.
2.4 Along with the said suit, the plaintiff filed an application under Order 39, rules 1 and 2 read with section 151 of the Code of Civil Procedure seeking injunction for restraining the defendant Nos. 1 and 3 from evicting the tenants of the plaintiff in the suit property. The said application was objected by defendant Nos.1 and 3 by filling written objection mainly contending that the baina in question had adopted the terms and conditions of the earlier development agreement between defendant Nos.1 and 2 and, as such, by such adoption, the said baina incorporated the arbitration clause as mentioned in clause 17 of the said development agreement. This being so, it was contended by the said defendants by way of such written objection that the relief could not be sought in the way as had been sought by the plaintiff by filling the said suit, rather the plaintiff should have invoked arbitration clause as per Clause 17 of the said development agreement between defendant Nos. 1 and 2 as adopted in the baina in question.
2.5 Thereupon, the Court below, after hearing the parties, rejected the said application seeking temporary injunction vide impugned Order No. 8 dated 19-2-2019 on the ground that the baina in question in fact adopted and incorporated the arbitration clause as stipulated in Clause 17 of the earlier development agreement between defendant Nos. 1 and 2. Being aggrieved by this order of rejection, the plaintiff has preferred the aforesaid First Miscellaneous Appeal No. 178 of 2019. Upon admission of the said appeal and on an application filed by the plaintiff, this Court issued the connected Rule, being Civil Rule No. 272 (FM) of 2019, and, at the time of issuance of the Rule, vide an ad-interim order dated 3-4-2019, directed the parties to maintain status-quo in respect of possession and position of the suit property for a period of 06 (six) month, which was subsequently extended for further periods in due course.
2.6 Thereafter, the defendant No. 1 filed an application before the Court below under section 7 read with section 10 of the Arbitration Act, 2001 seeking stay of the further proceedings of the said suit on the ground that the baina in question adopted an arbitration clause as incorporated in Clause-17 of the development agreement between defendant Nos. 1 and 2 and, as such, it was contended that the suit in question should be stayed allowing the parties to resolve their disputes through arbitration. The said application was opposed by the plaintiff by filling written objection mainly contending that the arbitration clause, as incorporated in Clause-17 of the said development agreement dated 28-7-2011, was only applicable to the parties to the said development agreement and that the parties to the baina in question could not be bound by such arbitration clause as incorporated in the said development agreement. It was further contended that although by Clause-12 of the baina agreement, terms and conditions of the earlier development agreement dated 28-7-2011 was adopted to the effect that the parties would be bound by the stipulations in the said agreement, such stipulation as incorporated in Clause-12 of the baina will only apply to the developers portion of the building and in no way will bind the parties to go for arbitration for resolving the dispute arising out of the said baina.
2.7 Thereupon, the Court below, after hearing the parties, allowed the said application filed by the defendant No.1 vide impugned order dated 17-10-2019 and thereby stayed all further proceedings of the said Title Suit No. 500 of 2018 by invoking section 10 of the Arbitration Act, 2001. Being aggrieved by this order, the plaintiff has invoked the revisional jurisdiction of this Court under section 115 of the Code of Civil Procedure and obtained the aforesaid Rule in Civil Revision No. 52 of 2020. At the time of issuance of the Rule, this Court, vide ad-interim order dated 12-1-2020, stayed operation of the said impugned order dated 17-10-2019 for a period of 06(six) months, which was subsequently extended for further periods in due course.
2.8 The Appeal and Rule are opposed by defendant- respondent Nos.1 and 3 (defendant-opposite party Nos. 1 and 3) through learned advocate Mr Md Monzur Alam Khan, who also filed an application for vacating the order of stay, which was kept with the record.
3. Submissions:
3.1 Mr Probir Neogi, learned senior counsel appearing for the appellant and petitioner in both the matters, mainly submits that there are three agreements between the parties, namely that the first development agreement between defendant Nos.! and 2, the 2nd development agreement between defendant No. 2 and defendant No. 4 and the 3rd one is the baina in question between the defendants and the plaintiff. Therefore, according to him, although Clause-12 of the registered baina agreement dated 10-4-2014 has stipulated about the binding effect of the stipulations in the 1st development agreement dated 28-7-2011, such clause will only apply in respect of the developers' portion of the properties, namely 50% of the flats and land, and, as such, the arbitration clause, as incorporated in Clause 17 of the 1st development agreement dated 28-7-2011, will not be applicable in respect of the said baina. According to him, it is the cardinal principle of interpretation of any document that for interpretation of any clause therein the entire document has to be examined and considered and the said particular clause has to be interpreted as against the context of the entire agreement. Therefore, according to him, clause 12 of the baina dated 10-4-2014 read with Condition No.1 of the said deed makes it clear that the reference made in the said clause in respect of the conditions of the 1st development agreement will only be limited to the extent of share of the developer in the concerned property. In support of his such submissions, he has referred to different pages of the book authored by our late lamented constitutional lawyer Mr Mahmudul Islam, namely the book titled "Interpretation of Statutes and Documents", Mahmudul Islam, 1st Edition, pages 306-307 and 355-357. Accordingly, he submits that both the impugned orders being mainly based on the finding of the Court below that the subsequent baina dated 10-4-2014 has in fact incorporated the arbitration clause as stipulated by Clause No. 17 of the first development agreement dated 28-7-2011, the same cannot stand in the eye of law.
3.2 As against above submissions, Mr Md Monzur Alam Khan, learned advocate appearing for the defendant-appellants (defendant-opposite parties), submits that Clause-12 of the baina in question has left no doubt about incorporation of the arbitration clause as incorporated in the development agreement dated 28-7-2011, particularly when the said baina was executed not only between the plaintiff and the subsequent developer, rather it was executed between the plaintiff and both the developers and the land owner. This being so, according to him, under no circumstances, the said Clause-12 of the baina in question can be interpreted in an isolated way thereby applying the same only to the developers' portion of the land particularly when the question of arbitrability of the dispute between the parties arises. According to him, although the baina has been executed by the parties in respect of developer's portion of the developed building and land, the said baina has specifically referred to the terms and conditions of the first development agreement between the defendant Nos. 1 and 2. Therefore, according to him, any dispute, as may arise from the said baina in question, has to be resolved by reference to two earlier development agreements between defendant No.1 and 2 and in between defendant No.2 and 4. This being so, .he submits that under no circumstances the dispute arising from the said baina in question can be resolved without invoking the stipulations as incorporated in the said first development agreement dated 28-7-2011.
4. Deliberations. Findings and Orders of the Court:
4.1 To address the issues raised by the parties and to understand the issues whether the baina in question has in fact adopted the arbitration clause as stipulated by Clause 17 of the first development agreement, we have examined the relevant provisions of the Arbitration Act, 2001, in particular the definition of the term 'arbitration agreement' (সালিস চুক্তি) and the provisions under section 10 of the said Act. For our ready reference, both the provisions, namely section 2 (Dha) and section 10 of the Arbitration Act, 2001 are reproduced below:
“২ (ঢ) “সালিস চুক্তি” অর্থ পক্ষগণের মধ্যে বিদ্যমান কোন নির্দিষ্ট চুক্তিগত বা চুক্তি বহির্ভূতভাবে পারষ্পরিক সম্মতিক্রমে আইনানুগ সম্পর্ক হইতে উদ্ভূত কিংবা উদ্ভূত হইতে পারে এইরূপ সকল বা যে কোন বিষয়ের বিরোধ সালিসের মাধ্যমে নিষ্পত্তির জন্য, উক্ত আইনানুগ সম্পর্কের পক্ষগণ কর্তৃক সালিসে প্রেরণ করা সম্পর্কিত চুক্তি;
১০। বিরোধের সালিসযোগ্যতা---(১) সালিস চুক্তির কোন পক্ষ বা উক্ত পক্ষের অধীন দাবীদার কোন ব্যক্তি সালিসের মাধ্যমে মীমাংসা হইবে মর্মে মৈতক্যে পৌঁছাইয়াছে এমন কোন বিষয়ে চুক্তির অন্য কোন পক্ষ বা অনুরূপ পক্ষের অধীন দাবীদার কোন ব্যক্তির বিরুদ্ধে কোন আদালতে কোন আইনগত কার্যধারা রুজু করিলে, উক্ত কার্যধারায় লিখিত জবাব দাখিল করিবার পূর্বে যে কোন পক্ষ বিষয়টি সালিসে অর্পণ করিবার জন্য সংশ্লিষ্ট আদালতে আবেদন করিতে পারিবে।
(২) উপ-ধারা (১) এর অধীন আবেদনের প্রেক্ষিতে আদালতের নিকট যদি প্রতীয়মান হয় যে, সংশ্লিষ্ট সালিস চুক্তি বিদ্যমান আছে এবং উহা বাতিল, অকার্যকর বা সালিস দ্বারা নিষ্পত্তির অযোগ্য হয় নাই, তাহা হইলে আদালত বিষয়টি সালিসে প্রেরণ করিবে এবং উক্ত কার্যধারা স্থগিত করিবে।
(৩) উপ-ধারা (১) এর অধীন আবেদন আদালতের বিবেচনাধীন এবং আইনগত কার্যধারা বিচারাধীন থাকা সত্ত্বেও সংশ্লিষ্ট বিষয়ে সালিস সূচনা করা, অব্যাহত রাখা এবং সালিসী রোয়েদাদ প্রদান করা যাইবে।”
4.2 It appears from the above quoted definition of the term –“সালিস চুক্তি”, as provided by the said Act, that it has referred to the relationship between the parties under the agreement or beyond the agreement. It has also referred to a future dispute which may arise between the parties within the terms of the agreement or beyond the terms of the said agreement. Therefore, it appears from the term “সালিস চুক্তি” that it has been defined by our Legislature in a very wide way thereby incorporating any dispute arising out of the relationship between the parties within the terms of the agreement and beyond the terms of the agreement. Same intention of the Legislature is apparent from the clear words as mentioned in the above quoted provisions under section 10 of the said Act. Two types of parties: to an arbitration agreement have been referred to therein, namely that the specific parties to such agreement or any party claiming under such parties to such agreement. Apart from above, Explanation to section 9 (2) of the said Act categorically recognizes such arbitration agreement by way of reference to a contract containing such arbitration Clause [see MR Engineers vs Som Datt. Builders, 2009 (3) RAJ 448 (SC)]. These being the specific provisions of law without giving any space for interpretation by the Court by referring to any other external materials or text books, we are of the view that an arbitration clause in an agreement may be adopted by other parties who are claiming under the parties to the said agreement if the agreement in between such other parties adopts the said arbitration clause in the main agreement for resolving the dispute arising from the said subsequent agreement. We find support of this position of law in one case decided by the full bench of the Calcutta High Court in Dwarkadas Co. vs Daluram, AIR 1951 Calcutta-10.
4.3 With the above position of law, let us now examine the issues raised by the parties. Admittedly, the plaintiff in the suit concerned entered into the registered baina dated 10-4-2014 (Annexure-D to Civil Revision) as the First Party to the said contract. The Second parties to the said contract are Mrs. Amin Maria (land owner-defendant No.1), represented by the developer Nagor Vision Development Ltd. (defendant No. 2), and Nijhum Property Ltd., the subsequent developer (defendant No.4). Further admitted position is that the said agreement or baina was executed in respect of the developer's portion of the property, namely 50% of the property. Admittedly, defendant No.2 (Nagor Vision) and defendant No.4 (Nijhum properties) became parties to the said baina and executed the same mainly on the strength of the first development agreement, namely agreement dated 28-7-2011 (Annexure-D I to the Civil Revisional application). Therefore, it appears that the land owner (defendant No.1) entered into a development agreement with defendant No.2 in 2011 and, pursuant to the same, executed an irrevocable power of attorney giving extensive power in favour of defendant No. 2 for the development of the land and building thereon. Thereafter, on the strength of this agreement dated 28-7-2011 and the irreparable power of attorney executed on the same day, Nagor Vision (defendant No.2) entered into another development agreement with Nijhum properties (defendant No.4) for development of the said building because of its financial difficulties in continuing with the construction.
4.4 It now appears from the baina in question that because of the difficulties in continuing with such construction due to scarcity of funds, the said parties, namely the land owner (represented by Nagor Vision) and subsequent developer (Nijhum Properties) executed the said baina and thereby gave commitment to transfer 50% of the developed property (flats and proportionate land) in favour of the plaintiff. By virtue of Clause 12 of the baina in question, the parties to the baina agreed, amongst others, that the conditions in the first development agreement, namely agreement dated 28-7-2011, would be binding on them. Clause 12 of the said baina is reproduced below:
“১২। বিগত ২৫-৫-১১ ইং তারিখে সম্পাদিত (রেজিস্ট্রিকৃত ব্যাপক ক্ষমতা সম্পন্ন) একই আমমোক্তার নামা দলিল যাহার দলিল নং ৮৮০২ এবং একই তারিখে সম্পাদিত ভূমির মালিক ও ডেভেলপার এর মধ্যে (রেজিঃকৃত চুক্তি নামা দলিল যাহার দলিল নং ৮৮০১ এ অনুযায়ী এর তফসিল সম্পত্তি কিংবা ডেভেলপমেন্ট এর সমুদয় হিস্ত অদ্য ১ম পক্ষের বরাবর হস্তান্তর হইবে এবং উক্ত দলিলের সকল শর্ত মানিতে বাধ্য থাকিব।”
4.5 Admittedly, the first development agreement dated 28-5-2011 has an arbitration clause under Clause 17. The exact Clause 17 of the said development agreement is also reproduced below for our ready reference:
”১৭। অত্র চুক্তি পত্র ন্যায় পক্ষদ্বয়ের মধ্যে চুক্তি বিষয়ে কোন বিরোধ সৃষ্টি হইলে উক্ত বিরোধ নিষ্পত্তির জন্য ১ম ও ২য় পক্ষ উভয়ের সম্মতিক্রমে তিনজন সালিসকারক নিয়োগ করা হইবে। আরবিট্রেশন এ্যাক্ট -২০০১ এর বিধানমতে উক্ত সালিসকারকের রায় বা পরামর্শ সকল পক্ষ মানিয়া চলিতে বাধ্য থাকিবেন।”
4.6 Therefore, the question arose in the aforesaid appeal and Civil Revision is as to whether this Clause 17 of the first development agreement should be regarded as one of the clauses or conditions of the baina in question. As stated above, subsequent development agreement with Nijhum properties and the baina in question were executed by defendant Nos. 1-5 basically on the strength of the said first development agreement dated 28-7-2011 between the land owner and Nagor Vision. This basis of every subsequent transaction is further reflected from the context of the baina in question. Admittedly, the second party in the said baina are the said land owner and subsequent developers (Nagor Vision and Nijhum Properties) and they jointly agreed to transfer the developer's portion of the properties, namely 50% of the developed properties, in favour of the plaintiff, and the suit in question has been filed for enforcement of the said registered baina.
4.7 Therefore, under no circumstances, the said registered baina can be examined in an isolated way. In other words, the said baina, or the terms of the said baina, cannot be examined with its entirety ignoring the terms of the said original development agreement dated 28-7-2011 and the power of attorney executed thereon. Different terms of the said baina in question also acknowledge such correlation. The said baina has also made specific reference in respect of the said development agreement between the land owner and Nagor Vision. Therefore, if the said baina categorically stipulates that the terms of the said development agreement, namely development agreement dated 28-7-2011, will be binding on the parties to the said baina, it cannot be said that the arbitration clause incorporated in the development agreement is not incorporated or adopted by the parties in the said baina. It cannot be denied that the parties to the said baina, before execution of the same, have themselves read the terms and conditions of the said development agreement dated 28-7-2011 including Clause 17 therein, and upon realizing the terms and conditions thereof, they have agreed to execute the said baina incorporating Clause 12 therein stipulating that the parties to the said baina would be bound by the terms and conditions of the said development agreement dated 28-7-2011.
4.8 Therefore, as stated above the parties to the said baina are now claiming to enforce their rights, or opposing such enforcement, under the parties of the said development agreement. Although the plaintiff was not a party to the said development agreement, by executing baina in question with Clause 12 therein, he has agreed to be bound by the terms of the said development agreement including Clause 17 thereof. Therefore, as per the definition of the 'arbitration agreement', as provided by section 2 (Dha) of the Arbitration Act 2001, the said baina should be termed as an agreement which arose from the said development agreement dated 28-7-2011 incorporating an arbitration clause therein under Clause 17. Thus, it cannot be denied that this baina dated 10-4-2014 also contains an arbitration agreement.
4.9 This being the position, it cannot also be denied that the parties claiming or opposing their rights and title under the said baina are doing so under the parties to the arbitration agreement. Accordingly, the relevant provisions of the Arbitration Act, 2001, in particular section 10 of the same, may be invoked in case of any proceeding initiated by any of such parties before any Court in Bangladesh. In this regard, we have examined relevant parts of the book authored by Mr Mahmudul Islam, namely the book titled "Interpretation of Statutes and Documents". However, the contents of those parts are not relevant in the facts and circumstances of this case.
4.10 In view of above, since in the suit concerned the defendant No.1, who is admittedly a party to the said development agreement dated 28-7-2011 and the baina in question, has the right to file an application before the Court seeking stay of further proceedings of the said suit by referring to the arbitration clause, or arbitration agreement, between the parties, the Court below has committed no illegality in rejecting the application filed by the plaintiff seeking temporary injunction as well as in staying the further proceedings of the suit concerned by invoking section 10 of the Arbitration Act, 2001. Thus, we do not find any merit in both the aforesaid appeal and Rule. Accordingly, both of them should fail.
4.11 In the result, the appeal is dismissed. Connected Rule, namely Civil Rule No. 272 (FM) of 2019, is also disposed of. Ad-interim order, if any, thus stands recalled and vacated. Rule issued in Civil Revision No. 52 of 2020 is also discharged. Ad-interim order, if any, passed therein stands recalled and vacated.
Communicate this.
End.
High Court Division
Present:
Mr. Justice Md. Badruzzaman (Dist.-Mymensingh)
Civil Revision No. 2757 of 2021.
Nurul Kabir......Petitioner
VS
Sodaha Ludhi Shikdarpara Jame Masjid and others .......... Opposite Parties
Counsels:
.......... Opposite Parties Judgement Date : November 09, 2022
Tushar Kanti Roy, Advocate—For the Petitioner. Md Faysal Hasan Arif, Advocate with Mahuz Bin Yousuf, Advocate—For Opposite Party No. 1.
Judgment
This Rule was issued calling upon opposite party No.1 to show cause as to why judgment and order dated 13-1-2021 passed by learned Additional District Judge, 2nd Court, Chattogram in Civil Revision No. 156 of 2019 affirming an order dated 6-1-2019 passed by learned Senior Assistant Judge, Satkania, Chattogram in Other Suit No. 262 of 2016 rejecting an application under Order VII rule 11 of the Code of Civil Procedure for rejection of plaint should not be set-aside.
2. At the time of issuance of Rule, this Court vide ad-interim order dated 6-12-2021 stayed further proceeding of Other Suit No. 262 of 2016 for a period of 6(six) months.
3. Facts, relevant for the purpose of disposal of this Rule, are that opposite party No.1 as plaintiff instituted Other Suit No. 262 of 2016 against the present petitioner and others in the Court of Senior Assistant Judge, Satkania, Chattogram praying for a decree of declaration of title to 0.40 acre suit land and another declaration that BS Khatian Nos. 1398, 1399 and 2895 in respect of the suit land were wrongly prepared and published in the name of Md Kamal Uddin and his mother Obeda Khatun instead of the plaintiff, declaration of heba deed executed by Md Kamal Uddin in favour of defendant Nos. 3-7 dated 4-8-2009 being No. 1817 and the Mutation Khatian No. 3949 are illegal, void, without jurisdiction and for such misdeeds the title and possession of the plaintiff to the suit land have not been affected in any way.
4. Defendant No. 6 entered appearance in the suit and then filed an application under Order VII rule 11 of the Code of Civil Procedure for rejection of plaint against which the plaintiff filed written objection. The trial Court, upon hearing of both parties, vide order dated 6-1-2019 rejected the application fixing the next date for filing written statement.
5. Being aggrieved by said order dated 6-1-2019 defendant No. 6 preferred Civil Revision No. 156 of 2019 before the learned District Judge, Chattogram which was transferred to learned Additional District Judge, 2nd Court, Chattogram for disposal who, upon hearing both parties, disallowed the revision vide judgment and order dated 13-1-2021 by affirming the order passed by the trial Court.
6. Being aggrieved by said order dated 13-1-2021, defendant No. 6 has preferred this application under section 115(4) of the Code of Civil Procedure and obtained the Rule and order of stay, as stated above.
7. Plaintiff-opposite party No.1 has entered appearance by filing vokalatnama to contest the Rule.
8. Mr Tushar Kanti Roy, learned Advocate appearing for the petitioner by taking me to the plaint, application for rejection of plaint and the orders passed by the Courts below submits that the suit is barred by the principle of res judicata and also barred under section 6A and 102 of the Waqfs Ordinance, 1962 inasmuch as that in view of provisions under section 6A(4) of the Waqfs Ordinance, 1962 the Administrator of Waqfs is empowered to take steps for correction of record-of-rights and the plaintiff, who
is a stranger to the waqf estate, has no locus standi to institute the suit and as per the provisions under section 102 of the Ordinance 'Civil Court' has no jurisdiction to decide title in respect of waqf property and accordingly, the plaint should have been rejected by the trial Court. Learned Advocate submits that the revisional Court without considering the relevant provisions of law illegally disallowed the revision by affirming the order of the trial Court and, as such, committed an error of law resulting in an error in the decision occasioning failure of justice and accordingly, interference is called for by this Court.
9. As against the above submissions, Mr Faysal Hasan Arif, learned Advocate appearing for opposite party No.1 submits that the question of locus standi as well as res-judicata are mixed questions of law and fact which cannot be decided in disposing of an application under Order VII rule 11 of the Code of Civil Procedure and these issues can only be decided only upon taking evidence during trial. Learned Advocate
further submits that admittedly, the suit property is waqf property but the previous mutawalli recorded the waqf property in his name along with his mother in the RS Khatians instead of the name of waqf estate and thereafter, transferred the same without any permission from the Administrator to defendant Nos. 3-7 by way of declaration of heba deed and since the previous mutawalli and his son, the present mutawalli, did not protect the interest of the Waqf, the plaintiff filed the present suit for protection of the waqf property. By referring to the provisions under section 2(8) of the Waqfs Ordinance, learned Advocate submits that 'person interested in a waqf' includes a beneficiary and any person who has a right to worship or to perform any religious rite in a mosque, idgah, imambarah, dargah, maqbara or other religious institution etc, may file a suit to protect the waqf property when the mutawalli goes against the interest of the waqf estate.
10. Learned Advocate further submits that though section 6A of 'The Waqfs Ordinance' conferred power upon the Administrator of Waqfs to take immediate steps for correction of record-of-rights which has not recorded in the name of the waqf estate but, in the instant case, the Administrator did not take any steps to correct the record-of-rights. Learned Advocate further submits that in the instant suit not only the record-of-rights has been challenged but also the deed of declaration of heba which has been executed by the previous mutawalli transferring the waqf property to his relatives and mutation khatian have been challenged, the Administrator has no jurisdiction to decide whether the said deed or record-of rights were legal or whether by said deed the defendants have acquired any right, title and interest to the suit land by way of said declaration of heba deed and accordingly, the suit is not barred by law.
11. Learned Advocate finally submits that the provisions under section 102 of the Waqfs Ordinance provides that no decision or order of the Administrator can be questioned in any suit or other proceeding in Court except as otherwise expressly provided in the Ordinance but in the instant case, decision or order of the Administrator has not been challenged and accordingly, the revisional Court committed no illegality in refusing to reject the plaint by affirming the order of the trial Court and, as such, interference is not call for by this Court.
12. I have heard the learned Advocates, perused the plaint, application filed under Order VII rule 11 of the Code of Civil Procedure and the orders passed by the Courts below as well as relevant provisions of law to come to a proper decision.
13. On perusal of the plaint, it appears that the suit has been filed by "ছদাহা লধুী সিকদার পাড়া জামে মসজিদ" represented by the Vice-President of the Committee of the mosque. In the averment of the plaint, the plaintiff stated that 0.40 acre suit land is waqf property out of which 0.30 acre was dedicated by Begumjan and others vide registered deed of waqf dated 17-6-1954 being No. 4345 in favour of the plaintiff mosque and handed over possession thereof in its favour and by said deed Danu Miah was appointed as first mutawalli. Thereafter, Syed Ahmed Mohuri transferred 0.10 acre suit land to the plaintiff vide waqf deed dated 23-11-61 being No.5677 and Md Kamal Hossain, the predecessor of defendant Nos.3-7, was appointed as mutawalli of the waqf estate and in his tenure he recorded said 0.40 acre suit land in his name along with his mother instead of the name of the waqf estate i.e. the plaintiff and thereafter, said mutawalli transferred the suit land in favour of his children (defendant Nos.3-7) by registered declaration of heba deed being No. 1817 dated 4-8-2009. It has also stated in the plaint that the defendants are now claiming title to the waqf property as their personal property and, as such, the waqf estate filed the suit represented by the Vice-president of the mosque Committee praying for a decree of declarations, as stated above.
14. As per averments of the plaint, the father of defendant No. 6, who was previous mutawalli recorded
the waqf property in his name along with his mother instead of the name of waqf estate and also transferred the suit land by declaration of heba deed dated 4-8-2009 to defendant Nos. 3-7. This averment of the plaint is not denied by defendant No. 6 who is also claiming that he is the present mutawalli of the waqf estate.
15. Under Order VII, rule 11 of the Code of Civil Procedure the plaint shall be rejected in the following cases:
(a) Where it does not disclose a cause of action,
(b) Where the relief claimed is undervalued and the plaintiff, on required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so,
(c) Where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so,
(d) Where the suit appears from the statement in the plaint to be barred by any law, Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not exceed twenty-one days.
16. It is not the case of the defendant that the plaint does not disclose cause of action or the relief claimed is undervalued or the plaint is written upon paper insufficiently stamped and the plaintiff failed to supply requisite stamp-paper as per direction of the Court. The defendant has sought for rejection of the plaint mainly on the ground that the suit is barred by law in that the plaintiff has no locus standi to file the suit and the suit is barred by the principle of res judicata and under sections 6A (4) and 102 of the Waqfs Ordinance, 1962.
17. It is settled principle of law that question of res-judicata is a mixed question of law and fact which cannot be decided upon an application filed under Order VII, rule 11 of the Code of Civil Procedure but the same can only be decided at the time of trial upon taking evidence. On the face of it, the suit has filed by the waqf estate and the plaint has signed by Janu Mia claiming to be empowered by the mosque Committee representing the waqf estate for protection of the interest of the waqf. On the other hand, defendant No.6, Nurul Kabir is claiming to be the present mutawalli of the waqf estate and he is legally authorized to represent the waqf estate. But both parties are admitting that the suit property is waqf property belonging to the mosque. Though defendant No. 6 is claiming himself as mutawalli but he did not come forward to file the suit for protection of the interest of the waqf estate.
18. Now question arises whether the waqf estate itself can file a suit for protection of its own interest and if answer is positive, who will represent the waqf estate?
19. Sub-section (1) of section 6A of the Waqf Ordinance, 1962 provides that 'any immovable property belonging to any waqf estate shall be recorded in the record-of-rights in the name of the waqf and shall be represented by the designation of mutawalli, Receiver or Administrator, as the case may be.'
20. Sub-section (4) of section 6A of the Ordinance also provides that 'if any immovable property belonging to any waqf estate is not recorded in accordance with the provisions of this section, the Administrator shall take immediate steps for correction of the record- of-rights.
21. In the instant case, admittedly, the record-of-rights of the suit property was not recorded in the name of waqf estate but the same has been recorded in the name of previous mutawalli and his mother. Accordingly, the Administrator of Waqfs should have taken immediate steps for correction of record-of rights under sub-section (4) of section 6A of the Waqfs Ordinance. By filing supplementary affidavit learned Advocate for the petitioner submits that the Administrator of Waqfs.by order dated 30-3-2015 (Annexure-C-1) directed the petitioner (mutawalli) to take steps for correction of record-of-rights in the name of waqf estate. But, it appears that the petitioner (defendant No. 6) for unknown reasons, did not take any steps in view of the order passed by the Administrator of Waqfs dated 30-3-2015 as yet.
22. Section 56 (1) of the Waqfs Ordinance makes a clear bar of transfer of waqf property by way of sale, gift, mortgage or exchange by the mutawalli without the previous sanction of the Administrator. Sub-
section (4) of section 56 also provides that 'where a mutawalli transfers a waqf property in contravention of sub-section (1) and afterwards himself becomes the owner of the property, the mutawalli shall, on the direction of the Administrator, reconvey the property to the waqf. Sub-section (5) of section 56 also provides that 'any transfer made in contravention of the provisions of sub-section (1) shall be deemed to be an act of malfeasance and breach of trust for the purpose of sub-section (1) of section 32. Section 32 of the Ordinance provides provision of removal of mutawalli on the allegation of breach of trust, mismanagement, malfeasance or of any act of the mutawalli causing loss of the waqf property.
23. It appears that the previous mutawalli transferred the waqf property in favour of his children (defendant Nos. 3-6) which has been challenged in the suit. Admittedly, no unction was obtained before the transfer of the suit property by the previous mutawalli. As per section 56(3) of the Ordinance, such transfer shall be declared void, if the Administrator applies to the Civil Court in this behalf. No such action has been taken by the Administrator nor he proceeded against the previous mutawalli under section 32 of
the Ordinance. On the other hand, though the Administrator vide order dated 30-3-2015 directed defendant No.6 to take steps to prepare record-of-rights in the name of the waqf estate but he did not comply with the said order and the Administrator did not take any action against
defendant No.6 for non-compliance of his order dated 30-3-2015.
24. Procedure as to when the Administrator may institute a suit or proceeding in his own name in a Court to protect the interest of a waqf property has been provided in section 83 of the Ordinance which reads as follows:
"83. If there is no mutawalli or the mutawalli refuses or neglects to act in the matter, within a reasonable time, the Administrator may, in his own name, institute a suit or proceeding in a Court against a stranger to the waqf or any other person-(a) for the establishment of right, title and interest in a waqf property, or
(b) for confirmation of possession in a waqf property, or
(c) for the recovery of any waqf property wrongfully possessed, alienated or leased, or (d) ................
(e) .............
(f) For any other relief in the interest of a waqf he may consider necessary."
25. The provisions under section 83 clearly suggest that in the event of refusal or negligence on the part of the mutawalli in the matter, the Administrator of Waqfs is empower to institute a suit or proceeding in a Court in his own name against a stranger to the waqf or any other person to protect the right, title and interest of a waqf property. In other words, the Administrator has no authority to pass a decree against such person like a civil Court declaring right, title and interest of a waqf property, or confirmation of possession of a waqf property, or of recovery of possession of any waqf property wrongfully possessed, alienated or leased.
26. The Waqfs Ordinance, 1962 has defined `a person interested in the waqf,' in section 2(8) as follows:
"person interested in a waqf' includes a beneficiary and any person who has a right to worship or to perform any religious rite in a mosque, idgah, imambarah, dargah, maqbara etc or other religious institution and establishment connected with the waqf or to participate in any religious or charitable institutions under the waqf.
27. There is no provision in the Waqfs Ordinance, 1962 prohibiting 'a person interested in the waqf,' as defined in section 2(8) of the Ordinance, or 'the waqf estate itself,' as the case may be, to establish the right, title and interest of the waqf by filing a suit or proceeding in a Court in the event of failure on the part of the Administrator of Waqfs or mutrawalli in taking necessary steps under sections 6A, 56 or 83 of the Ordinance to protect the interest of the waqf.
28. Accordingly, I am of the view that, being a person interested in the waqf, the vice-president of the mosque committee has locus standi to institute the suit representing the waqf estate for protection of its
interest.
29. On the other hand, section 102 of the Waqfs Ordinance provides that except as otherwise expressly provided in this Ordinance, no decision or order of Administrator shall be questioned in any suit or other proceeding in any Court'. In the instant case, it appears that, the plaintiff did not challenge any such order or decision of the Administrator.
30. In that view of the matter and given the facts and circumstances of the present case, the present suit is not barred under any provision of the Waqfs Ordinance. Accordingly, the plaint cannot be rejected on the ground that the suit is barred by law. As such, the Court of revision committed no illegality in dismissing the revision by affirming the order of the trial Court, rejecting the application for rejection of the plaint.
31. In that view of the matter I find no merit in this Rule.
32. In the result, the Rule is discharged, however without any order as to costs. 33. The order of stay granted earlier is hereby vacated.
The trial Court is directed to proceed with the suit and conclude the trial expeditiously.
End.
High Court Division
Present:
Mr. Justice Bhishmadev Chakrabortty
Mr. Justice Md. Ali Reza
First Appeal No. 151 of 2006.
Alauddin and others --------- Appellants
VS
Narayan Chandra Shil being dead his heirs: 1(a) Keshob Chandra Shil and others --------- Respondents
Judgement Date : October 31, 2022 ABM Siddiqur Rahman Khan with Md Rafiqul Islam Faruque, Advocates—For the Appellant.ABM Matiur Rahman with Nahid Sultana, Advocates—For Respondent No. 1.
Counsels:
dvocates—For Respondent No. 1.
Judgment
Md Ali Reza, J:
This appeal at the instance of defendants 6 and 7 is directed against the judgment and decree dated 2-5-2006 passed by the District Judge, Narayanganj in Title Suit No. 02 of 1988 arising out of Probate Case No. 12 of 1984.
2. Respondent No. 1 Sree Narayan Chandra Shil (since dead) as petitioner filed Probate Case No. 12 of 1984 in the Court of District Judge, Narayanganj on 25-11-1984 for granting probate of the will dated 14- 8-1943. The probate Case was subsequently transferred to the Court of Subordinate Judge, Narayanganj and renumbered as Probate Case No. 75 of 1985. The appellants namely Alauddin and Amina Begum being 3rd party to the will filed an application on 3-1-1987 for their addition as opposite party and they were added as opposite parties 6 and 7 on 8-2-1987. Opposite party 6 then filed written objection on 28- 5-1988. Later on, the case was transmitted to the Court of District Judge who considering the written objection converted the probate case to Title Suit No. 2 of 1988 by order 41.
3. The case of the petitioner-plaintiff-respondent is that the suit land belonged to Shoshi Mohon Shil who had 5(five) sons named Jagadish, Robindra, Brindabon, Khetra Mohon and Shadhon. Jagadish, Robindra and Brindabon left this country for India in 1940 and lived there permanently. Khetra Mohon lived separately in Tongi. The youngest son Shadhon was taken in adoption in his childhood by his aunt through ritual participated by his brother Shoshi Mohon Shil and accordingly Shadhon was grown up there with and by his aunt. Subsequently, Shadhon being inspired to the ideals of Islam embraced the same and changed his name to Mohammad Shahjahan and started living in the address in Dakshin Khan, Uttara. Thus, Shoshi Mohon Shil being abandoned by his family started living in the house of his eldest brother Nagorbashi. Nagorbashi at his own cost took proper care of Shoshi with maintenance and medication and Shoshi was satisfied with that. Shoshi desired to make a will in favour of Nagorbashi and expressed such intention to the local respectable persons and consequently executed the same on 14-8-1943 in presence of witnesses. Previously no will had been executed by Shoshi. Nagorbashi or his successors were empowered to take probate. Shoshi himself read the contents of the will and signed the same with full understanding in presence of the witnesses and scribe. The petitioner filed the case for granting probate with the original copy of the will.
4. The Court kept the will in the safe custody by order 2 dated 29-11-1984.
5. The case of opposite party-defendant-appellant No. 1 as made out in written objection is that the three sons of Shoshi Mohon named Jagadish, Rabindra, Brindabon went to India permanently before 1947 and another son Khatro Mohon predeceased his father. Shashi Mohon died in 1959 leaving behind his youngest son Shadhon as his only successor. Shadhon became owner in possession. He was neither
adopted to his aunt nor lost his title in his paternal property. Shoshi never executed the will and the same is forged, fraudulent, illegal and inoperative. Nagarbashi or his heirs did not acquire any right, title and interest in the suit property. Shadhon while maintaining title and possession in the suit land was inspired by the ideals of great Islamic religion and accepted the same on 17-7-1967 when he was about 22 years old. Subsequently, due to necessity of money he sold the suit land to Alauddin and his wife Amena on 03-10- 1983 by 03(three) registered kabalas and delivered possession. Alauddin and Amena are opposite parties 6 and 7 respectively. Earlier the plaintiff-respondent filed Title Suit No. 194 of 1983 which was dismissed on 27-6-1985. The petitioner has no title and possession in the suit land. The suit is liable to be dismissed.
6. The Court of District Judge framed as many as 5(five) issues as to maintainability, limitation, whether the will filed by the plaintiff is genuine or not, whether the plaintiff has right and possession in the suit land and whether the plaintiff is entitled to decree as prayed for.
7. In course of trial plaintiff examined 3(three) witnesses and filed the will which was marked as Exhibit 1. On the other hand, the defendant 6 examined 03(three) witnesses but he did not file any document.
8. The Court of District Judge upon hearing the parties and perusal of evidence held that the plaintiff petitioner has been able to prove the case and he is entitled to have the order of probate and accordingly the suit was decreed on 2-5-2006.
9. The defendant-opposite parties 6 and 7 being aggrieved by the impugned judgment preferred the instant appeal.
10. Mr ABM Siddiqur Rahman Khan with Mr Md Rafiqul Islam Faruque, learned Advocates appearing on behalf of the appellants submitted that the impugned judgment is bad in law and liable to be set-aside. Mr Khan submitted that the lower Court erred in law in granting probate although according to section 63 of the Succession Act read with section 68 of the Evidence Act, two attesting witnesses are required to be examined but the plaintiff-petitioner did not take any such step in the instant case. The plaintiff also did not prove the testamentary capacity of Shoshi Mohon to the effect that at the time of execution he was in a sound and disposing state of mind and he understood the nature and effect of such disposition and put his signature on his own free will. He further submitted that the learned District Judge did not consider that the appellants being purchasers from Shadhon alias Shahjahan constructed house in the suit land thus respondent cannot claim on the basis of will which is forged and fraudulent. He laid much emphasis on suspicious circumstance and submitted that the instant probate case was filed long after 40 years from the date of execution of the alleged will in 1943. The case of the plaintiff on the alleged adoption is also not proved in evidence and the will also does not have any such recital in its body. He further submitted that Title Suit No. 194 of 1983 filed at the instance of the plaintiff-respondent for declaration of title against the same party since was dismissed the petitioner is not entitled to any remedy. The will since being surrounded by suspicious circumstance the same cannot be considered the testamentary disposition of the testator. In support of his submission he has referred the case of Biswaswar Das Karmakar and others vs Sasanka Mohan Das and others reported in 35 DLR (AD) 315, Khitindra Chandra vs Jalada Devi 35 DLR (AD) 102, Paresh Chandra vs Hiralal Nath and others 36 DLR (AD) 156, Jogendra Nath vs Amulya Chandra and others 44 DLR (AD) 147, Narendra Nath vs Sunil Kumar 1994 BLD (HCD) 10 -= 45 DLR 567, Janki Narayan vs Narayan Namdeo (2003) 2 SCC 91, Rur Singh vs Bachan Kaur (2009) 11 SCC 1, Kanchan Bala vs Gita Rani 14 BLC 472, Bhagirat Barman vs Haricharan 4 BLC (AD) 234, Oom Prokash vs Shoroshoti Bai AIR 1998 MP 226 and Thirty Sam Shroff vs Shiraz Byramji AIR 2007 Bom 103. He finally submitted that the petitioner did not even mention the time of death and amount of asset of the testator and the case is also barred under section 11 of the Code of Civil Procedure.
11. Mr ABM Motiar Rahman, learned Advocate appearing for the plaintiff-respondent submitted that the appellant cannot challenge the grant of probate under section 283(1)(c) of the Succession Act. The appeal is not maintainable because the appellants are not aggrieved as defined under the law and the revocation case is not maintainable and they have no locus standi to challenge the probate Case. The three kabalas dated 3-10-1983 include fictitious land and those are invalid documents under section 28 of the Registration Act. Moreover, the appellant did not even file and prove those documents in evidence. He finally submitted that the respondent is entitled to get the aid of section 90 of the Evidence Act in the given facts and circumstances of the present case and the impugned judgment calls for no interference by this Court being passed upon proper appreciation of evidence. He has referred the case of Sree Moti Charu Bala Sen vs Abul Hashem and others reported in 33 DLR (AD) 254 and ADC (Revenue) vs Orun Kumar 6
BLC 354.
12. We have heard the learned Advocates for both sides and perused the evidence on record and gone through the impugned judgment and the grounds taken in appeal.
13. It is admitted that Shoshi Mohon had 05(five) sons named Jagadish, Rabindra, Brindabon, Kethromohon and shadhon alias Shahjahan, Jagadish, Rabindra, Brindabon permanently left this country for India before 1947. Khetro Mohon lived separately in Tongi and died during the life time of his father. The plaintiff-respondent claims that Shadhon was adopted to his maternal aunt. Subsequently, he embraced Islam on 17-7-1967 and named himself as Shajahan through affidavit dated 27-7-1967 in which he asserted that he was about 22 years old at that time. Thus it appears that admittedly he was born in 1945 after two years of the execution of will dated 14-8-1943 (Exhibit 1). So, it can be safely held that he had no personal knowledge about the will or its execution. Defendant 6 now appellant denied the case of adoption raised by respondent. Respondent Narayan is the son of propounder Nagarbashi who is the brother of testator Shoshi. The son of Shoshi named Shadhon alias Shahjahan is said to have sold the suit land to the appellant by 3(three) documents dated 3-10-1983. Appellant 2 is the wife of appellant 1 but she did not file any caveat or contest the suit. Defendant 6 did not even file their documents. Defendants 6-7 in order to contest the probate case filed application for their addition on 3-1-1987. The then Subordinate Judge allowed the application on 8-2-1987 only on the finding that they had good reason to be added as party to the litigation. It is absolutely surprising how the Subordinate Judge found good reason without any document and beyond the settled law. However, the respondent did not go to the Higher Court against such order. But in the instant appeal this Court is not fettered to examine whether the order dated 8-2-1987 was rightly passed or not. The main question is whether the appellant got any interest in the estate of the testator so as to be called upon to come and see the proceeding before the grant of probate as provided under section 283 of the Succession Act. In order to entitle a person to come and see the proceeding before the grant of probate he must show that he is interested in the estate of the deceased. Here the purchaser-appellant did not even produce their documents in evidence. Moreover, in the evidence it appears that both DW 1 and DW 2 claimed to be transferee and transferor respectively to those documents clearly admitted that those documents were registered in Tongi Sub registry office instead Rupganj and the vendor had no paper to show any land belonging to him in Tongi. Law is settled that document holding fictitious property is invalid under section 28 of the Registration Act. So the appellant have simply failed to show that they have any interest in the estate of the testator.
14. The interest in the estate of the testator within the words of section 283 of Succession Act means an interest through the testator. A person who claims outside or independently of the will or claims adversely to the testator and disputes his right to deal with the property cannot be deemed to claim any interest in the estate of the deceased. The crucial point in this case is whether the appellant claimed any interest in the estate through the testator and since they do not and cannot do so they had no locus standi to be added as a party or question the execution or attestation of the will in this probate proceeding. This aspect of the case has long ago been settled in Charu Bala case reported in 33 DLR (AD) 254. This Charu Bala case was affirmed in the case of Shubra Nandi Mojumder vs Begum Mahmuda Khatun reported in 42 DLR (AD) 133. In Shubra Nandi's case, caveator Mahmuda claimed interest through an agreement executed by the testator Sharat Kumar himself and filed application for her addition in the probate proceeding. Consequently, Leave was granted and our Honorable Appellate Division referring to Charubala case held that the point has been settled and there is no scope for taking different view. A
Division Bench of this Court also relied upon the same principle in the case reported in 6 BLC 354.
15. It appears that in all cases referred to by the appellant the caveator happens to be claiming through testator as heir or reversioner but in the instant case the appellants claimed independently. So the main submission of the appellant on technicality of suspicious circumstance relying upon those referred cases bears no value and falls through. In the event of contesting the case by Shahjahan himself may arise the question of suspicious circumstance or whether Shoshi was competent or in a sound and disposing state of mind or possessed testamentary capacity at the time of execution of Exhibit 1 dated 14-8-1943. In fact, admittedly Shahjahan was born in 1945 and he had no knowledge whether Nagarbashi resorted to any fraud, undue influence and coercion in course of execution by testator Shoshi. Moreover, paragraph 15 (xiv) of T Romesh case (online version) referred to by the appellants shows that such allegations on fraud etcetera brought about by the caveator with regard to execution have to be proved by him.
16. Shadhon alias Shahjahan is sealed with a case of adoption. PW-1 Narayan is the paternal cousin of
Shahjahan and PW-2 Rabindra is the brother of Shahjahan. They deposed on adoption. PW 2 is the significant witness because as an heir he was entitled to the property left by his deceased father if he would have opposed the will. He is the disinterested witness. He supported the case of adoption. On the other hand, DW-1 Alauddin admitted in evidence that Shadhon lived in the disputed house with his father but Shadhon alias Shahjahan as DW-2 himself admitted that his uncle Banabashi maintained him and in 1967 he lived in Manikdi Tejgaon and his present address is Dakshin Khan, Uttara. DW 3 also supported that Banabashi maintained Shadhon. The possession of Shadhon alias Shahjahan is material in the instant case in order to defeat the case of adoption. Shahjahan as well as the appellant has to make out a definite case that before sale to the appellants in 1983 Shahjahan lived in his paternal house. But admittedly things are different here. Even the affidavit dated 27-7-1967 shows his address was Balughat, Cantonment, Tejgaon in 1967. Therefore it is held that the earlier possession of vendor Shahjahan in the suit land is not proved in evidence.
17. The will was executed in 1943. The appellant claimed to have purchased the land in 1983 from Shajahan. PW 3 stated in evidence that the appellant tried to enter into the suit land after purchase from Shajahan for which criminal case was started and he was convicted. He further stated that he has home in a portion of the land. There is no specific evidence on the entry of the appellant in the suit land. As discussed above, Shajahan's possession was not proved. In this context it is understood that after purchase in 1983 appellant forcibly had entered into a portion of the suit land. Since Shajahan had no possession, the appellant's possession, if any, claiming under Shajahan is not believable. But it transpires that he is a trespasser and law is settled that a trespasser cannot maintain his illegal possession against the real owner.
18. Learned Advocate for the respondent submitted that the will was executed in 1943 and it was a very old event so it was not possible to prove it by direct evidence. The will was produced from the proper custody without objection. So there is a presumption under section 90 of the Evidence Act that the will was duly executed and attested. Learned Advocate for the appellant strongly opposed this argument. He drived our attention to paragraph 14(b)(i), 14(e)(ix) of T Romesh Case and submitted that presumption under section 90 does not apply to will because wills have to be proved in terms of section 63(c) of the Succession Act read with section 68 of the Evidence Act.
19. To understand the intention and purpose of a law all the relevant sections of that particular law must be read together. From a combined reading of sections 283(1)(c) and 63(c) of the Succession Act, it appears that the party who wants to assail a will relying on section 63(c) must at first satisfy the requirement of section 283(1)(c) that the attacking party-caveator coming under section 284 must be a party claiming interest in the estate through testator and if such party claims independently of the will cannot be said to have interest in the probate case. In the instant case the appellant claims independently and he even did not produce his documents before the Court and the documents also are said to have been tainted with fictitious property. In such a situation the appellant-caveator cannot get the benefit and question the validity of the will under section 63 where he has no legal right or interest under section 283 of the Succession Act. The ratio of the case of Kanchan Bala reported in 14 BLC 472 as referred to is similarly not applicable in the present case because in that case Kanchan Bala was claiming not independently but through testator according to section 283 of the Succession Act.
20. In the case of Md Abdul Motin Kazi vs Govt. of Bangladesh reported in 11 ADC 133 interpretation of law on section 90 of the Evidence Act has been laid down. In the instant case there is no evidence to show that Nagarbashi ever played any unscrupulous role in course of execution of the will (Exhibit-1). Rather the appellant-caveator being a third party to the will did not even bother to produce their documents challenging the will. His conduct appears to be unscrupulous. Exhibit-1 came from proper custody and was more than 30(thirty) years old and on its face it is presumed that the same was executed by Shashi Mohon in a sound disposing state of mind. Relaying on the authority of the decision of their Lordships of the Privy Council in Munna Lal vs Mst. Kashi Bai AIR (34) 1947 PC 15 the presumption in cases of execution and attestation of will under section 90 of the Evidence Act was drawn by a Division Bench in the case of Mst. Saran vs Abdul Rashid reported in PLD 1950 Sind 131. In the case of Swarna Kottoyya vs Karancheti Vardhamma reported in AIR 1930 Mad 744, the similiar view was taken long ago.
21. Considering the fact and circumstance of the present case it appears that a presumption, therefore, arises under section 90 of the Evidence Act that Exhibit-1 evidencing the will is a genuine document and validity executed.
22. It has been stated in paragraph 3 of the application (now plaint) of the probate case that the plaintiff respondent is empowered to take the probate after the death of propounder Nagarbashi. Clause 5 of the will (Exhibit-1) also shows the same and, as such, the respondent has become the propounder under section 146 of the Code of Civil Procedure read with sections 268 and 295 of the Succession Act. Respondent as PW 1 stated in evidence that his father could not file the probate case during his life time for his illness. Learned Advocate for the appellant strongly submitted that this long delay in filing the probate case would raise suspicion and he referred the judgment of Patna High Court passed in the online case of Hari Nath Thakur vs Sri Bhagwan Thakur. In the referred case the objection was also filed by the persons claiming through testator. The fact of the case is also different from the instant case. It transpires that after purchase in 1983 this appellant has been causing disturbance in the peaceful possession of the respondent who was at peace before such transfer. But according to the line of events he was forced to file this case because his back was against the wall. Minorities are under pressure in every country's social system. Many times they are deprived of basic rights and legal facilities. Respondent did not file this case until he was compelled to do the same after being threatened and subsequent illegal trespass of the appellant in around 1987. Without the guarantee of fundamental human rights and the rule of law no nation can attain perfection. Justice is established when the idea that what is injurious to others is injurious to oneself comes to the mind of the people of the society. When there is inequality in the society, people move away from the concept of morality and treat the weak with injustice. It disrupts social behavior and state principles. This kind of injustice can be removed from the society through well thought out and specific application of law. The technicalities of the law should be used sparingly with caution keeping in mind that justice shall not come undone. In the instant case, it is sad to experience that appellant pleads with the technicality of suspicious circumstance without producing any document. This Court is reluctant to accept such submission.
23. Appellant did not file and prove any paper of Title Suit No. 194 of 1983 and the matter in issue of that suit as alleged is apparently not the same. Question of res judicata does not arise at all. As discussed above appellants have no interest in the estate through testator under section 283 of the Succession Act and their access to this proceeding is shut down. For the reasons stated above we are not inclined to interfere with the judgment and decree passed by the District Judge and accordingly this appeal having no merit is dismissed.
Communicate this judgment to the concerned Court. Send down the lower Court's record.
End.
High Court Division
Present:
Mr. Justice S M Kuddus Zaman
Mr. Justice Fahmida Quader
Criminal Revision No.3271 of 2022.
Asif Hasan Dewan and another
Accused-Petitioners vs
State and another
Opposite Parties
Judgement Date : November 03, 2022 Md Mohammad Sazzad Ali Chowdhuty, Advocate—For the Petitioner.KM Masud Rumy, DAG— For the State.Omar Faruk, Advocate—For the Anti-corruption Commission.
Counsels:
r the Anti-corruption Commission.
Judgment
SM Kuddus Zaman, J:
On an application under section 10(1A) of the Criminal Law Amendment Act, 1958 this Rule was issued against the opposites parties to show cause as to why the order No.27 dated 18-1- 2022, passed by the learned Divisional Special Judge, Chattogram, in Special Case No.43 of 2018 arising out of Sitakundu Police Station Case No.31 dated 24-3-2015 corresponding to GR No.108 of 216, framing charge against the accused-petitioners under sections 420/406/ 467/468/471/311/109 of the Penal Code, now pending in the Court learned Divisional Special Judge, Chattogram, should not be set aside and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. Facts in short are that now deceased accused Md Lokman Hasan Chowdhury executed and registered a deed of power of attorney being number 6749 on 11-12-2016 in favour of the petitioners empowering them to manage and transfer his 5.90 acres land appertaining to plot Nos.5915, 5916, 5917, 5918, 5919, 6335, 6336. Out of above land 2.7 acres land of plot No.5919 belonged to the Government. During investigation of the case above Lokman Hasan Chowdhury died. The Investigating Officer on conclusion of the investigation submitted charge-sheet against the petitioners who are the recipients of above deed of power of attorney under sections 420, 466, 467, 468 471, 109, 1511 of the Penal Code.
3. The learned Special Judge on consideration of the materials on record framed charge against the petitioners on 18-10-2022 under sections 420, 467, 468, 471 and 109 of the Penal Code.
4. Challenging the legality and propriety of above order of framing of charge the accused persons as petitioners moved to this Court and Obtained this Rule.
5. Mr Mohammad Sazzad Ali Chowdhury, learned Advocate for the petitioners submits that the petitioners did not do anything in view of transfer or possession of above land on the basis of above power of attorney deed nor they have any claim of title and possession over above land. The petitioners had no knowledge about the creation of above deed of power of attorney and the executants of the deed of power of attorney had cancelled above deed of Power of Attorney vide registered deed No.6749 on 11-12-2016. But the learned Special Judge failed to appreciate above materials on record properly and committed serious illegality in framing charge against the petitioner under above provision of the Penal Code which is not tenable in law.
6. Mr Omar Faruk, learned Advocate for the Anti-corruption Commission submits that on consideration of the averments made in the FIR, charge-sheet and other materials on record the learned Special Judge has rightly framed charge against the petitioner which calls for no interference by this Court.
7. We have considered the submissions of the learned Advocates for the respective party and carefully examined all materials on record.
8. It is not disputed that now deceased Lokman Hasan Chowdhury made the petitioners his constituted attorney for 5.9 acres of land appertaining to seven plots by executing and registering a deed of power of attorney on 27th October, 2010.
9. It has been alleged by the learned Advocate for Anti-Corruption Commission that 2.7 acres land of plot No.5919 out of above 5.9 acres belonged to the Government and inclusion of above Government land in the above deed of attorney has made the deed a forged one. It is not understandable as to how mere inclusion of above one plot of Government land out of 7 plots in above deed of power of attorney makes the deed a forged one.
10. In his report the Investigation Officer stated that above Lokman Hasan Chowdhury has died during investigation of the case and before his death above Lokman Hassan Chowdhury cancelled the impugned deed of power of attorney deed by another registered deed being No.6749 on 11-12-2016.
11. There is no material on record to show that before above cancellation of the power of attorney deed or demise of the executant the petitioners performed any act in the form of owning, possessing or transferring of above land on the strength of the impugned deed of power of attorney.
12. It is well settled that a deed of power of attorney becomes void and inoperative as soon as the executant of the deed cancels the deed or the executant dies. A deed of power of attorney is not a deed of title. It is a mere delegation of authority by the maker of deed to the recipient of deed for performing certain acts on his behalf. This is an unilateral document and recipient of the deed has a little role in the creation of the document.
13. In above view of the materials on record we hold that the learned Special Judge failed to appreciate above materials on record properly and most illegally framed charge against the petitioners which is not tenable in the eye of law.
14. In the result, the Rule is made absolute. The impugned order No.27 dated 18-1-2022, passed by the learned Divisional Special Judge, Chattogram, in Special Case No.43 of 2018 arising out Sitakunda Police Station Case No.31 dated 24-3-2016 corresponding to GR No.108 of 2016 is hereby set-aside.
Communicate this judgment and order to the Court concerned at once.
End.
High Court Division
Present:
Mr. Justice Md. Abu Zafor Siddique
Mr. Justice K. M. Hafizul Alam
Criminal Appeal No. 3269 of 2017.
Jagadish Devnath
Convict-Appellant
VS
State
Respondent
Judgement Date : September 29, 2021 Abdus Salem Mamun, Advocate—For the Appellant.Samira Tarannum Rabeya, DAG, with Anjuman Ara Begum, AAG ATM Aminur Rahman, AAG and Kazi Samsun Nahar, AAG—For the State-Respondent.
Counsels:
, AAG—For the State-Respondent.
Judgment
KM Hafizul Alam, J:
This appeal is directed against the judgment and order of conviction and sentence dated 19-10-2016 passed by the learned Additional Sessions Judge, 6th Court, Chattogram in Sessions Case No.455 of 2012, arising out of Chandanaish Police Station Case No.6 dated 5-1-2012 corresponding to GR No. 6 of 2012 convicting the appellant under section 302 of the Penal Code and sentencing him to suffer rigorous imprisonment for life and to pay a fine of Taka 20,000 in default to suffer simple imprisonment for 2(two) years.
2. Prosecution case:
Facts, relevant for the purpose of disposal of the appeal, in short, are that one Sree Bivuti Ranjan Nath as informant lodged a First Information Report (in brief, the FIR) with Chandonaish Police Station against the convict-appellant. Accordingly the Chandonaish Police Station started Chandonaish Police Station Case No. 6 dated 5-1-2012 under section 302 of the Penal Code. The allegation was that the appellant and the deceased got married about 7 years back and they have a 6 years old son. The appellant frequently used to torture his wife mentally and physically from long time. For that reason there was a Salish Baithak by the local mayor and councilor and lastly on 3-1-2012 the local councillor asked them to settle the dispute amicably within 3 days but on 4-1-2012 at night the convict-appellant after returning home killed her wife by way of strangulation due to previous grudge.
3. Investigation and framing of charge:
Thereafter the investigating officer after investigation submitted a charge-sheet on 8-3-2012 against the convict-appellant under section 302 of the Penal Code. Subsequently the learned Sessions Judge framed charge against the convict-appellant under section 302 of the Penal Code on 31-5-2012 and the said case was transferred for holding trial to the learned Additional Sessions Judge, 6th Court, Chattogram.
4. Examination of witnesses:
At the time of trial the prosecution examined 15(fifteen) witnesses but the convict-appellant examined none as defense witness. After examination of the witnesses, the accused was examined under section 342 of the Code of Criminal Procedure, 1898 (in brief the CrPC) and he pleaded himself as not guilty as well as he denied the allegations made against him. He also sought for justice and refused to give any witness.
5. Judgment: Conviction and Sentence:
Thereafter the learned Additional Sessions Judge, 6th Court, Chattogram considering the evidences and materials on record vide judgment and order dated 19-10-2016 convicted and sentenced the appellant as stated above.
6. Appeal before the High Court Division:
The convict-appellant being aggrieved by and dissatisfied with the aforesaid impugned judgment and order of conviction and sentence dated 19-10-2016 preferred this appeal before this Hon'ble High Court Division and the appeal was admitted on 3-4-2017 and he was enlarged on bail 4-12-2018.
7. Submissions: for the Appellant:
At the time of hearing of appeal, Mr Abdus Salam Mamun, learned Advocate appearing on behalf of the convict-appellant submits that there is no eye witnesses of the occurrence and even the impartial and disinterested witnesses were declared tendered and the PWs contradicted with each other moreover non examination of disinterested important neighboring witnesses caused serious doubt in the prosecution story as such the learned court below ought to have acquitted the appellant by giving benefit of doubt.
7.1 Mr Mamun next submits that the appellant has not committed any offence as alleged and that on the date of occurrence after returning home at night when he opened the door he found the dead body of his wife hanging on ceiling with fan and he immediately informed the matter to his parents-in-law and the landlord of his rented house.
7.2 He further submits that after getting information police came to the place of occurrence and he along with his father-in-law and local mayor went to the police station with dead body where the mayor mislead his father-in-law and took his signature in the FIR and got the appellant arrested.
7.3 He next submits that in order to give confessional statement the police at the instance of the Mayor mercilessly beat him and he lost sense and when he regain sense they threatened him and tortured by a pliers and screw driver pressing his finger, gave electric shock, pushed hot egg into the rectum and pour down hot water on the face threatening him of cross fire by RAB if he does not give a confessional statement in their version and under such a compelling circumstances he made a confessional statement to save his life as was written by police as such the confessional statement was neither true nor voluntary.
7.4 He also submits that in the confessional statement the appellant stated that her wife kept their only son to her parents' house against his will and due to that he had quarrel with his wife; that she was disobedient to him and would go to her father's house without informing him every now and then and she would stay there for 5/6 days for last several months; that she started to take injection for permanent birth control beyond his knowledge; that there were several family salish; that on 4-1-2012 while he was in the shop she went out without informing him and came back; that at night after returning home from pharmacy while he asked for rice but she misbehaved with him using filthy language instead of giving rice and he being angry gave a slap and in return she gave two kicks and called him by bad names throwing sandal to him and at that stage he lost his mental balance and throated his wife to which she died and then he informed his landlord Liton Barua and after getting information from Commissioner police went to the place of occurrence and arrested him.
7.5 Mr Mamun further submits that PW 3 informant in his cross examination on re-call stated that the character of the convict-appellant was highly appreciable and he did not give dowry at the time of marriage and there is a child of the couple who now spending time uncared of and he did not see the convict-appellant torturing his daughter.
7.6 He submits that the appellant has already served about 7 years since 5-1-2012 to 4-12-2018 and his only son is being grown up uncared in absence of parents.
7.7 He next submits that PW 4 is the mother-in-law of the appellant who deposed that the appellant was a boy of good character and religious minded and that the accused never demanded dowry and did not torture her daughter but the Mayor has taken signature of her husband in the FIR and got the appellant tortured by the police.
7.8 Mr Mamun also submits that PW 5 Md Abu Toyob deposed that he did not see the occurrence; PW 6 Md Helal Uddin deposed that while police arrived at house of the accused, the accused-appellant was there in the home and he did not see the occurrence and in police custody the accused was beaten at the instance of the Mayor and he heard that somebody has killed the deceased Lovely before Jogdish arrived home; PW 7 Helal Uddin Chowdhury deposed that on 4-1-2012 at about 2-30 pm Jogodish got him awaked and said that his wife Lovely died and her body was lying on the floor and further stated that the deposition he gave on 11-9-2013 was tutored by Public Prosecutor.
7.9 Mr Mamun lastly submits that as there is no eye witness, therefore, the learned court below mainly relying upon the confessional statement of the appellant convicted him but for the sake of argument even if the statement is considered true but that cannot be basis for conviction under section 302 of the Penal Code because the confessional statement itself speaks that due to the sudden quarrel the appellant being provoked by his wife hit of moment without having any motive he caught the throat of his wife and unfortunately she died as such if the appellant is found guilty at best he be convicted under section 304(II) of the Penal Code.
8. Submission: for the Prosecution Ms Samira Tarannum Rabeya, learned Deputy Attorney-General appearing on behalf of the respondent State, submits that the prosecution has examined 15 (fifteen) witnesses and the said witnesses have corroborated with each other to prove the case against the convict-appellant. She next submits that the appellant has made confessional statement in which he elaborately stated how and under what circumstances he killed his wife, therefore, the prosecution case has been proved beyond all reasonable doubt against the convict-appellant.
8.1 She lastly submits that the learned trial judge upon considering the documents on records and testimonies of PWs and evidences rightly convicted the convict-appellant as such the appeal may kindly be dismissed.
9. We have meticulously examined the FIR, charge-sheet, depositions of the witnesses, the judgment and order of the trial court, and the memo of appeal as well as the relevant laws. We have also heard the learned Advocate Mr Md Abdus Salam Mamun for the appellant and the learned Deputy Attorney-General for the State at length and considered their submissions.
10. Points for determination:
In this context we need to determine the following issues:
1. Whether the prosecution has been able to prove the allegation of murder against the appellant; and
2. Whether in absence of any eye witness as to the killing of the deceased, the conviction only on the basis of confession is sustainable in law.
10.1 Now let us examine how far the above allegations have been proved by the evidences given by the prosecution witnesses.
11. Discussions and Analysis of evidence:
On perusal of the evidences it appears that the appellant got married to the deceased Lovely and they have a child. On the day of occurrence the dead body of the deceased Lovely was found at the rented house of the appellant. There is no eye-witness to the occurrence of death of the deceased. PW 3, father of the deceased being informed by the appellant went to the place of occurrence and the police took the dead body to the police station. After that PW 3 lodged the FIR against the appellant for causing death to the deceased. He in his deposition stated that the appellant killed his daughter Lovely but he in his cross examination on re-call stated that the character of the convict-appellant was highly appreciable and he did not give dowry at the time of marriage and there is a child of the couple who now spending time uncared of He did not see the convict-appellant torturing his daughter and he did not see strangulation of his daughter by the accused. Even PW 4, mother-in-law of the appellant deposed that the appellant was a boy of good character and religious minded and that the accused never demanded dowry and did not torture her daughter. The Mayor has taken signature of her husband in the FIR and got the appellant tortured by the police. PW 5 Md Abu Toyob deposed that he did not see the occurrence; PW 6 Md Helal Uddin deposed that while police arrived at the house of the accused, the appellant was there in the home and before their arrival police was in the house of the accused and that he did not see the occurrence and in police custody the accused was beaten at the instance of the Mayor and he heard that somebody has killed the deceased Lovely before the arrival of Jogdish at home; PW 7 Helal Uddin Chowdhury deposed that on 4-1-2012 at about 2-30 pm Jogodish got him awaked and said that his wife Lovely died and her body is on the floor and called on the police and stated further that his deposition dated 11-9-2013 was tutored by Public Prosecutor. PW 8, 9 and 11 having heard the incident first went to the place of occurrence but they have been tendered by the prosecution.
12. Findings and Reasoning:
From the discussions made above it appears that that there is no eye witness to the occurrence but there is a confessional statement of this appellant. Though in chief PW 3 father and PW 4 Mother of the deceased suspected the appellant in killing their daughter but in cross examination, on recall, they completely took different stand and stated that the appellant is a man of good character having good relation with his wife and he is not involved with the alleged occurrence. It is admitted that the victim was found dead in the house of the appellant. Moreover the post mortem report shows that she was killed and the nature of death was homicidal in nature and ante mortem. In the criminal case though the burden absolutely lies upon the prosecution but when the wife is killed in the custody of husband then section 106 of the Evidence Act, 1872 mandates that the accused has to explain the situation under which circumstance the wife was killed. The section reads as follows :
106.
Burden of proving fact especially within knowledge—When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Illustrations (a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him. (b) A is charged with travelling on a train without a ticket. The burden of proving that he had a ticket is on him.
13.
Regarding the burden in these circum-stances, in the case of State vs Md Abul Kalam Azad reported in 8 BLC 464 it has been held that—
The law is now well settled that when the wife is found dead in the house of her husband, the court requires the husband or other members of his family living with her to explain the circumstances in which she died.
14.
In the case of Abul Kalam Mollah vs State reported in 51 DLR 544 it has been held that— "Ordinarily an accused has no obligation to account for the death for which he was placed on trial, but the murder having taken place while the accused was living with his deceased wife in the same house, he was under an obligation to explain how his wife had met with her death."
15.
In the case of Abdul Motaleb Howlader vs State reported in 6 BLC (AD) 1 it has been held that— "It is well settled that ordinarily an accused has no obligation to account for the death for which he is placed on trial. The murder having taken place while the condemned-prisoner was living with his wife in the same-house he was under an obligation to explain how his wife had met with her death. In the absence of any explanation coming from, his side it seems none other than the husband was responsible for causing death in question."
16.
In this situation the Honourable Appellate Division in the case of alias Hussain vs State reported in 54 DLR (AD) 78 held that—
It is well settled that when a wife met with an unnatural death while in custody of the husband and also while in his house the husband is to explain under what circumstance the wife met with her death.
17. In the instant case in the confessional statement the appellant admitted that he killed his wife. Though the appellant claimed that he was mercilessly beaten and by putting him on fear of cross fire by RAB he was compelled to give the confessional statement prepared by the police and the said statement was not voluntary and true. But from the materials on records it appears that the appellant has not filed any application for retraction of the confessional statement at any stage of trial. He further claimed that the deceased's previous partner of immoral act might have killed her but he could not establish this case by adducing any witnesses. In the said confessional statement he stated that her wife kept their only son to her parents' house against his will and due to that he had quarrel with his wife; that she was disobedient to him and would go to her father's house without informing him every now and then and she would stay there for 5/6 days for last several months; that she started to take injection for permanent birth control beyond his knowledge; that there were several family salish; that on 4-1-2012 while he was in the shop she went out without informing him and came back; that at night after returning home from pharmacy while he asked for rice she misbehaved with him using filthy language instead of giving rice and he being angry gave a slap and in return she gave two kicks and called him by bad names throwing sandal to him and at that stage he lost his mental balance and throated his wife to which she died and then he informed his land lord Liton Barua. Thereafter police went there getting information from Commissioner and arrested him. Even at the time of hearing of appeal, the learned Advocate for the appellant submits that being provoked by the deceased, she and the appellant got into altercation and suddenly out of passion without having any intention caught the throat of the deceased but unfortunately she died by suffocation, therefore, the offence falls under exception 4 of the section 300 of the Penal Code as such his conviction may kindly be altered to section 304(II) of the Penal Code and as he has already served out substantial part of sentence in custody hence by committing the sentence he be released from the custody.
18. In view of the above if we consider the circumstances of the incident, confessional statement of the appellant and failure of the appellant to discharge his burden to explain the circumstance of killing the deceased, we find that the confessional statements appear to be true and voluntary and the explanation is natural and believable. In this back drop it is apparent that on the black night as usual the appellant came back home from his pharmacy and he asked his wife for providing him rice but she misbehaved with him using filthy language instead of giving him rice. Out of anger and being suddenly proved he slapped her and in return she gave two kicks and called him by bad names throwing sandal to him and at that stage he lost his mental balance and without having any previous motive to kill her wife he throated his wife to which unfortunately she died due to suffocation.
19. In view of the above we find that the alleged offence falls under the exception 4 of the section 300 of the Penal Code.
20. The exception of 4 of section 300 for ready reference is reproduced as below:
Exception 4. -Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
Explanation. -It is immaterial in such cases which party offers the provocation or commits the first assault.
21.
In the case of State vs Tayeb Ali and others reported in 40 DLR (AD) 6 it has been held that— "All murders are culpable homicides 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 of causing death then it is murder clear and simple. If death is likely to result from the injuries it is culpable homicide not amounting to murder; and if death is the most likely result, then it is murder."
22.
In the case of The State represented by Solicitor vs Ashraf Ali & others reported in 1994 BLD (AD) 127 it has been held that— "Mere killing of a person or mere causing of a person's death is not Murder, Culpable Homicide or even any other criminal offence; but it is so when caused with certain guilty intention or guilty knowledge. Three classes of cases have been described in sec. 299 as "Culpable Homicide" and four classes of cases have been described in sec. 300 as "Murder". -The difference between mere "Culpable Homicide" and "Culpable Homicide amounting to Murder" amounting to is the degree of probability of death being caused. When death is probable, it is Culpable Homicide; but when death is most probable then, it is Murder."
23.
In the case of The State vs Montu reported in 44 DLR (AD) 287 it has been held that— "But these injuries, though caused intentionally, are of such a nature that these are "likely to cause death". We do not think that this criminal act of causing the death falls into any of the four categories of criminal acts which constitute 'murder' as described in section 300 of the Penal Code. We rather find that this criminal act was done with the intention of causing such injuries as are likely to cause death, as described in section 299. As such, it constitutes culpable homicide not amounting to murder, punishable under section 304 Part I of the Penal Code."
24. In the case of State vs Abdul Khaleque reported in 46 DLR 353 it has been held that- "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."
25.
In the case of Abul Kalam Azad vs State reported in 1994 BLD 401 = 47 DLR 317 it has been held that— "It is clear from the evidence that the free fight between the parties took place after an altercation from cutting of branches of trees by the deceased. The learned Sessions Judge on consideration of the evidence and the fact and circumstances of the case found that the death of Abdul Wadud was caused without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner and this attracts exception 4 to section 300 of the Penal Code. Having considered the facts and circumstances of the case and the evidence on record, we find that the learned Sessions Judge rightly found the attraction of Exception 4 to section 300 of the Penal Code to this case."
26.
In the case of Mom in Malitha vs State reported in 41 DLR 37 it has been held that— "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 in one hand and the death of the 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."
27. In view of the above discussions and the facts and circumstances of the case, and the legal proposition it can safely be said that the allegation brought against the appellant has been proved beyond reasonable doubt and the convict-appellant is guilty for commission of offence under section 304-11 of the Penal Code. Therefore, for the ends of justice his conviction for imprisonment of life under section 302 of the Penal Code is altered under section 304-11 of the Penal Code and the appellant be sentenced thereunder for the period which he has already served out in the jail custody.
28. Accordingly the appeal is dismissed with modification of sentence of imprisonment as stated above.
29. Bail bond furnished by the appellant namely Jagadish Devnath son of late Rai Mohan Devnath in connection with this appeal stands discharged.
The office is directed to send down the lower court's record (LCR) along with a copy of this judgment and order to the concerned court below at once.
End.
High Court Division (Special Original Jurisdiciton)
Mr. Justice F.R.M. Nazmul Ahsan
Mr. Justice K.M Kamrul Kader
Suo-Moto Rule No. 01 of 2019.
State
-------- Petitioner
VS
Anti-Corruption Commission and others
------------ Respondents
Judgement Date : September 30, 2020
Counsels:
Amit Das Gupta with Suvas Chandra Das, Advocate
—For the Petitioner
Md Khurshid Alam Khan, Advocate
—For the Respondent No.1 .
Shaikh Mohammad Zakir Hossain
—For the Respondent No.8.
Md Asaduzzaman, Advocate
—For the Respondent No.10.
Md Sameer Sattar, Advocate
—For the Respondent No.13.
ABM Abdullah Al Mahmud, DAG
with Respondent-government.
Judgment
FRM Nazmul Ahasan, J: This Suo-Moto Rule was issued on 28-1-2019 calling upon the respondent No.1 Anti-Corruption Commission, represented by its Chairman, Segunbagicha, Dhaka and others in the following terms:
"Mr Amit Das Gupta the learned Advocate brings to the notice of the Court about the news caption "৩৩ মামলায় ‘ভুল’ আসামি
জেল-সার, আমি জাহালম, সালেক না...” published in the 'Daily Prothom Alo' on 28-1-2019.
In consideration of the news caption and the facts and circumstances stated above, we are inclined to issue a Rule.
Let a Suo-moto Rule Nisi be issued calling upon the respondents Nos.l. Anti-Corruption Commission, represented by its Chairman, Segunbagicha, Dhaka, 2. National Human Rights Commission, represented by its Chairman, 3. Secretary, Security Services Division, Ministry of Home Affairs, 4. Secretary, Ministry of Law, Justice and Parliamentary Affairs, 5. Inspector General of Prison, 6. Director General Anti Corruption Commission, 7. Abdullah Al-Zahid, Informant and Director, Anti-Corruption Commission, 8. Managing Director, Sonali Bank Limited to show cause as to why the inaction of the respondents in taking necessary steps for releasing innocent Zahalam a labourer of Bangladesh Jute Mills, Gorashal, Narsingdi, now in custody for about three years in connection with 33 cases as filed by the Anti-Corruption Commission regarding forgery of taka above 18 crore of Sonali Bank Limited filed by the Anti-Corruption Commission and as to why the respondents should not be directed to give appropriate compensation to the victim Zahalam and/or such other or further order or orders passed as to this Court may seem fit and proper. 1. The representative of Secretary, Security Services Division, Ministry of Home Affairs.
2. The representative of Secretary, Ministry of Law, Justice and Parliamentary Affairs 3. The Director General, Anti-Corruption Commission (Investigation) 4. Abdullah Al-Zahid, Informant and Director, Anti Corruption Commission is hereby directed to appear before this Court personally on 3rd February, 2019 at 10-30 am.
The Respondent No.9 Editor- 'Daily Prothom Alo' is directed to submit an affidavit-in-compliance of authentication in support of the news item published on 28-1-2019."
2. In the Rule issuing order the representative of Secretary, Security Services Division, Ministry of Home Affairs, 2. The representative of Secretary, Ministry of Law, Justice and Parliamentary Affairs 3. The Director-General, Anti-Corruption Commission (Investigation) 4. Abdullah Al-Zahid, Informant and Director, Anti-Corruption Commission was directed to appear before this Court personally on 3rd February, 2019 at 10-30 am. Upon receiving the order of this court the respondent No.1 Anti-Corruption Commission appeared before this Court by filling a vokalatnama and after hearing the parties the following order was passed.
"Mr Khurshid Alam Khan, learned Advo-cate appearing on behalf of the respondent No.1 Anti-Corruption Commission, Dhaka submits that Commission has already decided to withdraw all 27 prosecution cases being Nos. (1). Mohammadpur Police Station Case No.23 dated 10-4-2012, (2). Mohammadpur Police Station Case No.22 dated 10-4-2012, (3). Mohammadpur Police Station Case No.20 dated 10-4-2012, (4). Mohammadpur Police Station Case No.18 dated 10-4-2012, (5). Mohammadpur Police Station Case No.19 dated 10-4-2012, (6). Gulshan (DMP) Police Station Case No.33 dated 10-4-2012, (7). Gulshan
(DMP) Police Station Case No.35 dated 10-4-2012, (8). Badda Police Station Case No. 26 dated 10-4- 2012, (9). Darus Salam Police Station Case No.11 dated 3-10-2012, (10). Kafrul (DMP) Police Station Case No.18 dated 10-4-2012, (11). Double Mooring (Chattagram) Police Station Case No. 21 dated 12- 4-2012, (12). Pallabi Police Station Case No.28 dated 10-4-2012, (13). Rampura (DMP) Police Station Case No.16 dated 10-4-2012, (14). Rampura (DMP) Police Station Case No.17 dated 10-4-2012, (15). Badda Police Station Case No.22 dated 10-4-2012, (16). Adabor (DMP) Police Station Case No.13 dated 10-4-2012, (17). Adabor (DMP) Police Station Case No.16 dated 10-4-2012, (18). Kafrul (DMP) Police Station Case No.19 dated 10-4-2012, (19). Pallabi Police Station Case No.27 dated 10-4-2012, (20). Pallabi Police Station Case No.26 dated 10-4-2012, (21) Adabor (DMP) Police Station Case No.14 dated 10-4-2012, (22) Pallabi Police Station Case No.29 dated 10-4-2012, (23) Gulshan (DMP) Police Station Case No.34 dated 10-4-2012, (24) Badda Police Station Case No.23 dated 10-4-2012, (25) Badda Police Station Case No.24 dated 10-4-2012, (26) Dhanmondi Police Station Case No.10 dated 10-4-2012 and (27). Adabor Police Station Case No.18(4)12 brought against Md Jaha Alam @ Jane Alam
@ Md Abu Salek @ Golam Mortaza, son of Yousuf Ali, Village-Duboria, Police Station-Nagorpur, District Tangail now custody in Kasimpur Central Jail-2, Gazipur.
In consideration of the aforesaid facts and circumstances we direct the Inspector General of Prison to release the aforesaid Md Jaha Alam @ Jane Alain @ Md Abu Salek @ Golam Mortaza, son of Yousuf Ali, Village-Duboria, Police Station-Nagorpur, District-Tangail from the jail custody forthwith if not wanted in any other cases.
Let this order be served to the concern authority by a Special Messenger of the Court at the cost of the respondent No.1 Anti-Corruption Commission.
Mr Khurshid Alam Khan, learned Advocate appearing for the respondent No.1 prays for time to submit affidavit-in-facts. Prayer is allowed and the respondent No.1 is directed to submit affidavit-in-facts within 4(four) weeks from date without any fail."
3. Thereafter, the in-compliance of the order passed by this Court the aforesaid Md Jaha Alam @ Jane Alam @ Md Abu Salek @ Golam Mortaza was released by the jail authority at the mid night of the following day. The respondent No.1 filed an application for addition of parties for proper and effective adjudication of the Rule. The parties are as follows
"Let the (1). Bangladesh Bank, Head Office, Motijheel Commercial Area, Dhaka-1000, (2). Managing Director and CEO, BRAC Bank Ltd. Head Office, Onik Tower, 220/B, Tejgaon Gulshan Link Road, Tejgaon Industrial Area, Dhaka-1208, (3). Managing Director, United Commercial Bank Ltd. Corporate Office, Bhulu's Centre, Plot CWS (A)-1, Road No.34, Gulshan Avenue, Dhaka-1212 and (4). Managing Director and CEO, City Bank Ltd., Head Office, 136 Gulshan Avenue, Gulshan-2, Dhaka 1212 be added as Respondent Nos.10-13."
Accordingly, the application is allowed.
4. Mr Md Khurshid Alain Khan, learned Advocate filed an affidavit-in-fact on 5-3-2019 and a supplementary affidavit-in-facts on 9-4-2019 on behalf respondent No.1 wherein it is stated that the accused Md Abu Salek (absconding) opened a bank account being Current Account No. 001020974 in the Sonali Bank Limited, Mirpur Cantonment Branch, Dhaka on 8-2-2010. Mr Moinul Hoque, supporting Sub
Assisting staff assisted him for opening the said bank account. Mr Shahidul Islam was the introducer of the said bank account and Mr Moinul introduced the accused as his cousin. That the said account was opened in the name of `Mobile Mela' and in the account opening form he used the said business institution address which is: 10/A, Road No. 6, Plot No. 1, Mirpur, Dhaka but after investigation it was identified that the said institution 'Mobile Mela' was not in the said address. However, in the account opening form the accused Md Abu Salek (absconding) was mentioned his present address which is: TA Monjil, 11/6 Harunabad, Mirpur, Dhaka but later it was identified as fake address. Between 16-2-2010 and 26-8-2010, the accused misappropriated Taka 18,47,20,000 by using 33 branches of 18 Banks and 106 Cheques. The Deputy Managing Director (DGM), Bangladesh Bank, Head Office, Dhaka sent a letter to the Director-General, special enquiry and investigation, Durnity Daman Commission, Dhaka on 30-6-2011 regarding to take necessary steps for misappropriation Taka 18,47,20,000 from the Sonali Bank Limited, Mirpur Cantonment Branch, Dhaka. The said forgery was occurred for the mismanagement of “নিকাশ ঘর” at the Sonali Bank, Mirpur Branch, Dhaka and the following persons were involved for doing the said forgery which are 1. Md Abu Salak, 2. Babul Mia, 3. Md Nour Alam. After opening the said bank account in the Sonali Bank Limited, Mirpur Cantonment Branch, Dhaka; the fraud circle opened several bank accounts in the 33 branches of the 18 banks and deposited the issued cheques which were issued by the Sonali Bank Limited Mirpur Cantonment Branch, Dhaka. Thereafter the local branch of the Sonali Bank Limited did not submit the said cheques to the Mirpur Cantonment Branch through the Dhaka clearing house and tempering the main clearing voucher and submitted fraud cheques to the Mirpur Contentment Branch for clearing. Thereafter the said cheques amounts were withdrawn and misappropriated the said amounts.
5. It is further stated that the procedure for clearing the cheque was not followed at the time of commission of offence. The procedure for clearing the cheque was as follows:
They have opened several account in Sonali Bank Limited, Mirpur Cantonment Branch in the name of Abu Salek and at the same time they have opened several account in different other 33 Branches of 18 Banks and issued cheques of Sonali Bank, Cantonment Branch to be deposited in those other bank accounts; the account holders deposited the said cheques in their respective accounts. As per Rules, the Bank sends those cheques to the clearing house of Bangladesh Bank and Bangladesh Bank forwarded the said cheques to Sonali Bank local Branches. The local branches prepared three copies of voucher (TRA form) by using carbon paper (White, Red and Green) mentioning the description of all cheques to be sent to Sonali Bank, Cantonment Branch. Thereafter, the clearing representative supporting sub-staff of Sonali Bank, Cantonment Branch will receive the cheques with two copies of voucher (Red and Green) along with computer printed list of those cheques and amount by signing in White voucher and depositing the same in local branch. As per Rules, the branch representative will deposit those chaques and computer printed list in his branch and the concern officers of branch after proper scrutiny, will sign and seal in the vouchers and cheques and return the Red voucher to the local branch through same representative and will preserve the Green voucher in the branch. But in this case the fake cheques and two (Red and Green) vouchers were taken down and new vouchers and computer cheque list were prepared with valid cheques and replaced the earlier vouchers and computer cheque list; thereafter the same was deposited to the Sonali Bank, Cantonment Branch. As those cheques were legal, the branch officers allowed the cheques and send the Red voucher to the local branch through clearing representative. But the original Red Voucher was not deposited but by false and fabricating the sign and seal of the Sonali Bank, Cantonment Branch, the earlier Red voucher was deposited to local branch for clearing. The concern officer of the local branch without examining the sign and seal of the Sonali Bank, Cantonment Branch in Red voucher forwarded all the money to clearing house and as the same was consistent with the White voucher, the money was deposited to the concern Bank account. Hence no money was debited from the account of Abu Salek but the cheque amount was deposited to other account, which was never been in the account of Abu Salek and the same was misappropriated.
6. It is also stated that the accused mentioned his permanent address in the bank account opening form which is Salimabad Union, Nagarpur, Tangail. The Bank officer and the account introducer were confirmed from the image that the Jahalam was managing the said accounts. Noor Banu was the nominee of the accused's account No.001020974 of the Sonali Bank Limited, Mirpur Cantonment Branch, Dhaka mentioned her address: Salimabad Union, Nagarpur, Tangail. After enquiry Bangladesh Bank and Sonali Bank were given investigation reports where the accused's address is Salimabad Union, Nagarpur, Tangail. On 18-12-2014 in the presence of the investigation officer the bank officers/bank account introducer were identified Mr Jahalam as Mr Abu Salek. The following bank officers/bank account introducer are as follows: (1) Mr Foysal Kayes, Senior Principal Officer, Asad Gate Branch, BRAC Bank, Mohammadpur SME Branch, Dhaka; (2) Mrs. Sabina Sharmin, Ex Branch Manager, BRAC Bank, Mohammadpur SME Branch, Dhaka; (3) Mr Md Shahidul Islam, Son of Md Younus Mia, At present-9 Parimal Vila, 3rd Sattar Molla Road, Mirpur-12, Pallabi, Dhaka and Village and Post Office-Binodpur, Police Station-Noakhali Sadar, District-Noakhali; (4) Mr Md Nuruddin Sheikh, Senior Executive Officer, Sonali Bank Ltd., Inspection and Audit Division-1, Dhaka; (5) Mr Md Shakil, Son of Haji Md Nurul Hague Bepari of Nana Shaympur, Dhaka-1400 and Permanent Address-Village and Post Office-Mirershorai, Police Station and District-Munshigonj; (6) Mrs. Tajbin Sultana, Office (Cash), United Commercial Bank Ltd. Mohammadpur Branch, Dhaka. Daughter of Late Shahjahan Talukdar, Permanent Address-Village Kulsubag, Police Station-Chorfashion, District-Bhola. However, Mr Azhaul Islam Montu, Chairman of Salimabad Union Parishad, Nagarpur, Tangail and Mr Safiqur Rahman, Chairman of Duvuria Union Parishad, Nagarpur, Tangail were also identified the Jahalam as Abu Salek. The report of the Bangladesh Bank and the Sonali Bank Ltd. it appears that there were serious mismanagement in the concerned Bank authorities but no departmental action has yet been taken against the persons who were responsible.
7. It is further stated that between 2-2-2018 and 23-2-2018 in the Channel 24 'Search Light' program, a report was broadcasted regarding the Durnity Daman cases of Sonali Bank Ltd., Mirpur Cantonment branches, Dhaka. According to the said report the main accused of the fraud circle was removed from the said cases and an innocent person was in the custody for the said forgery. After broadcasting the said Channel 24 'Search Light' program, on 27-2-2018 a meeting was held in the Commission’s head office conference room. The following decisions were taken in the said meeting which are as follows:
“দুদক/বি: অনু ও তদ -১/মানি:/সি-৬৪/১২
৩৪। চ্যানেল ২৪ এর সার্চ"লাইট অনুষ্ঠানে
সোনালী ব্যাংক লিমিটেড, মিরপুর ক্যান্টনমেন্ট শাখার দায়েকৃত মামলা সং-া. (সংক্রান্ত) প্রচারিত প্রতিবেদনের ওপর মাননীয় কমিশনার (তদ.) এর সভাপতিত্বে অনুষ্ঠিত পর্যালোচনা সভার কার্যবিবরণী (পত্র পাতা ৬৩-৬২) সদয় হয়ে দেখা যেতে পারে ৩৫। কার্যবিবরণীতে উল্লেখ করা হয়েছে যে, গত ২-২-২০১৮ তারিখ ও ২৩-২-২০১৮ খ্রিঃ তারিখ চ্যানেল ২৪ এর সার্চ"লাইট অনুষ্ঠানে দুর্নীতি দমন কমিশনের কতিপয় মামলা নিয়ে বিশ্লেষণধর্মী প্রতিবেদন প্রচারিত হয়। মামলাগুলো কমিশনের অনুমোদন-ক্রমে দায়ের করা হয়। এসব মামলা সোনালী ব্যাংক লিঃ, মিরপুর ক্যান্টনমেন্ট শাখার চেক জালিয়াতির সং-া. (সংক্রান্ত) প্রতিবেদন মোতাবেক জালিয়াতি চক্রের মূল হোতাকে মামলা থেকে বাদ দিয়ে নিরাপরাধ এক ব্যক্তিকে অন্তর্ভুক্ত করে চার্জশীট দাখিল করা হয়েছে। বর্তমানে তিনি কারাগারে অন্তরীণ। এছাড়া কোন এক আসামীর আদালতে প্রদত্ত ১৬৪ ধারার জবানবন্দীতে উল্লিখিত আসামীদের নামও চার্জশীটে অন্তর্ভুক্ত হয়নি। একই বিষয়ের উপর দায়েরকৃত ৩৩টি বর্তমানে আদালতে সাক্ষ্য গ্রহণ পর্যায়ে রয়েছে।
৩৬। চ্যানেল ২৪ এ প্রচারিত সার্চ"লাইট অনুষ্ঠানের উপর গত ২৭-২-২০১৮ খ্রিঃ তারিখে কমিশনের মিনি কনফারেন্স রুমে একটি আলোচনা সভা অনুষ্ঠিত হয়। উক্ত আলোচনা সভায় নিম্নরূপ সিদ্ধান্ত গৃহীত হয়-
(ক) বিজ্ঞ বিশেষ জজ আদালতে চলমান মামলাগুলোর সাক্ষ্য
গ্রহণ স্থগিত করতে হবে। বাস্তবায়ন: বিজ্ঞ পাবলিক প্রসিকিউটর।
(খ) জনাব কাজী শফিকুল আলম, পরিচালক (বিশেষ তদ.) ও সংশ্লিষ্ট
ডেস্ক অফিসার জনাব
মোঃ জুলফিকার আলী, উপ-পরিচালক মামলার তদন্তকারী কর্মকর্তাদের সাথে আলোচনা করবেন এবং ফলাফল মহাপরিচালক (লিগ্যাল)
কে জানাবেন।
(গ) আলোচ্য ৩৩টি মামলা অধিকতর তদন্ত করে সম্পূরক চার্জশীট বিজ্ঞ আদালতে দাখিলের
সিদ্ধান্ত গৃহীত হয়।
৩৭। ইতোমধ্যে উপরিউক্ত ‘খ’ -ক্রমিকে বর্ণিত সিদ্ধান্তের আলোকে গত ২৮-২-২০১৮ খ্রিঃ তারিখে মামলার তদন্তকারী কর্মকর্তাগণের সঙ্গে আলোচনা করে ফলাফল মহা-পরিচালক (লিগ্যাল) মহোদয়কে অবহিত করা হয়েছে।
৩৮। এমতাবস্থায় (ক) বিজ্ঞ বিশেষ জজ আদালতে চলমান মামলাগুলোর সাক্ষ্য গ্রহণ স্থগিত রাখার জন্য পরিচালক (প্রসিকিউশন) মহোদয়ের মাধ্যমে দুদকের সংশ্লিষ্ট বিজ্ঞ পাবলিক প্রসিকিউটরগণকে পত্র মূলে অনুরোধ করা যেতে পারে।
(খ) গুলশান (ডিএমপি) থানা মামলা নং-৩৪ তারিখ: ১০-৪-২০১২ খ্রি;. মামলাটি জন্য মফতাউল জান্নাত, উপসহকারী জেলা কার্যালয়, ঢাকা-১ কে তদন্তকারী কর্মকর্তা এবং পরিচালক (বি. অনু. ও তদ.-১) কে তদারককারী কর্মকর্তা হিসেবে নিয়োগ প্রদান করা যেতে পারে।
৩৯। দাখিলকৃত প্রতিবেদনে উল্লেখ করা হয়েছে যে, এজাহারনামীয় আসামী মোঃ আবুসালেক এর পিতা: মোঃ আব্দুস সালাম ও ঠিকানা-গ্রাম: গৈনপাড়া, ডাকঘর: সলিমাবাদ, থানা: নাগরপুর, জেলা: টাংগাইল। আসলে সঠিক নয়: বরং অধিকতর তদন্তকালে প্রকৃত আবু সালেকের যে পিরচয় পাওয়া গেছে তা হ’ল- নাম: />মোঃ আবুসালেক (Md Abu Saleq), পিতা: মোঃ আব্দুল কুদ্দুস, মাতা:মোছাঃ সালেহা খাতুন, ঠিকানা- গ্রাম: সিঙ্গীয়া, ৮ নং ওয়ার্ড", বালিয়া ইউনিয়ন, থানা: ঠাকুরগাও সদর, জেলা: ঠাকুরগাও; জাতীয় পরিচয়পত্র নম্বর: ১৯৮৩৯৪১৯৪ ২১২৪২৮১৫, জন্ম তারিখ ১-৫- ১৯৮৩। উল্লেখ্য যে, অত্র মামলায় জাহালম ওরফে জানে আলম ওরফে
মোঃ আবু সালেক, পিতা ইউসুফ আলী,
মাতা: মনোয়ারা
বেগম, গ্রাম: ধুবিড়য়া, ডাকঘর: ধুবিড়য়া, থানা-নাগরপুর,
জেলা: টাঙ্গাইলকে চার্জশীটভুক্ত আসামী করা হয়েছে। মূলত: বিভিন্ন সাক্ষীদের জবানবন্দি ও সনাক্তের ভিত্তিতে। কিন্তু জিজ্ঞাসাবাদ করলে তারা জানান যে, ছবির সাথে মিল থাকায় জাহালমকে তারা আবুসালেক মর্মে সনাক্ত করেছিলেন। একাউন্টধারীর প্রকৃত অস্তিত্ব নিশ্চিত না করে সনাক্তকারী; পূর্বের তদন্তে উক্ত সাক্ষীদের জবানবন্দিতে বিভ্রান্ত হয়ে জাহালমকে আবুসালেক হিসেবে চার্জশীটে (চার্জশীট নং-৩৮ তারিখ: ২৬-২- ২০১৫) অন্তর্ভুক্ত করা হয়েছে।
৪০। অধিকতর তদন্তকালে আরও দেখা যায় যে, আবুসালেক সমাজের কোন উল্লেখযোগ্য ব্যক্তি ছিলেন না। দীর্ঘদিন এলাকায় না থাকা, মামলার ঘটনাকালে বাড়ীতে অল্প সময়ে অনেক টাকা খরচ করে বড় বড় ঘর-বাড়ী নির্মাণ করা, দামী দামী জায়গা-ক্রয় ও ইলেকট্রনিক্স এর ব্যবসা করা, দেশ-বিদেশে ঘুরে বেড়ানো, পরবর্তীত টেলিভিশনে তার অপকর্ম ফাঁস হওয়ায় মুহূর্তেই নিখোঁজ হয়ে যাওয়া ইত্যাদি বিষয়গুলোর কারণে এলাকায় তিনি সবচেয়ে বেশী আলোচিত ব্যক্তি হিসেবে পরিণত হয়েছে। সুতরাং অধিকতর তদন্তকালে অত্র আবুসালেকই সোনালী ব্যাংক মিরপুর ক্যান্টনমেন্ট শাখা হতে অর্থ আত্মসাৎকারী প্রকৃত আবুসালেক মর্মে প্রতিবেদনে উল্লেখ করা হয়েছে। আসামী আবুসালেক সহ অন্যান্য আসামীগণ কর্তৃক পরস্পর যোগসাজশে একে অন্যকে লাভবান করার অসৎ উদ্দেশ্যে প্রতারণা ও জালিয়াতির আশ্রয় নিয়ে ভিন্ন পরিচয় ধারণ পূর্বক ভুয়া ব্যাংক একাউন্ট খুলে, ভুয়া ক্লিয়ারিং ভাউচারের মাধ্যমে ব্যাংক একাউন্টে অর্থ জমা দেখিয়ে ৪১১৫০১০০০ (একচল্লিশ লক্ষ পঞ্চাশ হাজার) টাকা আত্মসাৎ এবং পরবরতীতে আত্মসাৎকৃত অর্থের অবৈধ উৎস গোপন করার নিমিত্তে স্থানান্তর করার মাধ্যমে দণ্ডবিধির ৪০৯/৪১৯/৪২০/ ৪৬৭/৪৬৮/৪ ৭১/১০৯ধারা, ১৯৪৭ সালের দুর্নীতি প্রতিরোধ আইনের ৫(২)ধারা এবং মানিলন্ডারিং প্রতিরোধ আইন, ২০১২ (পূর্বতন মানিলন্ডারিং প্রতিরোধ আইন, ২০০৯) এর ৪(২) ধারা অনুযায়ী শাস্তিযোগ্য অপরাধ করেছেন। তদন্তকারী কর্মকর্তা আসামী মোঃ আবুসালেক, পিতা: মোঃ আব্দুল কুদ্দুস, মাতা: মোছাঃ সালেহা খাতুন, ঠিকানা-গ্রাম: সিঙ্গীয়া, ৮ নং ওয়ার্ড", বালিয়া ইউনিয়ন, থানা: ঠাকুরগাও সদর, জেলা: ঠাকুরগাওকে অন্তর্ভুক্ত করে এ মামলায় সম্পূরক চার্জশীট দাখিলের সুপারিশসহ প্রতিবেদন দাখিল করেছেন। ৪১। এমতাবস্থায়, তদন্তকারী কর্মকর্তার সুপারিশ মোতাবেক আসামী মোঃ আবুসালেক, পিতা: মোঃ আব্দুল কুদ্দুস, মাতা: মোছাঃ সালেহা খাতুন, ঠিকানা- গ্রাম: সিঙ্গীয়া, ৮ নং ওয়ার্ড", বালিয়া ইউনিয়ন, থানা: ঠাকুরগীও সদর,. জেলা: ঠাকুরগাওকে অন্তর্ভুক্ত করে অত্র মামলায় সম্পূরক চার্জশীট এবং বিচারাধীন এ মামলার চার্জশীটভুক্ত আসামী মোঃ জাহালম, পিতা: ইউসুফ আলী, মাতা: মনোয়ারা বেগম, গ্রাম: ধুবিড়য়া, ডাকঘর: ধুবিড়য়া, থানা: নাগরপুর, জেলা: টাঙ্গাইল এর প্রসিকিউশন প্রত্যাহার করা হবে কি-না সে বিষয়ে মতামত প্রদানের জন্য নথিটি আইন অনুবিভাগে প্রেরণ করা যেতে পারে। ৪২। নথি পর্যালোচনায় দেখা যায় যে, অত্র নথিতে উপস্থাপিত গুলশান (ডিএমপি) থানার মামলা নং-৩৪ তারিখ-১০-৪-২০১২ খ্রি;: এর তদন্ত শেষে আসামী মোঃ আবুসালেক ওরফে মোঃ জাহাআলম, পিতা-ইউসুফ আলী, গ্রাম-গৈনপাড়া, থানা নাগরপুর, জেলা-টাঙ্গাইলসহ মোট ০৮ (আট) জন আসামীর বিরুদ্ধে চার্জশীট নং-৩৮ তারিখ- ২৬-২-২০১৫ খ্রি;: বিজ্ঞ আদালতে দাখিল করা হয়। মামলাটি বিজ্ঞ বিশেষ জজ আদালত-২, ঢাকায় বিশেষ মামলা নং- ২৫/২০১৫ বিচারাধীন থাকা অবস্থায় চার্জশীট বর্ণিত আসামী মোঃ আবুসালেক ওরফে মোঃ জাহাআলম প্রকৃত আসামী আবুসালেক নয় মর্মে প্রাপ্ত তথ্যের ভিত্তিতে কমিশন কর্তৃক মামলাটি অধিকতর তদন্তের নির্দেশ প্রদান করা হয়। তৎপ্রেক্ষিতে মামলাটির অধিকতর তদন্ত সম্পন্ন করে তদন্তকারী কর্মকর্তা তদন্ত প্রতিবেদন দাখিল করেন। ৪৩। অধিকতর তদন্ত প্রতিবেদনে পর্যালোচনায় দেখা যায় যে, মামলার এজাহারনামীয় ও চার্জশীটে বর্ণিত আসামী মোঃ আবুসালেক ওরফে জাহাআলম, পিতা-ইউনুফ আলী, গ্রাম-গৈনপাড়া, ডাকঘর- সলিমাবাদ, থানা-নাগরপুর, জেলা-টাঙ্গাইল প্রকৃত অপরাধী নয়। অধিকতর তদন্তকালে মোঃ আবু সালেক, পিতা মোঃ আব্দুল কুদ্দুস, গ্রাম-সিঙ্গীয়া ৮ নং ওয়ার্ড", বালিয়া ইউনিয়ন, থানা-ঠাকুরগাও সদর, জেলা-ঠাকুরগাও প্রকৃত অপরাধী মর্মে প্রমাণিত হয়েছে। অত্র মামলায় জাহাআলম ওরফে জানে আলম ওরফে মোঃ আবুসালেক, পিতা ইউসুফ আলী, গ্রাম ও চার্জশীটভুক্ত আসামী করা হয়েছে। মূলত বিভিন্ন সাক্ষীদের জবানবন্দী ও সনাক্তের ভিত্তিতে। কিন্তু জিজ্ঞাসাবাদ করলে তারা জানান য ছবির সাথে মিল থাকায় জাহাআলমকে তারা আবুসালেক মর্মে সনাক্ত করেছিলেন। পূর্বের তদন্তের সাক্ষীদের জবানবন্দীতে বিভ্রান্ত হয়ে জাহাআলমকে আবুসালেক হিসেবে চার্জশীটে অন্তর্ভুক্ত করা হয়েছে। বর্ণিত অবস্থায় বর্তমান তদন্তকারী কর্মকর্তা আসামী মোঃ আবু সালেক, পিতা মোঃ আব্দুল কুদ্দুস, গ্রাম-সিঙ্গীয়া ৮ নং ওয়ার্ড", বালিয়া ইউনিয়ন, থানা-ঠাকুরগাও সদর, জেলা-ঠাকুরগাওকে অন্তর্ভুক্ত করে আলোচ্য মামলায় সম্পূরক চার্জশীট দাখিলের সুপারিশ করেছেন। তদন্তকারী কর্মকর্তার সুপারিশ মোতাবেক আসামী মোঃ আবুসালেককে অন্তর্ভুক্ত করে আলোচ্য মামলায় সম্পূরক চার্জশীট দাখিল এবং চার্জশীটভুক্ত আসামী মোঃ জাহাআলম, পিতা- ইউসুফ আলী, গ্রাম ও ডাকঘর-ধুবিড়য়া, থানা-নাগরপুর, জেলা -টাঙ্গাইল এর প্রসিকিউশন প্রত্যাহার করা হবে কি-না সে বিষয়ে মতামত চাওয়া হয়েছে। ৪৪। অধিকতর তদন্তকালে আসামী আবুসালেক, পিতা মোঃ আব্দুল কুদ্দুস এর প্রকৃত নাম ঠিকানা উদঘাটিত হওয়ায় এবং তার বিরুদ্ধে এজাহারে বর্ণিত অভিযোগ প্রমাণিত হওয়ায় আসামী হিসেবে তার প্রকৃত নাম ঠিকানা উল্লেখপূর্বক সম্পূরক চার্জশীট দাখিল করাই আইনানুগ হবে। ইতোপূর্বে দাখিলকৃত চার্জশীটে আসামী হিসেবে উল্লিখিত মোঃ আবু সালেক ওরফে মোঃ জাহাআলম, পিতা-ইউসুফ আলীকে সম্পূরক চার্জশীটে অব্যাহতি প্রদানের সুপারিশ করার কোন আইনগত সুযোগ নাই। তবে একজন নিরপরাধ কর্তৃক The Criminal Law Amendment Act, ১৯৫৮ এর ১০(৪) ধারার বিধান বলে জনাব মোঃ জাহাআলম, পিতা-ইউসুফ আলীর প্রসিকিউশন প্রত্যাহারের আইনগত ক্ষমতা ও সুযোগ রয়েছে। ৪৫। এমতাবস্থায়, (ক) তদন্তকারী কর্মকর্তার সুপারিশ মোতাবেক প্রকৃত অপরাধী মোঃ আবু সালেক, পিতা- মোঃ আব্দুল কুদ্দুস গ্রাম-সিঙ্গীয়া, থানা জেলা- ঠাকুরগাও এর বিরুদ্ধে সম্পূরক চার্জশীট দাখিলের নিমিত্তে অনুমোদন জ্ঞাপন এবং (খ) অধিকতর তদন্তে নিপরাধ মর্মে প্রমাণিত হওয়ায় আসামী মোঃ জাহাআলম, পিতা- নাগরপুর, জেলা-টাঙ্গাইল এর প্রসিসিউশন প্রত্যাহার করা যেতে পারে এবং প্রসিকিউশন প্রত্যাহারের নিমিত্তে সংশ্লিষ্ট বিজ্ঞ পিপি জনাব মোঃ আব্দুর রাজ্জাক মিয়া-কে নির্দেশনা দেয়া যেতে পারে।
8. During further investigation some of the witnesses examined, collected the materials on record and also examined the reporter of the Channel 24 and after further investigation the investigating officer submitted memo of evidence recommending the Final Report so far as relates to Jahalam before the Commission. Thereafter, the said Final Report placed before the Commission for according sanction under section 32 of the Durnity Daman Commission Ain, 2004. That the Commission perused the entire prosecution materials including the report of the further investigation and after considering the same with full satisfaction the Commission accorded sanction. Accordingly, the Commission submitted Final Report before the Court and directed the concerned Public Prosecutor to withdraw the case so far as it relates to Jahalam and also directed the Prosecutor not to oppose the prayer for bail of the Jahalam. It is stated that the 26 cases relating to misappropriation of money arising out of fictitious bank accounts. The Durnity Daman Commission (hereinafter referred as Commission) investigated the case and during investigation collected the relevant bank records and relying upon the said bank accounts the Commission submitted charge-sheet after accorded sanction from the Commission under section 32 of the Durnity Daman Commission AM, 2004. That at the trial, in Special Case No.4 of 2016 pending in the Court of Special Judge, Court No.5, Dhaka the PW 9 Shahidul Alam stated in his deposition as under:
জবানবন্দি লিখিবার
ধারা পি.ডব্লিউ-৯
মাকামঃ বিশেষ জজ আদালত নং-৫, ঢাকা
বিশেষ
মামলা নং-৪/২০১৬
আন্দাজী ৪৩ বয়স
আমার
নাম-
মোঃ শহীদুল ইসলাম
আমি ব্যবসায়ী।
সোনালী ব্যাংক মিরপুর ক্যান্টনমেন্ট শাখায় আমার ০০১০১২০০৬ নাম্বার একটি হিসাব আছে। ৮-২-১০ তাং আমি ব্যাংকে
গেলে ব্যাংকের স্টাফ মাইনুল হক আমাকে বলে
যে, তার খালাতো ভাই আবুসালেক একটি হিসাব খুলবে। Introduce করতে বলে। আমি Introduce টা
দেই। আবুসালেককে আমি চিনি না। পরবর্তীেত ১৯-৫-১০ তাং উক্ত ব্যক্তি আমাকে
মোবাইল
মেলা নামক একটি প্রতিষ্ঠানের জন্য
আবুসালেক একটি হিসাব খুলবে। Introduce দরকার। আমি সরল বিশ্বাসে Introduce করি। অতঃপর ১৮-১২-১৪ তাং দুদক
থেকে আমাকে ডাকা হলে
মোঃ জাহা আলম নামক একজন ব্যক্তিকে
দেখালে আমি বলি
যে, এই
সেই আবুসালেক।
উপরে বর্ণিত ২টি হিসাবধারী ব্যক্তিই হচ্ছে আবুসালেক। আবুসালেক ও জাহা আলম একই ব্যক্তি। আমি আই.ও সাহেবের কাছে জবানবন্দি প্রদান করেছি।
XXXX হায়দার আলী ও
মাজাফফর
হোেসন পক্ষেঃ
Declined
স্বা/-
মোঃ সহিদুল ইসলাম
স্বা- ড.
মোঃ আখতারুজ্জামান
তাং ২৫-৯-১৭
বিশেষ জজ
বিশেষ জজ আদালত নং-৫,
ঢাকা
9. In view of the investigation relying upon bank documents as well as the evidence of PW 9 it is necessary to implicate the concerned Bank as a addition of party in the instant Suo Moto Rule, i.e., the Bangladesh Bank, Head Office, Motijheel Commercial Area, Dhaka, the Sonali Bank Ltd., Head Office, Dhaka and the BRAC Bank Ltd., Head Office, Dhaka are necessary party in the instant case. It appears also from the report of Bangladesh Bank that there were mismanagement in the ‘নিকাশ ঘর’ of the Sonali Bank, Cantonment Branch, Mirpur, Dhaka and, as such, Bangladesh Bank, Sonali Bank Ltd., Agrani Bank, BRAC Bank Ltd., City Bank Ltd., and United Commercial Bank Ltd. as necessary party in the instant Suo Motu Rule. Because the Commission relying upon their documents investigated the case and submitted the charge-sheet and, as such, the Commission humbly prays for addition of party of the Bangladesh Bank, Head Office, Motijheel Commercial Area, Dhaka, the Sonali Bank Ltd., Head Office, Dhaka, Agrani Bank, Head Office, Dhaka, the BRAC Bank Ltd., Head Office, Dhaka, United Commercial Bank Ltd., Head Office, Dhaka and City Bank Ltd., Head Office, Dhaka as respondents in the instant Suo Motu Rule. The Durnity Daman Commission withdrew the prosecution case being case no: Mohammadpur (DMP) Police Station Case No. 20, dated 10-4-2012 against the accused Md Jahalam, Son of Yousuf Ali and Monowara Begum of village-Dubhria, Police Station-Nagarpur, District-Tangail and the Durnity Daman Commission took a decision to withdraw the prosecution case as the accused is not guilty of the said case under section 10(4) of the Criminal Law Amendment Act, 1958. That Md Julfikhar Ali, Deputy Director, Special enquiry and investigation-I (Bank and financial institution) sent a letter being Memo No. দুদক/বি:অনু: ও তদ.-১/মানিলন্ডারিং/সি-৬০/২০১২/৪২৩৪৯/১(৬) dated 27-12-2018 to the Mr Md Rafiqul Haq Benu, Public Prosecutor, Durnity Daman Commission and Special Judge Court No. 5, Dhaka. He further sent a letter being Memo No. \S! \DPM-1/141Piwit,fRif-b-W•koSq 8,k\D8•VbM dated 27-12-2018 to the Mr Md Ruhul Islam Khan, Public Prosecutor, Durnity Daman Commission and Special Judge Court No. 4, Dhaka. He further sent a letter being Memo No.দুদক/বি:অনু: ও তদ.-১/মানিলন্ডারিং/সি-৮৬/২০১২/৪২৩৪২/১(৬) dated 20-12- 2018 to Mr Md Mossarraf Hossen Kajol, Public Prosecutor, Durnity Daman Commission and Special Judge Court No. 5, Dhaka. He further sent a letter being Memo No. দুদক/বি:অনু: ও তদ.-১/মানিলন্ডারিং/সি-৭৪/২০১২/৪২৪০৩/১(৬) dated 27-12-2018 to Mr Md Mir Ahmed Ali Salam, Public Prosecutor, Durnity Daman Commission and Special Judge Court No. 6, Dhaka. He further sent a letter being Memo No.দুদক/বি:অনু: ও তদ.-১/মানিলন্ডারিং/সি-৬৪/২০১২/৪২৪০০/১(৬) dated 27-12-2018 to Mr Md Abdur Razzaq Mia, Public Prosecutor, Durnity Daman Commission and Special Judge Court No. 2, Dhaka. He further sent a letter being Memo No.দুদক/বি:অনু: ও তদ.-১/মানিলন্ডারিং/সি-৬৩/২০১২/৪১৬৩২/১(৬) dated 20-12- 2018 to Mr Md Mir Ahmed Ali Salam, Public Prosecutor, Durnity Daman Commission and Special Judge, Court No. 6, Dhaka. He further sent a letter being Memo No.দুদক/বি:অনু: ও তদ.-১/মানিলন্ডারিং/সি-৭৮/২০১২/৪২৪৩৬/১(৬) dated 27-12-2018 to Mr Mahmud Hossen (Jahangir), Public Prosecutor, Durnity Daman Commission and Special Judge Court No. 5, Dhaka. He further sent a letter being Memo No.দুদক/বি:অনু: ও তদ.-১/মানিলন্ডারিং/সি-৬৮/২০১২/৪২৪৩৪/১(৬) dated 27-12-2018 to Mr Md Mir Ahmed Ali Salam, Public Prosecutor, Durnity Daman Commission and Special Judge, Court No. 5, Dhaka. He further sent a letter being Memo No. দুদক/বি:অনু: ও তদ.-১/মানিলন্ডারিং/সি-৮৩/২০১২/৪২৩৪৪/১(৬) dated 27-12-2018 to the Mr Md Mossarraf Hossen Kajol, Public Prosecutor, Durnity Daman Commission and Special Judge, Court No. 6, Dhaka. He further sent a letter being Memo No.দুদক/বি:অনু: ও তদ.-১/মানিলন্ডারিং/সি-৮৭/২০১২/৪২৩৪৭/১(৬) 27-12-2018 to Mr Md Mossarraf Hossen Kajol, Public Prosecutor, Durnity Daman Commission and Special Judge, Court No. 6, Dhaka. He further sent a letter being Memo No.দুদক/বি:অনু: ও তদ.-১/মানিলন্ডারিং/সি-১৩০/২০১২/৪২৩৪১/১(৬) dated 27-12-2018 to Mr Mir Ahmed Ali Salam, Public Prosecutor, Durnity Daman Commission and Special Judge, Court No. 4, Dhaka. He further sent a letter being Memo No.দুদক/বি:অনু: ও তদ.-১/মানিলন্ডারিং/সি-৯০/২০১২/৪১৬৩৯/১(৬) dated 20-12-2018 to Mr Mir Ahmed Ali Salam, Public Prosecutor, Durnity Daman Commission and Special Judge Court No. 5, Dhaka. He further sent a letter being Memo No.দুদক/বি:অনু: ও তদ.-১/মানিলন্ডারিং/সি-৬৭/২০১২/৪১৬৩১/১(৬) dated 20-12-2018 to Mr Md Ruhul Islam Khan, Public Prosecutor, Durnity Daman Commission and Special Judge Court No. 5, Dhaka. He further sent a letter being Memo No.দুদক/বি:অনু: ও তদ.-১/মানিলন্ডারিং/সি-৮৫/২০১২/৪২৩৪৮/১(৬) dated 27-12- 2018 to Mr Md Mossarraf Hossen Kajol, Public Prosecutor, Durnity Daman Commission and Special Judge, Court No. 6, Dhaka. He further sent a letter being Memo No.দুদক/বি:অনু: ও তদ.-১/মানিলন্ডারিং/সি-৬২/২০১২/৪১৬৩৫/১(৬) dated 20-12-2018 to Ms. Fatema Khanam Una, Public Prosecutor, Durnity Daman Commission and Special Judge, Court No. 5, Dhaka. He further sent a letter being Memo No.দুদক/বি:অনু: ও তদ.-১/মানিলন্ডারিং/সি-৫৭/২০১২/৪২৩৪০/১(৬) dated 27-12-2018 to Mr Md Rafiqul Haq Benu, Public Prosecutor, Dumity Daman Commission and Special Judge, Court No. 5, Dhaka. He further sent a letter being Memo No.দুদক/বি:অনু: ও তদ.-১/মানিলন্ডারিং/সি-৭০/২০১২/৪৩৪৬/১(৬) dated 27-12-2018 to Ms. Fatema Khanam Lina, Public Prosecutor, Durnity Daman Commission and Divisional Special Judge, Dhaka. He further sent a letter being Memo No.দুদক/বি:অনু: ও তদ.-১/মানিলন্ডারিং/সি-৭৩/২০১২/৪২৩৯৯/১(৬) dated 27-12-2018 to Mr Md Abdur Razzaq Mia, Public Prosecutor, Durnity Daman Commission and Special Judge, Court No. 8, Dhaka. He further sent a letter being Memo No: দুদক/বি:অনু: ও তদ.-১/মানিলন্ডারিং/সি-৮২/২০১২/৪১৬৩৩/১(৬) dated 20-12-2018 to Mr Mir Ahmed Ali Salam, Public Prosecutor, Durnity Daman Commission and Special Judge, Court No. 5, Dhaka. He further sent a letter being Memo No.দুদক/বি:অনু: ও তদ.-১/মানিলন্ডারিং/সি-৭১/২০১২/৪১৬৩০/১(৬) dated 20-12-2018 to Mr Mir Ahmed All Salam, Public Prosecutor, Durnity Daman Commission and Special Judge, Court No. 5, Dhaka. He further sent a letter being Memo No.দুদক/বি:অনু: ও তদ.-১/মানিলন্ডারিং/সি-৬৯/২০১২/৪৩৬৩৪/১(৬) dated 20-12-2018 to Mr Md Mossarraf Hossen Kajol, Public Pi-osecutor, Durnity Daman Commission and Special Judge, Court No. 4, Dhaka. He further sent a letter being Memo No.দুদক/বি:অনু: ও তদ.-১/মানিলন্ডারিং/সি-৭৫/২০১২/৪১৬৩৮/১(৬) dated 20-12-2018 to Mr Mir Ahmed Ali Salam, Public Prosecutor, Durnity Daman Commission and Special Judge, Court No. 4, Dhaka. He further sent a letter being Memo No.দুদক/বি:অনু: ও তদ.-১/মানিলন্ডারিং/সি-৫৮/২০১২/৪২৪০১/১(৬) dated 29-12-2018 to Mr Md Rafiqul Haq Benu, Public Prosecutor, Durnity Daman Commission and Special Judge, Court No. 5, Dhaka.
10. It is stated that section 31 of the Dumity Daman Commission Ain, 2004 deals with savings and indemnity of Acts done in good faith. Section 31 of the Ain, runs as follows:
“৩১ সরল বিশ্বাসেকৃত কাজকর্মরক্ষণ __এই আইন বা তদধীন প্রণীত বিধি বা আদেশের অধীন দায়িত্ব পালনকালে সরল বিশ্বাসেকৃত
কোন কাজের ফলে
কোন ব্যক্তি ক্ষতিগ্রস্ত হইলে বা ক্ষতিগ্রস্ত হইবার অথবা কমিশনের
কোন কর্মকর্তা বা কর্মচারীর বিরুদ্ধে
দেওয়ানি বা
ফৌজদারিমালা বা অন্য
কোন আইনগত কার্যধারা গ্রহণ করা যাইবেনা ”
11. That the section 31 provides that a person who is affected or is likely to be affected by any act done or purported to have been done in good faith while performing duties under this Act or under the rules framed thereunder or order shall not be entitled to bring any civil suit or criminal case or any legal proceedings against the Commission, any Commissioner or any officer or employee of the Commission and, as such, it is difficult to say that the mistake has been done with a mala fide' act of the investigating officer. Because the investigation based on Banks documents i.e. Bangladesh Bank Ltd., Head Office, Dhaka, Sonali Bank Ltd., Head Office, Dhaka, Agrani Bank Ltd., Head Office, Dhaka, BRAC Bank Ltd., Head Office, Dhaka, United Commercial Bank Ltd., Head Office, Dhaka and City Bank Ltd., Head Office, Dhaka. The section 545 of the Code of Criminal Procedure deals with the power of Court to pay expenses or compensation out of fine. Section 545 of the Code of Criminal Procedure runs as follows:
"545. (1) Whenever under any law in force for the time being a Criminal Court imposes a fine or confirms in appeal, revision or otherwise a sentence of fine, or a sentence of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied –
(a) in defraying expenses properly incurred in the prosecution;
(b) in. the payment to any person of compensation for any loss or injury caused by the offence, when substantial compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;
(c) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, MMn compensating any bonafide purchaser, of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.
(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal."
12. In view of the specific provision mentioned above, i.e., section 545 of the Code of Criminal Procedure, there is a provision for compensation on conclusion of the trial after realizing of fine and, as such, in view of the alternative remedy question of prejudice does not arise at all. Considering the above facts and circumstances and section 31 of the Durnity Daman Commission Ain, 2004 and 545 of the Code of Criminal Procedure, this Hon'ble Court may kindly exonerated the Durnity Daman Commission from the charge of compensation.
13. Thereafter, an affidavit-in-compliance dated 11-7-2019 filed on behalf of the respondent `.\Io.1 wherein it is stated that Jaha Alam spent behind bars, arrested in connection with 26 cases that were filed against him wrongfully and Abu Salek, the fraudster who managed to pull the wool over the investigation agencies' eyes simply by substituting Jahaalam's address in place of Abu Salek on documents which were used in the execution of his fraudulent activities. There was an enquiry committee at the instance of the Durnity Daman Commission headed by Mr Abul Hasnat Md Abdul Wadud, (District and Sessions Judge) and Director (Legal), Durnity Daman Commission, Head Office, Dhaka with a direction to submit his report within 21 days being Memo No.00.01.0000.103.39.063.07 (Ask-8)-4065(6) dated 5-2-2019. The said committee submitted enquiry report before the Secretary, Durnity Daman Commission, Head Office, Dhaka on 30-5-2019.
14. The learned Advocate for the respondent No.1, submits the Enqiry Report through a supplementary affidavit dated 11-7-2019 (as Annexure-X-19) wherein stated as follows:
দুর্নীতি দমন কমিশন
প্রধান কার্যালয় ঢাকা
স্মারক নং দুদক/পরি:লিগ্যাল)/তদ কমিটি/২০১৯/২১৯২৯
তারিখ:
প্রেরক: আবুল হাসনাত মোঃ আব্দুল ওয়াদুদ
পরিচালক (লিগ্যাল)
দুর্নীতি দমন কমিশন
প্রধান কার্যালয়, ঢাকা ও তদন্ত কমিটি প্রধান
প্রাপক: সচিব
দুর্নীতি দমন কমিশন
প্রধান কার্যালয়, ঢাকা
বিষয়: দুর্নীতি দমন কমিশন কর্তৃক দায়েরকৃত ৩৩টি মামলায় মূল আসামীর পরিবর্তে ভুল ব্যক্তি জনাব মোঃ জাহালম চার্জশীটভুক্ত হওয়া ও কারাগারে অন্তরীণ থাকা সংক্রান্ত ঘটনার বিষয়ে তদন্ত প্রতিবেদন।
সূত্র:
(১) দুর্নীতি দমন কমিশনের স্মারক নং:০০.০১.০০০০.১০৩.৩৯.০৬৩.০৭(অংশ-৮)/৪০৬৫(৬) তারিখ: ৫-২-১৯
(২) দুর্নীতি দমন কমিশনের স্মারক নং:০০.১০.০০০০.১০৩.৩৯.০৬৩.০৭(অংশ-৮)/৪৫১২৭) তারিখ: ৭-২-১৯
(৩) ইউ ও নোট নং:০০.০১.০০০.১০৩.৩৯.০৬৩.০৭(অংশ-৮)/৪৫১২(৭)০৮/২০১৯ তারিখ:১২-৩-১৯
(৪) ইউ ও নোট নং:০০.০১.০০০০.১০৩.৩৯.০৬৩.০৭(অংশ-৮)/৪৫১২৫৭)/১১৮৬৪ তারিখ:২৭-৩-১৯
(৫) ইউ ও নোট নং:০০.০১.০০০০.১০৩.৩৯.০৬৩.০৭(অংশ-৮)/৪৫১২৫৭)/১৭২২৪(৩) তারিখ ২৯-৪-১৯
উপযুক্ত বিষয় ও সূত্রের বরাতে জানানো যাচ্ছে যে, সূত্র-১ এ বর্ণিত স্মারকমূলে জারিকৃত অফিস আদেশের মাধ্যমে বিষয়ে বর্ণিত ঘটনার ব্যাপারে তদন্ত করার জন্য আমার নেতৃত্বে ১ (এক) সদস্য বিশিষ্ট তদন্ত কমিটি গঠন করা হয়। তদন্ত কমিটিকে নিম্নরূপে কার্যপরিধি প্রদান করা হয়:
(ক) আসামী আবুসালেকের পরিবর্তে জাহালমকে আসামী করার প্রেক্ষাপট বর্ণনা;
(খ) আলোচ্য মামলা সমূহের (যথা-ক্রমে (১) মোহাম্মদপুর (ডিএমপি) থানার মামলা নং ১৮, তারিখ: ১০-৪-২০১২ খ্রি:, (২) মোহাম্মদপুর (ডিএমপি) থানার মামলা নং ১৯, তারিখ: ১০-৪-২০১২ খ্রি:, (৩) মোহাম্মদপুর (ডিএমপি) থানার মামলা নং ২০, তারিখ: ১০-৪-২০১২ খ্রি:, (৪) মোহাম্মদপুর (ডিএমপি) থানার মামলা নং ২২, তারিখ: ১০-৪-২০১২ খ্রি:, (৫) মোহাম্মদপুর(ডিএমপি)থানার মামলা নং ২৩, তারিখ: ১০-৪-২০১২ খ্রিঃ, (৬) গুলশান (ডিএমপি) থানার মামলা নং ৩৩, তারিখ: ১০-৪-২০১২ খ্রি:, (৭) গুলশান (ডিএমপি) থানার মামলা নং ৩৪, তারিখ: ১০-৪-২০১২ খ্রি:. ৮) গুলশান (ডিএমপি) থানার মামলা নং ৩৫, তারিখ: ১০-৪-২০১২ খ্রি:, (৯) বাড্ডা (ডিএমপি) থানার মামলা নং ২২, তারিখ: ১০-৪-২০১২ খ্রি:, (১০) বাড্ডা (ডিএমপি) থানার মামলা নং ২৩, তারিখ: ১০-৪-২০১২ খ্রি:, (১১) বাড্ডা (ডিএমপি) থানার মামলা নং ২৪, তারিখ: ১০-৪-২০১২ খ্রি:, (১২) বাড্ডা (ডিএমপি) থানার মামলা নং ২৬, তারিখ: ১০-৪-২০১২ খ্রি:, (১৩) কাফরুল (ডিএমপি) থানার মামলা নং ১৮, তারিখ: ১০-৪-২০১২ খ্রি:, (১৪) কাফরুল (ডিএমপি) থানার মামলা নং ১৯, তারিখ: ১০-৪-২০১২ খ্রি:, (১৫) পল্লবী (ডিএমপি) থানার মামলা নং ২৬, তারিখ: ১০-৪-২০১২ খ্রি:, (১৬) পল্লবী (ডিএমপি) থানার মামলা নং ২৭, তারিখ: ১০-৪-২০১২ খ্রি:, (১৭) পল্লবী (ডিএমপি) থানার মামলা নং ২৮, তারিখ: ১০-৪-২০১২ খ্রি:, (১৮) পল্লবী (ডিএমপি) থানার মামলা নং ২৯, তারিখ: ১০-৪-২০১২ খ্রি:, (১৯) রামপুরা (ডিএমপি) থানার মামলা নং ১৬, তারিখ: ১০-৪-২০১২ খ্রি:, (২০) রামপুরা (ডিএমপি) থানার মামলা নং ১৭, তারিখ: ১০-৪-২০১২ খ্রি: (২১) আদাবর (ডিএমপি) থানার মামলা নং ১৩, তারিখ: ১০-৪-২০১২ খ্রিঃ, (২২) আদাবর (ডিএমপি) থানার মামলা নং ১৪, তারিখ: ১০-৪-২০১২ খ্রি:, (২৩) আদাবর (ডিএমপি) থানার মামলা নং ১৬, তারিখ: ১০-৪-২০১২ খ্রি:, (২৪) ধানমন্ডি (ডিএমপি) থানার মামলা নং ১০, তারিখ: ১০-৪-২০১২ খ্রি:, (২৫) ডবলমুরিং (সিএমপি) থানার মামলা নং ২১, তারিখ: ১০-৪-২০১২ খ্রি:, এবং (২৬) দারুস সালাম (ডিএমপি) থানার মামলা নং ১১, তারিখ: ৩-১০-২০১২ খ্রি:) অনুসন্ধান ও তদন্ত পর্যায়ে পদ্ধতিগত ত্রুটি বিচ্যুতি উদ্ঘাটন এবং সংশ্লিষ্টদের দায়-দায়িত্ব নিরূপন:
(গ) ব্যাংক কর্মকর্তাসহ অন্যান্য ব্যক্তি বা প্রতিষ্ঠানের সংশ্লিষ্টতা নির্ধারণ ও অভিযুক্তকে সনাক্তকারী ব্যক্তিদের চিহ্নিতকরণ এবং তাদের দায়-দায়িত্ব নির্ধারণ;
(ঘ) এ ঘটনা কমিশনের দৃষ্টিগোচর হওয়ার পর জাহালমকে আইনী প্রক্রিয়ায় মুক্ত করতে বিলম্বের কারণ উদ্ঘাটন এবং
(ঙ) ভবিষ্যতে এ জাতীয় ঘটনা রোধে অনুসন্ধান ও তদন্ত পদ্ধতিতে কি কি সংস্কার প্রয়োজন সে সম্পর্কে সুপারিশ প্রদান।
তদন্ত কমিটিকে এ ঘটনা তদন্ত কালে যে কোন পরিচয়ের যে কোন ব্যক্তিকে জিজ্ঞাসাবাদ করা ও সহায়তা গ্রহণের ক্ষমতা প্রদান করা হয়। কমিটিকে ২০ কার্যদিবসের মধ্যে প্রতিবেদন দাখিলেরও নির্দেশ প্রদান করা হয়। উক্ত তদন্তের নির্দেশ প্রাপ্তির পর আমার আবেদনের প্রেক্ষিতে তদন্ত কাজে সহায়তা করার জন্য জনাব মোঃ মনিরুজ্জামান খান, পরিচালক, দুর্নীতি দমন কমিশন, বিভাগীয় কার্যালয়, রংপুরকে সূত্রস্থ ২ নং ক্রমিকে বর্ণিত স্মারক মূলে নির্দেশনা প্রদান করা হয়। তৎপ্রেক্ষিতে তার সহযোগিতায় আমি অত্র তদন্তকাজ সম্পাদন করি। ধার্য সময়ের মধ্যে তদন্ত কাজ সম্পন্ন করা সম্ভব না হওয়ায় সময়ের আবেদনের প্রেক্ষিতে ৩ নং সূত্রে উল্লিখিত ইউও নোটমূলে ১০ কার্যদিবস, সূত্র ৪ এ উল্লিখিত ইউও নোট মূলে ২০ কার্যদিবস এবং সূত্র ৫ এ উল্লিখিত ইউও নোটমূলে ৩০ কার্যদিবস তদন্ত কার্যের সময় বর্ধিত করা হয়।
তদন্তকালে সংশ্লিষ্ট মামলার তদন্তকারী কর্মকর্তা সর্বজনাব (১) মোছাঃ সেলিনা আক্তার মনি, বর্তমান উপ-পরিচালক, (২) মোঃ মাসুদুর রহমান, বর্তমানে উপ-পরিচালক, (৩) শেখ মেসবাহ উদ্দিন, উপ-পরিচালক, (৪) নাজমুল সাদাত, বর্তমানে উপ-পরিচালক, (৫) দেবব্রত মন্ডল, বর্তমানে উপ-পরিচালক, (৬) এ এস.এম. সাজ্জাদ হোসেন, বর্তমানে উপ-পরিচালক (৭) সুমিত্রা সেন, সহকারী পরিচালক, (৮) রাফী মোঃ নাজমুস সাদাত, বর্তমানে সহকারী পরিচালক, (৯) মফতাউল জান্নাত, বর্তমানে সহকারী পরিচালক, (১০) মুহাম্মদ জয়নাল আবেদীন, বর্তমানে সহকারী পরিচালক, (১১) মোঃ সাইদুজ্জামান, বর্তমানে সহকারী পরিচালক, এবং (১২) সিলভিয়া ফেরদৌস, বর্তমানে সহকারী পরিচালক, ৩৩ টি মামলার বাদী ও প্রথম তদারককারী কর্মকর্তা জনাব আব্দুল্লাহ আল জাহিদ, বর্তমানে পরিচালক, অপর তদারককারী কর্মকর্তা জনাব মোঃ নূর আহাম্মদ, প্রাক্তন মহা-পরিচালক (চঃদাঃ) কাজী শফিকুল আলম, পরিচালক (বিঃ তদ. ১) এবং জনাব মোঃ বেনজীর আহমদ, উপ-পরিচালকগণকে জিজ্ঞাসাবাদ করে তাদের বক্তব্য রেকর্ড করা হয়।
জাহালমকে আবুসালেক হিসেবে সনাক্তকারী ব্যাংক কর্মকর্তা সর্বজনাব (১) মোঃ ফয়সাল কায়েস, সাবেক অফিসার, ব্র্যাক ব্যাংক লিঃ, মোহাম্মদপুর এস.এম-ই শাখা, বর্তমানে সিনিয়র প্রিন্সিপাল অফিসার (অপারেশন ম্যানেজার), ব্র্যাক ব্যাংক লিঃ, আসাদগেট শাখা, ঢাকা (২) সাবিনা শারমিন, সাবেক শাখা ব্যবস্থাপক, ব্র্যাক ব্যাংক লিঃ, মোহাম্মদপুর এস.এম.ই শাখা, ঢাকা বর্তমানে শাখা ব্যবস্থাপক, ব্র্যাক ব্যাংক লিঃ, শ্যামলী শাখা, ঢাকা (৩) মিসেস তাজিবন সুলতানা, সাবেক অফিসার (ক্যাশ), ইউসিবিএল, মোহাম্মদপুর শাখা বর্তমানে সিনিয়র (ক্যাশ), ইউসিবিএল, এলিফ্যান্ট রোড শাখা, ঢাকা (৪) মোঃ নূর উদ্দিন শেখ, সাবেক সিনিয়র এক্সিকিউটিভ অফিসার, সোনালী ব্যাংক লিঃ, পরিদর্শন ও নিরীক্ষা বিভাগ-১, বর্তমানে অবসর প্রাপ্তগণকে জিজ্ঞাসাবাদ করে তাদের বক্তব্য রেকর্ড করা হয়। একই ছবি ব্যবহার করে বিভিন্ন ব্যাংকে আবুসালেক ও অন্যান্য নামে খোলা ব্যাংক হিসেবে পরিচয়দানকারী (১) জনাব মোঃ শাকিল, পিতা-হাজী মোঃ নূরুল হক বেপারী, নামা শ্যামপুর, ঢাকা-১৪০০ ও (২) জনাব মোঃ শহিদুল ইসলাম, পিতা-মোঃ ইউনুস মিয়া, ৯, পরিমল ভিলা, ৩ নং ছাত্তার মোল্লা রোড, মিরপুর-১২, পল্লবী ঢাকাগণকেও জিজ্ঞাসাবাদ করে তাদের বক্তব্য রেকর্ড করা হয়।
এছাড়া আবুসালেক নামীয় ব্যাংক হিসাবের ছবি দেখে তাকে জাহালম হিসেবে প্রত্যয়ন প্রদানকারী টাঙ্গাইল জেলার নাগরপুর উপজেলার ধুবুড়িয়া ও সলিমাবাদ ইউনিয়ন পরিষদের প্রাক্তন চেয়ারম্যান যথাক্রমে জনাব মোঃ শফিকুল রহমান খান ও জনাব মোঃ আজহারুল ইসলাম মন্টুকে জিজ্ঞাসাবাদ করে তাদের বক্তব্য রেকর্ড করা হয়। অধিকন্তু কমিশনের পক্ষে বিজ্ঞ আদালতে মামলা পরিচালনাকারী বিজ্ঞ পিপি সর্বজনাব (১) মোশাররফ হোসেন কাজল (২) মীর আহমেদ আলী সালাম (৩) মাহমুদ হোসেন জাহাঙ্গীর) (৪) রফিকুল হক বেনু (৫) রুহুল ইসলাম খান (৬) আব্দুর রাজ্জাক মিয়া ও (৭) ফাতেমা খানম নীলা এবং জাহালমের পক্ষে বিজ্ঞ আদালতে নিযুক্ত আইনজীবী (১) জনাব মোঃ লুৎফর কবির, (২) জনাব মোঃ আকরাম উদ্দিন (৩) জনাব একেএম এনামুল হক, (৪) জনাব মোঃ শাহাদাৎ হোসেন ও (৫) জনাব মোঃ আব্দুল আলীম মিয়াগণকে জিজ্ঞাসাবাদ করে তাদের বক্তব্য রেকর্ড করা হয়! (উল্লিখিত ব্যক্তিবর্গের বক্তব্য ও কপি সংযুক্ত করা হলো)।
গত ১৮-২-২০১৯ ও ১৯-২-২০১৯ খ্রিঃ তারিখে ঠাকুরগাঁও সদরে অবস্থিত আসামী মোঃ আবুসালেক এর গ্রামের বাড়ি এবং ঠাকুরগাঁও সদর ও পঞ্চগড়ের বোদা উপজেলায় অবস্থিত তার স্বার্থসংশ্লিষ্ট জমি/স্থাপনাসমূহ পরিদর্শন করি এবং স্থানীয় লোকজনের নিকট হতে তার বিষয়ে তথ্য সংগ্রহ করি। এ বিষয়ে গত ২৪-২-২০১৯ খ্রি: তারিখে একটি অন্তবর্তীকালীন প্রতিবেদন দাখিল করি। জেলা রেজিস্ট্রার, ঠাকুরগাঁও ও পঞ্চগড়-এর নিকট হতে মোঃ আবুসালেক ও তার নিকট আত্মীয়গণের নামে ক্রয়/বিক্রয়কৃত সম্পদের তথ্য সংগ্রহ ও পর্যালোচনা করি। চ্যানেল ২৪ এ জাহালমের বিষয়ে প্রতিবেদনকারী সাংবাদিক জনাব শাহরিয়ার আরিফ এর বক্তব্য গ্রহণ করেছি এবং সংশ্লিষ্ট ভিডিও ফুটেজ পর্যালোচনা করি।
গত ৫-৩-২০১৯ খ্রিঃ তারিখ টাঙ্গাইলের নাগরপুর উপজেলায় ধুবুড়িয়া গ্রামে অবস্থিত জনাব মোঃ জাহালমের গ্রামের বাড়ি পরিদর্শন করি এবং জনাব জাহালম ও তার ভাই জনাব শাহনুরকে জাহালমের গ্রেফতার ও কারাবাসের বিষয়ে জিজ্ঞাসাবাদ করে তাদের বক্তব্য রেকর্ড করি। এছাড়াও আবুসালেক ও জাহালমের ছবি দেখে একই ব্যক্তি মনে হয় মর্মে মতামত সলিমাবাদ ইউনিয়ন পরিষদ এবং গয়নাপাড়া বাজারের ব্যবসায়ী জনাব মোঃ ছানোয়ার হোসেন ছানা মিয়ার বক্তব্য রেকর্ড করি। (বক্তব্যের কপি সংযুক্ত পতাকা “ক”-১১০ পৃষ্ঠা)। তদন্তকালে মুল অনুসন্ধান নথি এবং সংশ্লিষ্ট ৩৩ টি মামলার অফিস নথি পর্যালোচনা করি। বিজ্ঞ বিচারিক আদালতসমূহ হতে জাহালমের জামিনের আবেদনসহ বিজ্ঞ আদালতের আদেশের কপি, এ পর্যন্ত গৃহীত সাক্ষীগণের সাক্ষ্য ও সংশ্লিষ্ট প্রয়োজনীয় রেকর্ডপত্রের কপি সংগ্রহপূর্বক পর্যালোচনা করেছি। উল্লিখিত রেকর্ডপত্র ও বক্তব্য সমূহ পর্যালোচনায় নিম্নরূপ প্রতিবেদন দাখিল করা হলো:
(ক) আসামী আবুসালেকের পরিবর্তে জাহালমকে আসামী করার প্রেক্ষাপট:
সোনালী ব্যাংক লিঃ, মিরপুর ক্যান্টনমেন্ট শাখা, ঢাকায় সংঘটিত জালিয়াতির মাধ্যমে অর্থ আত্মসাতের একটি অভিযোগ বাংলাদেশ ব্যাংক হতে গত ২১-১২-২০১০ খ্রিঃ তারিখে কমিশনে প্রেরণ করা হলে ২৬-১২-২০১০ খ্রিঃ তারিখে জনাব আব্দুল্লাহ-আল-জাহিদ, উপ-পরিচালক (বর্তমানে পরিচালক) কে অনুসন্ধানকারী কর্মকর্তা নিয়োগ করা হয়। তিনি অনুসন্ধান শেষে সোনালী ব্যাংক লি:, মিরপুর ক্যান্টনমেন্ট শাখা, ঢাকার মোঃ আবুসালেক নামীয় ব্যক্তি হিসাব, মোবাইল মেলা, প্রোঃ মোঃ আবুসালেক নামীয় অব্যক্তিক হিসাব এবং মোঃ বাবুল মিয়া নামীয় ৩টি হিসাবের চেক ব্যবহার করে ১৮ টি বিভিন্ন ব্যাংকের ৩৩টি বিভিন্ন শাখায় বিভিন্ন নামে খোলা হিসাবের মাধ্যমে ভুয়া ক্লিয়ারিং ব্যবহার করে মোট ১৮ কোটি টাকার অধিক অর্থ আত্মসাতের অভিযোগ কমিশনের অনুমোদন-ক্রমে শাহ আলী (ডিএমপি) থানায় ২টি, বাড্ডা (ডিএমপি) থানা ৫টি, গুলশান (ডিএমপি) থানায় ৩টি, কাফরুল (ডিএমপি) থানায় ২টি, ধানমন্ডি (ডিএমপি) থানায় ২টি, পল্লবী (ডিএমপি) থানায় ৫টি, দারুস সালাম (ডিএমপি) থানায় ২টি, আদাবর (ডিএমপি) থানায় ৪টি, রামপুরা (ডিএমপি) থানায় ২টি এবং ডবলমুরিং (ডিএমপি) থানায় ১টি মোট ৩৩টি মামলা রুজু করেন। তন্মধ্যে ৩০টি মামলায় মোঃ আবুসালেক, গ্রাম-গয়নাপাড়া, পোঃ-সলিমাবাদ, থানা-নাগরপুর, জেলা-টাঙ্গাইলকে এজাহারভুক্ত আসামী করা হয়। মামলাসমূহ তদন্তের জন্য সহকারী পরিচালক মোছাঃ সেলিনা আক্তার মনি (বর্তমানে উপ-পরিচালক) কে ২টি, সহকারী সুমিত্রা সেনকে ২টি, সহকারী পরিচালক ফয়সাল মাহমুদকে ৩টি, উপসহকারী পরিচালক মোঃ জাকারিয়া হোসেনকে ৫টি, উপসহকারী পরিচালক সিলভিয়া ফেরদৌসকে ২টি, সহকারী পরিচালক এ এস এম সাজ্জাদ হোসেন (বর্তমানে উপ-পরিচালক) কে ২টি, সহকারী পরিচালক মোঃ আল আমিনকে ২টি, উপসহকারী পরিচালক মুহাম্মদ জয়নাল আবেদীন (বর্তমানে সহকারী পরিচালক) কে ২টি, সহকারী পরিচালক মোঃ নাজমুস সাদাতকে ৩টি, উপসহকারী পরিচালক শংকর কুমার চক্রবর্তীকে ৪টি, উপসহকারী পরিচালক রাফী মোঃ নাজমুস সাদাতকে ২টি মামলার তদন্তকারী কর্মকর্তা এবং উপ-পরিচালক আব্দুল্লাহ-আল-জাহিদ (বর্তমানে পরিচালক) কে তদারককারী কর্মকর্তা নিয়োগ করা হয়। উপসহকারী পরিচালক শংকর কুমার চক্রবর্তী চাকুরী ছেড়ে দেয়ায় তার বদলে বাড্ডা থানা ২৩(৪)১২ নং মামলায় প্রথমে মোঃ হোসাইন শরীফ ও পরবর্তীতে উপসহকারী পরিচালক মফতাউল জান্নাত (বর্তমানে সহকারী পরিচালক), বাড্ডা থানা ২০(৪)১২ নং মামলায় প্রথমে মোঃ হোসাইন শরীফ পরবর্তীতে এএইচ আশিকুর রহমান এবং শেষে সহকারী পরিচালক দেবব্রত মন্ডল (বর্তমানে উপ-পরিচালক), মোহাম্মদপুর থানা ২০(৪)১২ মামলায় উপসহকারী পরিচালক রাফী মোঃ নাজমুস সাদাত (বর্তমানে সহকারী পরিচালক) এবং মোহাম্মদপুর থানা ২(৪)১২ নং মামলায় প্রথমে মোঃ আল আমিন ও পরবর্তীতে সহকারী পরিচালক মোঃ রফিকুল ইসলামকে তদন্তকারী কর্মকর্তা নিয়োগ করা হয়। অনুরূপভাবে জনাব মোঃ নাজমুস সাদাত এর নিকট তদন্তাধীন ৩ টি মামলায় পরবর্তীতে শেখ মেসবাহ উদ্দিন, উপপরিচালককে তদন্তকারী কর্মকর্তা নিয়োগ করা হয়। উল্লেখ্য, এই ৩৩ টি মামলা দায়ের করার পূর্বে ব্যাংক কর্তৃক একটি মামলা (মতিঝিল থানা মামলা নং ২৩ তারিখঃ ১৪-৯-২০১০) দায়ের করা হয় যা পুলিশ কর্তৃক তদন্ত শুরু হয়েছিল। পরবর্তীতে সেটি তদন্তের জন্য দুদকের নিকট স্থানান্তর করা হয়। দুদক সেই মামলাটিতে এফআরটি দাখিল করে এবং বর্তমান ৩৩ টি মামলা নিয়ে তদন্তে অগ্রসর হয়।
তদন্তকালে দেখা যায় যে, একই ছবি ব্যবহার করে বিভিন্ন ব্যাংকে মোঃ আবুসালেক নামে ২টি, সালেক ট্রেডার্স প্রো মোঃ আবুসালেক নামে ৪টি মোবাইল মেলা প্রোঃ আবুসালেক নামে ১টি, গোলাম মর্তুজা নামে ২টি এবং মেহেরুন সামাদ ট্রেডার্স প্রোঃ গোলাম মর্তুজা নামে ৬টি মোট ১৫টি হিসাব খোলা হয়েছে। তদন্তকালে আসামী মোঃ আবুসালেক কর্তৃক ব্যাংকে প্রদত্ত ঠিকানা সমূহে তার অস্তিত্ব না পাওয়ায় তদন্তকারী কর্মকর্তাগণ ২৫টি মামলায় মোঃ আবুছালেকের অস্তিত্ব পাওয়া যায়নি উল্লেখপূর্বক পরবর্তীতে তার অস্তিত্ব পাওয়া গেলে তার বিরুদ্ধে সম্পূরক চার্জশীট দাখিল করা হবে উল্লেখ করে তার নাম বাদ দিয়ে অন্যদের বিরুদ্ধে চার্জশীট দাখিলের অনুমোদন জ্ঞাপনের সুপারিশ করে সাক্ষ্য-স্মারক দাখিল করেন। অনুরূপভাবে ৩টি মামলার তদন্তকালে আসামী মোঃ আবুছালেকের অস্তিত্ব পাওয়া যায়নি উল্লেখ পূর্বক তাকে বাদ দিয়ে অন্যদের বিরুদ্ধে চার্জশীট দাখিলের অনুমোদন প্রদানের সুপারিশ করে সাক্ষ্য-স্মারক দাখিল করেন। দাখিলকৃত সাক্ষ্য-স্মারকের ভিত্তিতে কমিশনের অনুমোদন-ক্রমে সাক্ষ্য-স্মারকের সুপারিশ মোতাবেক আসামী মোঃ আবুসালেক এর অস্তিত্ব পাওয়া গেলে সম্পূরক চার্জশীট দাখিল করা হবে মর্মে উল্লেখ করত ৩টি মামলায় চার্জশীট দাখিল করা হয়। সাক্ষ্য-স্মারক দাখিলকৃত অন্য নথি প্রক্রিয়াধীন ছিল। তখনও ৫টি মামলা তদন্তাধীন ছিল। তন্মধ্যে আদাবর (ডিএমপি) থানা মামলা নং ১৩(৪)১২ এর তদন্তকারী কর্মকর্তা ছিলেন তৎকালীন সহকারী পরিচালক জনাব সেলিনা আক্তার মনি। ব্র্যাক ব্যাংক লিঃ মোহাম্মদপুর এস এম ই শাখায় মেসার্স মেহেরুন সামাদ ট্রেডার্স নামীয় একটি চলতি হিসাব (হিসাব নং ১৫৪৩২০১৭২১৭৩৭০০১) এর মাধ্যমে অর্থ আত্মসাতের বিষয়ে উক্ত মামলা করা হয়েছিল। ব্র্যাক ব্যাংক লিঃ মোহাম্মদপুর এস এম ই শাখায় পরিচালিত মেসার্স মেহেরুন সামাদ ট্রেডার্স নামীয় প্রতিষ্ঠানের স্বত্ত্বাধিকারী গোলাম মর্তুজা, যোগাযোগের ঠিকানা ১২/চ, রোড-২, শ্যামলী, ঢাকা এবং স্থায়ী ঠিকানাঃ পিতাঃ মৃত সামাদ মোল্লা, মাতাঃ মৃত মেহেরুন নেছা, গ্রামঃ লোহাগড়া, নড়াইল। উক্ত হিসাবে ব্যবহৃত গ্রাহকের মোবাইল নম্বর-০১৭৪৯৬৮৫০৫১ এবং জাতীয় পরিচয় পত্র নং ৬৫২৫২০৪৪২৬২১১। উক্ত হিসাবের Introducer ছিলেন জনাব মোঃ ফয়সাল কায়েস, অফিসার, ব্র্যাক লিঃ মোহাম্মদপুর এস এমই শাখা। উক্ত হিসাবের মাধ্যমে সোনালী ব্যাংক লিঃ, মিরপুর ক্যান্টনমেন্ট শাখার মোঃ আবুসালেক নামীয় ব্যক্তি হিসাব নং ০০১০২০৯৭৪ এর ৩টি চেকের জাল ক্লিয়ারিং ব্যবহার করে মোট ৬০,৩০১০০০ টাকা আত্মসাৎ করা হয়। সোনালী ব্যাংকের উক্ত হিসাবের ব্যবহৃত আবুসালেক এর ছবি এবং ব্র্যাক ব্যাংক লিঃ, মোহাম্মদপুর এস এম ই ছবি একই ব্যক্তির একই ছবি। সোনালী ব্যাংকের উক্ত হিসাবের গ্রাহকের ঠিকানা মোঃ আবুসালেক, পিতা-মোঃ আব্দুল ছালাম, মাতা-মোছাঃ ছালেহা খাতুন, গ্রাম-গয়নাপাড়া, পোঃ-সলিমাবাদ, থানা-নাগরপুর, জেলা-টাঙ্গাইল। উক্ত হিসাবের পরিচয়দানকারী জনাব মোঃ সিহিদুল ইসলাম, স্বতাধিকারী মেসার্স এম এস ইসলাম এন্টারপ্রাইজ।
রেকর্ডপত্র পর্যালোচনায় আরো দেখা যায় যে, মোঃ আবুসালেক সোনালী ব্যাংক লিঃ, ক্যান্টনমেন্ট শাখার উক্ত ব্যক্তি হিসাব খোলার কিছুদিন পর মোবাইল মেলা, স্বতাধিকারী- মোঃ আবু সালেক নামে একটি অ-ব্যক্তিক হিসাব খোলেন যার নম্বর-০০১০২১১৭৭, পরিচয়দানকারী পূর্বোক্ত সিহিদুল ইসলাম। এ হিসাবে মোঃ আবু সালেক তার মোবাইল নম্বর লিখেন ০১৭৪৯৬৮৫০৫১। অর্থাৎ একই ছবি ব্যবহার করে ব্র্যাক ব্যাংক লিঃ, মোহাম্মদপুর এস এম ই শাখায় খোলা মেহেরুন সামাদ ট্রেডার্স, প্রোঃ গোলাম মর্তুজা এবং সোনালী ব্যাংক লিঃ, মিরপুর ক্যান্টনমেন্ট শাখায় খোলা মোঃ আবুসালেক ও মোবাইল মেলা, স্বতাধিকারী মোঃ আবুসালেক নামীয় হিসাবে গ্রাহকের নম্বর হিসাবে একই মোবাইল নম্বর ব্যবহার করা হয়েছে। তদন্তকারী কর্মকর্তা উক্ত ০১৭৪৯৬৮৫০৫১ নম্বর মোবাইলের রেজিস্ট্রেশন সংক্রান্ত তথ্যাদি বিটিআরসি হতে সংগ্রহ করেন। বিটিআরসি হতে প্রাপ্ত তথ্য পর্যালোচনায় দেখায় যে, ০১৭৪৯৬৮৫০৫১ নম্বরটি মোঃ আবুসালেক নামে রেজিস্ট্রেশনকৃত। রেজিস্ট্রেশনকালে দাখিলকৃত জাতীয় পরিচয়পত্র অনুযায়ী মোঃ আবু সালেকের জন্ম তারিখঃ ১-৫-১৯৮৩, পিতা মোঃ আব্দুল ছালাম, ঠিকানা- গ্রাম- গয়নাপাড়া, সলিমাবাদ, নাগরপুর, টাঙ্গাইল। তার জাতীয় পরিচয়পত্র নম্বর ৯৪১৯৪২৫২৪৫৮১৫। অর্থাৎ মোবাইল নম্বরের রেজিস্ট্রেশনে ব্যবহৃত রেকর্ডপত্রে মোঃ আবুসালেকের ঠিকানা ও সোনালী ব্যাংক লিঃ, মিরপুর ক্যান্টনমেন্ট শাখায় পরিচালিত মোঃ আবুসালেক নামীয় হিসাবে ব্যবহৃত ঠিকানা একই। অন্যদিকে সোনালী ব্যাংক লিঃ, মিরপুর ক্যান্টনমেন্ট শাখার মোঃ আবুসালেক ও মোবাইল মেলা, স্বত্বাধিকারী মোঃ আবুসালেক নামীয় হিসাবের পরিচয়দানকারী জনাব মোঃ সিহিদুল ইসলাম জানান যে, সোনালী ব্যাংকের স্টাফ মঈনুল হক এক ব্যক্তিকে তার নাম মোঃ আবুসালেক এবং সে তার খালাত ভাই মর্মে তার সাথে পরিচয় করিয়ে দেন এবং তার খালাত ভাইয়ের হিসাব খোলার ফর্মে তাকে পরিচয়দানকারী হিসাবে স্বাক্ষর করতে অনুরোধ করেন। জনাব সিহিদুল ইসলাম মঈনুল হক নিজে কেন পরিচয়দানকারী হচ্ছেন না জিজ্ঞেস করলে মঈনুল হক জানান যে, ব্যাংকের লোকের সই দেয়ার বিধান নেই। তিনি মঈনুল হক এর কথায় সরল বিশ্বাসে পরিচয়দানকারী হিসাবে স্বাক্ষর করেন।
উল্লিখিত প্রেক্ষাপটে তদন্তকারী কর্মকর্তা সহকারী পরিচালক সেলিনা আক্তার মনি ব্র্যাক ব্যাংক লিঃ, মোহাম্মদপুর এস এম ই শাখায় মেহেরুন সামাদ ট্রেডার্স প্রোঃ গোলাম মর্তুজা নামীয় হিসাবে Introducer ও উক্ত ব্যাংকের অফিসার জনাব মোঃ ফয়সাল কায়েসকে গ্রাহকের অস্তিত্ব খুজে বের করে দেয়ার জন্য চাপ দিলে তিনি প্রথমে উক্ত হিসাবে ব্যবহৃত গোলাম মর্তুজার শ্যামলীর ঠিকানায় যান। সেখানে কেয়ারটেকার গোলাম মর্তুজার ছবি দেখে তাকে জানান যে, ছবির লোক অনেক আগে উক্ত ঠিকানায় থাকতো এবং টাঙ্গাইলের আঞ্চলিক ভাষায় কথা বলতো। এর পর তিনি তদন্তকারী কর্মকর্তার নিকট হতে একই ছবি ব্যবহার করে সোনালী ব্যাংকে খোলা হিসাবে ব্যবহৃত নাগরপুরের ঠিকানা সংগ্রহপূর্বক অনুসন্ধানের জন্য ছবিসহ নাগরপুর উপজেলার সলিমাবাদ ইউনিয়নের গয়নাপাড়া বাজারে যান। উক্ত বাজারের কয়েকজন লোক উক্ত ছবি দেখে তাকে জাহালম ওরফে জানে আলম, ইউসুফ আলী হিসাবে সনাক্ত করে এবং সে বর্তমানে ঘোড়াশালে জুটমিলে কাজ করে মর্মে জানায়। এছাড়াও পার্শ্ববর্তী ধুবুড়িয়া বাজারে জাহালমের ভাই শাহনুরের ইলেকট্রিক মালামালের দোকান আছে মর্মে তাকে জানানো হলে তিনি শাহানুরের দোকানে গিয়ে জাহালমের ঘোড়াশালের ঠিকানা সংগ্রহ করেন। পরবর্তীতে তিনি দুদক কর্মকর্তা ও তার ব্যাংকের উর্ধ্বতন কর্মকর্তা সাবিনা (যিনি গোলাম মর্তুজা নামীয় হিসাব অনুমোদন করেছিলেন) সহ ঘোড়াশাল জুটমিলে যান এবং জাহালমকে দেখে আবুসালেকের ছবির সাথে মিল থাকায় জাহালমকে আবুসালেক হিসাবে সনাক্ত করেন এবং বিষয়টি তদন্তকারী কর্মকর্তা ও সহকারী পরিচালক সেলিনা আক্তার মনিকে জানান। পরবর্তীতে তদন্তকারী কর্মকর্তাগণের নোটিশের প্রেক্ষিতে জাহালম দুদক কার্যালয়ে উপস্থিত হলে দুদক মিডিয়া সেন্টারে তদন্তকারী কর্মকর্তাগণ জাহালমকে বিভিন্ন ব্যাংকে একই ছবি ব্যবহার করে বিভিন্ন নামে খোলা ব্যাংক হিসাবের পরিচয়দানকারী/অনুমোদনকারী কর্মকর্তাগণকে মুখোমুখী করেন। জনাব জাহালমকে সামনা সামনি দেখে ব্র্যাক ব্যাংক লিঃ, মোহাম্মদপুর এস এম ই শাখার মেহেরুন সামাদ ট্রেডার্স নামীয় হিসাবের পরিচয়দানকারী জনাব মোঃ ফয়সাল কায়েস, অফিসার, ব্র্যাক ব্যাংক লিঃ (২) উক্ত মেহেরুন সামাদ ট্রেডার্স নামীয় হিসাবের অনুমদনকারী জনাব সাবিনা শারমিন, শাখা ব্যবস্থাপক, ব্র্যাক ব্যাংক লিঃ, মোহাম্মদপুর এস এম ই শাখা (৩) সোনালী ব্যাংক লিঃ, মিরপুর ক্যান্টনমেন্ট শাখার মোঃ আবুসালেক নামীয় ব্যক্তি হিসাব ও মোবাইল মেলা নামীয় অ-ব্যক্তিক হিসাবের পরিচয়দানকারী জনাব মোঃ সিহিদুল ইসলাম (4) সোনালী ব্যাংক লিঃ, মিরপুর ক্যান্টনমেন্ট শাখার আবুসালেক নামীয় ব্যক্তি হিসাবের অনুমাদনকারী জনাব মোঃ নূর উদ্দিন শেখ এস ই ও উক্ত ব্যাংক এবং (৫) দি সিটি ব্যাংক লিঃ ধানমন্ডি শাখার গোলাম মর্তুজা নামীয় সঞ্চয়ী হিসাব নম্বর ১২০১১৪৫২৩৩০০১ এর পরিচয়দানকারী জনাব মোঃ শাকিল, পিতা-হাজী মোঃ নূরুল হক ব্যাপারী জাহালমকে আবুসালেক হিসাবে সনাক্ত করেন এবং জাহালমই ব্যাংক হিসাব খোলার জন্য বিভিন্ন ব্যাংকে গিয়েছিলেন মর্মে নিশ্চিত করেন। এছাড়াও ইউসিবিএল, মোহাম্মদপুর শাখার সালেক ট্রেডার্স নামীয় চলতি হিসাব নাম্বার ০০৫০১১১০০০২৯৭০৮ এর পরিচয়দানকারী মিসেস তাজিবন সুলতানা অফিসার (ক্যাশ) উক্ত ব্যাংক জাহালমের ছবি দেখে ছবির ব্যক্তি তার ব্যাংকে সালেক ট্রেডার্স নামে উক্ত চলতি হিসাব খুলে ছিলেন মর্মে বক্তব্য প্রদান করেন। উল্লিখিত প্রেক্ষাপটে যে কয়টি মামলায় ইতোপূর্বে চার্জশীট দাখিল করা হয়েছিল যে কয়টি বাদে অন্য সকল মামলায় তদন্তকারী কর্মকর্তাগণ আসামী আবুসালেকের পরিবর্তে জাহালমের বিরুদ্ধে চার্জশীট দাখিলের সুপারিশ করেন এবং তদানুযায়ী চার্জশীট দাখিল করা হয়।
সার্বিক পর্যালোচনায় প্রতীয়মান হয় যে, জনাব সেলিনা আক্তার মনি, বর্তমানে উপ-পরিচালক মূল তদন্ত কাজ করেছেন এবং অন্যান্য তদন্তকারী কর্মকর্তাগণ তাকে অনুসরণ করেছেন। রেকর্ডপত্র অনুযায়ী জনাব সেলিনা আক্তার মনি, বর্তমানে উপ-পরিচালক ২টি, জনাব সুমিত্রা সেন, সহকারী পরিচালক ২টি, জনাব মোঃ মাসুদুর রহমান, বর্তমানে উপ-পরিচালক ২টি, জনাব সিলভিয়া ফেরদৌস, বর্তমানে সহকারী পরিচালক ৩টি, জনাব মফতাউল জান্নাত, বর্তমানে সহকারী পরিচালক ২টি, জনাব দেবব্রত মন্ডল, বর্তমানে উপ-পরিচালক ২টি, জনাব মুহাম্মদ জয়নাল আবেদীন, বর্তমানে সহকারী পরিচালক ১টি, শেখ মেসবাহ উদ্দিন, উপ-পরিচালক ৩টি, জনাব মোঃ সাইদুজ্জামান বর্তমানে সহকারী পরিচালক ১টি, জনাব রাফী মোঃ নাজমুস সাদাত, বর্তমানে সহকারী পরিচালক ৩টি এবং জনাব মোঃ রফিকুল ইসলাম, সহকারী পরিচালক (বর্তমানে অবসর প্রাপ্ত) ১ টি মামলায় জনাব মোঃ জাহালমকে চার্জশীটভুক্ত করার সুপারিশ করেছিলেন এবং তদানুযায়ী জনাব মোঃ জাহালমের বিরুদ্ধে চার্জশীট দাখিলের অনুমোদন জ্ঞাপন করা হয় এবং চার্জশীট দাখিল করা হয়।
(খ) আলোচ্য মামলা সমূহের অনুসন্ধান ও তদন্তে ত্রুটি বিচ্যুতি উদ্ঘাটন এবং সংশ্লিষ্টদের দায়-দায়িত্ব নিরূপন:
অনুসন্ধানকালে সংঘটিত ত্রুটি বিচ্যুতি:
১. সোনালী ব্যাংক লিঃ, মিরপুর ক্যান্টনমেন্ট শাখা, ঢাকায় সংঘটিত জালিয়াতির মাধ্যমে অর্থ আত্মসাতের বিষয়ে ব্যবস্থা গ্রহণের জন্য বাংলাদেশ ব্যাংক হতে মহাপরিচালক (বিশেষ অনুসন্ধান ও তদন্ত), দুর্নীতি দমন কমিশনকে পত্র দেয়া হয়। উক্ত পত্রে প্রতারক চক্র সোনালী ব্যাংক লিঃ, মিরপুর ক্যান্টনমেন্ট শাখায় হিসাব খোলার সাথে সাথে অন্যান্য আরও ১৮ টি ব্যাংকের ৩৩টি শাখায় হিসাব খোলা এবং উক্ত হিসাবের মাধ্যমে ভুয়া ক্লিয়ারিং ভাউচার ব্যবহার করে মোট ১৮ কোটি ৪৭,৩৫,০০০ টাকা আত্মসাতের তথ্য প্রদান করা হয়। অর্থাৎ অভিযোগটি ব্যাপক প্রকৃতির। অভিযোগ সংশ্লিষ্ট রেকর্ডপত্রের পরিমান বিপুল এবং সম্পৃক্ত ব্যক্তিবর্গের সংখ্যাও অনেক বেশি। এখানে কোন অনসন্ধান দল গঠন না করে একজন মাত্র অনুসন্ধানকারী কর্মকর্তা নিয়োগ করা হয়েছে। অনুসন্ধানকারী কর্মকর্তাও বিষয়টি নিশ্চিতভাবে কমিশনের নজরে আনেননি।
২. গত ২৬-১২-২০১০ খ্রিঃ তারিখে জনাব আব্দুল্লাহ-আল-জাহিদকে অনুসন্ধানকারী কর্মকর্তা নিয়োগ করা হন। তিনি ২৮-১২-২০১০ খ্রিঃ তারিখে সংশ্লিষ্ট ব্যাংক হিসাবসমূহ Freeze করার জন্য বিজ্ঞ মহানগর সিনিয়র স্পেশাল জজ আদালত, ঢাকায় আবেদন করেন এবং ৪-১-২০১১ খ্রিঃ তারিখে Freeze Order প্রাপ্ত হন এবং এ বিষয়ে একটি প্রতিবেদন দাখিল করেন। কমিশন হতে ২৭-২-২০১১ খ্রিঃ তারিখে বাংলাদেশ ব্যাংক কর্তৃক গঠিত পরিদর্শন টিমের পরিদর্শন নিয়ে প্রতিবেদন সংগ্রহ ও পর্যালোচনাপূর্বক অনুসন্ধান প্রতিবেদন দাখিলের জন্য নির্দেশ প্রদান করা হয়। এ প্রেক্ষিতে তিনি গত ৯-৫-২০১১ খ্রিঃ তারিখে প্রতিবেদন দাখিল করেন। উক্ত প্রতিবেদনের ৭ নং দফায় তিনি উল্লেখ করেন যে, “আলোচ্য বিষয়ে সোনালী ব্যাংক লিঃ, স্থানীয় খান বাদী হয়ে মতিঝিল থানায় মামলা নং ২৩ তারিখ ১৪-৯-২০১০ খ্রিঃ ধারা: দণ্ড বিধি ৪০৬/৪২০) রুজু করেছেন। বর্তমানে পুলিশ বিভাগ উক্ত মামলায় অতিরিক্ত সংযোজনের জন্য বিজ্ঞ মহানগর হাকিম আদালত নং ১৮-এ আবেদন করেছেন বলে বিজ্ঞ আদালত সূত্রে জানা গেছে। উল্লেখ্য, ফৌজদারী কার্যবিধির ১৫৪ ধারা এবং এতদসংক্রান্ত উচ্চ আদালতের নজির পর্যালোচনায় দেখা যায় যে, একই ঘটনায় একাধিক এফ আই আর রুজু করা আইনসম্মত নয়।” আলোচ্য অভিযোগ সংশ্লিষ্ট নথি নং- দুদক/বিঃঅনুং ও তদ.-১/মানিলন্ডারিং ৫৫-২০১০ পর্যালোচনায় দেখা যায় উক্ত প্রতিবেদন দাখিলের পর অনুসন্ধানকারী কর্মকর্তার সাথে তৎকালীন মহাপরিচালক (বিঃ অনুঃ ও তদ.) কর্নেল হানিফ ইকবাল এর একাধিকবার আলোচনা হয় এবং পরবর্তীতে গত ২৩-২-২০১২ খ্রিঃ তারিখে তাকে পূর্ণাঙ্গ প্রতিবেদন দাখিলের জন্য নির্দেশ প্রদান করা হয়। এ প্রেক্ষিতে তিনি গত ৮-৩-২০১২ খ্রিঃ তারিখে ৩৩ টি মামলা রুজু সুপারিশ করে প্রতিবেদন দাখিল করেন এবং কমিশনের অনুমোদন-ক্রমে ৩৩ টি মামলা রুজু হয়। কিন্তু কেন অনুসন্ধানকারী একটি মামলায় স্থির না থেকে ৩৩ টি রিপোর্টে উল্লেখ নেই। তিনি পূর্বেই তার একটি রিপার্টে বলেছিলেন যে, একই ঘটনায় একাধিক এফ আই আর রুজু করা আইনসম্মত নয়। তাহলে এই “আইন সম্মত নয়” কাজটিই কেন তিনি পরবর্তীতে করলেন তার বিস্তারিত বিবরণ অবশ্যই তার রিপোর্টে থাকা উচিত ছিল। ১টি মামলার পরিবর্তে ৩৩টি মামলা দায়ের করা এবং মামলার ঘটনাস্থল পরিবর্তন করে ফেলা এগুলির সাথে গুরুত্বপূর্ণ আইনগত প্রশ্ন জড়িত ছিল। অভিযোগটির অনুসন্ধানকারী কর্মকর্তা বা তদারককারী কর্মকর্তা বা সংশ্লিষ্ট মহাপরিচালক গ্রহণ করেনিন। লিগ্যাল অনুবিভাগের সাথে বিষয়টি নিয়ে আলোচনা করলে কিংবা লিগ্যাল অনুবিভাগ থেকে মতামত গ্রহণ করলে এই ভুলটি এড়ানো সম্ভব হত। এ ভুলের দায় ইও তদারককারী কিংবা সংশ্লিষ্ট মহাপরিচালক এড়াতে পারেন না।
এজাহারে জাহালম নামে কাউকে আসামী করা হয়নি তবে মোঃ আবুসালেক, গ্রাম-গয়নাপাড়া, পোঃ-সলিমাবাদ, থানা-নাগরপুর, জেলা- টাঙ্গাইলকে আসামীভুক্ত করেন তবে তিনি কোন আসামীর ঠিকানা যাচাই করেননি। তিনি বাংলাদেশ ব্যাংক ও সোনালী ব্যাংক গঠিত দুটি তদন্ত কমিটির তদন্ত প্রতিবেদনের ওপর ভিত্তি করে অনুসন্ধান প্রতিবেদন দাখিল করেন। ফলে ভুয়া নাম ঠিকানা সম্বলিত ব্যক্তিকেও আসামীভুক্ত করা হয়। এখানে লক্ষণীয়, ইওকে ২৬-১২-২০১০ খ্রিঃ তারিখে অনুসন্ধানকারী কর্মকর্তা নিয়োগ করে যে নির্দেশনা প্রদান করা হয়েছিল সেখানে দুদক বিধিমালা, ২০০৭ অনুসরণ করে অনুসন্ধান প্রতিবেদন দাখিল করার কথা বলা হয়েছিল। কিন্তু তিনি মোটেই দুদক বিধিমালা অনুসরণ করে তার অনুসন্ধান রিপোর্ট দাখিল করেননি। তিনি প্রায় ১৪ মাস যাবৎ তার অনুসন্ধান করেছেন কিন্তু এই ১৪ মাসে অনুসন্ধান করে কি পেলেন? তিনি তো সরেজমিনে কোন অনুসন্ধানই করেননি। তিনি শুধুমাত্র বাংলাদেশ ব্যাংক ও সোনালী ব্যাংকের প্রাপ্ত প্রতিবেদনের ওপর ভিত্তি করে তার রিপোর্ট দাখিল করেছেন। এটা কোন ভাবেই ঠিক হয়নি। সরেজমিনে অনুসন্ধানেই বের হয়ে আসত। অনুসন্ধানকালে তদারককারী মুহাম্মদ আশরাফ আলী ফারুক এর কোন Contribution দেখা যায় না। এছাড়া সংশ্লিষ্ট ডেস্ক অফিসার কিংবা মহাপরিচালকও তাদের নোটে এ বিষয়ে কোন কিছু বলেননি। তারা যত্নশীল হলে অনুসন্ধান পর্যায়েই এই মামলাগুলির ত্রুটি বিচ্যুতি উদ্ঘাটন করা সম্ভব হত।
তদন্তকালে সংঘটিত ত্রুটি বিচ্যুতি:
১. তদন্তকালে বিভিন্ন ব্যাংক হিসাবে ব্যবহৃত মোঃ আবু সালেকসহ অন্যান্য নামের (যাদের প্রকৃত নাম ও ঠিকানা পাওয়া যায়নি) ছবি দিয়ে তাদেরকে ধরিয়ে দেয়ার জন্য বা তাদের প্রকৃত পরিচয় জানানোর জন্য বিভিন্ন জাতীয় দৈনিক পত্রিকা ও বিভিন্ন টিভি চ্যানেলে বিজ্ঞাপন প্রদানের ব্যবস্থা না করা।
২. মোঃ জাহালমকে বিভিন্ন মামলায় তার সহযোগী হিসেবে উল্লিখিত আসামীদের সাথে মুখোমুখী জিজ্ঞাসাবাদ না করা।
৩. মোঃ জাহালমের ইংরেজী লিখতে না জানা তথা লিখা পড়া না জানা, তার সামাজিক অবস্থান ও আর্থিক সঙ্গতি বিবেচনায় না নেয়া। এগুলি ঠিকমত বিবেচনা করলে তখনই উদ্ঘাটিত হত যে, জাহালম প্রকৃত আসামী নয়।
৪. বিভিন্ন ভুয়া নাম ঠিকানা ব্যবহার করে খোলা ব্যাংক নিরূপন না করা এবং সেই উদ্দেশ্য অনুযায়ী তাদেরকে আসামী/সাক্ষী না করা। একজন ব্যক্তি অপর কোন ব্যক্তির একাউন্টে পরিচয়দানকারী হলেই বলা যায় না যে সেই ব্যক্তির অপকর্মের সাথে জড়িত। এখানে দেখা উচিত ছিল সে কেন পরিচয়দানকারী হয়েছিল?
৫. ব্যাংক নিয়ম ভঙ্গ করে গ্রাহককে অতিরিক্ত চেক বই সরবরাহ ও লেনদেন পরিচালনায় সহায়তাকারী কর্মকর্তাগণের দায়-দায়িত্ব সঠিকভাবে নিরূপন না করা।
৬. এই তদন্তে আত্মসাৎ হয়েছে ১৮ কোটির টাকারও বেশি কিন্তু তদন্তকারী কর্মকর্তাগণ এই টাকা কোথায় গেল সে বিষয়ে পর্যাপ্ত তথ্য সংগ্রহ করেননি। মানিলন্ডারিং সংক্রান্ত মামলার তদন্তের ক্ষেত্রে “follow the money” একটি কার্যকরী তদন্ত tool। অর্থের গন্তব্যের বিষয়ে তদন্ত করলেই এবং গন্তব্য খুজে পাওয়া গেলে স্বাভাবিক ভাবেই অপরাধীর খোঁজ পাওয়া যায়। এক্ষেত্রে সেটা করা হয়নি। এটি তদন্তকারী কর্মকর্তাদের একটি ব্যর্থতা/অযোগ্যতা ছিল।
৭. এই মামলায় অনেক ব্যাংক কর্মকর্তা জড়িত থাকলেও এবং তারা ক্ষমতায় অপব্যবহার করে থাকলেও তাদের কাউকে ১৯৪৭ সনের দুর্নীতি প্রতিরোধ আইনের ৫(২) ধারায় অভিযুক্ত করা হয়নি। কিন্তু তাদেরকে উক্ত ধারায় চার্জশীটভুক্ত করা উচিত ছিল।
৮. এই ৩৩ টি মামলার পূর্বের যে একটি মামলা (মতিঝিল থানা মামলা নং ২৩ তারিখ: ১৪-৯-২০১০) যা ব্যাংক ইসলাম সাগর ও সাইফুল হক এর ১৬৪ ধারায় জবানবন্দী গ্রহণ করা হয়েছিল। উক্ত মামলায় ফাইনাল রিপোর্ট দাখিল করা হয় কিন্তু পরবর্তীতে বর্তমান কোন মামলাতেই উক্ত ব্যক্তিদের ১৬৪ ধারায় জবানবন্দী গ্রহণের কোন উদ্যোগ গ্রহণ করা হয়নি। এতে স্বভাবতঃই মামলাগুলি দুর্বল হয়ে গেছে।
৯. এই মামলার আসামী আমিনুল হক ওরফে হক সাহেবের ব্র্যাক ব্যাংকের ২টি একাউন্টে (রোকেয়া সরণী ব্রাঞ্চ ও মিরপুর ব্রাঞ্চ) রক্ষিত ৮২,০১,০০০ টাকা এবং মানিকগঞ্জ সদর থানার ৪৩৩ শতক জমি বিশেষ জজ আদালত নং-৪ এর বিশেষ ২০/১৫ নং মামলায় ২৯-১০-২০১৮ খ্রিঃ তারিখের আদেশের ফ্রিজ/ক্রোক করা হয়। এই ব্যক্তির একুশ শতকের উন্নয়ন নামে মানিকগঞ্জের একটি এনজিও ছিল। সুতরাং প্রাথমিকভাবে প্রতীয়মান হয় যে, এই ব্যক্তি আত্মসাতকৃত টাকার একটি বড় অংশের ভাগ পেয়েছিলেন। এ ধরণের একজন আসামীকে কেন রিমান্ডে এসে ব্যাপকভাবে জিজ্ঞাসাবাদের উদ্যোগ গ্রহণ করা হয়নি তা বোধগম্য নয়। তাকে জিজ্ঞাসাবাদ করলেই তার কাছ থেকে এই মামলাসমূহের সকল তথ্য পাওয়ার সম্ভাবনা ছিল।
১০. এই ৩৩টি মামলাগুলিতে প্রায় ১২ জন আইও তদন্ত রিপোর্ট কমিশনে দাখিল করেছিলেন কিন্তু তাদের কেউই আসামী জাহালমের বাড়ি পরিদর্শন করেননি। আমি আমার তদন্তকালে জাহালমের বাড়ি পরিদর্শন করেছি। তার বাড়িটির দৈন্য দশা এতটাই প্রকট যে, যে কোন ব্যক্তিরই সন্দেহ হওয়া স্বাভাবিক যে, ১৮ কোটি টাকা আত্মসাতের সাথে জড়িত একজন ব্যক্তির বাড়ির এই দৈন্য দশা কেনঃ তার বাড়ি পরিদর্শন করলেই আইওদের মনে সন্দেহ দেখা দিত। জাহালমকে যখন দুদকের আইওগণ প্রথমে দেখে তখন সে একজন পাটকল শ্রমিক। এই প্রশ্নটি কেন আইওদের মনে আসল না সেটি বোধগম্য নয়।
১১. এই ৩৩ টি মামলার পূর্বে যে মামলাটি দায়ের করা হয়েছিল (মতিঝিল থানা মামলা নং ২৩ তারিখ: ১৪-৯-২০১০) সে মামলাটি প্রথমে পুলিশ তদন্ত শুরু করে পরবর্তীতে মামলাটি তদন্তের জন্য দুর্নীতি দমন কমিশনে প্রেরণ করা হয়। একই ঘটনা অনুসন্ধান করে দুদক কর্তৃক পরবর্তীতে ৩৩ টি মামলা দায়ের করা হয় এবং পূর্বের মামলাটিতে (মতিঝিল থানা মামলা নং ২৩ তারিখ: ১৪-৯-২০১০) এফআরটি দাখিল করা হয় এবং পরবর্তীতে পৃথক পৃথকভাবে ৩৩ টি মামলা দায়ের করার কোন প্রয়োজন ছিল না। পূর্বের মামলাটিতেই তদন্ত করে দুদক কর্তৃক চার্জশীট দেয়া সম্ভব ছিল। সেটা করলেই বরং ভাল হত। ৩৩ টি পৃথক মামলা করে পৃথক পৃথক সিডি খুলে তদন্ত করতে গিয়ে বিভিন্ন জটিলতার সৃষ্টি হয়েছে এবং বিভিন্ন আইওদের মধ্যে সমন্বয়হীনতা হয়েছে। এখানে পূর্বের মামলাটি রেখে সেখানে কয়েকজন আইওকে দিয়ে একটি তদন্ত কমিটি করে দিলে সেটিই অধিক ফলপ্রসূ হত। রেকর্ডপত্র অনুযায়ী ৩৩ টি মামলা রুজুর পর মামলাসমূহ তদন্তের জন্য সহকারী পরিচালক মোছাঃ সেলিনা আক্তার মনি (বর্তমানে উপ-পরিচালক) কে ২টি, সহকারী পরিচালক সুমিত্রা সেনকে ২টি, সহকারী পরিচালক ফয়সাল মাহমুদকে ৩টি, উপসহকারী পরিচালক মোঃ জাকারিয়া হোসেনকে ৫টি, উপসহকারী পরিচালক সিলভিয়া ফেরদৌসকে ২টি, সহকারী পরিচালক এ এস এম সাজ্জাদ হোসেন (বর্তমানে উপ-পরিচালক) কে ২টি, সহকারী পরিচালক মোঃ আল আমিনকে ২টি, উপ-সহকারী পরিচালক মুহাম্মদ জয়নাল আবেদিন (বর্তমানে সহকারী পরিচালক) কে ২টি, সহকারী পরিচালক মোঃ নাজমুস সাদাতকে ৩টি, উপসহকারী পরিচালক শংকর কুমার চক্রবর্তীকে ৪টি, উপসহকারী পরিচালক রাফী মোঃ নাজমুস সাদাতকে ২টি মামলার তদন্তকারী কর্মকর্তা নিয়োগ করা হয়। তদন্তকারী কর্মকর্তাগণ সকলেই ২০১১ সনের আগষ্ট মাসে নিয়োগপ্রাপ্ত শিক্ষানবিশ কর্মকর্তা ছিলেন। কমিশন কর্তৃক আয়োজিত মৌলিক প্রশিক্ষণ শেষে তদন্তকাজে সম্পৃক্ত করা হয়। আইওগণ চাকুরীতে যোগদান করেন ৭-৮-২০১১ খ্রিঃ তারিখে। ইন হাউজ প্রশিক্ষণ শেষে তারা বিপিএটিসিতে প্রশিক্ষণে যোগদান করেন। বিপিএটিসি হতে ১১-৪-২০১১ খ্রিঃ তারিখে অবমুক্ত হওয়ার পর পরই তারা এই মামলার তদন্তভার পান এবং এটা ছিল তাদের জীবনের প্রথম তদন্ত। প্রথমদিকে উল্লিখিত সবগুলি মামলার তদারককারী কর্মকর্তা নিয়োগ করা হয় জনাব আব্দুল্লাহ- আল-জাহিদ, উপ-পরিচালককে। তিনি তদারককারী কর্মকর্তা নিযুক্ত হওয়ার কিছুদিন পর সমন্বিত জেলা কার্যালয়, ঢাকা-২ এর উপ-পরিচালক হিসেবে যোগদান করেন। ফলে তার পক্ষে মামলার তদন্ত কার্যক্রম নিবিড়ভাবে তদারক করা সম্ভব ছিল না। তদুপরি কমিশনের অনুসন্ধান/তদন্ত কার্যক্রমের সঠিক ও নিবিড় তদারকি ব্যবস্থা গড়ে না ওঠায় তদারক কাজ দায়সারাভাবেই চলে আসছে। ফলে নবীন কর্মকর্তাদের অভিজ্ঞতা ও দক্ষতার অভাব ও কাজের যথাযথ তদারকি ব্যবস্থার অনুপস্থিতিতে এ ধরনের ত্রুটি বিচ্যুতি সংঘটিত হয়েছে মর্মে প্রতীয়মান হয়। পরবর্তীতে অনুষ্ঠিত অধিকতর তদন্তেও বিভিন্ন ভুয়া নাম ঠিকানা ব্যবহার করে খোলা ব্যাংক হিসাবে পরিচয়দানকারী এবং ব্যাংক নিয়ম ভঙ্গ করে গ্রাহককে অতিরিক্ত চেক বই সরবরাহ ও লেনদেন পরিচালনায় সহায়তাকারী ব্যাংক কর্মকর্তাগণের দায়-দায়িত্ব সঠিকভাবে নিরূপন করা হয়নি। ফলে মামলাগুলোর অধিকতর তদন্ত হওয়া সমীচীন হবে। উক্ত অর্থ আত্মসাতের ঘটনায় রুজুকৃত ৩৩ টি মামলার একটি সার-সংক্ষেপ অত্র প্রতিবেদনের সাথে যুক্ত করা হলো (সংযুক্ত পতাকা খ-১৪ পাতা)।
সার্বিক বিবেচনায় আমার নিকট প্রতীয়মান হয় যে, জাহালমকে আবু সালেক রূপে চিহ্নিত করার যে ভুলটি হয়েছে তা দুদকের তদন্তকারী কর্মকর্তাদের কারণেই ঘটেছে। আর তাদেরকে ভুল পথে চালিত করতে সহায়তা করেছে ব্র্যাক ব্যাংক ও অন্যান্য ব্যাংকের কর্মকর্তাবৃন্দ এবং একাউন্টের ভুয়া ব্যক্তিকে পরিচয়দানকারীরা। তবে সঠিক ঘটনা তথা সত্য উদ্ঘাটন করে আদালতের নিকট তা উপস্থাপন করাটাই তদন্তকারী কর্মকর্তার দায়িত্ব। এক্ষেত্রে ব্যাংক কর্মকর্তাদের ওপর বা অন্য কারোর ওপর এই দায়িত্ব অর্পণ করার কোন সুযোগ নেই। বিশেষ করে তদন্তকারী কর্মকর্তাদের এটা লক্ষ্য করা উচিত ছিল যে প্রথমে কিন্তু ব্যাংক কর্মকর্তারা কিংবা একাউন্টের সনাক্তকারীরা আবুসালেককে সনাক্ত করতে কিংবা তাকে খুজে বের করতে তৎপর হয়নি। যখন ৩টি মামলায় (ধানমন্ডি থানা মামলা নং ৯, তারিখ: ১০-৪-২০১২, শাহ আলী থানা মামলা নং ১৪, তারিখ ১০-৪-২০২১ এবং আদাবর থানা মামলা নং ১৫, তারিখ: ১০-৪-২০১২) চার্জশীট দাখিল করা হয় এবং সেখানে ব্যাংক কর্মকর্তাদের আসামী করা হয় তখন তারা বুঝতে পারে যে, মূল আসামী আবুসালেককে খুজে বের করে দিতে না পারলে তারা নিশ্চিতভাবেই বাকী মামলাগুলিতে আসামী হয়ে যাবে। তখন তারা যেভাবেই হোক আবুসালেককে খুজে বের করতে মরিয়া হয়ে উঠে। যে কাজটি তদন্তকারী কর্মকর্তাদের করা উচিত ছিল সে কাজটি করতে মাঠে নেমে পড়ে ব্যাংক কর্মকর্তারা। তারা যেনতেন প্রকারে একজন আবুসালেককে দুদকের সামনে হাজির করে ও তাকে আবুসালেক রূপে সনাক্ত করে। ব্যাংক কর্মকর্তারা যে নিজেদের বাচাতে যে কোন ব্যক্তিকে আবুসালেক হিসেবে সনাক্ত করতে পারে এই সম্ভাবনাটাই তদন্তকারী কর্মকর্তারা ভেবে দেখেননি। তদারককারীও আইওদেরকে এই বিষয়ে সঠিক দিকনির্দেশনা দিতে ব্যর্থ হয়েছেন। এই ৩৩টি মামলার আইওগণ সিরিয়াস/সঠিকভাবে মামলার তদন্ত করেননি। প্রত্যেকেই একে অন্যের উপর নির্ভরশীল ছিল। প্রত্যেকেরই আশা ছিল অন্যরা তদন্তে কোন অগ্রগতি করলে তারা সেটি কপি করবে এবং সেটিই তারা করেছে। এরমধ্যে শুধু ব্যতিক্রম ছিল সেলিনা আক্তার মনি। শুধুমাত্র সে-ই আবুসালেককে সনাক্ত করা বা খুজে বের করার জন্য তৎপর ছিল।
কিন্তু সেও কাজটি নিজে না করে ব্যাংক কর্মকর্তাদের দিয়ে সেটি করাতে চেয়েছিল। সে যদি নিজেই আবুসালেককে খোজার জন্য টাঙ্গাইল/শ্যামলীতে যেত (যেটা ফয়সাল কায়েস করেছে) তবে হয়ত এই ভুলটি হত না। আরও দেখা যাচ্ছে সেলিনা আক্তার মনির চাপে পড়ে ফয়সাল কায়েস যে ব্যক্তিকে আবুসালেক হিসেবে হাজির করল তাকেই সকল আইও আবুসালেক হিসেবে মেনে নিল। এখানে তদারককারীর কোন কার্যকর ভূমিকাই দেখা যাচ্ছে না। এই নবীন ও অনভিজ্ঞ কর্মকর্তারা এ ধরণের ভুল করে যাচ্ছে, একজনের তদন্ত অন্য জন কপি করছে এ বিষয়গুলি তদারককারীর তদারক করা উচিত ছিল। উল্লেখ্য, এই তদারককারী হচ্ছেন সেই তদারককারী যিনি অভিযোগের অনুসন্ধান করে ৩৩ টি মামলা রুজুর সুপারিশ করেছিলেন এবং তিনিই ছিলেন এজাহারকারী। তিনি ছিলেন ব্যুরোর আমলের একজন সিনিয়র কর্মকর্তা। তার উচিত ছিল এই নবীন ও অনভিজ্ঞ কর্মকর্তাদের গাইড করা। অনুসন্ধানকালে যে ত্রুটি বিচ্যুতি ছিল তিনি সেগুলি সঠিক করে নিতে পারতেন। কিন্তু তিনি সেটা করতে ব্যর্থ হয়েছেন। মামলার আইওগণ ও তদারককারী আরও যত্নবান হলে বা উপরে উল্লিখিত বিষয়গুলি অনুসরণ করলে এই মারাত্মক ভুলটি হত না। তবে তাদের এ ভুলটি সরল বিশ্বাসে হয়েছে নাকি উদ্দেশ্য প্রণোদিতভাবে হয়েছে তা সাক্ষ্য দ্বারা প্রমাণের বিষয়। এটি শুধুমাত্র মাননীয় আদালত নির্ধারণ করতে পারেন।
(গ) ব্যাংক কর্মকর্তাসহ অন্যান্য ব্যক্তি বা প্রতিষ্ঠানের সংশ্লিষ্টতা, অভিযুক্তের সনাক্তকারীদের চিহ্নিতকরণ এবং তাদের দায়িত্ব নির্ধারণ:
তদন্তকালে রেকর্ডপত্র ও সংশ্লিষ্টদের বক্তব্য পর্যালোচনায় ব্যাংক কর্মকর্তাসহ নিম্নবর্ণিত ব্যক্তিবর্গ মোঃ জাহালমকে আবুসালেক হিসেবে সনাক্তকরণের সাথে জড়িত মর্মে প্রতীয়মান হয়:
ক্রমিক নং সনাক্তকারীর নাম ও ঠিকানা যেভাবে সম্পর্কযুক্ত যেভাবে সনাক্ত করেন ১. জনাব মোঃ ফয়সাল কায়েস, অফিসার, ব্র্যাক ব্যাংক লিঃ, মোহাম্মদপুর এস এম ই শাখা, বর্তমানে এসিপিও, শ্যামলী শাখা, ঢাকা ব্র্যাক ব্যাংক লিঃ, মোহাম্মদপুর এস এম ই শাখায় আসামী মোঃ আবুসালেক এর ছবি ব্যবহার করে মেহেরুন সামাদ ট্রেডার্স, প্রোঃ গোলাম মর্তুজা নামীয় হিসাব নাম্বার ১৫৪৩২০১৭২১৭৩৭০০১ এর পরিচয়দানকারী টাঙ্গাইলের নাগরপুর থানার গয়নাপাড়া ও ধুবুড়িয়া গ্রামে নিয়ে আবুসালেক নামীয় ছবির ব্যক্তি জাহালম মর্মে তথ্য উদ্ঘাটন করেন এবং দুদক কর্মকর্তাগণসহ জাহালমের তৎকালীন কর্মস্থল ঘোড়াশাল অবস্থিত জুট মিলে গিয়ে জাহালমকে দেখে আবুসালেক হিসেবে নিশ্চিত হন। ১৮-১২-২০১৪ তারিখে দুদক কার্যালয়ে এসে অন্যান্যদের উপস্থিতিতে জাহালমকে আবু সালেক হিসেবে সনাক্ত করেন। গত ১০-১২-২০১৭ খ্রিঃ তারিখে বিজ্ঞ বিশেষ জজ আদালত-৬, ঢাকার বিশেষ মামলা নং ১১/২০১৫ এ সাক্ষ্য প্রদানকালে জাহালমকে আসামী আবুসালেক হিসেবে সনাক্ত করেন। ২. জনাব সাবিনা শারমিন, শাখা ব্যবস্থাপক, ব্র্যাক ব্যাংক লিঃ মোহাম্মদপুর এস এম ই শাখা, বর্তমানে শাখা ব্যবস্থাপক, ব্র্যাক ব্যাংক লিঃ, শ্যামলী শাখা, ঢাকা ব্র্যাক ব্যাংক লিঃ, মোহাম্মদপুর এস এম ই শাখায় মোঃ আবুসালেক এর ছবি ব্যবহার করে মেহেরুন সামাদ ট্রেডার্স, প্রোঃ-গোলাম মর্তুজা নামে খোলা হিসাব অনুমোদনকারী টাঙ্গাইলের নাগরপুরে গিয়ে আবুসালেক নামীয় ছবির ব্যক্তির প্রকৃত পরিচয় উদ্ঘাটনে ব্যাংক কর্মকর্তা জনাব ফয়সাল কায়েসকে নির্দেশ দেন। দুদক কর্মকর্তাগণসহ জাহালমের তৎকালীন কর্মস্থল ঘোড়াশাল অবস্থিত জুট মিলে গিয়ে জাহালমকে দেখে আবুসালেক হিসেবে নিশ্চিত হন। ১৮-১২-২০১৪ তারিখে দুদক কার্যালয়ে এসে অন্যান্যদের উপস্থিতিতে জাহালমকে আবুসালেক হিসেবে সনাক্ত করেন। ৩. জনাব মোঃ সিহিদুল ইসলাম, পিতা-মোঃ ইউনুছ মিয়া, বর্তমান ঠিকানা-৯, পরিমল ভিলা, ৩ নং ছাত্তার মোল্লা রোড, মিরপুর-১২, পল্লবী, ঢাকা, স্থায়ী ঠিকানা-গ্রাম ও ডাকঘর-বিনোদপুর, থানা-নোয়াখালী সদর, জেলা-নোয়াখালী সোনালী ব্যাংক লিঃ, মিরপুর ক্যান্টনমেন্ট শাখার মোঃ আবুসালেক নামীয় হিসাব নম্বর-০০১০২০৭৯৯৪ এবং মোবাইল মেলা (স্বতাধিকারী- মোঃ আবুসালেক) নামীয় হিসাব নম্বর-০০১০২১১৭৭ এর পরিচয়-দানকারী গত ১৮-১২-২০১৪ তারিখে দুদক কার্যালয়ে এসে অন্যান্যদের উপস্থিতিতে জাহালমকে আবুসালেক সনাক্ত করেন। গত ৫-৩-২০১৮ খ্রিঃ তারিখে বিজ্ঞ বিশেষ জজ আদালত-২, ঢাকার বিশেষ মামলা নং ২৫/২০১৫ এ সাক্ষ্য প্রদানকালে জাহালমকে আসামী আবুসালেক হিসেবে সনাক্ত করণের বিষয়ে সাক্ষ্য দিয়েছেন। ৪. জনাব মোঃ নূর উদ্দিন শেখ, এক্সিকিউটিভ অফিসার, সোনালী ব্যাংক লি, পরিদর্শন ও নিরীক্ষা বিভাগ-১, বর্তমানে অবসর প্রাপ্ত, স্থায়ী ঠিকানা: গ্রাম: সাওরাইদ, ডাকঘর: সাওরাইদ বাজার, থানা: কালীগঞ্জ, জেলা: গাজীপুর সোনালী ব্যাংক লিঃ, মিরপুর ক্যান্টনমেন্ট শাখায় আবুসালেক নামীয় হিসাব নম্বর-০০১০২৯৭৪ এর অনুমোদনকারী গত ১৮-১২-২০১৪ তারিখে দুদক কার্যালয়ে এসে অন্যান্যদের উপস্থিতিতে জাহালমকে আবুসালেক হিসেবে সনাক্ত করেন। ৫. জনাব মোঃ শাকিল, পিতা-হাজী মোঃ নুরুল হক বেপারী, নামা শ্যামপুর, ঢাকা-১৪০০, স্থায়ী ঠিকানা-থাম ও ডাকঘর: মিরেরসরাই, থানা ও জেলা-মুন্সীগঞ্জ আসামী আবুসালেক এর ছবি ব্যবহার করে দি সিটি ব্যাংক লিঃ, ধানমন্ডি শাখায় খোলা গোলাম মর্তুজা নামীয় সঞ্চয়ী হিসাব নম্বর-১২০১১৪৫২৩৩০০১ এর পরিচয়দানকারী গত ১৮-১২-২০১৪ তারিখে দুদক কার্যালয়ে এসে অন্যান্যদের উপস্থিতিতে জাহালমকে আবুসালেক হিসেবে সনাক্ত করেন। ৬. মিসেস তাজিবন সুলতানা, অফিসার (ক্যাশ), ইউসিবি-এল, মোহাম্মদপুর শাখা, ঢাকা বর্তমানে সিনিয়র অফিসার (ক্যাশ), ইউসিবিএল, এলিফ্যান্ট রোড শাখা, ঢাকা ইউসিবিএল মোহাম্মদপুর শাখায় আসামী আবুসালেক এর ছবি ব্যবহার করে খোলা সালেক ট্রেডার্স, স্বত্বাধিকারী মোঃ আবু সালেক নামীয় হিসাব নম্বর-০০৫০১১১০০০২৯৭০৮ এর পরিচয়-দানকারী টাঙ্গাইলের নাগরপুর থানার গয়নাপাড়া ও ধুবুড়িয়া গ্রামে নিয়ে আবুসালেক নামীয় ছবির ব্যক্তি জাহালম মর্মে তথ্য গত ৭-১২-২০১৪ তারিখে দুদক কার্যালয়ে এসে জাহালমের ছবি দেখে তাকে সালেক ট্রেডার্স নামীয় হিসাবে ব্যবহৃত ছবির ব্যক্তি হিসেবে সনাক্ত করেন। উল্লেখ্য, আবুসালেকের ছবি ব্যবহার করে উক্ত হিসাব খোলা হয়েছিল।
তদন্তকালে মোঃ জাহালমকে আবুসালেক হিসেবে সনাক্ত করণ সম্পর্কে জিজ্ঞাসা করা হলে উল্লিখিত ব্যক্তিগণের প্রায় সকলেই জানান যে, সংশ্লিষ্ট হিসাব খোলা হয় ২০১০ সনে। এ সময় তারা ২/১ বার সংশ্লিষ্ট হিসাবধারীকে দেখেছেন। দীর্ঘ ৪ (চার) বছর পর যখন জাহালমকে তাদের সামনে হাজির করা হয় তখন তাকে সংশ্লিষ্ট হিসাবধারীর ছবির লোক বলে মনে হয়েছে। অন্যরাও একই রকম মনে করায় তারা জাহালমকে আবুসালেক হিসেবে সনাক্ত করেছিলেন। কিন্তু তাদের এ বক্তব্য গ্রহণযোগ্য নয়। বিশেষ করে যারা সংশ্লিষ্ট হিসাবধারীকে সনাক্ত করেছিলেন তারা নিজেদের দায় এড়াতেই মূল অপরাধীর ছবির সাথে কিছুটা সাদৃশ্য থাকা মোঃ জাহালমকে মূল অপরাধী মোঃ আবুসালেক হিসেবে সনাক্ত করেছিলেন যা কোনক্রমেই গ্রহণযোগ্য নয়। কাজেই উল্লিখিত ব্যক্তিবর্গ জাহালমকে আবুসালেক হিসেবে সনাক্ত করায় দায় এড়িয়ে যেতে পারেন না।
এখানে বিশেষভাবে উল্লেখ্য, জনাব ফয়সাল কায়েস বিশেষ জজ আদালত-৬ এ বিশেষ ১১/১৪ নং মামলায় PW-১৪ হিসেবে সাক্ষ্য প্রদান করে জাহালমকে আসামী হিসেবে সনাক্ত করেন। জরাতে ও তিনি তার বক্তব্য অটল থাকেন। সুতরাং দেখা যাচ্ছে যে, এরকম একজন সাক্ষী যখন তদন্তকারী কর্মকর্তার নিকট তাদের বক্তব্য দিয়েছিলেন তখন তার বক্তব্যকে প্রাথমিকভাবে উপেক্ষা করার কোন কারণ তদন্তকারী কর্মকর্তার ছিল না।
অন্যদিকে সলিমাবাদ ইউনিয়ন পরিষদের সাবেক চেয়ারম্যান জনাব আজহারুল ইসলাম মন্টু, ধুবুড়িয়া ইউনিয়ন পরিষদের চেয়ারম্যান জনাব শফিকুর রহমান খান আবুসালেক এর ছবি দেখে জাহালম হিসেবে প্রত্যয়ন দিয়েছেন মর্মে বলা হলেও প্রত্যয়নের সাথে কোন ছবি সংযুক্ত না থাকায় বা কোন ছবির নীচে প্রত্যয়ন না থাকায় তার ঠিক কোন ছবি দেখে ছবির ব্যক্তিকে জাহালম হিসেবে সনাক্ত করেছিলেন তা নিশ্চিত হওয়া যায়নি। তবে উল্লিখিত ২ জন চেয়ারম্যানসহ গয়নাপাড়া বাজারের ব্যবসায়ী জনাব মোঃ ছানোয়ার হোসেন ছানা এবং সলিমাবাদ ইউনিয়ন পরিষদের প্রাক্তন সদস্য জনাব আব্দুর রউফ প্রমুখ আবুসালেক ও জাহালমের ছবি দেখে একই ব্যক্তির ছবি বলে মনে হয় মর্মে তদন্ত দলকে জানিয়েছেন।
(ঘ) এ ঘটনা কমিশনের দৃষ্টি গোচর হওয়ার পর জাহালমকে আইনী প্রক্রিয়ায় মুক্ত করতে বিলম্বের কারণ উদ্ঘাটন:
জাহালম সংক্রান্ত ৩৩টি মামলায় অধিকতর তদন্ত কমিশনার (তদ.) এর সভাপতিত্বে ২৭-২-২০১৮ খ্রিঃ তারিখে অনুষ্ঠিত একটি মিটিং এ এরপর কয়েকটি মামলায় জাহালমের জেল হতে মুক্তি পাওয়া পর্যন্ত সময়কাল একটি টেবিলের মাধ্যমে দেখানো হল:
মামলা নং অধিকতর তদন্তের সিদ্ধান্তের তারিখ অধিকতর তদন্তের জন্য আইওদের প্রতি পত্র প্রেরণ আইওদের প্রতি তাগিদ পত্র প্রেরণ তদন্ত প্রতিবেদন দাখিল প্রসিকিউশন প্রত্যাহার ও সম্পূরক চার্জশীট দাখিলের সিদ্ধান্ত আইনজীবীদের নিকট প্রসিকিউশন প্রত্যাহার ও সম্পূরক চার্জশীট দাখিলের জন্য পত্র প্রেরণ আইনজীবী কর্তৃক বিচারিক আদালতে দরখাস্ত দাখিল বিচারিক আদালতে থেকে সিনিয়র স্পেশাল জজ আদালতে দরখাস্ত প্রেরণ জাহালমের মুক্তির তারিখ ব্যয়িত দিন পল্লবী থানা মামলা নং ২৬(৪)১২ বিশেষ মামলা নং ১৪/১৫ বি: কোর্ট-০৫ ১১-৩-১৮ ১৪-৩-১৮ ২৮-৮-১৮ ২৩-১০-১৮ ২-১২-১৮ ২০-১২-১৮ ৩০-১-১৯ ৩০-১-১৯ ৩-২-১৯ ১০মাস ২২ দিন মা:পুর থানা মামলা নং ১৯(৪)১২ বিশেষ মামলা নং ১১২/১৬ বি: কোর্ট-০৫ ১১-৩-১৮ ১৪-৩-১৮ ২৮-৮-১৮ ২৫-১০-১৮ ১০-১২-১৮ ২৭-১২-১৮ ৩০-১-১৯ ৩০-২-১৯ ৩-২-১৯ ১০মাস ২২ দিন পল্লবী থানা মামলা নং ২৭(৪)১২ বিশেষ মামলা নং-২১/১৫ বি: কোর্ট-০৪ ১১-৩-১৮ ১৪-৩-১৮ ২৮-৮-১৮ ১৭-১০-১৮ ১০-১২-১৮ ৩-১-১৯ ১৪-১-১৯ ৭-২-১৯ ৩-২-১৯ ১০মাস ২২ দিন পল্লবী থানা মামলা নং ২৮(৪)১২ বিশেষ মামলা নং-১/১৬ বি: কোর্ট-০৪ ১১-৩-১৮ ১৪-৩-১৮ ২৮-৮-১৮ ১৭-১০-১৮ ১০-১২-১৮ ২৭-১২-১৮ ৫-২-১৮ ৭-২-১৯ ৩-২-১৯ ১০মাস ২২ দিন ধানমন্ডি থানা মামলা নং ০৯(৪)১২ বি:মা:০৫/১৫ বিঃ কোর্ট-০৪ ১১-৩-১৮ ১৪-৩-১৮ ২৮-৮-১৮ ১৮-১০-১৮ ১২-১২-১৮ ২৭-১২-১৮ ৫-২-১৯ ১০-২-১৯ ৩-১-১৯ ১০মাস ২২ দিন পল্লবী থানা মামলা নং ২৯(৪)১২ ১১-৩-১৮ ১৪-৩-১৮ ২৮-৮-১৮ ১৭-১০-১৮ ১০-১২-১৮ ২৭-১২-১৮ ২৯-১-১৯ ৫-১-১৯ ৩-২-১৯ ১০মাস ২২ দিন দারুস সালাম থানা মামলা নং ১১(১০)১২ ১১-৩-১৮ ১৪-৩-১৮ ২৮-৮-১৮ ১৭-১০-১৮ ১২-১২-১৮ ২৭-১২-১৮ ৩০-১-১৯ ৪-২-১৯ ৩-২-১৯ ১০মাস ২২ দিন গুলশান থানা মামলা নং ৩০(৪)১২ ১১-৩-১৮ ১৪-৩-১৮ ২৮-৮-১৮ ১৭-১০-১৮ ১২-১২-১৮ ২৭-১২-১৮ ৬-২-১৯ ৬-২-১৯ ৩-২-১৯ ১০মাস ২২ দিন গুলশান থানা মামলা নং ৩৩(৪)১২ বিঃমাঃ ১৩/১৫ বিঃ কোর্ট-৬ ১১-৩-১৮ ১৪-৩-১৮ ২৮-৮-১৮ ১৭-১০-১৮ ৩-১২-১৮ ২০-১২-১৮ ২৮-১-১৯ ৪-২-১৯ ২৮-১-১৯ ৬নং কোর্ট ১০মাস ২২ দিন গুলশান থানা মামলা নং ৩৫(৪)১২ বিঃমাঃ ১২/১৫ বিঃ কোর্ট-৫ ১১-৩-১৮ ১৪-৩-১৮ ২৮-৮-১৮ ১৭-১০-১৮ ৪-১২-১৮ ২০-১২-১৮ ৩০-১-১৯ ৩০-১-১৯ ৩-২-১৯ ১০মাস ২২ দিন ধানমন্ডি থানা মামলা নং ১০(৪)১২ বিঃমাঃ ৯/১ বিঃ কোর্ট-৫ ১১-৩-১৮ ১৪-৩-১৮ ২৮-৮-১৮ ১৭-১০-১৮ ৪-১২-১৮ ২০-১২-১৮ ৩০-১-১৯ ৩০-১-১৯ ৩-২-১৯ ১০মাস ২২ দিন আদাবর থানা মামলা নং ১৫(৪)১২ বিঃমাঃ ৮/১৫ বিঃ কোর্ট-৪ ১১-৩-১৮ ১৪-৩-১৮ ২৮-৮-১৮ ১৮-১০-১৮ ১২-১২-১৮ ২৪-১২-১৮ ৫-২-১৯ ৫-২-১৯ ৩-২-১৯ ১০মাস ২২ দিন
উপরোক্ত মামলাগুলির মধ্যে বাড্ডা থানার মামলা নং ২৩, তারিখ ১০-৪-২০১২ মামলাটির তথ্য বিশ্লেষণ করে দেখা যায় যে, অধিকতর তদন্তের জন্য মামলাটি কমিশনের অনুদন লাভ করে ১১-৩-২০১৮ খ্রিঃ তারিখে। এরপর ১৪-৩-২০১৮ খ্রিঃ তারিখে তদন্তকারী কর্মকর্তার প্রতি অধিকতর তদন্ত প্রতিবেদন দাখিল করার জন্য পত্র প্রেরণ করা হয়। তিনি তদন্ত প্রতিবেদন দাখিল না করায় ২৮-৮-২০১৮ খ্রিঃ তারিখে তার প্রতি তাগিদপত্র ইস্যু করা হয়। গত ১৭-১০-২০১৮ খ্রিঃ তারিখে অধিকতর তদন্ত রিপোর্ট কমিশনে দাখিল করা হয়। অধিকতর তদন্ত রিপোর্ট প্রাপ্তির পর ১০-১২-২০১৮ খ্রিঃ তারিখ জাহালম এর বিরুদ্ধে প্রসিকিউশন প্রত্যাহারের এবং প্রকৃত আসামী মোঃ আবু করার সিদ্ধান্ত গৃহীত হয়। জাহালমের প্রসিকিউশন প্রত্যাহার সংক্রান্ত পত্র আইনজীবীর নিকট প্রেরণ করা হয় ২৭-১২-২০১৮ খ্রিঃ তারিখে। আইনজীবী বিশেষ আদালতে প্রসিকিউশন প্রত্যাহারের দরখাস্ত দাখিল করেন ৫-২-২০১৯ খ্রিঃ তারিখে। বিশেষ জজ আদালত দরখাস্ত প্রাপ্তির পর নথিটি সিনিয়র স্পেশাল জজ আদালতে প্রেরণ করেন ৫-২-২০১৯ খ্রিঃ তারিখে। কিন্তু ইতোপূর্বেই মামলায় হাইকোর্ট বিভাগের নির্দেশে ৩-২-২০১৯ খ্রিঃ তারিখে জাহালমকে হাজত থেকে মুক্তি দেয়া হয়। এখানে দেখা যাচ্ছে যে, মামলার অধিকতর তদন্তের আইও তদন্ত করতে প্রায় ৭ মাস সময় নিয়েছেন। একটি অধিকতর তদন্তের ক্ষেত্রে এ দীর্ঘ সময় নেয়াটা যথার্থ হয়নি।
যেহেতু এ মামলাটিতে অধিকতর তদন্তের শুরু থেকেই বোঝা যাচ্ছিল জাহালম প্রকৃত আবুসালেক নয় সেহেতু অন্য মামলার তদন্তে সময় কম দিয়ে এই মামলার তদন্তটি দ্রুত সমাপ্ত করা উচিত ছিল। এ বিষয়ে কার্যকর তদারেকর অভাব ছিল। এছাড়া রিপোর্ট দাখিলের পর হতে আইনজীবীদের নিকট লেগেছে প্রায় ২ মাস। সংশ্লিষ্ট ডেস্ক অফিসারগণ আরও তৎপর/আন্তরিক হলে এ সময়টিও আরও কমানো যেত। এখানে উল্লেখ্য যে, মামলায় হাইকোর্ট বিভাগের আদেশবলে জাহালম ৩-২-২০১৯ খ্রিঃ তারিখে যখন আদালত থেকে মুক্তি প্রদান করে তখন তার বিরূদ্ধে ৫ টি মামলায় PW ইস্যু করা ছিল।
(ঙ) ভবিষ্যতে এ ধরনের ঘটনা রোধে অনুসন্ধান ও তদন্তের যে সকল পদ্ধতিগত সংস্কার প্রয়োজন:
১. অনুসন্ধান ও তদন্ত কাজে কার্যকর তদারকী ব্যবস্থা প্রতিষ্ঠা:
এ লক্ষ্যে দক্ষ ও অভিজ্ঞ পরিচালক ও উপ-পরিচালক পর্যায়ের কর্মকর্তাগণের সমন্বয়ে একটি অনুসন্ধান/তদন্ত তদারকী প্যানেল গঠন করা যেতে পারে এবং অনুসন্ধান/তদন্ত কাজের তদারকী কর্মকর্তা উক্ত প্যানেল হতে নিয়োগ করা যেতে পারে। তদারককারী কর্মকর্তাগণ যাতে সঠিক ও যথাযথভাবে তদারক কাজ সম্পন্ন করতে পারেন সে জন্য তদারককারী কর্মকর্তাগণকে বিশেষ ক্ষেত্র ব্যতীত ব্যক্তিগতভাবে অনুসন্ধান/তদন্তকারী কর্মকর্তা নিয়োগ না করাই সমীচীন হবে। কমিশনের সমন্বিত জেলা কার্যালয়ের উপ-পরিচালকগণ পদাধিকার বলে তাদের অধীনস্থ কর্মকর্তাগণের অনুসন্ধান/তদন্ত কাজ তদারকী করেন বিধায় তাদের ক্ষেত্রেও এ নীতি প্রয়োগ করা যেতে পারে।
২. Trail the Money নীতি প্রতিষ্ঠা করা:
কোন দুর্নীতির অপরাধ সংঘটনের পর উক্ত ঘটনার প্রকৃত সুবিধাভোগী কে/কারা তা নির্ধারণ এবং সুবিধাভোগীদের আইনের আওতায় আনার জন্য Trail the Money অত্যন্ত গুরুত্বপূর্ণ। “Trail the Money” অনুসরণ করলে আলোচ্য ক্ষেত্রে জাহালমের মত নির্দোষ ব্যক্তি হয়রানীর হাত হতে থেকে রেহাই পেতেন।
৩. Forensic Accounts Department প্রতিষ্ঠা:
অপরাধ লব্ধ অর্থ/সম্পদের গতিবিধি অনুসরণ করে মূল অপরাধী সনাক্ত করা ও অপরাধ লব্ধ সম্পদ উদ্ধারের লক্ষ্যে এবং Trail the Money কার্যকর করার জন্য কমিশনে একটি Forensic Accounts Department প্রতিষ্ঠা করা প্রয়োজন। একটি দুর্নীতির অভিযোগের অনুসন্ধান বা মামলা তদন্তকালে অর্থের Flow chart তৈরী এবং Financial Transection Profile তৈরী ও প্রমাণের জন্য Forensic Accountant খুবই গুরুত্বপূর্ণ ভুমিকা পালন করতে পারে। অনুসন্ধানকারী/তদন্তকারী কর্মকর্তাগণকে সহযোগিতার জন্য টিম গঠন পূর্বক অনুসন্ধান/তদন্ত কার্যক্রম পরিচালনা করা যেতে পারে এবং একজন Forensic Accountant কে টিমের সদস্য করা যেতে পারে।
৪. সাক্ষী ও আসামীগণের ব্যক্তিগত তথ্য যাচাইয়ের ব্যবস্থা প্রবর্তন:
একজন আসামী বা সাক্ষী পরিচয় নিশ্চিত করার ব্যবস্থা গ্রহণ করতে হবে। এ কাজে নির্বাচন কমিশনের জাতীয় পরিচয়পত্র প্রকল্পের তথ্য ভাণ্ডার ব্যবহার করা যেতে পারে। উক্ত তথ্য ভাণ্ডার ব্যবহারের জন্য নির্বাচন কমিশনের সাথে একটি MOU স্বাক্ষর করা যেতে পারে।
৫. অনুসন্ধান নোট বই ও কেস ডাইরী যথাযথভাবে লিখন ও সংরক্ষণের ব্যবস্থা গ্রহণ:
অনুসন্ধান/তদন্ত কাজের মান নিশ্চিত করার লক্ষ্যে যথাযথভাবে অনুসন্ধান নোট বই/কেস ডাইরী লিখন ও সংরক্ষণ নিশ্চিত করতে হবে। অনুসন্ধান নোট বই ও কেস থাকতে হবে। তদারককারী কর্মকর্তার পূর্ণাঙ্গ মতামত ব্যতীত কোন অনুসন্ধান প্রতিবেদন বা সাক্ষ্য-স্মারক শাখা কর্তৃক কমিশনের নিকট উপস্থাপন না করার বিষয়টি নিশ্চিত করতে হবে। ভবিষ্যতে কোন নিরপরাধ ব্যক্তি ভুলভাবে আসামীভুক্ত হলে তদন্তকারী কর্মকর্তার সাথে সাথে তদারককারী কর্মকর্তাদেরও জবাবদিহিতার আওতায় আনতে হবে।
৬. গুরুত্বপূর্ণ আসামীদের রিমান্ডে এনে ব্যাপক ও নিবিড় জিজ্ঞাসাবাদ করে ১৬৪ ধারায় জবানবন্দী রেকর্ডের ব্যবস্থা গ্রহণ:
কোন মামলা তদন্তকালে যদি এমন কোন গুরুত্বপূর্ণ আসামী পাওয়া যায় যে, সে অপরাধের সাথে জড়িত মর্মে বিশ্বাস করার জোরালো প্রমাণ থাকে, তাহলে তার জবানবন্দী ফৌজদারি কার্যবিধির ১৬৪ ধারায় রেকর্ড করার ব্যবস্থা করতে হবে। যেমন: আলোচ্য মামলাটিতে আমিনুল হক একজন গুরুত্বপূর্ণ আসামী যার নিকট আত্মসাৎকৃত টাকার একটি উল্লেখযোগ্য অংশ আছে মর্মে প্রতীয়মান হচ্ছে। এ ধরনের আসামীকে রিমান্ডে এনে ব্যাপক ও নিবিড় জিজ্ঞাসাবাদ করে ফৌজদারি কার্যবিধির ১৬৪ ধারায় আসামীর জবানবন্দী রেকর্ডের ব্যবস্থা করলে তার কাছ থেকে গুরুত্বপূর্ণ তথ্য পাওয়া যেতে পারে।
৭. একই ঘটনা থেকে একাধিক মামলা দায়ের না করা:
এই মামলাগুলিতে দেখা যাচ্ছে যে, একই ঘটনা থেকে মোট ৩৩ টি মামলা দায়ের হয়েছে। এতে অহেতুক জটিলতার সৃষ্টি হয়েছে। এখানে পূর্বে দায়েরকৃত একটি মামলাতেই একজন অভিজ্ঞ ও দক্ষ আইও নিযুক্ত করে দিলে তদন্ত কার্যক্রম অধিক ফলপ্রসূ হত। এখানে মূল ঘটনাস্থল একটিই অর্থাৎ সোনালী ব্যাংক লিঃ, মিরপুর ক্যান্টনমেন্ট শাখা। এখান থেকেই মূলতঃ টাকাগুলি আত্মসাৎ হয়েছে। উত্তোলন হয়েছে অন্যান্য বিভিন্ন স্থান থেকে। এখানে মূল পিও হচ্ছে সোনালী ব্যাংক লিঃ, মিরপুর ক্যান্টনমেন্ট শাখা। এটাকে পিও বিবেচনা করলে মামলা একটিই হওয়া উচিত। সুতরাং একটি মামলা হলে আইনগত কোন অসুবিধা হত না বরং তাতে তদন্ত কাজের সুবিধা হত। ভবিষ্যতে এ বিষয়গুলিতে সংশ্লিষ্ট অফিসারগণকে আরও সতর্ক ও দায়িত্বশীল হতে হবে।
৮. বেনামী চিঠির বিষয়ে তদন্ত:
আমার তদন্তকালীন সময়ে মাননীয় চেয়ারম্যানের মাধ্যমে আমি একটি পত্র প্রাপ্ত হই (ফটোকপি সংযুক্ত পতাকা-গ-১ পাতা)। সেখানে উল্লেখ করা হয় যে, জাহালম টাকার বিনিময়ে আবুসালেক সেজে জেল খাটবে এবং এর বিনিময়ে সে অর্থ প্রাপ্ত হবে। এর সাথে দুদকের ২ জন কর্মকর্তা এবং ব্র্যাক ব্যাংকের একজন কর্মকর্তা জড়িত মর্মে উল্লেখ করা হয়। আমাদের দেশে একজন আসামীর কিন্তু বিষয়টি তদন্ত করে উদ্ঘাটন করতে হলে যে ব্যাপক তদন্তের প্রয়োজন তা এই তদন্ত কমিটির পক্ষে সম্ভব নয়। কর্মকর্তাদেরকে নির্দেশনা দেয়া যেতে পারে।
৯. মামলার তদন্ত গোপনে দ্রুত শেষ করা:
যে কোন মামলার দ্রুত তদন্ত শেষ করা প্রয়োজন পারে এবং আসামীরা পালিয়ে যেতে পারে। এই মামলাটিতে তদন্ত সম্পন্ন করতে এবং অধিকতর তদন্ত সম্পন্ন করতে অস্বাভাবিক বিলম্ব হয়েছে। আমি আমার তদন্তকালে অনুভব করি যে, মামলাটিতে পুনরায় অধিকতর তদন্ত করা প্রয়োজন। সেজন্য আমি বিষয়টি উল্লেখ করে জরুরী ভিত্তিতে ২৪-২-২০১৯ খ্রিঃ তারিখে একটি অন্তবর্তীকালীন তদন্ত রিপোর্ট দাখিল করি। মাননীয় কমিশন তা অনুমোদন করে ৪ টি মামলা অধিকতর তদন্তের জন্য নির্দেশ প্রদান করেন। এর মধ্যে প্রথম আইও নিয়োগ করা হয় ১০-৩-২০১৯ খ্রিঃ তারিখে। আইওগণ মহাপরিচালক (লিগ্যাল) ও আমার সাথে বিভিন্ন সময়ে তদন্ত কার্যক্রম বিষয়ে মৌখিকভাবে পরামর্শ করেছে। এতদসত্ত্বেও তাদের মর্মে মনে হয়। এছাড়া বাকী মামলাগুলিও অধিকতর তদন্ত করা প্রয়োজন মর্মে প্রতীয়মান হয়।
১০. বিজ্ঞ আইনজীবীগণ কর্তৃক আরও সঠিকভাবে মামলা পরিচালনা করা:
তদন্তকালে মামলাগুলির অর্ডারশীট ও অন্যান্য কিছু কাগজপত্রের কপি আদালত থেকে সংগ্রহ করা হয়। সেখানে দেখা যায় যে, সকল মামলাতেই জাহালমকে আটক দেখানো হয়নি। কিছু কিছু মামলায় জাহালমকে পলাতক দেখানো আছে এবং মামলার শুরু থেকেই এটা হয়ে আসছে। যেখানে একই আদালতে একই আসামীর ভিন্ন ভিন্ন মামলার বিচার চলছে এবং কিছু ক্ষেত্রে দুদক পক্ষে নিযুক্ত আইনজীবী একই ব্যক্তি সেখানে একটি মামলায় আসামী উপস্থিত ও অন্য মামলায় আসামী পলাতক দেখানো মোটেই উচিত নয়। দুদকের বিজ্ঞ আইনজীবীর উচিত ছিল বিষয়টি আদালতের নজরে আনা। একজন ব্যক্তি একটি মামলায় হাজতে আর অন্য মামলায় যদি পলাতক থাকে এবং প্রসিকিউশন সেটা যদি জানা সত্তেও আদালতের গোচরে না আনে তবে সেই আসামীর সাজা হলেও সেটা নিয়ে পরবর্তীতে প্রশ্ন উঠা স্বাভাবিক। জাহালমের যে বিচার চলছিল সেটা তো এটা জেনে চলছিল না যে, জাহালম নির্দোষ। সেটা তো এমনভাবেই চলছিল যে, জাহালম আসলেই দোষী। সুতরাং মামলাটি পরিচালনায় দুদকের আইনজীবীদের শৈথিল্য ছিল মর্মে প্রতীয়মান হয়। পরবর্তীতে এ ধরণের ক্ষেত্রে আইনজীবীদের আরো যত্নশীল হওয়া নির্দেশনা প্রদান করা প্রয়োজন।
১১. গুরুত্বপূর্ণ আদেশ হওয়ার সাথে সাথে তা কমিশনকে জানানো:
এই মামলাগুলিতে চার্জগঠনের সময় কয়েকজনকে ডিসচার্জ করা হয় কিন্তু বিষয়টি বিজ্ঞ আইনজীবীগণ কমিশনকে জানাননি। কমিশন যাদের বিরুদ্ধে চার্জশীট দাখিল করল তাদেরকে যদি বিজ্ঞ আদালত চার্জগঠনের সময় ডিসচার্জ করেন তবে তা সঙ্গে সঙ্গে কমিশনকে জানানো উচিত যাতে কমিশন উক্ত আদেশের বিরুদ্ধে উচ্চ আদালতে যাওয়ার বিষয় নূন্যতম সময়ে সিদ্ধান্ত নিতে পারে।
১২. বিভাগীয় মামলায় ব্যবস্থা গ্রহণের বিষয় কমিশনকে অবহিত করণ প্রসঙ্গে:
উপরোক্ত মামলাগুলিতে সোনালী ব্যাংক লিঃ, মিরপুর ক্যান্টনমেন্ট শাখার তৎকালীন ম্যানেজার আজিজুর রহমানের বিরুদ্ধে চার্জশীট দাখিল করে সাক্ষ্য-স্মারক করা হয় কিন্তু তাকে চার্জশীট থেকে বাদ দেয় হয় ও তার বিরুদ্ধে বিভাগীয় ব্যবস্থা গ্রহণের সুপারিশ করা হয়। কিন্তু তার বিরুদ্ধে আসলেই কোন বিভাগীয় ব্যবস্থা গ্রহণ করা হয়েছিল কিনা এ সংক্রান্ত কোন তথ্য কমিশনকে জানানো হয়নি। এ সকল ক্ষেত্রে কমিশনের কার্যকর Follow up থাকা উচিত।
১৩. লিগ্যাল অনুবিভাগের মতামত গ্রহণ;
এ মামলাগুলিতে কয়েকটি গুরুত্বপূর্ণ আইনগত প্রশ্ন জড়িত ছিল। যেমন একটি এজাহার থাকাবস্থায় একই ঘটনা নিয়ে পৃথক ৩৩ টি মামলা দায়ের করা হবে কিনা। পূর্বের একটি মামলায় আসামীর ১৬৪ ধারায় প্রদত্ত জবানবন্দী অন্য মামলায় ব্যবহার করা যাবে কিনা। এই প্রশ্নগুলির কোন গ্রহণযোগ্য সমাধান ছাড়াই মামলা দায়ের করা হয়েছে এবং পরবর্তীতে চার্জশীট দাখিল করা হয়েছে। গুরুত্বপূর্ণ আইনগত প্রশ্ন জড়িত থাকলে অনুসন্ধান বা তদন্ত যে কোন পর্যায়েই হউক না কেন আবশ্যিকভাবে দুদকের লিগ্যাল অনুবিভাগের মতামত/পরামর্শ গ্রহণ করা প্রয়োজন।
সংযুক্তি: বর্ণনানুযায়ী
(আবুল হাসনাত মোঃ আবদুল ওয়াদুদ)
পরিচালক (লিগ্যাল)
দুর্নীতি দমন কমিশন
প্রধান কার্যালয়, ঢাকা
ও
তদন্ত কমিটি প্রধান
15. Another supplementary-affidavit was field on 15-7-2020, thereafter, again an affidavit-in-compliance was filed on 18-8-2019 about departmental proceeding and another supplementary affidavit dated 21-8- 2019 and another supplementary filed on behalf of the respondent No.1 dated 15- 1 2-20 1 9 and lastly on 8-1-2020.
16. Mr Shaikh Mohammad Zakir Hossain, learned Advocate appearing on behalf of the respondent No.8 Sonali Bank Limited filed an affidavit-in-opposition dated 21-8-2019 and thereafter a supplementary affidavit-in-opposition field on 7-11-20219 wherein stated that one Md Abu Salek son of Abdus Salam and Saleha Khatun opened a current account at Mirpur Cantonment Branch of Sonali Bank Ltd. on 8-2-2010 bearing A/C No.001020974 using the address of Village-Gunipara, Salimaba Union, Nagarpur Police Station-Tangail. Thereafter on 19-5-2010, he opened another account in the same branch on his company name 'Mobile Mela' situated at Pallabi, Dhaka bearing A/C No.001021177. Mr Abu Salek is also a nominee of a bank account named 'Shamol Bangla Abashon' represented by Mr Nure Alam bearing A/C No.001021235 which was also opened in the same branch of Sonali Bank Ltd. Md Abu Salek in connivance with others misappropriated an amount of BDT 18,47,20,000(Eighteen Crore Forty Seven Lac Twenty Thousand) from Sonali Bank's reserve using the above mentioned accounts issuing 106 cheques in different period of times. He used to issue those cheques from these accounts and thereafter used to deposit those cheques in several scheduled banks of the country. Although there were insufficient balance in those accounts but through a fraudulent mechanism, the money used to get transferred to those scheduled banks from the Sonali Bank's reserve at Bangladesh Bank. Those cheques were issued in favour of different names including various business names. Mr Mainul Haque, an officer of Mirpur Cantonment Branch of Sonali Bank Limited was involved in the said money misappropriation. He used to illegally clear the cheques issued by Md Abu Salek, through fake clearance advices. He used to work in the bank as a delivery man with the responsibility to deliver all the cheques and vouchers from the Local Office to the Mirpur Cantonment Branch and vice versa.
17. It is also stated that cheque clearance process of Sonali Bank Ltd. at the relevant time was that all the cheques issued by the Sonali Bank Ltd. were first sent to their Local Office through the Bangladesh Bank Clearing House. The Sonali Bank Ltd. used a standard fanfold vouchers for clearance of those cheques. The said fanfold voucher contained three pages of three different colours (white, pink and green).
Whenever a cheque was deposited at a scheduled bank, the Sonali Bank Ltd. issued the said fanfold voucher for its clearance retaining the white voucher at its Local Office and sending the other two to the concerned Branch Office for verification. The authorized branch office, after verification, returned the pink voucher back to the Local office and retained green voucher for their records. The Local Office managed the transactions of those cheques through a statement issued by their Main Office and the next day, the local office would send the said statement to the clearance department of the head office. The clearance department thereafter would clear the said cheque after verifying the originating and responding entry. Mr Mainul Haque used to keep the cheques issued by Abu Salek separately and after creating fake clearing vouchers for those, he used to submit those vouchers in the Mirpur Cantonment Branch. The diagram of the cheque clearance process is given below.
(a) A cheque when placed at a scheduled bank was first sent to the local office of Sonali Bank Ltd.
(b) The LoCal officer would create a voucher for the cheque consisting of three pages of white, pink and green colours. The local office, while retaining the white coloured page, would send the pink and green coloured page to the branch office for verification.
(c) The Branch Office, after verification, would retain the green coloured page and return the pink coloured page back to the local office for clearance
(d) The local office instructed the Bangladesh Bank to debit the money from their reserve to the concerned scheduled bank.
(e) The Bangladesh Bank debited the money from the Sonali Bank's reserve to the concerned scheduled Bank.
18. The Sonali Bank Ltd. came to know about the said money misappropriation when two cheques amounting to BDT 55,70,000 issued from Mobile Mela's account, were cleared using fake clearance advices and deposited at the Brac Bank and Prime Bank.
19. It is further stated that the Sonali Bank Ltd. after being aware about the said money misappropriation, immediately lodged an FIR on 14-9-2010 under sections 420/406 of the Penal Code being Motijheel Police Station Case No.23 (9) 10 alleging, in alia, that Md Abu Salek Md Mainul Haque and others have misappropriated an amount of BDT 18,47,20,000 from the Sonali Bank's reserve, using 106 cheques issued in different period of times. The Vigilance and Control Department of Sonali Bank Limited startd their internal investigation immediately. They have carried out their investigation at Mirpur Cantonment Branch, the local office and at the re-conciliation department of head office. They have also investigated the matter in those offices of the concerned scheduled banks where the said cheques were deposited. After completing the investigation they have submitted a report on 26-9-2010 with the findings that Md Abu Salek, Mainul Haque and others were involved in the said money misappropriation and that 106 cheques were placed at 33 branches of 17 scheduled banks where Md Abu Salek and other accused were the account holders. After complieting its investigation, the Sonali Bank Ltd. by a letter dated 26-9-2011 has charged Mr Mainul Haque for his affiliation in the said money misappropriation and later he was dismissed from his service on 12-10-2014. The Anti-Corruption Commission (ACC) took up the investigation and lodged 33 FIR's in different police stations against those connected with the offence. The name of Md Jahalam was not included in any of those FIR's.
20. It is also stated that during the investigation of the aforesaid 33 cases, the ACC suddenly arrested Mr Md Jahalam who was a mere worker of Ghorashal Jute Mill while he was working. The ACC arrested him without any reasonable explanation or justification whatsoever. The ACC at the time arresting Mr Jahalam failed to consider that a man with worth of BDT 18 (Eighteen) crore cannot work in a jute mill as a worker. The ACC submitted charge-sheets for those cases where they included the name of Md Jahalam as accused along with others. In those charge-sheets, they have mentioned the name of Jahalam as one of the other names of Abu Salek in the form `Jahalam @ Abu Salek @ Golam Mortaza'. On 28-1-2019 a newspaper report was published in the Daily Prothom Alo captioned “৩৩ মামলাই ভুল আসামী জেল-সার, আমি জাহালম, সালেক না” where it was asserted that an innocent man namely Md Jahalam was unreasonable arrested by the ACC and kept in jail for 3 (three) years. The said news report also provided that Mr Jahalam has repeatedly pleaded to the ACC that he is an innocent poor man and he had no knowledge whatsoever about any money misappropriate, but the ACC charged him and kept him in jail for such a long time. On 2-2-2018 and 23-2-2018 a TV program based on the Jahalam's story was also aired on Channel 24 titled "Search Light" where they showed how the ACC immorally arrested the innocent Jahalam and kept him in Jail for 3 years for an offence he was not involved with. The ACC called one officer of Sonali Bank Limited at their office at Segunbagicha, Dhaka. In order to avoid their liability, the ACC forcefully made that bank officer sign a statement declaring that he had identified Md Jahalam as Abu Salek that officer after returning from officer of the ACC immediately wrote a letter to the Deputy Managing Director of the Sonali Bank Ltd., describing the matter that he was forced by the ACC officials to sign those statements.
21. It is further stated that the respondent No.8 after becoming aware of the wrongful arrest and unlawful detention of the innocent Jahalam carried out another investigation on this matter and submitted a report dated 18-2-2019, with the findings that when the ACC interrogated the officers of the Sonali Bank Ltd. just after the commission of the offence, those officers just provided them details about their roles in the bank and never indentified Mr Jahalam as Md Abu Salek. The Sonali Bank Ltd. neither has any power to make any investigation of a criminal case apart from their internal investigation procedure nor they have the power to arrest anyone and then take him into custody. It is further stated that the investigation authority appointed as per the Code of Criminal Procedure 1898 and the Anti-Corruption Commission Act, 2004 contain the power to make an investigation and arrest any person related to it provided that they have reasonable grounds. The ACC arrested Md Jahalam and the Sonali Bank Limited had no involvement whatsoever in respect of arresting him and it had no actual knowledge about the wrongful detention.
22. It is further stated that the Sonali Bank Limited as the plaintiff filed a Money Suit being No.33 of 2012 before the learned Joint District Judge, 5th Court, Dhaka against a total of 74 respondents for the said misappropriation of money, however, nowhere in that suit there was anyone named Md Jahalam. The aforesaid money suit is still pending before the learned court and the respondent No.8 is the aggrieved party therein for their loss of such a significant amount of money. The ACC has mentioned in their enquiry report dated 30-5-2019 that their investigation officer got the responsibility to investigate on this matter just after he completed his training period. They also stated that this was his first investigation after the training period and that he had no previous experience of investigating such matter. The concept of vicarious liability/ employers' liability comes into play on this situation which states that when an employee has acted in a negligent manner, the employer will be held responsible for it. The employer is held liable for the action or omissions of his employees under this doctrine of law. As far as the instant case is concerned, the case of Nettleship vs Weston, 1971 EWCA Civ 6 can be invoked over here where the Court of Appeal made it clear that when a driver even if he is a learner driver drives his car on the road, he has to be treated as a competent driver. In this case salmon LJ held that;
"Any driver normally owes exactly the same duty to a passenger in his car as he does to the general public, namely to drive with reasonable care and skill in all the relevant circumstances. As a rule, the driver's personal idiosyncrasy [such as being a learner driver] is not a relevant circumstance"
23. Therefore, there is no scope for ACC to avoid their gross negligence by claiming that their Investigation officer was new and that he had just completed his training and that it was his first investigation as an investigation officer. The ACC cannot avoid their liability just by asserting that their investigation officer was not experienced and, as such, the ACC should be held liable for the wrongful detention of Mr Jahalam.
24. Mr Md Asaduzzaman, learned Advocate appearing on behalf of the added respondent No.10 Brac Bank Limited filed an affidavit of facts dated 27-8-2019 and another affidavit of facts field on 23-10-2019 wherein stated that the enquiry report dated 30-5-2019 (Report) submitted by Mr Abul Hasnat Md Abdul Wadud, Directore (Legal), Anti-Corruption Commission, was placed before the Court on 16-7-2019 by the respondent No.1 through an affidavit-in-compliance dated 11-1-2019. Having received the said Report, the instant Added-respondent No.10 vide letter dated 29-7-2019 suspended Mr Md Faysal Kayes and Ms Sabina Sarmin, the two employees of the instant added respondent, whose names appeared in the report. The instant respondent has also issued show cause notices dated 29-7-2019 upon the said officers to explain about their conducts, which have been alleged in the said report dated 30-5-2019. Pursuant to receiving the said show cause notice, the two employees replied on 6-8-2019 respectively denying the materials allegations in the show cause notice, which are self-explanatory. Having gone through the replies of the employees, the instant respondent found it to be unsatisfactory for which vide notices dated 26-8- 2019, the instant respondent has framed charge against the employees and has taken steps to form an investigation committee. In the said notices dated 26-8-2019, the instant respondent has given the employees 7 days time to appoint their representatives in the investigation committee. That once the investigation committee is formed and it submits its report, the said 2 employees will be dealt with in accordance with law.
25. It is also stated that certain facts and developments took place with regard the disciplinary actions against the 2 employees of the instant respondent No.10 pursuant to filling the affidavit of facts dated 27- 8-2019 and the respondent No.10 wishes to bring those facts and developments by way of filing this supplementary affidavit of facts and prays for treating the same as part of the original affidavit of facts. Pursuant to framing charge on 26-8-2019, the instant respondent No.10 formed separate enquiry committees, comprising of members from both the bank and the employee to investigate the charges brought against the 2 employees of the bank and submits separate reports. Consequently, the said enquiry committees investigated the charges framed against the 2 employees and submitted their reports to the bank on 25-9-2019. It appears from the said reports that, the enquiry committee members found no direct involvement of Mr Md Faysal Kayes and Ms. Sabina Sarmin with Mr Abu Salek. However, the
enquiry committee has found that Mr Md Faysal Kayes was reckless in performing his duties effectively. On the basis of the said reports, the instant Respondent No.10 withdrawn the suspension letter of Ms. Sabina San-nin vide letter dated 29-7-2019 and allowed her to resume office. With regard to Mr Faysal Kayes the instant respondent No.10 imposed a penalty of stoppage of salary increment for next 12 months for being reckless in performing job.
26. Mr Md Sumer Sattar, learned Advocate appearing on behalf of the added respondent No.13 City Bank Limited filed an affidavit-in-opposition dated 7-11-2019 wherein stated that in due course of time, and during the pendency of the instant Suo-moto Rule, the respondent No.1 conducted a detailed investigation through its Director (legal), Mr Md Abdul Wadud (District and Sessions Judge,) Mr Wadud, after going through all evidence, prepared a report dated 30 May, 2019 (Annexurfe-X-19). In the report, the respondent No.1 pleaded that the investigators were misdirected to identify Mr Jahalam as Mr Md Abu Salek by the bank officers and bank account introducers. The Report, on page 12 stated that ;
“সার্বিক বিবেচনায় আমার নিকট প্রতীয়মান হয়েছে যে, জাহালমকে আবুসালেক রূপে চিহ্নিত করার যে ভুলটি হয়েছে তা দুদকের তদন্তকারী কর্মকর্তাদের কারণেই ঘটেছে। আর তাদেরকে ভুল পথে চালিত করতে সহায়তা করেছে ব্র্যাক ব্যাংক ও অন্যান্য ব্যাংকের কর্মকর্তাবৃন্দ এবং অ্যাকাউন্টের ভুয়া ব্যক্তিকে পরিচয়দানকারীরা। তবে সঠিক ঘটনা তথা সত্য উদ্ঘাটন করে আদালতের নিকট তা উপস্থাপন করাটাই তদন্তকারী কর্মকর্তাদের দায়িত্ব। এক্ষেত্রে ব্যাংক কর্মকর্তাদের ওপর বা অন্য কারও এই দায়িত্ব অর্পণ করার কোন সুযোগ নাই।”
27. Form the above, it is pertinent to mention that the Respondent No. I agrees that no responsibility shall lie on the officers of the banks in relation to investigation. Notwithstanding the findings of the respondent No.1, it is submitted that the respondent No.13 Bank is no way connected with the identification of Mr Jahalam as Mr Md Abu Salek. The report is clear and concise and there is no allegations against the respondent No.I3 Bank and/or its officers. It is stated that Mr Md Shakil, one of the persons who identified Mr Jahalam as Mr Md Abu Salek, is listed as a key witness in the Report. The only link between Mr Md Shakil and the respondent No.13 Bank is that Mr Md Shakil served as the introducer of Mr Golam Mortaza to the City Bank Ltd. Dhanmondi Branch. Mr Md Shakil is not an employee of the respondent No.13 Bank. In the report, the respondent No.1 inserted Mr Md Shakil as the fifth identifier of Mr Jahalam as Mr Md Abu Salek. The Report on page14 stated that:
| ক্রমিক নং | সনাক্তকারীর নাম ও ঠিকানা | যেভাবে সম্পর্কযুক্ত | যেভাবে সনাক্ত করেন |
|---|---|---|---|
| ৫. | জনাব মোঃ শাকিল, পিতা-হাজী মোঃ নুরুল হক বেপারী, নামা শ্যামপুর, ঢাকা-১৪০০, স্থায়ী ঠিকানা-গ্রাম ও ডাকঘর-মিরেরসরাই, থানা ও জেলা মুন্সীগঞ্জ | আসামী আবুসালেক এর ছবি ব্যবহার করে দি সিটি ব্যাংক লিঃ ধানমন্ডি শাখায় খোলা গোলাম মর্তুজা নামীয় সঞ্চয়ী হিসাব নং ১২০১১৪৫২৩৩০০১ এর পরিচয়দানকারী | গত ১৮-১২-২০১৪ তারিখে দুদক কার্যালয়ে এসে অন্যান্যদের উপস্থিতিতে জাহালমকে আবু সালেক হিসেবে সনাক্ত করেন |
28. At the time of hearing Mr Md Khurshid Alam Khan, learned Advocate appearing on behalf of the respondent No. l , submits that the Anti-Corruption Commission took up the investigation at the instance of Bangladesh Bank and appointed investigation officer who after investigation submitted charge-sheet including the alleged Jahalam refen-ed to the enquiry report. The learned Advocate for the respondent No.1 submits that the investigation officers were misguided by the Bank Officials and the other persons including the local Chairman and Member of Duburia Union Parishad and submitted charge-sheet against Jahaalm and others. He placed the documents and evidence in relation of the investigation and submits that the officials of the respondent No.1 investigation officers have no malafide intension to implicate Jahalam in place of Abu Salek. Rather they have done it with good faith and investigated the cases upon relying the evidence produced by the bank officials. As such their act and the investigation and report attracted section 31 of the Anti-Corruption Commission Act, 2004. He further submits that admittedly Jahalam was implicated wrongly and when the news was published in channel 24 they have promptly and seriously taken into the facts and investigated the matter and thereafter has taken steps to withdraw the prosecution against Jahalam and releasing from the custody. So, the respondent No.1 and their officers have 'no malice to implicate Jahalam. He next submits that the first part of the Rule has already complied and acted upon when Jahalam released from the jail custody. If the question of compensation i.e. the second part of the Rule arises then section 545 of the Code of Criminal Procedure may be applicable in the facts and circumstances of the case.
"545(1)—Whenever under any law in force for the time being a Criminal Court imposes a fine or confirms in appeal, revision of otherwise a sentence of fine, or a sentence of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to applied—
(a) in defraying exposses properly incurred in the prosecution;
(b) in the payment to any person of compensation for any loss or injury caused by the offence, when substantial compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;
(c) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained or, of having voluntarily assisted
in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bonafide purchaser, of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.
(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal."
29. He also submits that the section 31 of the Durnity Daman Commission Ain, 2004 deals with savings and indemnity of Acts done in good faith. Section 31 of the Ain, runs as follows:
“৩১ সরল বিশ্বাসেকৃত কাজকর্মরক্ষণ __এই আইন বা তদধীন প্রণীত বিধি বা আদেশের অধীন দায়িত্ব পালনকালে সরল বিশ্বাসেকৃত কোন কাজের ফলে কোন ব্যক্তি ক্ষতিগ্রস্ত হইলে বা ক্ষতিগ্রস্ত হইবার সম্ভাবনা থাকিলে, তজ্জন্য কমিশন, কোন কমিশনার অথবা কমিশনের কোন কর্মকর্তা বা কর্মচারীর বিরুদ্ধে দেওয়ানি বা ফৌজদারি মামলা বা অন্য কোন আইনগত কার্যধারা গ্রহণ করা যাইবেনা ”.......
30. The learned Advocate for the respondent No.1 further submits that the terms "-sr: has not been defined in the Durnity Daman Commission Ain, 2004. In the General Clauses Act, the terms "good faith" has been defined. Section 3(20) of the General Clauses Act, the word "good faith" has been defined. "Good Faith" means a thing shall be deemed to be done in 'good faith' where it is in fact done honestly, whether it is done negligently or not. Section 52 of the Penal Code also deals with the definition of "good faith". "Good Faith" means nothing is said to be done or believed in "good faith" which is done or believed without due care and attention.
31. The learned Advocate for the respondent No.1 also submits that the above facts and circumstances of the case, it appears that the act has been done with "good faith" question of malajide or malice does not arise at all. In view of the same until and unless there is any element of malafide or lack of integrity or "good faith" or devotion to duty or honest there is no scope for compensation. He also submits that an act done in "good faith" without intention does not constitute any offence. Any act done in "good faith" with not criminal intention on his part does not render his act blameworthy. An act done in "good faith" without intention does not attract question of compensation. There was no criminal intention on the part of the commission/investigation officer and whatever he decided was in "good faith" and, as such, question of compensation does not arise as at all.
32. The learned Advocate for the respondent No.1 lastly submits that considering the above facts and circumstances and section 31 of the Durnity Daman Commission Ain, 2004 and section 545 of the Code of Criminal Procedure. Respondent No.1 may be exsonerated from the Charge of compensation.
33. Mr Shaikh Mohammad Zakir Hossain, the learned Advocate appearing on behalf of the respondent No.8 submits that misappropriation of total amount of Taka 18,47,20,000 from Sonali Bank Limited using 106 cheques was taken place in different period of time between 2009-2010. Thereafter, Sonali Bank Ltd. Lodged an First Information Report in respect of the alleged money on 14-9-2010 under section 420/406 of the Penal Code at Motijheel Police Station being Case No.23(9)10 against Md Abu Salek, Md Mainul Hague staff of Sonali Bank and others. In that First Information Report, Sonali Bank did not mention the name of Jahalam. Thereafter, Sonali Bank also carried out their internal investigation and charge was framed against the staff Mainul Hague on 16-9-2011 and subsequently he was dismissed from his service on 12-10-2014. Thereafter, the Anti-Corruption Commission took up the case and lodged 33 First Information Report and in those FIR there was no name of Jahalam. He next submits that the Sonali Bank filed a Money Suit No.33 of 2012 before the learned 5th Joint District Judge, Dhaka against 74 respondents for recovery of misappropriation of money. But in the suit the name of Md Jahalam was not made defendant or party.
34. The learned Advocate for the respondent No.8 further submits that the Anti-Corruption Commission after investigation implicated alleged Jahalam @ Md Abu Salek @ Golam Murtaza @ Md Jahalam in the charge-sheet. Jahalam was arrested on 6-2-2016 from the Ghorashal Jute Mills. He submits that implicating in the charge-sheet and arrest of Jahalam, what happened long after the said misappropriation of money of Sonali Bank, and the Sonali Bank have no knowledge of involvement to implicate of Jahalam in those cases of Anti-Corruption Commission and the charge-sheets.
35. Mr Asaduzzaman, learned Advocate appearing on behalf of the respondent No.10 submits that the respondent No.10 suspended Md Fay sal Kayes and Ms. Sabina Sarmin, two employees of the instant Added Respondent, whose names appeared in the Report. The instant respondent has also issued show cause notices dated 29-7-2019 upon the said officers to explain about their conducts, which have been alleged in the said report dated 30-5-2019. Thereafter, they replied their show cause notice on 6-8-2019.
The respondent bank framed charge against the employee and thereafter, the respondent No.10 imposed a penalty upon Mr Md Faysal Kayes to stop the salary in payment of next twelve months for the reckless performing job. Thereafter, withdrawal the suspension letter of Ms. Sabina Sharmin vide letter dated 29-7- 2019 and allowed her to resume of her office on the basis of the report of the inquiry committee member who found no direct involvement about the alleged offence.
36. Mr Sameer Satter, the learned Advocate appearing on behalf of the respondent No.13 The City Bank Limited submits that at the initial investigation which left the prosecution of Jahalam none of the employee of respondent No.13 Bank was involved and the Bank is no part of prosecution of Jahalam. He next submits that in the report of the inquiry committee nothing was revealed against the respondent No.13 bank to the prosecute Jahalam and implicating hirn in the place of Abu Salek.
37. We have heard the learned Advocate and perused the records. The affidavit-in-opposition filed by the respondent Nos.1, 8, 10 and 13 and other documents on records. It appears from the Rule issuing order that learned Advocate Mr Amit Das Gupta, appeared before the court and brought to notice of the Court about a news caption "৩৩ মামলায় ‘ভুল’ আসামী জেল- সার, আমি জাহালম, সালেক না..." published in the 'Daily Prothom Alo' on 28-1-2019. After perusing the news caption of the newspaper and considering the facts and circumstances a Suo-Moto Rule was issued.
38. The first part of the Rule is about the inaction of the respondents in taking necessary steps for releasing innocent Zahalam a labourer of Bangladesh Jute Mills, Ghorashal, Narsingdi in custody for about three years in connection with 33 cases. And the second part of the Rule was about a direction to give appropriate compensa-tion to the victim Zahalam and/or such other or further order or orders passed as to this Court may seem fit and proper.
39. It appears from the affidavits and court's order that the first part of the rule that is the release of Jahalam from the custody was acted upon and he was released on 3-2-2019. Now we have to deal with the second part whether the victim Jahalam is entitled to get compensation for his wrong confinement for about three years in the jail custody.
40. On perusal of the entire affidavit and statements and the report of the inquiry officer, the entire fact has revealed in that report. For proper adjudication and proper disposal of the Rule, we should discuss the relevant part of the inquiry report which are necessary and relates to the rule only.
41. The main question raises in the inquiry report which relates to the terms:
(ক) আসামী আবুসালেকের পরিবর্তে জাহালমকে আসামী করার প্রেক্ষাপট বর্ণনা,
(খ) আলোচ্য মামলাসমূহের অনুসন্ধান ও তদন্ত পর্যায়ে পদ্ধতিগত ত্রুটি বিচ্যুতি উদ্ঘাটন এবং সংশ্লিষ্টদের দায়-দায়িত্ব নিরূপন,
(গ) ব্যাংক কর্মকর্তাদের অন্যান্য ব্যক্তি বা প্রতিষ্ঠানের সংশ্লিষ্টতা নির্ধারণ ও অভিযুক্তকে সনাক্তকারী ব্যক্তিদের চিহ্নিতকরণ এবং তাদের দায়-দায়িত্ব নির্ধারণ,
(ঘ) এ ঘটনা কমিশনের দৃষ্টিগোচর হওয়ার পর জাহালমকে আইনী প্রক্রিয়ায় মুক্ত করতে বিলম্বের কারণ উদ্ঘাটন
42. In the inquiry report it is found that the investigation officer was appointed by the Commission for investigate the 33 cases and superintendent officer was also appointed named Md Abdullah-al Zahid, Deputy Director (now director). But from the entire facts and circumstances and from the report it appears that the superintendenting authority i.e. Abdullah-Al Zahid, later on transferred to another job could not or did not supervise the investigation process or the investigation officers. It further appears that though the investigation officers were appointed by the Anti-Corruption Commission none of them went to the house of Jahalam for inspection or any inquiry. It is revealed in the inquiry report that all of the investigation officers were newly appointed in the year, 2011 after completing the basic training they have appointed as the investigation officer for the important cases in which they have no earlier experience to investigate and this was the first investigation case in their service life.
43. It is stated in the report that
“সার্বিক বিবেচনায় আমার নিকট প্রতীয়মান হয়েছে যে, জাহালমকে আবুসালেক রূপে চিহ্নিত করার যে, ভুলটি হয়েছে তা দুদকের তদন্তকারী কর্মকর্তাদের কারণেই ঘটেছে। আর তাদেরকে ভুল পথে চালিত করতে সহায়তা করেছে ব্র্যাক ব্যাংক ও অন্যান্য ব্যাংকের কর্মকর্তাবৃন্দ এবং একাউন্টের ভুয়া ব্যক্তিকে পরিচয়দানকারীরা। তবে সঠিক ঘটনা তথা সত্য উদ্ঘাটন করে আদালতের নিকট তা উপস্থাপন করাটাই তদন্তকারী কর্মকর্তাদের দায়িত্ব। এক্ষেত্রে ব্যাংক কর্মকর্তাদের ওপর বা অন্য কারোর ওপর এই দায়িত্ব অর্পণ করার কোন সুযোগ নাই। বিশেষ করে তদন্তকারী কর্মকর্তাদের এটা লক্ষ্য করা উচিত ছিল যে, প্রথমে কিন্তু ব্যাংক কর্মকর্তাদের কিংবা একাউন্টের সনাক্তকারীরা আবুসালেককে সনাক্ত করতে কিংবা তাকে খুঁজে বের করতে তৎপর হয়নি। যখন ৩ টি মামলায় (ধানমন্ডি থানা মামলা নং ৯, তারিখঃ ১০-৪-২০১২, শাহ আলী থানা মামলা নং ১৪, তারিখঃ ১০-৪-২০১২ এবং আদাবর থানা মামলা নং ১৫, তারিখঃ ১০-৪-২০১২) চার্জশীট দাখিল করা হয় এবং সেখানে ব্যাংক কর্মকর্তাদের আসামী করা হয় তখন তারা বুঝতে পারে যে, মূল আসামী আবুসালেককে খুঁজে বের করে দিতে না পারলে তারা নিশ্চিতভাবেই বাকী মামলাগুলিতে আসামী হয়ে যাবে। তখন তারা মরিয়া হয়ে উঠে। যে কাজটি তদন্তকারী কর্মকর্তাদের করা উচিত ছিল সে কাজটি করতে মাঠে নেমে পড়ে ব্যাংক কর্মকর্তারা। তারা যেনতেন প্রকারে একজন আবুসালেককে দুদকের সামনে হাজির করে ও তাকে আবুসালেক রূপে সনাক্ত করে। ব্যাংক কর্মকর্তারা যে নিজেদের বাচাতে যে কোন ব্যক্তিকে আবুসালেক হিসেবে সনাক্ত করতে পারে _ এই সম্ভাবনাটাই তদন্তকারী কর্মকর্তারা ভেবে দেখেনি।
তদারককারীও ব্যর্থ হয়েছেন। এই ৩৩ টি মামলার আইওগণ সিরিয়াস/সঠিকভাবে মামলার তদন্ত করেননি। প্রত্যেকেই একে অন্যের উপর নির্ভরশীল ছিল। প্রত্যেকেই আশায় ছিল অন্যরা তদন্তে কোন অগ্রগতি করলে তারা সেটি কপি করবে এবং সেটিই তারা করেছে। এর মধ্যে শুধু ব্যতিক্রম ছিল সেলিনা আক্তার মনি। শুধুমাত্র সে-ই আবুসালেককে সনাক্ত করা বা খুজে বের করার জন্য তৎপর ছিল। কিন্তু সেও কাজটি নিজে না করে ব্যাংক কর্মকর্তাদের দিয়ে সেটি করাতে চেয়েছিল। সে যদি নিজেই আবুসালেককে খোজার জন্য টাঙ্গাইল/শ্যামলীতে যেত (যেটা ফয়সাল কায়েস করেছেন) তবে হয়ত এই ভুলটি হত না। আরও দেখা যাচ্ছে যে, সেলিনা আক্তার মিনির চাপে পড়ে ফয়সাল কায়েস যে ব্যক্তিকে আবুসালেক হিসেবে হাজির করল তাকেই সকল আইও আবু সালেক হিসেবে মেনে নিল।
এখানে তদারককারীর কোন কার্যকর ভূমিকাই দেখা যাচ্ছে না। এই নবীন ও অনভিজ্ঞ কর্মকর্তারা এ ধরনের ভুল করে যাচ্ছে, একজনের তদন্ত অন্য জন কপি করছে এ বিষয়গুলি তদারককারীর তদারক করা উচিত ছিল। উল্লেখ্য, এই অভিযোগের অনুসন্ধান করে ৩৩ টি মামলা রুজুর সুপারিশ করেছিলেন এবং তিনিই ছিলেন এজাহারকারী। তিনি ছিলেন ব্যুরোর আমলের একজন সিনিয়র কর্মকর্তা। তার উচিত ছিল এই নবীন ও অনভিজ্ঞ কর্মকর্তাদের গাইড করা।
তদন্তকালে রেকর্ডপত্র ও সংশ্লিষ্ট বক্তব্য পর্যালোচনায় ব্যাংক কর্মকর্তাসহ নিম্নবর্ণিত ব্যক্তিবর্গ মোঃ জাহালমকে আবুসালেক হিসেবে সনাক্তকরণের
| ক্রমিক নং | সনাক্তকারীর নাম ও ঠিকানা | যেভাবে সম্পর্কযুক্ত | যেভাবে সনাক্ত করেন |
|---|---|---|---|
| ১. | জনাব মোঃ ফয়সাল কায়েস, অফিসার, ব্র্যাক ব্যাংক লিঃ, মোহাম্মদপুর এস এম ই শাখা, বর্তমানে এসপিও, শ্যামলী শাখা, ঢাকা | ব্র্যাক ব্যাংক লিঃ, মোহাম্মদপুর এস এম ই শাখায় আসামী মোঃ আবুসালেক এর ছবি ব্যবহার করে মেহেরুন সামাদ ট্রেডার্স, প্রোঃ গোলাম মর্তুজা নামীয় হিসাব নাম্বার ১৫৪৩২০১৭২১৭৩৭০০১ এর পরিচয়দানকারী | টাঙ্গাইলের নাগরপুর থানার গয়নাপাড়া ও ধুবুড়িয়া গ্রামে নিয়ে আবুসালেক নামীয় ছবির ব্যক্তি জাহালম মর্মে তথ্য উদ্ঘাটন করেন এবং দুদক কর্মকর্তাগণসহ জাহালমের তৎকালীন কর্মস্থল ঘোড়াশাল অবস্থিত জুট মিলে গিয়ে জাহালমকে দেখে আবুসালেক হিসেবে নিশ্চিত হন। ১৮-১২-২০১৪ তারিখে দুদক কার্যালয়ে এসে অন্যান্যদের উপস্থিতিতে জাহালমকে আবু সালেক হিসেবে সনাক্ত করেন। গত ১০-১২-২০১৭ খ্রিঃ তারিখে বিজ্ঞ বিশেষ জজ আদালত-৬, ঢাকার বিশেষ মামলা নং ১১/২০১৫ এ সাক্ষ্য প্রদানকালে জাহালমকে আসামী আবু সালেক হিসেবে সনাক্ত করেন। |
| ২. | জনাব সাবিনা শারমিন, শাখা ব্যবস্থাপক, ব্র্যাক ব্যাংক লিঃ মোহাম্মদপুর এস এম ই শাখা, বর্তমানে শাখা ব্যবস্থাপক, ব্র্যাক ব্যাংক লিঃ, - শ্যামলী শাখা, ঢাকা | ব্র্যাক ব্যাংক লিঃ, মোহাম্মদপুর এস এম ই শাখায় মোঃ আবুসালেক এর ছবি ব্যবহার করে মেহেরুন সামাদ ট্রেডার্স, প্রোঃ-গোলাম মর্তুজা নামে খোলা হিসাব অনুমোদনকারী | টাঙ্গাইলের নাগরপুরে গিয়ে আবু সালেক ব্যাংক কর্মকর্তা জনাব ফয়সাল কায়েসকে নির্দেশ দেন। দুদক কর্মকর্তাগণসহ জাহালমের তৎকালীন কর্মস্থল ঘোড়াশাল অবস্থিত জুট মিলে গিয়ে জাহালমকে দেখে আবু সালেক হিসেবে নিশ্চিত হন। ১৮-১২-২০১৪ তারিখে দুদক কার্যালয়ে এসে অন্যান্যদের উপস্থিতিতে জাহালমকে আবু সালেক হিসেবে সনাক্ত করেন। |
| ৩. | জনাব মোঃ সিহিদুল ইসলাম, পিতা- মোঃ ইউনুছ মিয়া, বর্তমান ঠিকানা-৯, পরিমল ভিলা, ৩ নং সাত্তার মোল্লা রোড, মিরপুর-১২, পল্লবী, ঢাকা, স্থায়ী ঠিকানা-গ্রাম ও ডাকঘর-বিনোদপুর, থানা- নোয়াখালী সদর, জেলা- নোয়াখালী | সোনালী ব্যাংক লিঃ, মিরপুর ক্যান্টনমেন্ট শাখার মোঃ আবুসালেক নামীয় হিসাব নম্বর-০০১০২০৭৯৪ এবং মোবাইল মেলা (স্বতাধিকারী- মোঃ আবুসালেক) নামীয় হিসাব নম্বর-০০১০২১১৭৭ এর পরিচয়-দানকারী | গত ১৮-১২-২০১৪ তারিখে দুদক কার্যালয়ে এসে অন্যান্যদের উপস্থিতিতে জাহালমকে আবু সালেক সনাক্ত করেন। গত ৫-৩-২০১৮ খ্রিঃ তারিখে বিজ্ঞ বিশেষ জজ আদালত-২, ঢাকার বিশেষ মামলা নং ২৫/২০১৫ এ সাক্ষ্য প্রদানকালে জাহালমকে আসামী আবুসালেক দিয়েছেন। |
| ৪. | জনাব মোঃ নূর উদ্দিন শেখ, এক্সিকিউটিভ অফিসার, সোনালী ব্যাংক লিঃ, পরিদর্শন ও নিরীক্ষা বিভাগ-১, বর্তমানে অবসর প্রাপ্ত, স্থায়ী ঠিকানা: গ্রাম: সাওরাইদ, ডাকঘর: সাওরাইদ বাজার, থানা: কালীগঞ্জ, জেলা: গাজীপুর | সোনালী ব্যাংক লিঃ, মিরপুর ক্যান্টনমেন্ট শাখায় আবুসালেক নামীয় হিসাব নম্বর-০০১০২৯৭৪ এর অনু-মোদনকারী | গত ১৮-১২-২০১৪ তারিখে দুদক কার্যালয়ে এসে অন্যান্যদের উপস্থিতিতে জাহালমকে আবু সালেক হিসেবে সনাক্ত করেন। |
| ৫. | জনাব মোঃ শাকিল, পিতা- হাজী মোঃ নুরুল হক বেপারী, নামা শ্যামপুর, ঢাকা-১৪০০, স্থায়ী ঠিকানা-গ্রাম ও ডাকঘর: মিরেরসরাই, থানা ও জেলা-মুন্সীগঞ্জ | আসামী আবুসালেক এর ছবি ব্যবহার করে দি সিটি ব্যাংক লিঃ, ধানমন্ডি শাখায় খোলা গোলাম মর্তুজা নামীয় সঞ্চয়ী হিসাব নম্বর-১২০১১৪৫২৩৩০০১ এর পরিচয়দানকারী | গত ১৮-১২-২০১৪ তারিখে দুদক কার্যালয়ে এসে অন্যান্যদের উপস্থিতিতে জাহালমকে আবু সালেক হিসেবে সনাক্ত করেন। |
| ৬. | মিসেস তাজিবন সুলতানা, অফিসার (ক্যাশ), ইউসিবি-এল, মোহাম্মদপুর শাখা, ঢাকা বর্তমানে সিনিয়র অফিসার (ক্যাশ), ইউসিবিএল, এলিফ্যান্ট রোড শাখা, ঢাকা | ইউসিবিএল মোহাম্মদপুর শাখায় আসামী আবুসালেক এর ছবি ব্যবহার করে খোলা সালেক ট্রেডার্স, স্বত্বাধিকারী মোঃ আবুসালেক নামীয় হিসাব নম্বর-০০৫০১১১০০০২৯৭০৮ এর পরিচয়-দানকারী | টাঙ্গাইলের নাগরপুর থানার গয়নাপাড়া ও ধুবুড়িয়া গ্রামে নিয়ে আবুসালেক নামীয় ছবির ব্যক্তি জাহালম মর্মে তথ্য গত ৭-১২-২০১৪ তারিখে দুদক কার্যালয়ে এসে জাহালমের ছবি দেখে তাকে সালেক ট্রেডার্স নামীয় হিসাবে ব্যবহৃত ছবির ব্যক্তি হিসেবে সনাক্ত করেন। উক্ত হিসাব খোলা হয়েছিল। |
সাথে জড়িত মর্মে প্রতীয়মান হয়ঃ
44. The another paragraph of the report is that Md Faisal Kayes, Officer, Brac Bank Ltd. Mohammadpur SME Brach at present SPO Samoli, Branch, Dhaka went to Duburia of Gunipara, Tangail and also went to the work place of Jahalam and identified him as Abu Salek. Thereafter, on 18-12-2014 he went to the office of the ACC and also identified Jahalam as Abu Salek and also on 10-12-2017 before the Special Judge, Court No.6, Dhaka in Special Case No.11 of 2015 as a witness. Ms. Sabina Sarmin, Branch Manager, Brac Bank Ltd. Mohammadpur SME Branch, at present Branch Manager, Brac Bank Ltd. Samoly Branch, Dhaka instructed Faisal Kayes to go to Tangail and went to Gorashal Jute Mills and identified Jahalam as Abu Salek and also identified at Anti-Corruption Commission office, on 18-12-2014. Another Shahidul Islam, also identified Jahalam as Abu Salek at Anti-Corruption Commission office, Md Nur Uddin Sheikh, identified as Abu Salek at Anti-Corruption Commission, office, Md Shakil, identified as Abu Salek at Anti-Corruption Commission, office and Ms. Tajbin Sultana, Officer Cash, UCBL, Mohamadpur Branch, Dhaka also identified Jahalam as Abu Salek at Anti-Corruption Commission, office on 7-12-2014.
45. From the aforesaid facts and circumstances it appears that the investigation officers were misguided by the aforesaid bank officers and private persons and without going to the home place of Jahalam submitted charge-sheet against Jahalam and accordingly Jahalam was detained in custody for 3(three) years for their wrongful act. Now the question arises whether the victim Jahalam is entitled to get compensation.
46. From the entire documents on records, it appears that Jahalam has no fault of his own. He has wrongly detained for three years and his family members suffered and he has lost his job. So, he is entitled to get compensation. But we have gone through the decision referred to by the learned Advocate from the respondent No.1 and the respondent No.8. The submission of the learned Advocate for the respondent No.1 about section 31 of the Anti-Corruption Commission, Act. We are of the view that the officer of the respondent No.1 has not performed their duty properly which is reveled from the inquiry report also. But we do not see any malqfide intention on the part of the investigation officers of the respondent No.1 from the entire facts and circumstances and the report submitted by the inquiry officer. So, in the facts and circumstances of the case, section 31 of the ACC Act is applicable. Though, they are inefficient, incompetent but we cannot impose any compensation upon the respondent No.1 officials. As we do not see any intention or any malice to implicate Jahalam in place of Abu Salek. But we are of the view, that the Anti-Corruption Commission is a national institution and independent authority formed for prevention of corruption and to act in accordance with law. They have rules and regulation to proceed with the investigaticin and they should be very careful about such false implication of any person in any case in future. So that the public perception at large will be in favour of the Anti-Corruption Commission.
47. Mr Md Khurshid Alam Khan, learned Advocate for the respondent No.1 filed an affidavit-in compliance dated 21-8-2019 wherein it is stated that on 28-7-2019 the High Court Division directed to the respondent No.1 Anti-Corrumption Commission to file an affidavit-in-compliance about the steps regarding the internal inquiry committee report submitted by the inquiry office before the Anti-Corruption Commissison on the next date on 21-8-2019. A letter dated 20-8-2019 being Memo No.00.01.0000.202.18.0249. 32222 signed by the Deputy Director (Legal) sent to the learned Advocate Mr Md Khurshid Alam Khan for taking necessary steps to submit the status of investigation in relates to Suo-Moto Rule No.1 of 2019. On 20-8-2019 a letter signed by the Director (Aministration and Human Ressource) sent to the Director-General (Legal), Anti-Corruption Commission, Head Office, Dhaka and stated that they lodged departmental case against 11 officers as they did not give satisfactory reply in show-cause notice.
48. On 18-8-2019 the Deputy Director (B.Anu.O.Todonto-1) sent another letter vide Memo No. দুদক/বি.অনুঃ ও তদ.-১/মাঃলঃ/ঃ/িস-১৩০/২০১২/৩১৯৭৮ to Directror (Legal) Anti-Corruption Commission stating the present position of the said cases in connection of the Suo Moto Rule No.01 of 2019. On 19-8-2019 Deputy Director, Anti-Corruption Commission, Head Office, Dhaka sent a letter to Director-General (Legal and informed about the latest position of the said case. On 19-8-2019 the Deputy Director, Anti- Corruption Commission and the Investigation Officer sent another letter informing the update position of the said case.
49. Thereafter, the learned Advocate for the respondent No.1 filed another affidavit-in-compliance dated 28-8-2019 wherein it is stated that on 21-8-2019 the High Court Division directed to the respondent No.1 Anti-Corruption Commission to file an affidavit-in-compliance about the particular of the proceedings against the 11 (eleven) officials of the Durnity Daman Commission before this court on 28-8-2019. On 27- 8-2019 the Deptuy Director (Legal) sent a letter being Memo No.00.01.0000.202.18.02.19- 33327 to the learned Advocate Khurshid Alam Khan and informed to take necessary steps for submitting the proceeding of the 11 (eleven) officials of the Durnity Daman Commission before the High Court Division in connection with the Suo Moto Rule No.1 of 2019. On 28-8-2019 Mr Jalal Saifur Rahman, Director (প্রশাসন ও মানবসম্পদ) of the Durnity Daman Commission sent a letter being Memo No.04.01.0000.104. 99.020.19.33229(2) to the Director-General (Legal) of the Durnity Daman Commission, Head office, Dhaka and provided the details of the said 11(eleven) officials of the Durnity Daman Commission.
50. In consideration of the facts and circumstance, we have considered the argument advanced by the learned advocate for the respondent No.8 Sonali Bank Ltd. Though they have no active part and they did not mention the name of Jahalam in the First Information Report and in Money Suit. But from the inquiry report, it appears that the bank officials, specially Brac Bank Ltd. Mr Faisal Kayes and Ms Sabina Sannin, they were very much aware and active to bring and hold Jahalam in place of Abu Salek. Both of them, Faysal Kayes went to the village of Jahalam and identified him and also identified him at ACC office on 18-12-2014 and also adduced evidence before the court. So, it is apparent, Faysal Kayes is very much active to implicate and to import Jahalam in place of Abu Salek and by this act the investigation officers were misguided and it was revealed from the inquiry committee report. Similarly, Ms. Sabina Sarmin, another Brac Bank official instructed Faysal Kayes to go Tangail and went to the work place of Jahalam at Ghorashal and identified him as Abu Salek and also before the Anti-Corruption Commission, office on 18- 12-2014 and some other person also identified Jahalam as Abu Salek.
51. But from the entire facts and circum-stances and from the inquiry report it appears, that the officials of Brac Bank misguided intentionally to bring into the case Jahalam in place of Abu Salek. In the inquiry report, inquiry officer stated that
“তারা যেনতেন প্রকারে একজন আবুসালেককে দুদকের সামনে হাজির করে ও তাকে আবুসালেক রূপে সনাক্ত করে। ব্যাংক কর্মকর্তারা যে নিজেদের বাচাতে যে কোন ব্যক্তিকে আবুসালেক হিসেবে সনাক্ত করতে পারে এই সম্ভাবনাটাই তদন্তকারী কর্মকর্তারা ভেবে দেখেননি।”
So, from the aforesaid facts and circumstances we are of the view that the Brack Bank officials Mr Faisal Kayes and Sabina Sarmin identified Jalalam as Abu Salek. We called for a report with attested photograph of Abu Salek and Jahalam to see open eyes, it appears that any person not necessary an officials and investigation officer that they can identify from the two photograph that they are different person. So, it can be said easily that these bank officials who went to identify Jahalam identified intentionally Jahalam in place of Abu Salek. Earlier stated that the investigation officers were somehow misguided and they ought to have have compare the photograph of Abu Salek and Jahalam. So, on the entire discussion, we are of the view that the vital role was played by the officials of Brac Bank respondent No.10 to falsely implicate Jahalam in this case in place of Abu Salek and respondent No.10 Bank should pay compensation of the aforesaid act of their officers.
52. There have been several instances in Bangladesh where employer was vicariously found liable for the act of the employee in the course of business of the employer. Application of the principles of vicarious liability is seen in the cases, Catherine Masud vs Md Kashed Min; Bangladesh Beverage Industries vs Rawshan Akio; 69 DLR (AD) 196.
53. So, in consideration of the above facts and circumstances compensation may be awarded in this case. Now the next question how amount of compensation will be assessed this case. In the case of Bangladesh Beverage Industries Ltd. vs Rowshan Akter, 69 DLR (AD) 196, wherein it is observed; " affection, pain, suffering, mental agony, physical incapability an emotion are not calculable and if the court is satisfied that plaintiff is entitled to any compensation that can be only in lump sum and not on calculation". In the case of CCB Foundation vs Government of Bangladesh and others, 5 CLR (HCD) (2017) = 70 DLR 491 the High Court Division goes to observe that; "Quite often the courts have a difficult task in determining damages in various factsituations. The yardstick generally adopted for determining he compensation payable in a suit for damage are not applicable when a constitutional court determines the compensation for violation of the fundamental rights guaranteed to its citizens under Part-III of the Constitution". Another judgment passed by the High Court Division in Suo-Moto Rule No.4 of 2018 wherein observed,
"Although the Appellate Division observed that High Court Division will direct the party/parties to pay adequate compensation but question arises how the compensation would be assessed in this writ petition under the constitutional jurisdiction. In this regard we have examined some precedents on similar nature of facts where considering all aspects the court awarded compensation under constitutional jurisdiction".
54. In consideration of the aforesaid facts and circumstances, we are of the view that the respondent No.11 shall pay Taka 15,00,000 (Fifteen lacs) to Jahalam within one month from the date of receipt of the judgment and order and the respondent No.1 is also directed to complete the further investigation as soon as possible and to consider the report filed by the inquiry committee headed by Mr Abdul Wadud and to inquire about the other persons i.e. Md Shahidul Islam, Md Nur Uddin Sheikh, Md Shakil and Ms. Tajbin Sultana whether they have any involvement in the alleged wrong placing or implicating Jahalam in place of Abu Salek and to proceed, in accordance with law.
55. The respondent No.11 Brae Bank is directed file a compliance about the payment of the compensation money after one week of the end of one month to the Registrar-General, Supreme Court of Bangladesh.
With the aforesaid findings and observation the Rule is disposed of.
Being directed by the Hon'ble Chief Justice, on behalf of late Justice FRM Nazmul Ahasan signed by me. —KM Kamrul Kader J.
End.
--- Journal: DLR Volume: 75 Division: HCD Page: 207
High Court Division
Present:
Mr. Justice Muhammad Khurshid Alam Sarkar
Bank Company Matter No. 01 of 2021.
Bangladesh Bank --------- Petitioner
VS
Jubilee Bank Limited and the RJSC ---------- Respondents
Judgement Date : November 29, 2021 Tanjib-ul Alam with Kazi Ershadul Alam, Advocates -------For the PetitionerAbdul Wahab, Deputy Attorney-General -------For the State.AKM Badruddoza ------For the RJSC.
Counsels:
KM Badruddoza For the RJSC.
Judgment
This is an application under section 65 of the Banking Companies Act, 1991 (briefly, the Banking Companies Act), at the instance of petitioner- Bangladesh Bank, the central bank of Bangladesh and a body corporate established under the Bangladesh Bank Order, 1972 (President's Order No. 127 of 1972), having its office at Bangladesh Bank Bhaban, Motijheel C/A, Dhaka-1000 represented by its Governor, seeking winding up of Jubilee Bank Limited (shortly, Jubilee Bank), a banking company incorporated under the Companies Act, having its registered office at Kaziuddin Tower (6th Floor), 176, Shoheed Syed Nazrul Islam Sarak, Bijoynagar, Dhaka with its Head Office at Janipur Bazar, Khoksha, Kushtia.
2. It is stated that Jubilee Bank was incorporated in 1913 as a company limited by shares and, thereafter, Bangladesh Bank issued a license under section 27(2) of the Banking Companies Ordinance, 1962 (shortly, Banking Ordinance), in favour of the Jubilee Bank dated 25-6-1984 permitting it to conduct business as a non-scheduled bank under the terms and conditions that it shall permanently follow and observe the provisions of the Banking Ordinance and Rules and Regulations made thereunder, and Directives issued by Bangladesh Bank from time to time. As per Clause 5 of the license issued by the petitioner to the Jubilee Bank, it is required to maintain an amount equivalent to 2 (two) percent of its time liability and 5 (five) percent of its demand liabilities in cash as cash reserve and, as per the Clause 2 of the license, Jubilee Bank was required to confine its loan operation to gold loan only. Subsequently, by a letter dated 26-11-1984, Bangladesh Bank gave permission to the Jubilee Bank to lend an amount not exceeding Taka 25,000 to small borrowers of all types viz. small traders, cottage industries and small farmers. Following enactment of the Banking Companies Act, by its section 13, Bangladesh Bank has been conferred power to determine conditions relating to maintaining paid-up capital and reserve fund by the banking companies. In exercise of such power, Bangladesh Bank issued a Gazette Notification on 12- 8-2008 requiring all the Banking Companies to increase their paid-up capital and reserve fund to BDT 400 crores in which paid-up capital shall be at least BDT 200 crores and achieve the same within 3 years from the date of publication of the Gazette Notification. Bangladesh Bank also circulated a letter dated 14-8- 2008 bearing BRPD Circular No. 11 asking all the Banking Companies operating in Bangladesh, including Jubilee Bank, for fulfilling the requirement under the said Gazette Notification. When Jubilee Bank failed to comply with the aforesaid requirement, Bangladesh Bank issued a letter dated 14-1-2021 directing Jubilee Bank to refrain from accepting new deposits and disbursing and granting new loans. Jubilee Bank did not reply to the said letter, but, some persons claiming to be the shareholders of Jubilee Bank informed their inability to increase the paid-up capital to Taka 200 crores and requested permission from Bangladesh Bank to continue accepting new deposits and providing new loans.
3. It is averred in the petition that Jubilee Bank did not apply for a license as of today under section 31 of the Banking Companies Act and when in the year 2018, the Bangladesh Bank conducted a special inspection of Jubilee Bank, it was found that Jubilee Bank had been lending money to most of its clients exceeding the ceiling of BDT 25,000; had lent BDT 3,000,000 to one individual client namely Ms. Hazera Chowdhury (CC Loan Account No. 54) which was more than ten times of the approved loan limit; had
failed to maintain cash reserve fund to comply with Clause 5 of the License; had also failed to maintain its Statutory Liquidity Ratio (SLR) till date and failed to comply with Clause 7 of the license; did not have any valid board and it was also doubtful as to who were the shareholders of this Banking Company, as there was no information with regard to chain of ownership of shares and the persons claiming to be shareholders did not possess any Share Certificate or Articles of Association and Memorandum of Association of Jubilee Bank; had also failed to provide evidence to the effect that the purported Board of Directors had obtained approval from Bangladesh Bank under section 15(5) of the Banking Companies Act. Since Bangladesh Bank has found in its inspection report that Jubilee Bank is being operated without complying with most of the banking standards and most of the loans provided by the Bank are categorized as harmful by the petitioner, therefore, allowing Jubilee Bank to be in operation would be against the interest of the depositors of the said Bank. Hence, this application.
4. Upon admission of the matter on 18-5-2021 by this Court, the usual notices were published in two newspapers and affidavit-in-compliance was duly filed on 7-6-2021 by the petitioner-Bangladesh Bank, as evident from annexures, J series to the said affidavit-in-compliance. No Vokalatnama has been filed by any stakeholder or interested person/entity despite publication of the notice of admission of the instant case in two daily national newspapers, in addition to serving notices upon the respondents by the registered posts. Thereafter, when the matter was appearing in the Cause List for a few consecutive days, none appeared before this Court to contest the case. Under the circumstances, this Court considered it appropriate to proceed with disposal of the case exparte on the basis of the averments made in the petition together with its annexures and the submissions made by Mr Tanjib-ul Alam, the learned Advocate appearing for the petitioner-Bangladesh Bank.
5. Since Mr Tanjib-ul Alam's most of the submissions are centered around the averments made in the petition, which are already stated hereinbefore, this Court refrains from recording the same for the sake of brevity. And, the additional submissions he has made with reference to the Order dated 4-2-2020 passed by this Court in the Company Matter No. 315 of 2017, which was filed by some persons claiming themselves to be the shareholders of Jubilee Bank, shall be dealt with by this Court now, for the reasons to be revealed hereinafter, in advance to the issues arising out of the statements made in the petition.
6. There is a chequered history behind passing the Order dated 4-2-2020 by this Court in the Company Matter No. 315 of 2017. Given that the background facts of the aforesaid Order have been reported in the 18 ALB (2020) at page 91 (Md Shahid Ullah vs Jubilee Bank), this Court, without repeating the same, merely reproduces the Directions made therein; (i)The Registrar of Joint Stock Companies and Firms (RJSC) is directed to strike off the name of the Jubilee Bank Ltd from its Record/Register upon complying with the relevant provisions of section 346 of the Companies Act. (ii)The Governor of Bangladesh Bank is directed to inform this Court as to who were the responsible officials (i.e. Governor/s, Deputy Governor/s, Executive Director/s, Director/s, General Manager/s, Deputy General Manager/s and other officers) for monitoring the activities of this company, from the date of issuance of its license dated 25-6-1984 till date and, whether they have ever been asked by the Governor or any other high-ranking official to show cause as to their failure to carry out their respective legal duties. (iii)Why the Bangladesh Bank did not come up with an application for winding up of this banking company.
7. By filing a Civil Petition for Leave to Appeal (CPLA No. 837 of 2020) before the Hon'ble Appellate Division, the Bangladesh Bank challenged the above-quoted Directions and, after hearing the learned Advocate for the Bangladesh Bank Mr Tanjib-ul Alam, the Hon'ble Appellate Division dismissed the said CPLA and asked the Bangladesh Bank to comply with the Directions quoted above. Thereafter, when Mr Tanjib-ul Alam appeared before this Court for admission of the instant matter, this Court asked the learned
Advocate for the petitioner as to the grounds for challenging the aforesaid Order and, in reply thereto, he informed this Court that he was instructed by one of the Executive Directors of Bangladesh Bank, named Mr Shah Alam to get the said Order set-aside, so that Jubilee Bank could continue to be in operation. Till date, Bangladesh Bank has not complied with the above-quoted Direction Nos. (ii) & (iii) passed in the Company Matter No. 315 of 2017. Had these quoted Directions been complied with by the Bangladesh
Bank, by now, this Court might have been in a position to unearth the previous activities of Jubilee Bank. It is the utmost duty of all the State-functionaries as well as all the Government and non-Government institutions of this country to detect not only the locations of the killers of the Father of the Nation, but also to trace out their assets, so that the same may be confiscated as a course of execution of the sentence and conviction passed by the Apex Court of the land in the case of Major Bazlul Huda and others vs State 62 DLR (AD) I. In the light of the fact that it has been admitted by the petitioners of the Company Matter
No. 315 of 2017 that the killers of the Father of the Nation Bangabandhu Sheikh Mujibur Rahman were the majority shareholders of Jubilee Bank, it was a solemn duty of the Bangladesh Bank to dig out all the previous transactions of Jubilee Bank aiming at tracking down siphoning off money to any foreign countries, which they might have done immediately after or before leaving Bangladesh.
8. However, the Registrar of Joint Stock Companies and Firms (RJSC) opted not to challenge the said Order dated 4-2-2020 as the said office was convinced that the name of Jubilee Bank Ltd was liable to be striken off long ago, for, it was the statutory duty of the RJSC under section 346(3) of the Companies Act to proceed with striking off the name of the incorporated company (i.e. Jubilee Bank Ltd) upon exhausting the procedures set out in sub-sections (1) and (2) of section 346 of the Companies Act when the killers of the Father of the Nation fled away from Bangladesh in the year 1996 abandoning all their businesses and properties, including the shares they were holding in Jubilee Bank Ltd. It is the trite law that when the RJSC has the reason/s to believe that an incorporated company is not carrying out its business (the reason behind RJSC's such belief might be generated from an incorporated company's failure to submit its Returns within the statutory period, such as; Schedule X, Form XII, etc following completion of the AGM for each of the calendar year, or from an inspection report of the company in question, or through any other information) and, pursuant thereto, by invoking section 346(1) of the Companies Act, the RJSC sends a letter to the said incorporated company by post with an enquiry as to whether the company is carrying on its business or not and, thereafter, RJSC's second letter sent under section 346(2) by registered post within fourteen days of expiration of sending the first letter remains unheeded, it becomes a legal obligation on part of the RJSC to strike off the name of the company in question towards its dissolution and, thereafter, to publish the same in the Gazette Notification.
9. Given that it is a publicly known fact that Major (dismissed) Rashid and other assassins of the Father of the Nation are either absconding or dead since the year 1996, the statutory duty of the RJSC to issue notice under section 346(1) had become due long ago. However, even at a belated stage, since the RJSC has found it to be an appropriate case to proceed with striking off the name of Jubilee Bank under section 346 of the Companies Act and, after duly observing the procedures as laid down in section 346 of the Companies Act, the RJSC has struck off the name of the Jubilee Bank from the record maintained by the RJSC and also has already published a Gazette Notification on 25-3-2021 in accordance with section 346(5) of the Companies Act, Jubilee Bank has been dissolved with effect from 25-3-2021 and, as such, Jubilee Bank does not have any capacity to continue any business, let alone the banking business. In fact, after striking off the Jubilee Bank's name from the record of the RJSC, there is no existence of a company in the name and style of 'Jubilee Bank Ltd’.
10. Nevertheless, since the petitioner-Bangladesh Bank has come up with the instant application, albeit belatedly, invoking section 65 of the Banking Companies Act, now, the task that has been devolved upon this Court is to see whether the stated facts and circumstances of this case fit in with the relevant provisions of law, namely, section 65 of the Banking Companies Act to pass an Order of winding up of the Jubilee Bank Ltd (respondent No. 1-Company). Section 65 of the Bank Companies Act runs as follows:
65. Winding up by High Court (1) Notwithstanding anything contained in sections 153, 162 and 271 of the Companies Act, and without prejudice to the powers given under sub-section (1) of section 64, the High Court Division shall under this section order the winding up of a banking, company, if— a) the banking company is unable to pay its debts; b) the Bangladesh Bank makes an application for its winding up under this section or section 64. (2)-----------
(3) The Bangladesh Bank may make an application under this section for the winding up of a banking company, -- a)if the banking company i)has failed to comply with the requirements specified under section 13; or ii)has by reasons of the provisions of section 31 become disentitled to carry on banking business in Bangladesh; iii)-------------- b)-------------- i)------------- ii) the continuance of the banking company is prejudicial to the interests of its depositors.
11. From a plain reading of section 65 of the Banking Companies Act, it is vividly clear that it is an obligatory onerous task of the High Court Division to pass an Order for winding up of a Banking Company if the Bangladesh Bank can satisfy this Court that it has filed the winding up application on any of the grounds enunciated in sub-section (3) of section 65 of the Banking Companies Act.
12. Section 13 of the Banking Companies Act requires every Banking company conducting its business in Bangladesh to maintain a minimum capital along with reserve fund as to be fixed by the Bangladesh from time to time, and the said minimum capital along with the reserve fund having been fixed by the Bangladesh Bank currently at Taka 400 (four) hundred crores out of which Taka 200 (two hundred) crores must be the paid-up capital, no Bank Company shall be permitted to carry on its business in Bangladesh unless it maintains a reserve fund of Taka 400 (four hundred) crores which shall include 200 (four hundred) crores paid-up capital at the minimum.
13. Furthermore, section 31 of the Banking Companies Act imposes prohibition on any company or any person to conduct banking business without first being issued with a license by the Bangladesh Bank for that purpose.
14. Since it is evident from the annexed papers that Jubilee Bank has clearly failed to comply with the requirements of maintaining a reserve fund of Taka 400 (four hundred) crores and, consequently, it has violated section 13 of the Banking Companies Act and, also, since Jubilee Bank has not applied for a license within the prescribed time limit as per section 31 of the Banking Companies Act, Jubilee Bank has become disentitled to continue banking business in Bangladesh and, further, as there is no active Board of Directors in Jubilee Bank, the savings of the depositors in the Jubilee Bank are in question and such a situation cannot be continued in the interest of the depositors of the Jubilee Bank. Therefore, it is the considered view of this Court that the said Bank should not be allowed to be continued. Thus, Jubilee Bank is liable to be wound up under section 65(3)(a)(i)&(ii) and also under section 63(3)(b)(iii) of the Banking Companies Act. Hence, I find the instant application to be a fit one for winding up of Jubilee Bank. And, consequently, it has been obligatory for this Court to pass necessary consequential and supplementary Orders and Directions invoking relevant provisions of the Companies Act, towards finally dissolving the Jubilee Bank. It is to be jotted down here for information of all the concerned that since the Banking Companies Act, by making a statement in its section 2, recognizes the provisions of the Companies Act to be the additional law of the Banking Companies Act, the provisions of the Companies Act shall be applied in aid to the provisions of the Banking Companies Act. And, in practice as well, in course of winding up of a Banking Company under section 65 of the Banking Companies Act, a Banking Company cannot be fully and effectively wound up towards its final dissolution without having recourse to the various provisions of the Companies Act.
15. In the result, this application under section 65 of the Banking Companies Act is allowed and the respondent No.1-company, namely, Jubilee Bank Limited, is hereby wound up from the date this petition has been presented i.e from 9-5-2021, with the following Directions and Orders; (1) Since Bangladesh Bank has not proposed any name as the Official Liquidator of the Jubilee Bank Ltd
as per section 67 of the Banking Companies Act, Mr Justice AHM Shamsuddin Chowdhury, an Hon'ble retired Judge of the Supreme Court of Bangladesh (contact number: 01819-240900), is hereby appointed as "the Official Liquidator" of Jubilee Bank Limited (in liquidation), under section 255 of the Companies Act. The Bangladesh Bank shall pay a monthly fees of Taka 1,50,000/- (one lac and fifty thousand) to the Official Liquidator. Ms. Faria Huq, Barrister-at-law, an Advocate of the Supreme Court of Bangladesh is hereby appointed as an Additional Official Liquidator who shall be paid Taka 50,000 (fifty thousand) per month. Both the Liquidators shall put in their best efforts to accomplish their all the tasks within 9 (nine) months towards finally dissolving Jubilee Bank Ltd. Directions upon the Official Liquidator: (2) The Official Liquidator is hereby directed— (i)To advertise, as required by Rules 76 and 133, the order of liquidation to submit claims giving 14 days time, with adequate proof (vide Rules 133 to 147), from the claimants if any, in two national daily newspapers, namely in "the Daily New Age" and "the Daily Manobjomin". (ii)To open a bank account with Sonali Bank, Supreme Court Branch, in the name of the "Official Liquidator of Jubilee Bank Limited, (in liquidation)," as required by Rule 103. The petitioner shall deposit an amount of Taka 5,00,000 (five lacs) in the said account within 30 days, for meeting up all legitimate expenses by the liquidator in doing the needful. (iii)To maintain all books, records and accounts as required under the provisions of the Companies Act and Rule 110 of the Companies Rules, 2009 showing all assets and liabilities of the company. (iv)To submit quarterly reports of the accounts of the company to the Court, till its dissolution or otherwise ordered by this Court. (v)To exercise his powers and discretion, vested in him under section 262 of the Companies Act with due regard for the interest of the company, its creditors and contributors and subject to the control of the Court. (vi)To prepare and to furnish before this Court a list of all contributories (subject to this Court's right to rectify the same, if so required according to law) (vii)To submit his statement/report, further and/or supplementary statement/report to this Court, as required by section 259 of the Act, read with Rules 119 and 120, as soon as practicable upon receiving the statement of affairs to be filed under section 258 (since winding up order is made) of the Companies Act. (3)The Official Liquidator is directed to take into custody all movable (by preparing an inventory) and immovable properties of the company, if any, including the title deeds and to dispose of the same, as permitted by section 262 of the Companies Act, with prior sanction of this Court (vide Rules 168 to 170) and to use the sale proceeds, if any, towards settling the liabilities of the petitioner company, if any, in the manner prescribed by Rules 148 to 162 and regard being had to the provisions of section 325 concerning preferential payment as well as showing separately the list of secured and unsecured creditors, if any, giving their names, particulars and the amount of their claim, in two columns, one showing the principal and the last column showing the total sum claimed. He shall, to that end, submit application accordingly for disbursement of the assets, liabilities cash, if any, at hand. (4)The Official Liquidator is directed to arrange meetings with the Governor, Deputy Governors and other high officials of the Bangladesh Bank for the purpose of finding out as to the amount of money Major (dismissed) Rashid and his cohorts had initially invested in Jubilee Bank as shareholders of the said Bank and, thereafter, whether they have brought money from, or sent to, any foreign country through this Bank. (5)The company is directed to submit, to the Official Liquidator, a verified statements of affairs in duplicate, signed by the director or Chief Executive Officers (or MD) or the Chief Financial Officer/Head of Accounts (if any) to the aforesaid official liquidator, as required under the provisions of section 258 of the Act, within 21 (twenty-one) days from the date of drawing up of this winding up order or from the date of sending this record to the company section, whichever is later. (6)The company or its Director/Managing Director or the CEO or the Chief Financial Officer or the other
officers who are now in-charge of management of the company shall furnish to the Official Liquidator the name of the bankers of the company, giving account numbers, enclosing statement of accounts, name of the signatories and also enclosing authenticated copies of the resolution regarding operation of the bank accounts, within the time limit prescribed in the preceding paragraph. (7)The persons named in the preceding paragraph No. (6) and/or the official-in-charge of the estate, if any, of the company shall give particulars of, and handover all title deeds of immovable and movable properties of the company (if any) to the official liquidator within the same time-limit prescribed in the preceding paragraph, and (8)The Official Liquidator shall be competent to approach this Court for compelling attendance of any officials of Bangladesh Bank to unearth the previous transactions of Jubilee Bank. The wound-up company shall submit an affidavit-of-compliance as regards directions Nos. 5 to 7 within one week thereafter. (9)The Company, the members of the board, all share-holders/contributors are herby restrained from operating bank accounts, removing or transferring or encumbering any moveable or immovable properties of the company including, but not limited to, the vehicles, equipment, machineries etc of the company and removing any documents without leave of the Court. (10)The Official Liquidator shall follow and comply with all such provisions laid down in the Companies Act and the Rules, as are applicable to the process of winding up and he shall be solely responsible for the default, if any, committed in the process of winding up. He shall not withdraw any amount more than that may be required to meet the lawful and reasonable costs and expenses and /or to settle the lawful claims and/or to distribute the surplus assets amongst the contributories, if any, as per law and with prior sanction of the Court. Besides, he shall bring, in writing, to the knowledge of the Court all facts that are material to ensure compliance of the provisions of law and to protect interest of the creditors, claimants, contributories and the company, as the case may be. (11)The Liquidator is directed to file a report within 30 (thirty) days thereafter and also to inform the Court if any further enquiry in the matter of liability and assets of the company is required. (12)If the Registrar of Joint Stock Companies receives the winding up Order from the petitioner/company within time, he should notify in the Official Gazette that an order has been recorded in his register-book giving effect to winding up of the company.
16. Let a copy of this Judgment and Order be sent to the Governor, Bangladesh Bank, (2) Registrar of Joint Stock Companies and Firms and (3) Court-appointed Official Liquidator and Additional Official Liquidator for information and necessary action.
Petitioner shall put in requisites.
End.
High Court Division
Present:
Mr. Justice Md. Nazrul Islam Talukder
Mr. Justice K. M. Hafizul Alam
Criminal Miscellaneous Case No. 28743 of 2017.
Justice Md Joynul Abedin (Retd)
Petitioner
VS
State and another
Opposite-Parties
Judgement Date : July 31, 2018 Moinul Hossain, Senior Advocate with Md Abdur Rahim, Advocate -------- For the Petitioner.Rona Naharin, DAG with AKM Amin Uddin, DAG and Helena Begum (China), AAG -- ------- For the Opposite-party.Md Khurshid Alam Khan, Advocate -------- For the Anti-corruption Commission.
Counsels:
- For the Anti-corruption Commission.
Judgment
Md Nazrul Islam Talukder, J:
On an application under section 498 of the Code of Criminal Procedure, this Rule, at the instance of the petitioner, was issued calling upon the opposite-parties to show cause as to why the petitioner should not be granted anticipatory bail till submission of the police report if any, after such investigation as reported and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. It may be noted that at the time issuance of the Rule, the petitioner was admitted to anticipatory bail till submission of the police report after investigation, if any, as it reported in the newspaper on executing a bond at the satisfaction of the Chief Metropolitan Magistrate, Dhaka.
3. Being aggrieved by the same, the Anti-Corruption Commission preferred Criminal Petition for Leave to Appeal No.7105 of 2017 before the Appellate Division and the learned Judges of the Appellate Division by judgment and order dated 24-7-2017 disposed of the appeal allowing the petitioner to remain on anticipatory bail till disposal of Criminal Miscellaneous Case No.28743 of 2017 as well as directing the High Court Division to dispose of the aforesaid criminal miscellaneous case on merit as expeditiously as possible.
4.
The facts leading up to issuance of the Rule are as follows: —
It is stated that in the application that the petitioner was enrolled in the High Court of the then East Pakistan as an Advocate on 21-3-1969 and continued his career as a practicing lawyer before the High Court Division of Bangladesh since then. Subsequently, the petitioner became enrolled in the Appellate Division of the Supreme Court of Bangladesh as an Advocate on 25-4-1980. Thereafter the petitioner was chosen to be elevated as a Judge of the High Court Division of the Supreme Court of Bangladesh on 1-6- 1996. Thereafter, the petitioner was also elevated as a Judge of the Appellate Division of the Supreme Court in the year 2004 and went into retirement therefrom on 1-1-2010 as a Judge of the Appellate Division of the Supreme Court of Bangladesh. It is stated that soon after the petitioner laid down his robe, Respondent No.2 Anti-Corruption Commission (hereinafter referred to as the ACC) by a letter dated 18-7- 2010 asked the petitioner to submit a statement in respect of his properties and assets. The petitioner accordingly submitted his statement of properties and assets on 8-8-2010 to the ACC. Thereafter by a further notice dated 25-10-2010, the said Commission asked for further statement and following the same, he submitted further statement of properties on 3-11-2010. The ACC found no cause to move against the petitioner for long 6 (six) years. After long 6 (six) years of silence, the ACC asked the petitioner to attend its office and furnish further statements of properties and assets by way of further clarification of his
earlier statements. The petitioner also complied with the same.
5. Following the news report published in the "Daily Janakantha" on the 5th and 7th June 2017, he came to know that the ACC is trying to arrest the petitioner immediately before filing of this FIR by dint of section 21 of the Anti-Corruption Commission Act, 2004.
6. And thereby being aggrieved by the said news report published in "The Daily Janakantha", the petitioner approached this Court with an application under section 498 of the Code of Criminal Procedure for anticipatory bail and obtained this Rule along with ad-interim anticipatory bail till submission of the police report if any after the investigation.
7. At the very outset, Mr Moinul Hossain, learned Senior Advocate appearing for the petitioner, submits that the petitioner is a retired judge of the Appellate Division of the Supreme Court of Bangladesh and an old man of 74 years and it is not quite necessary to harass and humiliate him by the way adopted by the Commission and, as such, the petitioner may be entitled to be directed to remain on anticipatory bail until the charge-sheet is filed.
8. He next submits that the petitioner being a responsible citizen and a retired judge of the highest court is ready to face the case if any and that he will not misuse the order of anticipatory bail in any manner.
9. He then submits that it will be an abuse of power and disrespect to judge of the highest court to allow the police/ACC to arrest him though he is promise bound to surrender before the concerned court as and when the charge-sheet if any is filed.
10. He candidly submits that if the petitioner is enlarged on anticipatory bail making the Rule absolute, there is no chance of his absconding or tampering with the evidence and that he will not abuse or misuse the privilege of bail in any manner.
11. He vigorously submits that the Anti-Corruption Commission being empowered by section 21 of the ACC Act, 2004 may arrest any person who has acquired or is in possession of any movable or immovable property disproportionate to his declared sources of income and, as such, the accused petitioner may be allowed to remain on anticipatory bail making the Rule absolute.
12. He lastly submits that no FIR has yet been lodged, but the petitioner is apprehending that he may be arrested by the police/ACC in the name of so-called enquiry as it is reported in the newspaper and in that case, he will be harassed and humiliated and to avoid such harassment, he requires protection of the Court.
13. On the other hand, Mr Khurshid Alam Khan, learned Advocate, appearing for the Anti-Corruption Commission, vehemently opposes the Rule and categorically submits that no case has been initiated by lodging FIR against the petitioner and, as such, in the absence of any case, there is no reasonable apprehension of arrest, harassment and humiliation in a pending enquiry if any and that for granting anticipatory bail, there must be a case against the petitioner and mere apprehension of harassment and humiliation in the absence of any case cannot be taken into consideration for allowing the prayer for anticipatory bail by making the Rule absolute.
14. He next submits that for hearing the case of Durnity Daman Commission, there are some specific benches of High Court Division to hear and dispose of the application relating to Durnity Daman Commission but the Rule issuing bench had no jurisdiction to hear and dispose of any application of the cases of Durnity Daman Commission but the learned judges of that bench going beyond the jurisdiction enlarged the petitioner on anticipatory bail till submission of the police report and accordingly the Rule along with the ad-interim order of anticipatory bail suffers from lack of jurisdiction of the court which issued the same.
15. In contrast to the aforesaid submissions of the learned Advocate for the ACC, Mr Hossain submits that it is true that no case has yet been filed/started but the fact remains that there is no bar to giving protection to the petitioner by granting anticipatory bail if there are bona fide reasons to grant the same.
16. We have gone through the application for anticipatory bail and perused the materials annexed therewith. We have also heard the learned Advocates for the respective parties and the learned Deputy
Attorney-General for the State.
17. Since the learned Advocates for the respective parties have made elaborate submissions and counter submissions on anticipatory bail with reference to many legal decisions, we want to discuss a little bit about the concept of anticipatory bail before coming to a decision in this Rtile.
18. It may be noted that pre-arrest bail or anticipatory bail is an extraordinary relief which can be granted only in extraordinary or exceptional circumstances upon a proper exercise of the discretion of the Court. There is no specific provision or section in our Code of Criminal Procedure underlying the direction and for exercising the power under section 498 of the Code of Criminal Procedure. Unlike section 438 of the Code of Criminal Procedure of the Indian jurisdiction, there is no such provision or law in our Code of Criminal Procedure under which the pre-arrest bail under section 498 can be granted. The concept of anticipatory bail in this country has been developed by the pronouncement of different judgments by the Courts time to time. The concept of granting anticipatory bail was initially raised and discussed in the case of The Crown vs Khushi Muhammad reported in 5 DLR (Er) 86, wherefrom we find that a case was filed against one Khushi Muhammad under section 366 of the Penal Code out of a faction inimical relationship. Khusi Mohammad, a respectable man, apprehended that he would soon be taken into custody by the police. Being aggrieved by the same, he submitted an application for pre-arrest bail before the learned Sessions Judge alleging, inter-alia, that he may be released on bail pending investigation and trial if any considering the circumstances and apprehension of arrest but the bail was rejected by the learned Sessions Judge by the following order which runs as follows: "This is an application on behalf of Khushi Muhammad for bail in anticipation of his possibly being arrested for the offence punishable under section 366, PPC. His learned Advocate has argued that the case against him will prima facie be a weak one, but that is not enough for the grant of an order of this nature. He entirely failed to satisfy me that if the petitioner were to be arrested and refused bail, such an order would in all probability be made not from motives of furthering the ends of justice in relation to the case, but for some ulterior motive and with the object to injure the petitioner, or that the petitioner would in such an eventuality suffer irreparable loss. I, therefore, reject this petition."
19. After his petition had been dismissed by the Sessions Judge, Khushi Muhammad waited for a fortnight and then presented a petition in the High Court. The contents of which are practically identical with the petition presented by him in the Court of Sessions Judge.
20. Upon hearing the parties, Mr Justice Kayani, the learned judge of High Court observed that "As I have pointed out above, the High Court has power to "direct that any person be admitted to bail.", and giving these words their full weight, I see no escape from the conclusion that the power extends not only to the grant of bail to persons who are in the custody of the High Court or of an inferior Court or a police officer but also includes a power to give directions that persons should be admitted to bail who are not in custody."
21. Due to divergence of judicial opinion on this question and against the decision of High Court, the Crown presented a petition for special leave to appeal before the federal court and then leave was granted.
22. Upon hearing the parties, the Federal Court allowed the appeal setting aside the judgment of High Court and held that a person cannot be admitted to bail against whom a report or FIR has been lodged at the police station but who has not been placed in custody or under any other form of restraint or against whom no warrant of arrest has been issued.
23. Subsequently, in that regard, a lenient view was taken by the Supreme Court of Pakistan in the case of Sadiq Ali vs the State reported in PLD 1996 SC 589, where it was held that for the grant of bail to a person whose arrest on a criminal charge by police without a warrant is proved to be imminent and certain and where the circumstances would justify the grant of bail.
24. Later on, the above view was further extended in new dimension in the case of Shah Zillur Rahman vs The State reported in PLD (1959) Dhaka 192, wherein the question of granting anticipatory bail was exhaustively considered by the learned judges and it was decided that 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.
25. At a later date, in the case of Zahoor Ahmed and in the case of Zahoor Ahmed vs State, reported in PLD 1974 Lahore 256, the question of granting anticipatory bail was exhaustively considered and it was held that in exceptional circumstances, an application for anticipatory bail may also be moved before the higher court.
26. Eventually, in the case of Muhammad Ayub vs Muhammad Yaqub reported in PLD 1966 SC 1003 = 1.9 DLR (SC) 38, the learned judges examined the true nature and scope of section 498 of the Code of Criminal Procedure and it was decided that section 498 of the Code of Criminal Procedure is ancillary and subsidiary to the provisions of sections 496 and 497 of the Code of Criminal Procedure and that granting anticipatory bail under section 498 may be construed to extend that the power of High Court Division or the court of sessions to grant bail even in cases where these courts would not be competent to grant bail under section 497 of the Code of Criminal Procedure.
27. Now it is well settled that our High Court Division or the Court of Sessions can exercise the power under section 498 of the Code of Criminal Procedure where the perception of the Court is that a proceeding that has been lodged against the accused is for ulterior motive either political or otherwise for harassing the accused and not for securing the justice, or to achieve a collateral purpose for harassment or humiliation.
28. The concept of granting anticipatory bail was elaborately and exhaustively discussed in the case of the State vs Abdul Wahab Shah Chowdhury, reported in 51 DLR (AD) 243, wherefrom it is abundantly clear that pre-arrest bail is an extra-ordinary remedy, an exception to the general law of bail, can be granted only in extra-ordinary and exceptional circumstances upon proper and intelligible exercise of discretion. Anyway, the anticipatory bail may be granted to an accused on the following grounds and circumstances: 1) Where a person is unnecessarily harassed or disturbed due to any motive of political victimization or otherwise by starting a malicious prosecution. 2) Where a person is physically incapable to go to the lower Court concerned for seeking bail due to serious illness or bodily infirmity to travel a long distance and in that circumstances he can move the High Court Division. 3) Where an accused does not feel secure to appear before lower Court due to volatile public sentiment which is not congenial for his appearance before the lower Court he may move the High Court Division directly. 4) When there are other exceptional circumstances for granting anticipatory bail, the petitioner may come before this Court for anticipatory bail.
29.
In the case of State vs Zakaria Pilau reported in 31 BLD (AD) 20 = 62 DLR (AD) 420, the essentialities for the anticipatory bail are as follows: — i)Assumption of jurisdiction to consider anticipatory bail is an extra-ordinary one. ii)Discretion of the High Court Division in granting bail, very wide though, must be encompassed by judicial circumspection based on established legal principles, without resorting to arbitrary consideration. iii)The Judges concerned must go through the FIR meticulously and it must be reflected in their order that they have thoroughly scanned the facts and the allegations scripted in the FIR. iv)Sometimes it is imperative on the part of the Court to refuse pre-arrest-bail when allegations against the petitioners are of serious nature, because the Court must always nurture in their introspection that justice must eventually be done by ensuring punishment for the offenders, as otherwise the fabrics of the civilized society will crumble. v)The Judges must not be oblivious of the interest of the victims and the society as a whole, for justice connotes even handedness. vi)Anticipatory bail application must be considered in the backdrop of the possibility that investigation
process, in consequence of enlarging the accused on bail, may be impeded. vii)Prevailing situation should not be ignored.
30. The aforesaid view was re-echoed in the decision taken in the case of Durnity Daman Commission and another vs Dr Khandaker Mosharraf Hossain and another reported in 66 DLR (AD) 92, wherein it was clearly held as under: - 1) Anticipatory bails shall not survive post charge-sheet stage. 2) An omnibus statement that he is a political personage and the Magistrates or the lower court/tribunal Judges, as the case may be, are controlled by the government (which has neither factual nor legal basis these days) is not enough. Equally well, the Judges of the High Court Division concerned must also assign reason for their satisfaction on this primordial point, which must be reckoned to be the door opener. 3) To open the jurisdictional door they shall satisfy themselves that reasons for apprehension have specifically, explicitly, plausibly, credibly and with sufficient clarity been assigned, instead of relying on any generalized pretension. That must be treated as the precursor. 4) Political threshold of the petitioner or claim rivalry by itself without further ado shall not be ground for entertaining an application. 5) Non-availability of the offence cited in the FIR cannot be reason for High Court Division's intervention for even the Magistrate/lower court/tribunal judges are competent enough to enlarge on bail a person accused of non-bailable offences in discovering cases. 6) Effect of the accused freedom on the investigation process must not be allowed to obfuscation. 7) The High Court Division must scrutinize the text in the FIR with expected diligence and the allegations are heinous in nature and keeping in mind the ordains figured and the paragraphs reported in 51 DLR (AD) 242. 8) Interest of the victim in particular and the society at large must be taken into account in weighing in respective rights. 9) If satisfied in all respects, the High Court Division shall dispose of the application instantaneously by enlarging the accused on a limited bail, not normally exceeding four weeks, without issuing any Rule. It must be conspicuously stated in the bail granting order that in the event of any filance of bail application, the Court below will consider the same using its own legal discretion without reference to the High Court Division's anticipatory bail order.
31. In the case of Gurbakash Singh vs State of Punjab, reported in AIR 1980 SC 1632, it was held as follows: - firstly, section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted. The applicant must show that he has 'reason to believe' that he may be arrested for a non bailable offence. The use of the expression `reason to believe' shows that the belief that the applicant may be so arrested must be founded on reasonable grounds. Mere 'fear' is not 'belief' for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that someone is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on which the belief of the applicant is based that he may be arrested for a non-bailable offence, must be capable of being examined by the Court objectively, because it is then alone that the Court can determine whether the applicant has reason to believe that he may be so arrested. Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest. Otherwise, the number of applications for anticipatory bail will be as large as, at any rate, the adult populace. Anticipatory bail is a device to secure the individual's liberty; it is neither a passport to the Commission of crimes nor a shield against any and all kinds of accusations, likely or unlikely. secondly, if an application for anticipatory bail is made to the High Court or the Court of Sessions it must apply its own mind to the question and decide whether a case has been made out for granting such relief.
It cannot leave the question for the decision of the Magistrate concerned under section 437 of the Code, as and when, an occasion arises. Such a course will defeat the very object of section 438. thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under section 438 of the Code of Criminal Procedure rather the imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed. fourthly, Anticipatory bail can be granted even after the FIR is filed, so long as the applicant has not been arrested. fifthly, the provisions of section 438 cannot be invoked after the arrest of the accused. The grant of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, in so far as the offence or offences for which he is arrested, are concerned. After arrest, the accused must seek his remedy under section 437 of the Code of Criminal Procedure or section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.
32. We have stated earlier that the learned Advocates for the respective parties, in support of their submissions and contentions, have referred to many legal decisions taken in the cases of The Crown vs Khushi Muhammad reported in 5 DLR (FC) 86, Sadiq Ali vs the State reported in PLD 1996 SC 589, Shah Zillur Rahman vs The State reported in PLD (1959) Dhaka 192, Zahoor Ahmed and in the case of Zahoor Ahmed vs State, reported in PLD 1974 Lahore 256, Muhammad Ayub vs Muhammad Yaqub reported in PLD (1966) SC 1003 = 19 DLR (SC) 38, The State vs Abdul Wahab Shah Chowdhury, reported in 51 DLR (AD) 243, State vs Zakaria Pintu reported in 31 BLD (AD) 20 = 62 DLR (AD) 420, Durnity Daman Commission and another vs Dr. Khandaker Mosharraf Hossain and another reported in 66 DLR (AD) 92, Gurbakash Singh vs State of Punjab, reported in AIR (1980) SC 1632.
33. We have meticulously examined and perused the decisions referred to by the learned Advocate for the petitioner and the learned Advocate for the Anti-Corruption Commission. It appears that some of the cases cited before us were discussed in the reported case of The State vs Abdul Wahab Shah Chowdhury, reported in 51 DLR (AD) 243. On going through all the decisions of our jurisdiction and other jurisdiction, we do find that the anticipatory bail has been granted to persons against whom a case has been filed either mentioning or without mentioning the name of those persons. The apprehension of the petitioner is that the petitioner may be arrested in connection with the enquiry under section 21 of the Anti Corruption Commission Act, 2004 since the news report was published in the "The Daily Janakantha" for holding investigation into the alleged amassed wealth of the petitioner, which is claimed to be disproportionate to his known source of the income. The further apprehension of the petitioner, after publication of the newspaper reports in the "The Daily Janakantha" is that the petitioner is a responsible citizen and a retired judge of the highest court and if the petitioner is arrested, it will cause harassment and humiliation to the petitioner.
34. In this regard, we want to speak something about the role of our newspaper. It is worthwhile to mention that newspaper is a printed publication media which contains different news and articles on various subjects. Newspapers play an important role in democracy to take the role of spokesman for people of all classes. They act as a bridge between the government and the people. They help in preventing social exploitation that can threaten the existence of democracy.
35. In a democracy, there should be an efficient and fearless press to act as watchdog of democracy. Newspapers make people aware of every field of society. In the present age, corruption is present in all walks of life. Newspapers play an important role in highlighting the menace of corruption and thereby the people are made aware of the corrupt practices if any prevalent in various departments and agencies of government and other private organizations.
36. But of course, yellow Journalism is always disapproved, discarded and not appreciated at all. Newspaper should concentrate on giving only the true picture of the society.
37. It is worthwhile to mention that yellow journalism means and includes exaggeration of news reports, scandal mongering, sensationalism created and published by unprofessional and unethical fashion, eye catching headlines of news reports for increased sales of newspapers, which are not legitimated and well researched news without proper support and justification and news report without verifying its truth and
accuracy etc.
38. The "Daily Janakantha" is one of the leading Bengali-language daily newspaper in the country. It is also the largest circulating newspaper in the country. They published the news reports under caption "সাবেক বিচারপতির দূর্নীতি তদন্তে সুপ্রীম কোর্ট প্রশাসনের বাধা" and "সাবেক বিচারপতির তদন্তে থেমে নেই দুদুক", which have been annexed in the application for anticipatory bail.
39. We have gone through the contents of the news reports. On a plain reading of the news reports, we do not find any reference of any officer of the Anti-Corruption Commission or the police, who have divulged anything about the steps to arrest or harass or humiliate the petitioner during pendency of the enquiry. They just only published the newspaper reports in "The Daily Janakantha" getting news from the Anti-Corruption Commission. And the journalists of "The Daily Janakantha" as part of their duty and responsibility, published the news reports with a view to bringing this matter to the notice of the people and authorities by which it cannot be said that it has created an apprehension of arrest by the Durnity Daman Commission under section 21 of the Anti-Corruption Commission Act, 2004. Section 21 of the Anti Corruption Commission Act, 2004 is a statutory law by which the Anti-Corruption Commission, with the approval of the court, may arrest any person, when there is a bona fide reason to believe that a person has acquired or is in possession, in his own name or in the name of any other person, any movable or immovable property disproportionate to his declared sources of income. This section is not only applicable to the petitioner rather it is applicable to all the people. Many cases are filed against the person or accused in this country. So because of the statutory section 21 of the Anti-Corruption Commission Act, 2004, it cannot be said that there is an apprehension of arrest of the petitioner and he will be arrested pursuant to the publication of newspaper reports in "The Daily Janakantha".
40. It is stated in the application that on 18-7-2010, the petitioner received the notice from the Anti Corruption Commission for submitting wealth-statement and having received the same, he submitted wealth-statement on 8-8-2010. Upon receiving the further notice from the Anti-Corruption Commission, he submitted further statement of properties on 3-11-2010. But since then no step for arresting the petitioner has been taken as yet. Besides this scenario, the Anti-Corruption Commission has not taken any approval from the court with a view to arresting the petitioner. Moreover, being aggrieved by the notice of ACC for submitting wealth-statements, the petitioner filed writ petition before the High Court Division but the same was rejected as being not pressed. In spite of aforesaid fact, the ACC/Police did not take any steps to arrest him. Under the aforesaid facts and circumstances, the apprehension of arrest of the petitioner as disclosed in the application is not plausible and credible since the same was not explained with sufficient clarity and the apprehension was explained relying on generalized pretension.
41. From the reported cases, it is found that all the cases were filed either mentioning or non-mentioning the name of the persons/accused. But in the instant case in hands, not a single case has been filed against the petitioner and the ad-interim bail has been granted to the petitioner till submission of the charge-sheet. Since no case has been filed against petitioner, the question of granting anticipatory bail to the petitioner till submission of the police report is a misconceived one and it is a vague proposition of law. It is pertinent to not that anticipatory bail may be granted even to a person against whom no first information report has been lodged subject to the condition that a reasonable belief/ground exists for imminence of a likely arrest for malicious and omnibus reasons. The anticipatory bail is neither a passport to the commission of crimes nor shield against any and all kinds of accusations, likely or unlikely. The anticipatory bail cannot be granted to a person/accused for the reason that he or she is in mere fear that he or she may be arrested and the same cannot be granted on vague apprehension of arrest. Mere fear is not a belief for which reason the accused/person may be granted anticipatory bail. Anyway, if we make the Rule absolute in this matter, the floodgate of the anticipatory bail will be open and everyone will come before the Court for anticipatory bail on fancy grounds. In our country, many proceedings of enquiry are going on for the alleged offences under sections 26 and 27 of the Anti-Corruption Commission Act, 2004 and other allegations/offences of corruption. But if we start granting anticipatory bail to all persons/ accused on the given facts and circumstances, then it will create chaos to the administration of justice and it will affect the whole criminal justice system of the country.
42. Furthermore, the Rule issuing bench had no jurisdiction to issue Rule and grant anticipatory bail to the petitioner since that court had no jurisdiction to hear and dispose of any matter of the Durnity Daman Commission.
43. It may be noted that the scope and guideline for granting anticipatory bail have been well defined, underlined and demarcated by the Appellate Division in many milestone judgments including the judgments cited and discussed above.
44. Having considered all the facts and circumstances of the case, the submissions advanced by the learned Advocates for the respective parties and the propositions of law cited and discussed above, we do not find any merit in this Rule and we are not inclined to allow the petitioner to remain on anticipatory bail making the Rule absolute.
45. Accordingly, the Rule is discharged.
46. In consequence thereof, the ad-interim order of anticipatory bail granted to the petitioner till submission of the police report if any is recalled and vacated.
Let a copy of this judgment and order be communicated to the Chairman, Anti-Corruption Commission at once.
End.
High Court Division
Present:
Mr. Justice Shahidul Karim
Mr. Justice Md. Akhtaruzzaman
Criminal Revision No. 1377 of 2018.
Al-Amin (Md)
Complainant-Petitioner
VS
State and others
Opposite-Parties
Judgement Date : June 10, 2021 None Appears—For the Complainant-PetitionerBashir Ahmed, DAG with Nirmal Kumar Das, AAG with Syeda Shobnum Mustary, AAG and Md Tariqul Islam (Hira). AAG—For the State.
Counsels:
l Islam (Hira). AAG—For the State.
Judgment
Md Akhtaruzzaman J: This Rule, arising out of an application under section 435/439 of the Code of Criminal Procedure, has been issued calling upon the opposite parties to show cause as to why the impugned order dated 9-1-2018 passed by the learned Joint Sessions Judge, 2nd Court, Manikganj in Sessions Case No.8 of 2016, arising out of CR Case No. 166(Satu)/2015, corresponding to Petition
Case No. 230(Satu)/2015, under section 312/313/34 of the Penal Code acquitting the accused-opposite party Nos. 2-4 from the case should not be set-aside and/or such other order or further order or orders passed as to this Court may seem fit and proper.
2.
Briefly, the facts leading to the issuance of the Rule are that one Md Al-Amin as complainant filed a petition of complaint being Petition Case No. 230(Satu)/2015 before the Court of Senior Judicial Magistrate, Court No.2, Manikganj against 3(three) accused, namely, 1) Shirin Akter, 2) Md Kader, and 3) Laily Begum under section 312/313/34 of the Penal Code alleging, inter alia, that he got married with accused No.1 and started conjugal life following which in the month of June, 2015 the latter became pregnant. But, on 25-8-2015, accused Nos. 2 and 3 brought accused No. 1 from the house of the complainant-petitioner on the provocation that she would be given in marriage elsewhere. Thereafter, accused Nos. 2/3 along with accused No. 1 went to a clinic at Manikgonj and were able to cause miscarriage of the child of accused No.l. Being informed, the complainant-petitioner asked the accused persons about the occurrence at which they admitted their involvement in the crime and also asked the former to do whatever he could do. Alleging all the facts, the complainant-petitioner filed a petition of
complainant before the Magistrate concerned who, upon receiving the same, directed the Officer-in Charge of Saturia Police Station, Manikgonj to hold an inquiry. Accordingly, SI Md Hasan Ali of that PS enquired about the matter who having found prima facie case against accused Nos. 1-3 submitted inquiry report on 19-9-2015 before the concerned Magistrate Court. Subsequently, the case was transferred to the Court of the learned Sessions Judge, Manikgonj wherein it was registered as Sessions Case No.08 of 2016. Thereafter, on 27-9-2016, the learned Sessions Judge, Manikgonj framed charge against the accused under section 312/313/34 of the Penal Code fixing 23-10-2016 for trial. The case record was then transferred to the Court of the learned Joint Sessions Judge, 2nd Court, Manikgonj settling 9-1-2018 for trial on which date the prosecution sought adjournment of the case which was rejected by the Court acquitting all the accused under section 265H of the Code from the charge mounted against them vide its order No. 17 dated 9-1-2018.
3.
Being aggrieved by and dissatisfied with the aforesaid order of acquittal dated 9-1-2015 passed by the learned Joint Sessions Judge, 2nd Court, Manikgonj, the complainant-petitioner moved this Court under section 439 read with section 435 of the Code and obtained the instant Rule.
4.
In the revisional application, the petitioner stated, among others, that without complying with the
provisions of section 265H of the Code, the Court below most illegally passed the impugned order occasioning failure of justice.
5.
None appears on behalf of the complainant-petitioner to press the Rule though the matter is posted in the list with the name of the learned Advocate for the complainant-petitioner. However, we have heard Mr Bashir Ahmed, learned Deputy Attorney-General, appearing for the State-opposite party who finds it difficult to oppose the Rule.
6.
Considered the submission advanced by the learned Deputy Attorney-General, perused the application filed under section 439 read with section 435 of the Code with grounds stated thereon along with the annexures attached thereto and also took into consideration the facts and circumstances of the case.
7.
Annexure-A is the petition of complaint wherein it has been categorically disclosed that the complainant and accused No. 1 validly got married 1 (one) year before the date of occurrence by a registered Kabinnama. The marriage was duly consummated and as a result accused No.1 became pregnant in the first week of June, 2015. It is further stated that the accused Nos.2 and 3 with their ill intention tried to convince accused No.1 to get married elsewhere and accordingly on 25-8-2015 they took away accused No.1 from the house of the complainant. Thereafter, without informing or taking prior permission from the complainant, the accused Nos. 2 and 3 were able to illegally caused miscarriage of accused No.1 occasioning irreparable loss and injury to the complainant which is a punishable offence under section 312/313/34 of the Penal Code. It has further been stated that the petitioner subsequently came to know about the occurrence and asked accused No.1 regarding the incident to which accused No.1 admitted her guilt explaining that with the direct provocation as well as instigation of accused Nos.2 and 3 she did the same and further that he (complainant) can do whatever he could.
8.
On going through the inquiry report (Annexure-B) submitted by SI Md Hasan Chowdhury of Manikgonj Police Station before the Senior Judicial Magistrate, Manikgonj it appears vividly that during the inquiry, he found prima facie case against the accused wherein it is stated, among others, that during the marriage between the complainant and accused No.1, accused No. 2 received Taka 1,15,000 as loan from the complainant. Both accused Nos.2 and 3 are greedy persons, as a result, they insisted accused No.1 to get married elsewhere and to that effect these 2(two) accused on the date and time of occurrence brought accused No.1 at Manikgonj Super Diagnostic Center to cause miscarriage of her pregnancy and subsequently were able to do the same and in course of investigation accused No. 1 admitted her guilt. During the inquiry, the inquiry officer examined as many as 6(six) witnesses including the accused and thereafter, found prima facie incriminating materials against the accused of committing offence under section 312/313/34 of the Penal Code.
9.
After receiving the inquiry report, the concerned Magistrate took cognizance of the offence and transmitted the case to the Court of Sessions Judge, Manikgonj for trial who by his Order No.8 dated 27- 9-2016 framed charge against the accused under the above sections of law and sent the same to the Joint Sessions Judge, 2nd Court, Manikgonj for disposal. It further appears from the impugned Order No. 17 dated 9-1-2018 that on this particular date all the 3(three) accused were present but the prosecution filed an application seeking adjournment of the case for bringing witnesses but it was rejected by the learned Joint Sessions Judge and by exercising her power under section 2651-1 of the Code, the learned Joint Sessions Judge passed an order of acquittal of the accused with the observations that the Court on several occasions issued processes to the witnesses including the complainant but they did not turn up. The learned trial Court also observed that the complainant is not interested to examine himself before the Court. Thereafter, considering the principles enunciated in the case of Kamar Ali vs Abdul Marini, reported in 39 DLR 319, the Court below disposed of the case in the manner as stated above.
10.
Now, the paramount question before us is whether in a sessions case the concerned Court has any power and/or authority to acquit an accused under section 265H of the Code without examining any witnesses or without exhausting the legal procedures for making sure of the attendance of the witnesses?
11.
In a normal course of law, neither the Sessions Judge nor the Additional Sessions Judge or the Joint Sessions Judge has any power to acquit any accused without examining any witnesses or without exhausting the formalities laid down in the Code. However, to address the same, the relevant laws and rules are need to be addressed here to arrive at a correct decision on the matter mentioned above. Section 265H of the Code is reproduced below in verbatim: -
"If after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defense on the point, the Court considers that there is no evidence that the accused committed the offence, the Court shall record an order of acquittal."
12.
From a plain reading of the provisions of section 265H it transpires vividly that after framing charge against the accused, the Sessions Judge is bound to examine witnesses and upon hearing the prosecution as well as defence if he considers that there is no evidence to proceed against the accused then the Court should pass an order of acquittal to acquit the accused. Recording the evidence before passing such an order is mandatory under section 265H of the Code.
13.
In the case of State of Kerala vs Mundan reported in 1981 CriLJ 1795 it was held by Kerala High Court:
"8. After duly considering the arguments advanced on either side and carefully perusing all the relevant sections in Chapter XVII, we are of the view that the words "no evidence" in section 232 CrPC cannot be construed or interpreted to mean absence of sufficient evidence for conviction or absence of satisfactory or trustworthy, or conclusive evidence in support of the charge. The Judge has to see whether any evidence has been let in on behalf of the prosecution in support of their case that the accused committed the offence alleged, and whether that evidence is legal and relevant. It is not the quality or the quantity of the evidence that has to be considered at this stage. If there is any evidence to show that the accused has committed the offence, then the Judge has to pass on to the next stage. It is not open to him to evaluate or consider the reliability of the evidence at this stage.
9.
Sections 225 appearing in Chapter XVIII of the Code, deal with procedures relating to trial of cases before the Court of Session. The object of section 232, no doubt, is to have a speedier conclusion of the trial and to avoid unnecessary harassment to the accused by calling upon him to enter on his defence and adduce evidence. This section substantially corresponds to sub sections (2) and (3) of section 289 of the previous Code and there is no material change. In a trial, before a Court of Session, an accused has a right to claim for a discharge under section 227 of the Code. This is a new provision introduced in the present Code. Under this section if upon consideration of the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in that behalf,
the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused after recording his reasons for so doing. Under section 228 which is also a new section, if, after consideration of the record and documents referred to in section 227 of the Code, and hearing both parties, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which is exclusively triable by that court, he shall frame in writing a charge against the accused, and if the °Pence is not exclusively triable by that court, he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate. Under the above sections, the Judge is not considering any evidence in the strict or legal sense, but it is only the recorded the case and the documents submitted therewith which have to be considered by him. It is not necessary that at this stage these documents must have been proved. Under section 232, what the Judge has to look into and consider is whether there is legal evidence adduced on behalf of the prosecution connecting the accused with the commission of the crime and not its quality and quantity. He is not to consider at this stage the sufficiency, reliability or trustworthiness of that evidence. In other words, what the Judge has to see is whether there is any evidence on record which, if true, would amount to legal proof of the offence charged against the accused and not whether that evidence is satisfactory, trustworthy or reliable. Although direct decisions under section 232 on the point are very few, there are a number of decisions under section 289 of the Previous Code, where various High Courts have considered what is meant by the expression "no evidence" in that section. It is a salutary principle in a sessions trial that no final opinion as to the reliability or acceptability of the evidence should be arrived at for the Judge until the whole evidence before him and has been duly considered. (See Queen Empress vs Ramalingam (ILR 1897 Mad 445). It is only after the accused is called upon to enter his defence under section 233 and after the evidence, if any, adduced on behalf of the accused and hearing the counsel appearing for both sides, the Judge hearing the case after a due consideration of the evidence decides whether the evidence adduced on behalf of the prosecution is reliable and trustworthy. In cases solely depending upon the ocular account of the witnesses, it might sometimes happen that all those witnesses, one by one, might turn hostile to the prosecution without giving any evidence in support of the prosecution. There may be a case where the only legal evidence on record in support of the prosecution case is the confession of a co-accused or the evidence of witnesses examined on behalf of an accused. In cases where there are a number of accused,
it might happen there may not be any evidence connecting one or more of them with the commission of the offence. These may also be cases where evidence connecting the accused with the crime is only rank hearsay. All these are cases where it can be said that there is no evidence that the accused committed the offence and section 232 can be invoked. But in a case where there is some evidence connecting the accused with the commission of the crime, it is the duty of the Judge to pass on to section 233 and not to appreciate that evidence and find out whether it was reliable or not to pass an order under section 232 CrPC. The expression "there is no evidence" under section 289 does not mean absence of reliable or conclusive evidence but means absence of evidence which, if believed to be true, would warrant a conviction. (See Emperor vs Nawal Kishore 30 CriLJ 519 at p. 521 (Pat)). It was held in Rahamali
Howladar vs Emperor AIR 1925 Cal 1555: 26 Cri LJ 1151 that if there is any evidence, although worthless. Judge should not direct jury to return verdict of not guilty; that no evidence worth the name is under the law very different from no evidence: that if a Judge directs the jury to return a verdict of not guilty, because he holds that there was no evidence worth the name against the accused, he commits an error of law. The question what is meant by "no evidence" under section 232 came up for consideration
before the Karnataka High Court in Kumar vs State of Karnataka MANU/KA/0137/1975 and before the Bombay High Court in MANU/MH/0318/ 1977. In both these cases, it was held that under section 232 the Sessions Judge has to look into the prosecution evidence and the materials brought out in the
examination of the accused and after hearing the counsel for both sides decide whether there is any evidence or not, to show that the accused had committed the offence and that at that stage the Judge is not entitled to evaluate the evidence and find out whether the evidence is reliable and trustworthy. In Pari Barn vs State of UP : (1970) 3 SCC 703 while considering a similar question arising under section 289 of the Previous Code, it was held by the Supreme Court that what section 289 requires is that if the Sessions
Judge comes to the conclusion that there is evidence to show that the accused had committed the offence, then the accused should be called upon to enter on his defence and that the value to be attached to that evidence was not to be considered at that stage. A Division Bench of this Court also, as pointed out earlier took the same view in State of Kerala vs Mohamedkutty 1977 Ker LN Case No. 34 p. 62. We
are in respectful agreement with this decision which, according to us, does not require any reconsideration. On looking into the materials on record in the light of the principles stated above, it cannot be said that this is a case where there is no evidence as contemplated under section 232 CrPC.
10.
It is clear from the above discussion and finding that the learned Sessions Judge has committed a clear illegality by appreciating and finding out whether the evidence was reliable and trustworthy and acquitting the accused under section 232 CrPC. This being a serious illegality the order of acquittal under this section has to be set-aside and the case has to be sent back to the court below, for fresh disposal.
We therefore allow this appeal, set-aside the order of acquittal, without going into the merits or demerits of the evidence on record, send back the case to the trial court for disposal afresh according to law, from the stage where the illegality was committed by that Court."
14.
In Queen Empress vs Vajiram [(1892) ILR 16 Born 414] it was held that the words "no evidence" in the 2nd and 3rd clauses of section 289 of the Code of Criminal Procedure (Act X of 1882) must not be read as meaning "no satisfactory, trustworthy or conclusive evidence". If there is evidence, the trial must go on to its close, when in trials by jury, the jury, and in other trials, the judge after considering the opinion of the assessors have to find on the facts. It is only in the absence of any evidence as to the commission of the offence by the accused that the Court can record an acquittal without allowing the trial to go on, or obtaining the opinion of the assessors, or that the Court can direct the jury, without going into the defence, to return a verdict of not guilty.
15.
It was thus in substance held that if there is evidence, the trial must go on to its close; the words "no evidence" must not be read as meaning "no satisfactory, trustworthy or conclusive evidence."
16.
In respect of object of enacting section 232 of the Code (section 265H in our jurisdiction) in the case of Hanif Banomiya Shikalkar vs The State of Maharashtra reported 1981 CriLl 1622 Bombay High Court observed:
"27. In Queen Empress vs Imam Ali Khan, ILR (1396) Cal 252, it was ruled that the formality of calling upon an accused person to enter on his defence under the provisions of section 289 of the Criminal Procedure Code, 1898 is not a mere formality, but is an essential Nut of a criminal trial. Omission to do so occasions a failure of justice, and is not cured by section 537 of the Code.
30.
Now the object of section 232 of the Criminal Procedure Code (new) is to expedite the conclusion of the Sessions trial and, at the same time, to avoid unnecessary harassment to the accused by calling upon him to adduce evidence or to avoid the waste of public time when there is no evidence at all. The accused will have to be acquitted under section 232 of the Code if there is no evidence at all. If there is some evidence, no order of acquittal can be recorded. The court is not to embark upon the question at that stage whether the evidence is sufficient or is reliable. If, however, the Court finds that there is no evidence at all, the order of acquittal had to follow. Such an order would be subject to appeal. The learned Judge passing such an order may have to give some reasons as to why he came to the conclusion that there was no evidence at all as his order of acquittal would be ordinarily subject to appeal. However, if there is no acquittal, ordinarily a small order on the order sheet or somewhere in the proceedings indicating that that was not a case of 'no evidence at all' and that the accused has not been acquitted and that he is called upon to enter on his defence would be sufficient. An unnecessarily long order, as happened to be made in Arun's case MANU/MH/0318/1977 (supra) would cause an apprehension in the mind of the accused that the learned Judge has already made up his mind as to the guilt of the accused. It is clear from the wording of section 232 that the question whether the accused wants to lead evidence in defence would not arise when the trial is at the stage of section 232 of the Criminal Procedure Code. It would be necessary to put that question to the accused when the trial enters the stage of section 233."
17.
In the case of Md Taheruddin vs Abul Kashem reported in 37 DLR 107 a Division Bench of this Court observed: -
"8. If prosecution witnesses are absent on the date fixed for the examination of witnesses, the Sessions Court has to see whether an adjournment is necessary or advisable. Section 344 CrPC enables the Sessions Court to postpone or adjourn the proceedings and it is worthwhile to quote section 344 CrPC in this regard: "344 (1) If, from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may,
if it thinks fit, by order in writing, stating the reasons therefore, from time to time, postpone or adjourn the same on such term as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time."
Recent substantive changes in the Code of Criminal Procedure in Bangladesh have not made any difference in the legal position in so far as the trial of a case before a Sessions Court is concerned. After a charge is framed in a Sessions Court the complainant is turned into an informant. It is the State, which becomes the prosecutor and it no longer remains the duty of the informant to secure the attendance of his witnesses in the Court. It becomes the Court study and unless the Court exhausts all available modes of securing the attendance of witnesses, any order of acquittal for non-attendance of witnesses will clearly order, be an illegal order. Whatever the Sessions Court is required to do to ensure the presence of the informant and his witnesses by legal process, the Court must do and then proceed with the trial according to law. Law authorises the Sessions Court to pass an order of acquittal under section 265H, CrPC only after taking the evidence for the prosecution, examining the accused, hearing the prosecution and the defence and giving a finding that there is no evidence that the accused committed the offence. It postulates that the Sessions Court has to take all possible steps for taking the evidence for the prosecution. It cannot simply acquit the accused persons for default of the prosecution witnesses to attend the Court on the date of trial. The Public Prosecutor has no business to inform Court that the informant had lost interest in the prosecution of the case and the Sessions Court is also not obliged to honour that information without exhausting itself all the processes for compelling the attendance of prosecution witnesses. It is only when the Sessions Court exhausts all the processes then it acquires the right of recording an order of acquital in substantial compliance with the provisions of section 265H CrPC.
18.
In the case of Amend Hogue vs Rajah reported in 38 DLR (AD) 303 it has further been observed by our Apex Court that: —
"Chapter 23 provided for trial before a Court of Session. Section 265A provides that in every trial before a Court of Sessions, the prosecution shall be conducted by a Public Prosecutor who opens the case on behalf of the prosecution.
Section 265C enables the Court to discharge the accused by recording the reasons for so doing if the Court considers "there is no sufficient ground for proceeding against the accused." Even at this stage no evidence is produced. Then the Court frames charge if it is of opinion "that there is ground for presuming that the accused has committed an offence."Section 265D(2) provides that the charge shall be read and explained to the accused and the accused shall be asked to plead. If the accused pleads guilty, the Court shall record the plea and may, in discretion, convict him thereon (Section 265E). If the accused, however, claims to be tried, the Court shall fix a date for the examination of witnesses and may, on the application of the prosecution issue any process for compelling the attendance of any witness or the production of any document or other thing. Then section 265G provides for recording of evidence.
Now comes section 265H which reads as under:
If after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defense on the point, the Court considers that there is no evidence that the accused committed the offence, the Court shall record an Order of acquittal."
19.
It is only at this stage the Court can pass an Order of acquittal. Section 339C provides for time for disposal of cases for different categories of Courts. Sub-section (3) reads as under:
"If for any reason to be recorded in writing a Magistrate or a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge is unable to conclude the trial of a case within the specified time, he shall conclude such trial within thirty days after the expiry of the specified time."
Sub-section (4) reads as under
"If a trial cannot be concluded within the specified time or the extended time as mentioned in sub-section (3) further proceedings in respect of the trial shall stand stopped and the accused person released."
20.
Reading these two sections together there is no hesitation in saying that the learned Sessions Judge erred in law in passing the order of acquittal. The High Court Division further fell into error when dealing with the contention of the learned Advocate for the prosecution that the learned Sessions Judge ought to have exhausted all process including issuing warrant of arrest to secure attendance of the witnesses and the learned Judges observed that "it does not appear the prosecution made any such prayer nor it seems to be aggrieved by the Order of acquittal". The observation is unfortunate because section 265F provides "the Court may on the application of prosecution, issue process for compelling the attendance of any witness." In a criminal trial the State is the prosecutor and it was the duty of the State to secure the attendance of the witnesses and if for any reason it needed the process of the Court the same should be issued on the application of the prosecution. Without complying with this provision the learned Sessions Judge passed the order of acquittal which is not sanctioned by Law and therefore, this Order must be set aside."
21.
It is also observed by another Bench of this Court that when all process to compel attendance of prosecution witness is completed, order of acquittal under section 265H is correct. Explaining the scope of section 2651-1 of the Code the Court states that:-
"In the instant case, summons were issued on 14-3-84 and thereafter, warrants were issued on 22-4-84 for compelling the attendance of the prosecution witnesses. In the circumstances, we are of the opinion that the observation made by the learned Additional Sessions Judge that sufficient opportunity was given to the prosecution and all processes were exhausted for compelling the attendance of the prosecution witnesses appears to be correct. In the circumstances of the case, after the failure of the prosecution to adduce any evidence, we are of the opinion that the learned Additional Sessions Judge was competent to pass the impugned order of acquittal under section 265H. Apart from this, for our satisfaction, whether there has been a miscarriage of justice, we have gone through the (original) First Information Report, statements made by the 6 charge-sheeted witnesses under section 161 (certified copy) and the postmortem report (certified copy). The allegations made in the First Information Report disclose that an offence under section 364 of the Penal Code had been committed at 02-00 hours on 2-7-81. The FIR was lodged at 9-00 hours on 6-7-81. There is a delay of more than 4 days in lodging the FIR. It has also been
stated in the FIR that one Aftar Ali who came to rescue victim Chand Ali, was severely beaten and he was admitted in the Sunamgonj Hospital for treatment. Aftar Ali is not a charge-sheeted witness. The place of occurrence is only 20 miles away from Sunamgonj police station. Taking all these facts into consideration and the attending circumstances of the case, we are of the opinion that no useful purpose would be served in setting aside the impugned order of acquittal. We are further of the opinion that there has been no miscarriage of justice caused by the impugned order of acquittal. [Kamar Ali vs Abdul Manaf 39 DLR 319]22.
Criminal Rules and Orders (Practice and Procedure of Subordinate Court), 2009 was issued by the authority of the Supreme Court (High Court Division) where in Rule 638 the procedures that to be followed by the Court concerned under section 265H of the Code is reproduced as under: -
"Rule 638. (1) Before passing an order of acquittal under section 247 of the Code, the Magistrate should ascertain that summons was issued at the time of taking cognizance on complaint. If warrant of arrest is issued on complaint, or if it is a police case, section 247 of the Code has no application at all. Attention is also drawn to the fact that on the date fixed for hearing of such complaint case, if the complainant does not appear and the Magistrate does not adjourn the hearing of the case, an order of acquittal shall be passed under section 247 of the Code. The date on which appearance of the complainant is not necessary, the Magistrate should not generally apply this provision in passing an order of acquittal in an unreasonable manner.
Proviso to section 247 of the Code should be kept in view while passing orders thereunder.(2) An order stopping a proceeding and releasing the accused at any stage without pronouncing judgment under section 249 of the Code should be passed in a police case only. This power should be used sparingly and it cannot be invoked in a complaint case. When the Magistrate is fully satisfied that the prosecution witnesses are not available on so many consecutive dates even after his best endeavour by exhausting all processes of the Court issued and served properly in time and there exists exceptional and unusual circumstances preventing the court from proceeding with the case, this power can be exercised. Once the Magistrate has stopped the proceeding and released the accused, there is no scope for revival of the case by him as decided in the case of Niamat Ali Sk vs Begum Enayetur Noor reported in 42 DLR
(AD) 250. So the Magistrates are to be very careful in exercising the power under section 249 of the Code.
(3) For the Sessions Judges, when all processes to compel attendance of the prosecution witnesses are exhausted and prosecution witnesses have failed to appear, an order of acquittal may be recorded under section 265H of the Code to get rid of unnecessary dragging of the sessions cases for years together.
The principles enunciated in the case of Kamar Ali vs Abdul Manaf reported in 39 DLR 320 and in the case of Md Taheruddin vs Abdul Kashem reported in 37 DLR 107 may be followed in dealing with sessions cases in this regard."
23.
So, from the above discussion, it is clear that before passing an order of acquittal, the Sessions Court must take necessary measures to secure attendance of the witnesses and in appropriate cases, the same should also be issued at the instance of the Public Prosecutor and further that in a criminal trial the State is the Prosecutor and in the present case at our hand, the Public Prosecutor filed an application seeking adjournment of the case on the ground of bringing witness to prove the case. But, as we have observed, the learned Joint Sessions Judge, without showing any valid reasons has rejected the said petition. Before exhausting all available modes of securing the attendance of witnesses, passing order of acquittal by the Sessions Judge is nothing but a clear violation of law which tentamounts to miscarriage of justice. In this situation, our considered view is that in exercising his power under section 265H of the Code, the Sessions Judges, at first, shall take meaningful steps for securing the attendance of the witnesses; and secondly: if any witness is available record the same; and thirdly: in case of non-availability of any other witnesses, take hearings from both the parties and thereafter shall pass an order of acquittal of the accused.
24.
Now, let us see the impugned order dated 9-1-2018 passed by the learned Joint Sessions Judge, 2nd Court, Manikganj which reads as under:
“অদ সা রী জন দিন ধায আছে অ মামলার জামিনমু ৩ জন আসামী (১) শিরিন আ ার (২) কাদের (৩) লাইলী বগম হাজির আছেন রা!প সা রী জন সময়ের আবেদন করিয়াছেন
$নলাম নথি পয ালোচনা করলাম নথি পয ালোচনায় দখা যায় একাধিকবার অভিযোগকারী সহ অন ান সা রী *তি *সেস ইসু করা হয়েছে এবং সা ীদের মামলার তারিখ -াত করানো হয়েছে মমে সংি./ ASI এর *তিবেদন সহ সা রী সমন ফরত এসেছে, যা নথিতে সংযু আছে ফলে এ থকে *তয়ীমান হয় য,মামলার অভিযোগকারী সা
*দানে আ1হী নন কাজেই রা!পে র সময়ের আবেদন নাম2র করা হলো এমতাব3থায়, Kamar Ali vs Abdul Manaf, 39 DLR 319 এর সি4া5 অনযুায়ী আসামরী The Code of Criminal Procedure এর 265(H)) ধরার অনযুায়ী খালাস পাওয়ার যাগ
অতএব,
আদেশ হয় য,
আসামী শিরনী আ ার, মাঃ কাদের ও লাইলী বগমকে The Code of Criminal Procedure এর 265(H) ধারা অনযুায়ী খালাস *দান করা হলো
25.
From the above it appears that the learned Joint Sessions Judge without going through the relevant provisions of section 26511 of the Code as well as the relevant Rules [Rule No. 638] of the Criminal Rules and Orders, [Volume I] has illegally passed the impugned order occasioning failure of justice.
26.
Under the provisions of section 26511 of the Code the duty of a Sessions Judge is to look into the prosecution evidence and materials brought out in the examination of the accused and thereafter should hear the learned Advocates of both sides and considering the evidences and materials on record if he finds that all the procedures under the law have been exhausted and if he is of the opinion that he has taken all possible steps for taking down the evidences of the prosecution but the prosecution has miserably failed to comply with the order of the Court, in that case, the duty casts on the Court to pass an order of acquittal of the accused. But in the present case, it appears manifestly that the learned Joint Sessions Judge without complying with the relevant laws and procedures has illegally dismissed the petition filed by the prosecution with the observations that the prosecution is not willing to adduce, evidences.
27.
Having gone through the entire materials on record, our compassionate view is that the learned Joint Sessions Judge, 2nd Court, Manikganj has illegally passed the order of acquittal of the accused on 9-11- 2018 which is not in accordance with law and, as such, is liable to be set-aside.
28.
In the result, the Rule is made absolute.
29.
The impugned order dated 9-1-2018 passed by the learned Joint Sessions Judge, 2nd Court, Manikganj in Session Case No.8 of 2016 is set-aside.
30.
The learned Joint Sessions Judge, 2nd Court, Manikgonj is directed to dispose of the case afresh according to law, as early as possible.
Communicate the judgment and order to the Court concerned forthwith.
End.
High Court Division
Present:
Mr. Justice Zafar Ahmed
Mr. Justice Md. Akhtaruzzaman
Writ Petition No. 7836 of 2021.
Crony Apparels Ltd
Petitioner
VS
Government of Bangladesh and others
Respondents
Judgement Date : August 31, 2022 Shafiqul Kabir Khan, Advocate--For the Petitioner.Nawroz Md Rasel Chowdhury, DAG and MMG Sarwar (Payel), Masud Rana Mohammad Hafiz and Tamanna Ferdous, AAGs—For the Respondent No.2.
Counsels:
AAGs—For the Respondent No.2.
Judgment
Zafar Ahmed, J:
in the instant writ petition, the petitioner challenged the inaction and failure of the respondents to complete the derequisition process as envisaged under section 8B of the (Emergency) Requisition of Property Act, 1948 and to take necessary steps for derequisition of the land measuring an area of 6.1968 acres out of 8.87 acres requisitioned in LA Case No. 58/67-68.
2.
This Court, on 26-9-2021, issued a Rule Nisi and passed an interim order of status quo. 3. The respondent No. 2, Deputy Commissioner, Narayanganj filed an affidavit-in-opposition.
4.
The proceeding of LA Case No. 58/67-68 was initiated for requisition of total 8.87 acres of land situated at Mouza-Kashipur, Fatullah, District the then Dhaka, at present Narayanganj for re-excavation of Kashipur Canal. The petitioner, namely Crony Apparels Ltd. is the successor-in-interest of the previous owners and occupiers of 6.1968 acres of land out of the said 8.87 acres of land, who sold the same to the petitioner by executing various registered deeds of sale. The property is fully described in the schedule to the writ petition. The then East Pakistan Inland Water Transport Authority (in short, the ‘EPIWTA’), now, Bangladesh Inland Water Transport Authority (in short, the `BIWTA') is the requiring body. The then EPIWTA, on 19-3-1969, deposited Taka 26,929.32 as provisional compensation (Annexure-C).
5.
It appears from the order sheets of the LA Case that the respondent No. 2 (the then Deputy Commissioner, Dhaka), vide order dated 1-4-1969 requisitioned the land under section 3 of the (Emergency) Requisition of Property Act, 1948 (in short, the 'Act, 1948'). On 28-8-1969, he signed notices under sections 5(la) and 5(3) of the Act, 1948 and directed the Nazir to cause service of notices and return of the SR (service return) by 20-9-1969. The affected owners were paid compensation in advance on various dates between 1969 and 1970 (Annexure-D).
6.
The owners of the requisitioned land continued to remain in possession of the same. The requiring body i.e. BIWTA, vide Memo dated 17-11-1976 requested the respondent No. 2 to derequisition the land and to refund the deposited compensation money to it on the ground that the entire Kashipur re excavation Canal scheme was dropped (Annexure-E). Having received no response, the BIWTA, vide Memos dated 29-11-1976 and dated 10-12-1980 made the same request to the respondent No. 2 regarding derequisition and refund of money (Annexure-E series).
7.
Meanwhile, on 28-10-1980, notices were issued upon the affected owners, who were paid compensation money, to refund the money. The affected owners, vide various chalans returned the money (Annexure-F series).
8.
The Ministry of Land (respondent No. 1), vide Memos dated 22-4-2004, 4-7-2004, 28-7-2004 and 3-2- 2005 respectively directed the respondent No. 2 to furnish information as to whether the proposed land for derequisition was derequisitioned or requisitioned (ডি-রিকুইজিশনের জন্য প্রস্তাবিত জমি ডি-রিকুইজিশন/ পুনঃ গ্রহণ করা হয়েছে কিনা) (Annexure-G series). The respondent No. 2 sent proposal to the Ministry of Land to annul the LA Case. In turn, the Ministry, vide Memo dated 26-8-2018 asked the respondent No. 2 to send a detailed report about the proposed annulment of the LA Case (Annexure-H). Accordingly, the respondent No. 2 formed a 5-member committee to submit a report. The Additional Deputy Commissioner, Narayanganj (Education and ICT) was the Convener of the committee. Other members of the committee
were Additional Superintendent of Police, Narayanganj, Sub-Divisional Engineer, Department of Public Works, Narayanganj, Joint Director, BIWTA, Narayanganj and Medical Officer, Office of Civil Surgeon, Narayanganj (Annexure-I). The committee was directed to inspect the requisitioned land physically, to conduct a physical survey of the same and to submit a detailed report as to the latest position of the land. The committee was further directed to give its opinion on the matter. The 5-member committee submitted its report dated 29-4-2019 to the respondent No. 2 opining that an office order can be issued to annul the dropped LA Case (Annexure-I 1). The relevant portion of the report runs as follows:
“এদিকে প্রত্যাশী সংস্থা দীর্ঘ প্রায় চার দশক পর যদি পনুরায় অধিগ্রহণের জন্য প্রস্তাব করে তাহলে নতুন আইনে সেই ব্যবস্থা করার ক্ষেত্রে আইনানুগ কোন বাধাও নেই। কিন্তু বাস্তবে সংশ্লিষ্ট জমিতে বহুতল বিশিষ্ট একাধিক স্থাপনা থাকায় কোন সংস্থার জন্যই নতুনভাবে অধিগ্রহণ করা বাস্তবিক অর্থে অনেকাংশে অসম্ভবপর। এখানে বহুতল বিশিষ্ট শতভাগ রপ্তানিমুখী গার্মেন্টস ইত্যাদিসহ আবাসিক ভবন রয়েছে। সার্বিক অবস্থা বিবেচনায়, বর্ণিত এল.এ কেসটি প্রত্যাশী সংস্থা কর্তৃক গত ১৭-১১-১৯৭৬ তারিখে No. E/Land/37/59 নং স্মারক এবং ২৯-১১-১৯৭৬ তারিখের No. E/Land/37/62 নং স্মারক মতে তখনই dropped হয়ে আছে। এছাড়া বিআইডব্লিউটিএ অথবা অন্য কোন সংস্থা যদি পনুরায় অধিগ্রহণের প্রস্তাব প্রদান করে সেক্ষেত্রে নতুন আইনে অধিগ্রহণ কার্যক্রম গ্রহণ করা যেতে পারে। এর প্রেক্ষিতে দীর্ঘ প্রায় চার দশকের মধ্যে নতুনভাবে কোন সংস্থা কর্তৃক অধিগ্রহণের প্রস্তাব না থাকায় এবং বর্তমানে এর স্থানে শতভাগ রপ্তানিমুখী অসংখ্য গার্মেন্টস ইত্যাদিসহ আবাসিক ভবন থাকায় প্রত্যাশী সংস্থা কর্তৃক ১৯৭৬ সনে dropped কৃত এল.এ কেসটি বাতিল সংক্রান্ত একটি দাপ্তরিক আদেশ জারী প্রয়োজনীয় ব্যবস্থা গ্রহণ করা যেতে পারে। এ বিষয়ে পরবর্তী প্রয়োজনীয় ব্যবস্থা গ্রহণের জন্য অত্র প্রতিবেদন দাখিল করা হল।”
9.
The respondent No. 2, vide Memo dated 20-6-2019 sent the report of the committee to the Ministry of Land along with a summary of the matter pointing out that the affected owners refunded the compensation money and the same was deposited in the concerned Government treasury following the requiring body BIWTA's proposal to derequisition the land; that the proceeding of the LA Case was dropped since then; that Gazette Notification was not published; that the requiring body did not make any proposal for further requisition of the land; that various pucca structures including residential buildings were constructed on the land; and that ownership of the land had been transferred, but the new owners had been facing difficulties in getting the purchased lands mutated in their names. The respondent No. 2 opined that the Ministry of Land could annul the LA Case by issuing an office order, alternatively he be directed to issue an office order to annul the same.
10.
Be that as it may, there was no progress in the matter of derequisition of the land. The petitioner company made a representation dated 17-1-2021 to the respondent No. 2 regarding the matter, but having received no response, it filed Writ Petition No. 18 of 2021 and on 2-2-2021 this Division issued a Rule Nisi and passed an interim order directing the respondent No. 2 to dispose of the said representation. The respondent No. 2 disposed the representation, vide Memo dated 7-3-2021 stating that it had not yet received any direction from the Ministry of Land (Annexure-B). This Division discharged
the Rule on 25-8-2021 holding that since the substantive part of the Rule issuing order and that of the said direction were distinctly intertwined and the respondent No. 2 had complied with the direction, there was no plausible reason to proceed with the Rule any further (Annexure-A).
11.
Meanwhile, the requiring body BIWTA, vide Memo dated 10-2-2021 directed the petitioner company to refrain from filling up the requisitioned land and the adjacent Kashipur canal and to remove the multi storied structures and soil/sand used for filling up the land within 15 days, in default legal action would be taken to evict the petitioner from the land (Atuixure-01). However, no action was taken. The matter regarding the proposed derequisition of the land remained standstill. In the circumstances, the petitioner company filed the instant writ petition and obtained the Rule Nisi.
12.
The respondent No. 2 neither controverted the facts stated in the writ petition nor introduced new facts in his affidavit-in-opposition.
13.
The Act, 1948 remained in force for a period of 34 years [section 1(4) of the Act, 1948]. By dint of special savings clause contained in section 47 of the Acquisition and Requisition of Immovable Property Ordinance, 1982 all proceedings and matters undertaken/done under the Act, 1948 are liable to be continued. The Ordinance, 1982 was repealed by section 50 of স্থাবর সম্পত্তি অধিগ্রহণ ও হুকুমদখল আইন, ২০১৭ which also contains a savings clause. Nevertheless, in spite of expiry of the Act, 1948 the same shall apply to the case in hand for adjudication of the Rule Nisi.
14.
The Act, 1948 provides provisions both for requisition and acquisition of property. Property is first requisitioned under section 3 by the Deputy Commissioner by an order in writing. If the requisitioned property is required to be acquisitioned permanently, some positive steps have to be taken by way of firstly, giving public notice under section 5(1a), secondly, giving a notice under section 5(3) to the owner of the property and to others known or believed to be interested therein, and finally, publishing a notice in the Official Gazette under section 5(7) to the effect that the Government has decided to acquire the requisitioned property. Once the notice is published in the Gazette the requisitioned property vests absolutely in the Government free from all encumbrances and the period of requisition of the property ends [section 5(7)]. Compensation for immovable property requisitioned or acquisitioned is paid in accordance with the provisions of section 7. However, when a property is requisitioned with view to its permanent acquisition, compensation can be paid in advance under section 5B on the basis of a provisional estimate prepared on rough and ready calculation.
15.
The above discussions unequivocally denote that in interpreting the provisions of the Act, 1948 the expressions "requisition" and "acquisition" are not interchangeable and not synonym for each other. They bear different legal implications. By requisition, title does not vest in the Government or in the requisitioning body or in the requiring body. The title of the requisitioned property remains with the person whose property is requisitioned [Nurun Nabi Mullah and others vs Abdul Karim alias MA Karim and others, 23 BLT (AD) 147 = 10 BLC (AD) 47].
16.
In the instant Rule issuing order, section 8B of the Act, 1948 was mentioned. Section 8B provides provisions for withdrawal from acquisition. Section 8 provides provisions for release from requisition.
Section 8(1) states:
"8. Release from Requisition — (1)
"Where any requisitioned property is to be released from requisition the Deputy Commissioner may restore it to the persons from whom the property was requisitioned or to his successor-in-interest or to such other persons as may appear to the Deputy Commissioner to be entitled to such restoration".
Section 8B enjoins:
8B. Withdrawal from Acquisition–
When the owner of any property which has been acquired under section 5 is willing to receive back the property, the Government may, at any time before the payment of compensation, withdraw from the acquisition of any such property by notification published in the Official Gazette, and on such withdrawal, the property shall be restored to the possession of the owner, and with effect from the date of such restoration, the property shall vest back in the owner with the rights which he had before such property was acquired."17.
The learned Deputy Attorney-General refers to the cases of Bangladesh and others vs Commercial Trust of Bangladesh Ltd. and others, 46 DLR (AD) 89 and Government of Bangladesh and others vs Dewan Fakhrul Alum and others, 39 BLD (AD) 226 and submits that since compensation was paid to the original owners of the lands there is no scope to either release the property from requisition under section
8 or withdraw the same from acquisition under section 8B of the Act, 1948.
18.
In Commercial Trust of Bangladesh Ltd., 46 DLR (AD) 89, it was held that after compensation is paid for acquisition of land no order can be made for derequisition of such acquired property.
19.
In Dewan Fakhrul Alam, 39 BLD (AD) 226 the owners of the land received compensation and possession of the land was handed over to the requiring body. Publication of final Gazette Notification under section 5(7) was under process. In the circumstances, it was held—
"the land in question after being acquisitioned upon payment of compensation cannot be withdrawn from acquisition and give it back to the heirs of the awardee on the plea of non-utilization as directed by the High Court Division".
20.
In Nurul Islam (Md) and others vs Secretary, Ministry of Land and others, 2 BLC (AD) 138 notices of requisition and acquisition under sections 3 and 5 of the Act, 1948 were duly served. Several suits were filed from 1968 to 1981 challenging the requisition. Meanwhile, the award of compensation was prepared in 1970. The requiring body in 1974 requested the Deputy Commissioner to refund the deposited amount of compensation at an earlier date. However, the same was not refunded. Compensation was offered on the spot in 1978, but the awardees did not receive the compensation. The Ministry of Industries opined in 1982 that the Government did not intend to proceed with the LA Case due to pending litigations. Gazette Notification under section 5(7) was not published yet. The latest Title Suit No. 74 of 1981 was dismissed in 1984. Thereafter, notice dated 27-10-1986 was issued asking the petitioners to vacate the lands occupied by them. Challenging the said notice as well as the requisition order dated 19-2-1966 passed in the LA Case the petitioners filed several writ petitions in 1988. It was held that the request to refund the deposited compensation money and the opinion of the Ministry do not have the effect of annulling the LA Case which can only be annulled by a positive order of the Deputy Commissioner. Since there was no such order, the LA Case was still subsisting.
21.
In the instant case, after passing the order of requisition under section 3, advance compensation was paid to the owners of the land under section 5B, but subsequently at the behest of the requiring body, the same was taken back and was deposited in the Government treasury. Apart from signing the notices under sections 5(1a) and 5(3), no further steps were taken under section 5 for acquisition of the property. It appears from records that the signed notices were not served. The owners of the property remained in possession of the same. Gazette Notification under section 5(7) was not published. Therefore, the
property was not acquisitioned, but it was requisitioned. Hence, the ownership of the property remained with the original owners. In the circumstances, the argument of the learned Deputy Attorney-General that the petitioner company, who purchased a large portion of the requisitioned land from the owners, has no locus standi to file the writ petition has no leg to stand.
22.
In the case in hand, the order of requisition was, passed on 1-4-1969. The requiring body was the then EPIWTA, now BIWTA. On 17-11-1976, the BIWTA wrote to the respondent No. 2, "to kindly de requisition the above mentioned land at an early date and refund the money deposited on this account". Accordingly, advance compensation, which was paid to the owners of the land, was taken back and deposited in the concerned account. Position of the BIWTA remained unchanged throughout which is evident from the report of the 5-member committee dated 29-4-2019, the report of the respondent No. 2 dated 20-6-2019 and lastly, the letter dated 7-3-2021 issued by the respondent No. 2. In those reports and letter the expression "dropped LA Case" has been used. The respondent No. 2 in his report dated 20-6- 2019 categorically stated that it was reasonable/logical to issue an office order to annul the dropped LA Case. The respondent No. 2 advised the Ministry of Land that it may issue an office order to annul the LA Case or he be directed to issue office order to that effect. The relevant portion of the said Memo dated 20-6-2019 (Annexure-J) is quoted below:
“সার্বিক অবস্থার প্রেক্ষিতে উক্ত ভূমিতে দীর্ঘ চার দশকের মধ্যে বিআইডব্লিউটিএসহ অন্য কোন সংস্থা কর্তৃক অধিগ্রহণ প্রস্তাব না থাকায় এবং বর্তমানে এ স্থানে শতভাগ রপ্তানিমুখী বহু গার্মেন্টস ইত্যাদিসহ বহুতল বিশিষ্ট অনেক আবাসিক ভবনের মালিকগণ চরম ভোগান্তির মধ্যে থাকায় প্রত্যাশী সংস্থা কর্তৃক ১৯৭৬ সালে dropped কৃত এল.এ কেসটি বাতিল সংক্রান্ত একটি দাপ্তরিক আদেশ জারী করা যুক্তিযুক্ত। বিধায় দীর্ঘ প্রায় চার দশক আগে প্রত্যাশী সংস্থা বিআইডব্লিউটিএ কর্তৃক লিখিতভাবে dropped কৃত এবং অত্র কার্যালয়ের আদেশের প্রেক্ষিতে ক্ষতিগ্রস্ত ভূমির মালিকগণ কর্তৃক ক্ষতিপূরণ হিসেবে সমুদয় টাকা চালানের মাধ্যমে ফেরত প্রদান করায় বর্ণিত ৫৮/৬৭-৬৮ নং এল.এ কেসটি বাতিল সংক্রান্ত একটি দাপ্তরিক পত্র মন্ত্রণালয় কর্তৃক জারী করা যেতে পারে অথবা নিম্নস্বাক্ষরকারীকে এতদসংক্রান্ত দাপ্তরিক পত্র জারী করার সদয় নির্দেশনা প্রদানের জন্য সবিনয় অনুরোধ করা হল।”
23.
In this case, publication of Gazette Notification under section 5(7), which is the last step for acquisition, is a far cry inasmuch as the first step for acquisition under section 5(la) by way of giving public
notice was not done. Moreover, it appears from records that the Government has no intention to acquire the land under section 5. The Memo dated 10-2-2021 issued by the BIWTA to the petitioner cannot be treated as an intention to require the land or to rescind its earlier Memos issued in 1976 to derequisition the land. The relevant LA Case is practically dropped. Now, the order of requisition dated 1-4-1969 is left in the document only. Therefore, the above discussed reported cases have no manner of application to the distinguishing features of the case in hand.
24.
A property is requisitioned under section 3. The same is released from requisition under section 8. In both events the statute prima facie has given the Deputy Commissioner power to make the respective decisions. In this case, the Deputy Commissioner sought advice of the Ministry of Land regarding derequisition of the land. There are reasons for that. Section 8 has to be read with section 4A which runs as follows:
"4A. Appeal and Revision -(1) An appeal against an order made under section 3 shall, if presented within 30 days from the date of service of the order, lie to the Commissioner.
(2) The Government may, at any time, either on its own motion or on application by an aggrieved party, revise any order passed by the Deputy Commissioner under section 3, where no appeal has been filed under Sub-section (1), and also any order passed by the Commissioner on appeal under sub-section (1).”25.
The requisition, acquisition and release from requisition and withdrawal from acquisition are done by the Government in exercise of its revisional power which is exercised by the Ministry of land on behalf of the Government as per Rules of Business [Nurul Islam, 2 BLC (AD) 138 (supra)]. It was further held in the reported case that section 4A(2) comes into operation when the Deputy Commissioner passes an order of requisition under section 3, but section 4A(2) has no manner of application when a notice under section
5(la) and 5(3) is already served. Admittedly, the original owners of the lands did not file any appeal under section 4A(1). No notice under section 5(la) and 5(3) was served. Therefore, in the present case, if the Deputy Commissioner (respondent No. 2) on his own motion passes an order releasing the lands from requisition, the same would always be subject to revision by the Ministry of land.
26.
In Badal Rani Misra and others vs Bangladesh and others, 27 DLR (AD) 65, it was held that the High Court Division could not pass an order of release under the Act, 1948 which is purely within the administrative function of the requisitioning authority.
27.
The learned Advocate appearing for the petitioner refers to the case of Abur Rouf and another vs Government of East Pakistan and another; 22 DLR 193 and prays for passing an order in light of the reported case. In Abdur Rouf, the petitioners sought direction upon the respondents to derequisition the premises in question and to put the petitioners and their co-sharers in physical possession of the same in terms of section 8 of the Act, 1948. The Rule was made absolute and the Deputy Commissioner was directed to derequisition the property and to perform the statutory duty imposed on him under section 8 without further delay. In so doing, it was observed,
"Mr Kamaluddin Hossain, learned Deputy Attorney-General has categorically stated that the premises is no longer necessary by the Customs Department. There is, therefore, no valid reason for continuance of the requisition of the property in question. It must be remembered that no citizen can be asked to part with his property even temporarily unless it is necessary for public purpose. Every citizen has a fundamental right to enjoy his property subject to the exercise of the State power of Eminent Domain only when it is necessary for a public purpose. Retention of property under requisition when there is no subsisting public purpose is indeed illegal and when the Government, by exercise of the power vested on it by the drastic provisions of section 3 of the East Bengal (Emergency) Requisition of Property Act, requisitions any property, it should act, with promptitude in derequisitioning the property as soon as it is found that it is no longer necessary to retain its possession. In this case, the statement made by the Deputy Attorney General has made the position clear that the property is not required for the department for which it was requisitioned. The requisitioning authority ought to have derequisitioned it soon after the office of the Customs Department was shifted elsewhere."
28.
Be it mentioned that section 4A was still in force and was applicable when the case was decided. 29. In Government of Bangladesh and others vs Meherunnessa and others, 10 LM (AD) 1, the land in
question was requisitioned in LA Case No. 52 of 1977-78 under the Act, 1948. Thereafter, the owners of the land mutated their names in the Government revenue department and were paying rents for the same. The Government neither took over the possession of the requisitioned land nor compensation was paid to the owners of the same. Following an application filed by the owners of the land to release the same from requisition, the concerned Deputy Commissioner formed an enquiry committee to inquire into the matter which recommended to release the requisitioned land to the legal owners. However, the land was not released. This Division directed the property to be derequisitioned and released. The Appellate Division granted leave to appeal, but ultimately, the appeal was dismissed. It was observed by the apex Court:
"The scheme of the law is that if the property is required permanently for a public purpose, then the Deputy Commissioner would requisition it with a view to its permanent acquisition. After due notices and appeal/revision, if any, the Government may acquire the property if such proposal is made by the Deputy Commissioner under section 5 of the Act, 1948. ----If the property is not acquired under section 5 then the only release from acquisition may be prayed for under section 8 of the Act, 1948."
30.
The learned Advocate appearing for petitioner refers to note sheets dated 11-5-2021 of the BIWTA (Annexure-O) and submits that it is apparent from the said note sheet the BIWTA does not require the requisitioned lands any more. The relevant portion of the note sheets is quoted below:
“১৯৭৬ সালে উক্ত জমি অবমুক্ত করার জন্য জেলা প্রশাসক, নারায়ণগঞ্জকে বিআইডব্লিউটিএ কর্তৃক পত্র দেয়া হয়। তৎপরবর্তীতেও খালটি খনন করার জন্য বিআইডব্লিউটিএ হতে কোন পদক্ষেপ গ্রহণ করা হয়নি। অপরদিকে এল.এ কেস নং ৫৮/৬৭-৬৮ বাতিল পূর্বক দাপ্তরিক পত্র জারীর জন্য জেলা প্রশাসক, নারায়ণগঞ্জ কর্তৃক গত ২০-৬-২০১৯ ইং তারিখে সচিব ভূমি মন্ত্রণালয়কে পত্র প্রেরণ করেন। উক্ত পত্রে বর্তমানে বাস্তবে বর্ণিত এল.এ কেস নং ৫৮/৬৭-৬৮ পুনঃজীবিত করা সম্ভব নয় মর্মে মতামত প্রদান পূর্বক একান্ত প্রয়োজনে বিআইডব্লিউটিএ-কে পুনঃ অধিগ্রহণের জন্য সুপারিশ করেন। সে ক্ষেত্রে শত শত সম্পদ ক্ষতিপূরণ বাবদ বিআইডব্লিউটিএ-কে বিপুল অর্থ ব্যয় করতে হবে, যা একেবারেই অবাস্তব ও অপ্রয়োজনীয়।”
31.
The general principle of law is that departmental notes, which are not communicated to the affected persons, do not create legal right in their favour. Be that as it may, the above-quoted note sheet can be taken into consideration as a reinforcing factor/ corroborative evidence that the BIWTA does not require the requisitioned land which it informed the Deputy Commissioner in 1976. In other words, the public purpose for requisition of the lands does not subsist anymore.
32.
In Sarat Kumar Kanungoe vs The Province of East Pakistan and others, 10 DLR 393, the order of requisition was challenged. It was held that the Act, 1948, which was an emergency legislation, if leisurely administered, more often than not defeats its own purpose. In Abdus Sobhan Sawdagar and others vs Province of East Pakistan and others, 14 DLR 486, the order of requisition was challenged. It was held that requisition of property, not acquisition, for a specified public purpose, was the object of the Act, 1948. It was further held that section 5 was designed to meet a contingency when it became necessary to acquire a property which had already been requisitioned.
33.
In view of the factual matrix of the case, various provisions of the Act, 1948 and case laws discussed above, the pertinent question is what order this Court should pass. We are mindful of the fact that the petitioner did not challenge the order of requisition. Inaction of the respondents to complete the derequisition process has been challenged.
34.
We have considered the case of Government of Bangladesh and others vs Abdul Wahab Mia and others, 4 BLC (AD) 1 wherein the requision of three plots in question was not challenged, but a prayer was made to release the case property. In the reported case the Government took possession of the land in 1960. The petitioners and their predecessors received compensation from the Government without any objection. The apex Court found that the final notice in the Gazette under section 5(7) was in process. It was held,
"In view of the facts and circumstances of the case, the lawful order, the learned Judges of the High Court Division could pass under law was to direct the appellants either to derequisition the case property under section 8B of the Act or to finally acquire the same by publishing in the Bangladesh Gazette a notification under section 5(7) of the said Act. That is all the learned Judges could have done in exercise of their jurisdiction but then the learned Judges of the High Court Division wrongly exceeded their jurisdiction in assuming the executive functions of the officials directing release of the case property in favour of the writ petitioner-respondents."
35.
Considering the distinctive features of the instant case which are unique and thus, distinguishable from the reported cases, the scheme of the Act, 1948 that derequisition is purely administrative function of the requisitioning authority, and finally, considering the ratio laid down in Abdul Wahab Mia, 4 BLC (AD) 1 (supra), the following order is passed:
36.
The respondents are directed to take steps under section 8 of the Act, 1948 to release the lands in question from requisition in light of the enquiry committee report dated 29-4-2019 (Annexure-I1) and Memo dated 20-6-2019 issued by the respondent No. 2 (Annexure-J) or to acquire the same in accordance with law. The respondents are further directed not to sit idle on the matter which was initiated almost 55 (fifty five) years ago.
With the above observation and directions, the Rule is disposed of.
End.
High Court Division
(Civil Miscellaneous Jurisdiction)
Present:
Mr. Justice Mahmudul Hoque
Mr. Justice Kazi Zinat Hoque
First Miscellaneous Appeal No. 164 of 2020. (along with Civil Rule 102 (FM) of 2020)
Toufiqur Rahman (Md)
Appellant
VS
Md Zahidul Rahman and others
Respondents
Judgement Date : July 21, 2022
Counsels:
Md Sultan Uddin with Mosammat Morsheda Parvin, Advocates —For the Appellants.
Md Khalilur Rahman, Advocate —For the Respondent Nos.1-4.
Judgment
Mahmudul Hoque, J:
This appeal is directed against the judgment and order dated 26-1-2020 passed by the Joint District Judge 1st Court, Bogura in Miscellaneous Case No. 151 of 2019 filed under Order IX, rule 13 of the Code of Civil Procedure rejecting the same.
2.
Facts of the case, in brief, are that, the respondent Nos. 1-4 as plaintiff, filed Partition Suit No. 289 of 2013 against the present appellant as defendant No. 25 along with other defendants. The appellant contesting the suit by filing written statement. The suit was fixed for settling date on 17-9-2017. On the date fixed the plaintiff filed an application for fixing the suit for peremptory hearing which was allowed by the court on 6-3-2018 and fixed the suit for peremptory hearing on 8-5-2018, but the appellant claims that the plaintiff did not serve any copy of such application to his lawyer and without informing the fact of filing the application they proceeded with the hearing of the suit and finally got the ex-parte decree on 23-7-2017. The present appellant filed an application under Order IX, rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree. The miscellaneous case was contested by the plaintiffs in suit by filing written objection. The trial court by impugned order dated 26-1-2020 rejected the same awarding costs of Taka 5,000 to the opposite party, hence, the present appeal.
3.
Mr Md Sultan Uddin with Mosammat Morsheda Parvin, learned Advocates appearing for the Appellant submits that the conducting lawyer for the defendant No. 25 was entrusted with the task of taking day to day step in the suit and one of his employee was looking after the case on his behalf, but at a point of time the “কার্যকারক” of the defendant No. 25 met an accident consequently, he could not communicate with the learned Advocate as well as the learned Advocate also did not inform about the position of the suit and did not take any step on behalf of the defendant, resultantly, the suit was decreed ex-parte.
4.
He further submits that for default of the pleader of the defendant appellant the party should not suffer and it was the duty of the learned Advocate to attend the court regularly and take proper steps on his behalf as such, the appellant has sufficient cause for restoration of the suit in its original number and position by setting aside the ex-parte decree.
5.
He further submits that the suit was at the stage of settling date when the plaintiffs filed an application for fixing the date from settling date to peremptory hearing, therefore, they ought to have served the copy of the application upon the learned Advocate for the defendants, but without service of copy the trial court unilaterally fixed the date for peremptory hearing, as such, the ex-parte decree is liable to be set-aside. In support of his such submissions he has referred to the cases of Government of Bangladesh and another vs Mashiur Rahman and others reported in 50 DLR (AD)205, Kabir Ahmed Sawdagar vs Md Syed Saifuddin Jaheed and others, reported in 58 DLR 277 and Malkiat Singh and another vs Joginder Singh and others reported in 2 SCC 206.
6.
Mr Md Khalilur Rahman, learned Advocate appearing for the Respondent Nos. 1-4 submits that the appellant, as defendant No. 25 filed written statement in the suit but on all subsequent dates he did not take any step in the suit. Moreover, after fixing the suit for peremptory hearing on 8-5-2018, the plaintiff took adjournment on 8-7-2018 and thereafter, the suit was fixed for hearing on 9-4-2019, 28-5-2019 and finally fixed for ex-parte hearing on 8-7-2019, but on all dates the defendant took no step either by filing hazira or seeking adjournment of the hearing consequently, the trial court had no order alternative but to proceed with the hearing of the suit and decreed the suit decreed ex-parte.
7.
He finally submits that the trial court while rejecting the application under Order IX, rule 13 of the Code rightly observed that the defendant No. 25 and his lawyer very negligently' dealt with the matter and failed to appear when the suit was fixed for hearing on repeated calls, as such, the trial court by rejecting the miscellaneous case has not committed any illegality in law. Moreover, after passing the preliminary decree the court appointed an Advocate Commissioner for effecting the partition who submitted report and the preliminary decree has been made final, as such, there is no scope for interfering with the decree passed by the trial court.
8.
Heard the learned Advocates for both the parties, have gone through the memo of appeal, application under Order IX, rule 13 of the Code, ex-parte decree dated 23-7-2019 passed by the trial court and the impugned judgment and order of the court below.
9.
Admittedly, the respondent Nos. 1-4, as plaintiffs, instituted Partition Suit No. 289 of 2013 in the court of Joint District Judge, 1st Court, Bogura praying for a decree of partition of the suit property. The appellant, as defendant No. 25, entered into appearance and filed written statement. It is also found that the suit was fixed on 17-9-2017 for SD and on that date the plaintiffs filed an application praying for fixing the suit for peremptory hearing without service of any copy to the learned advocate of the defendant.
10.
However, the defendant-appellant ought to have followed the cause list of the court day to day and up-to-date position of the suit, but the learned Advocate for the defendant No. 25 failed to discharge his duty consequently, the suit was decreed ex-parte. Learned Advocate for the appellant contended that it is the fault of the learned conducting lawyer for the defendant-appellant and for which the defendant cannot be penalized in anyway and negligence of an advocate is sufficient cause for filing an application under Order IX, rule 13 of the Code for setting aside ex-parte decree. He finally submits that had the defendant appellant served the application filed by the plaintiffs for fixing the case for hearing and the learned Advocate informed the appellant, he would have contested the suit by deposing on his behalf, but because of negligence of the learned Advocate as well as non-service of copy of the application filed by the plaintiff the defendant could not know about fixing of the date for peremptory hearing.
11.
On the other hand, learned Advocate for the respondent contended that the defendant knowing fully well about fixing of the case for peremptory hearing did not take any step and allowed the plaintiffs to get the decree ex-parte and filing of the miscellaneous case is only to harass the plaintiffs and to drag the matter for years together to the detriment of the plaintiffs, as such, the appeal is liable to be dismissed.
12.
To appreciate submission of the learned Advocate for the parties, this Court have gone through the ex-parte decree dated 23-7-2019 passed by the trial court in Partition Suit No. 289 of 2013 which run thus:
“অদ্য একতরফা আদেশের জন্য দিন ধার্য আছে। বাদীপক্ষ হাজিরা দাখিল করিয়াছে। নথি পেশ করা হইল। নথি একতরফা আদেশের জন্য নেওয়া হইল। অত্র মামলার নথি, প্রদর্শিত সাক্ষ্য ও দাখিলীয় কাগজপত্র পর্যালোচনা করলাম। নথি পর্যালোচনায় দেখা যায় বাদী তাহার মোকদ্দমাটি একতরফাভাবে মৌখিক ও দালিলিক সাক্ষ্য দ্বারা প্রমাণ করিতে সক্ষম হইয়াছে। সার্বিক পর্যালোচনায় মামলাটি একতরফা সূত্রে প্রমাণিত। এমতাবস্থায় বাদী প্রার্থিত মতে প্রতিকার পাইতে হকদার।
প্রদর্শিত কোর্ট ফি সঠিক।
অতএব
আদেশ হয় যে,
অত্র মোকদ্দমাটি বিবাদীপক্ষের বিরুদ্ধে একতরফা বিচারে বিনা খরচায় ডিক্রি দেওয়া হইল। বাদীপক্ষ দাবীকৃত নালিশী তফশীল বর্ণিত ০.০৪ শতক জমি বাবদ বন্টনের প্রাথমিক ডিক্রি প্রাপ্ত হইল। ডিক্রিকৃত জমি আগামী ৬০ দিনের মধ্যে বাদী বরাবর বন্টন করে দিতে বিবাদীপক্ষকে নির্দেশ দেওয়া হইল। ব্যর্থতায় বাদীপক্ষ আদালত যোগে বন্টন করে নিতে পারিবে।”
13.
Now, the question has arisen whether the decree passed ex-parte by the trial court in a partition suit is in conformity with the provisions of Order XX, rule 5 of the Code which provides that "judgment of the courts shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision, but the judgment passed ex-parte by the trial court as quoted herein above seems to be not a judgment in accordance with Order XX, rule 5 of the Code of Civil Procedure. This is a judgment written by the trial court in a very slipshod manner and contrary to the provisions of Order XX, rule 5. Code of Civil Procedure does not define either an ex-parte judgment or an ex-parte decree. It refers only to a judgment and a decree. In the event a judgment is known to be an ex-parte judgment and decree drawn on the basis of that judgment is known as an ex-parte decree. Hence, even of an ex-parte judgment and the decree, the basic ingredients of judgment must be available to the extent to indicate that the court has applied its mind to the pleading, relief claimed thereunder, the evidence and conclusion arrived at by the court on the above.
14.
Apart from negligence of the learned Advocate for the defendant, the court below did not observe the minimum legal requirement as provided in Order XX, rule 5 of the Code, as such, on that count also the ex-parte judgment is not at all sustainable in law.
15.
The trial court while rejecting the application under Order IX, rule 13 of the Code of Civil Procedure instead of discussing the case of the applicant whether he was prevented by sufficient cause or whether before fixing the suit for peremptory hearing, the plaintiff served any copy of the application upon the learned Advocate for the defendant. This court finds no reflection in the impugned judgment and order about the points mentioned above.
16.
In view of the above, this Court finds that the ex-parte decree passed by the trial court not only suffers from minimum legal requirement under Order XX, rule 5 of the Code, but also erroneous because of the fact that the court in rejecting the application utterly failed to observe the requirement for restoration of any suit by setting aside an ex-parte decree, as such, the judgment and order appealed against is liable to be set-aside.
17.
Taking into consideration the above, this Court finds merit in the appeal as well as in the submissions of the learned advocate for the appellant.
18.
In the result, the appeal is allowed. Judgment and order of the trial court is hereby set-aside along with all other subsequent steps and final decree as all the subsequent steps taken by the trial court during subsistence of stay order of this Court.
19.
The Partition Suit No. 289 of 2013 is hereby restored in its original number and position. The trial court is hereby directed to dispose of the suit within 6 (six) months from the date of receipt of this judgment without allowing any unreasonable adjournment to the parties to the proceeding, in particular, to the defendant-appellant.
20.
Connected Civil Rule No. 102 (FM) of 2020 is also disposed of herewith.
21.
The order of stay granted at the time of issuance of the Rule stands vacated. There will be no order as to costs.
Communicate a copy of this judgment to the court concerned at once.
End.
High Court Division
Present:
Mr. Justice Farah Mahbub
Mr. Justice S. M. Maniruzzaman
Writ Petition No. 11128 of 2021.
Durable Plastic Limited and another
Petitioner
VS
Customs, Excise and VAT Appellate Tribunal, Dhaka and others --- Respondents
Counsels:
haka and others --- Respondents Judgement Date : March 03, 2022
MA Hannan, Advocate with Abdus Samad Azad, Advocate—For the PetitionerSamarendra Nath Biswas, DAG with Md Abul Kalam Khan Daud, AAG with Md Ali Akbar Khan, AAG with Md Asaduzzaman, AAG and Md Modersher Ali Khan, AAG—For the Respondents Government.
Judgment
Farah Mahbub, J:
This Rule Nisi was issued under Article 102 of the Constitution of the People's Republic of Bangladesh, calling upon the respondents to show cause as to why the impugned Nathi No. CEVT/Case (Cus)-385/ 2018/1387 dated 3-9-2018 (Annexure-F) passed by the respondent No.1 dismissing Appeal No. CEVT/Case (Cus)-385 of 2018 for non-deposit under section 194 of the Customs Act, 1969 (Annexure-F) along with the impugned notice issued under section 202 of the Customs Act, 1969 vide Nathi No.188/PCA/2017-2018/ 20858 (cus) dated 11-9-2021 by the respondent No.2 demanding duties and taxes of Taka 39,41,454.94 (Annexure-F-1) should not be declared to have been passed without lawful authority and hence, of no legal effect.
2.
The issue in question as to the exercise of power of discretion by the Customs, Excise and VAT Appellate Tribunal under the 2nd proviso to section 194 of the Customs Act, 1969 in dispensing with the deposit either unconditionally or subject to such condition as it may deem fit to impose, has already been resolved by a larger Bench of this Division in writ petition No.12424 of 2017 along with 11(eleven) other writ petitions observing, inter alia, as follows—
“-------A careful and close reading of the 2nd proviso of section 194 leaves no room for doubt that the power to dispense with the deposit, either unconditionally or upon imposition of conditions, has been left to the "sole discretion of the Tribunal.”
It is the cardinal rule of interpretation that the words used in a statute are to be interpreted as it is, and not what they ought to be. The Legislature, in their wisdom, and in our view quite correctly stipulated that the discretion to allow dispensation with the deposit is vested only with the Tribunal. This is apparent from the very last sentence, which reads, "it may dispensed with such deposit, either unconditionally or submit to such conditions as it may deem fit and proper. (emphasis added on the word "it"), the Legislatures have very clearly expressed their intention that it is the Tribunal and the Tribunal alone which is vested with the sole authority to dispense with the deposit or otherwise accept an appeal upon such conditions as it deems fit to impose with regard to such deposit. The use of the word "it", in our view, implies that the jurisdiction or authority of this Court to interfere in matters of granting exemption on the ground of hardship has been excluded.In our view, this Court does not have the jurisdiction to substitute its own decision for that of the Tribunal in granting exemption in respect of the applications for hardship filed by the respective petitioners. In other words, the 2nd proviso of section 194 of the Act vests absolute and total authority upon the Tribunal to decide the question of hardship, giving due consideration to each and every case on merit-------")
3.
Said observations and findings are still in operation.
4.
In view of the above observations, being squarely applicable in the present case, we find no reason to interfere with the impugned order dated 3-9-2018 passed by the respondent No.1 in dismissing appeal No. CEVT/Case (Cus)-385 of 2018 for non-deposit under section 194 of the Customs Act, 1969 (Annexure-F).
5.
However, fact remains that prior to issuance of the instant Rule on 5-12-2021 the petitioner in compliance of the direction so given earlier by the respondent No.1 i.e., the Tribunal concern has already deposited 25% of the demanded amount in cash as is apparent from Annexure-G to the writ petition and 25% in bank guarantee of the demanded amount as contained in Annexure-G-1 to the instant writ petition.
6.
Considering the said factual position as to compliance of the direction given by the Tribunal by depositing the required amount and also for the cause of justice and equity the respondent No.1 i.e., the Tribunal is hereby directed to hear the appeal being No. CEVT/ Case (Cus)-385 of 2018 upon re-calling the order dated 3-9-2018 so far dismissing the appeal for non deposit of the required amount under the Act, 1969, on merit in accordance with law preferably within a period of 6(six) month from the date of receipt of the copy of this judgment and order.
7.
With the above observations and directions, this Rule is accordingly disposed of. 8. There will be no order as to costs.
9.
Communicate the judgment and order to the respondents concern at once.
The petitioner is permitted to take back the originals as have been annexed with the writ petition upon replacing the same with the photostat copies thereof.
End.
High Court Division
(Civil Revisional Jurisdiction)
Present:
Mr. Justice Kashefa Hussain
Civil Revision No. 4148 of 2009.
Executive Engineer, Roads and Highway Department, Tangail and others
Petitioners
VS
Abdul Karim being dead his heirs Md Atikur Rahman and others
Opposite Parties
Judgement Date : November 05, 2018
Counsels:
Abdul Salam Mondal, DAG with Shahida Khatoon, AAG—For the Petitioners.
Probir Neogi, Senior Advocate with Md Mozammel Haque Bhuiyan, Advocate with Sumon Ali, Advocate—For the Opposite Parties No. 1-14 and 17-32.
Sarwat Siraj, Advocate—For the Opposite Nos. 15-16.
Judgment
Upon condoning a delay of 78 days in filing the civil revisional application, Rule was issued in the instant Civil Revisional application calling upon opposite parties No. 1-14 to show cause as to why the judgment and decree complained of in the petition moved in court today should not be set-aside and or pass such other order or further order or orders as to this court may seem fit and proper.
2.
The opposite parties No. 1-2 predecessor of the opposite party Nos. 3-5, opposite party Nos. 6-14 and one Md Abdul Bashet as plaintiffs instituted Other Class suit No. 8 of 2003 in the court of learned Senior Assistant Judge, Kalaihati, Tangail impleading the present petitioners and opposite party Nos. 15- 16 as defendants praying for declaration of title over the suit land.
3.
The plaintiff's case inter alia is that Jamir Mondol, Emam Shiekh and Amir Ali were the owners of 24 decimals of land under SA plot No. 122, khatian No. 14 Mouza-Satutia, upazila-Kalihati, District-Tangail and CS record was prepared in their names. Jamir Mondal while owning and possessing gave the land to his sole daughter Ajiron Nessa and delivered possession thereof. Ajiron Nessa died leaving behind 2 sons namely Bahaj Uddin alias Pakku Mondal and Abdul Based and 2 daughters. Upon an amicable partition 2 sons of Ajiron Nessa got her share. Bahaj Uddin died leaving behind 3 sons namely Karim, Jabbar and Muhor and 3 daughters but his 3 sons got his shares upon an amicable partition. CS tenant Emam Sheikh died leaving behind only son Tayez uddin who became owner of his property. After the death of Tayez uddin, Md Bodor uddin alias Badshah Miah and Shah Alam inherited the property. After death of Bodor Uddin, Shahidul Islam, Juihas uddin and Sheikh Farid got his share. On the death of CS tenant Amir Sheikh, his 4 sons namely Osman Sarker, Suban Sheikh, Kazimuddin and Siraj Mondol got his property. On the death of Osman Sarker his 2 sons namely Jasim and Muslem and on the death of Suban Sheikh his 2 sons Mutaleb and Mokbul obtained their share. Government acquired 2 decimals land vide LA case No. 1/1942-1943, 8 decimals of land vide LA case No. 10/1958- 1959 and 6 decimals of land vide LA case No. 1/1992-1993 out of 24 decimals of land from suit plot No. 122 and the plaintiffs and their predecessors have been holding and possessing the rest 8 decimals land. The plaintiffs constructed buildings, shops over the suit land. The names of some plaintiffs and the names of the predecessor of some plaintiffs have been recorded in SA khatian. The plaintiffs mutated their names and paid rent and the on going Porcha has been prepared in their names. A Bainama was executed in respect of 8 decimals land vide registered Bainanama No. 4588 dated 29-11-2004. The government notified the previous owner to return back the compensation money against 10 decimals land which was originally acquired vide LA case No. 9 of 1972-73 for the purpose of constructing roads but was subsequently released and accordingly the predecessor of the plaintiffs returned back the compensation money vide challan and took back possession of the said land. On 16-10-2002 during operation of joint forces college authority upon threat intimidated the plaintiff by giving the option to the effect that if they execute an affidavit in favour of the college in respect of 8 decimals land then their buildings will not be demolished. The plaintiffs were compelled to execute an affidavit and applied to the college authority for taking rents of the shop. On 11-1-2003 at 10-00 am college authority threatened the plaintiffs to dispossess them from the suit land which constrained the plaintiffs to file the instant suit.
4.
The defendant No.s 1-2 and defendant Nos. 3-5 contested the suit by filing separate written statements denying the material allegations contending inter-alia that the suit is not maintainable in its present form and is barred by limitation. Government acquired 6 decimals land vide LA case No. 1/92-93, 8 decimals of land vide LA case No. 10/58-59 and 10 decimals of land vide LA case No. 1/1942-43(1A) and (1)(B) i.e. entire 24 decimals of land under CS plot No. 122 of Statutia Mouza for development of Kalihati Ratongonj Road and Tangail-Mymensing Road. The plaintiffs have no title and interest over the 8 decimals of land as described in the suit schedule and as shown in the imaginary map. While owning and possessing the same, government leased out 11 decimals of land in favour of Kalihati college for a long period and on 13-1-1981 a registered deed was executed in favour of the said college. Some of the plaintiffs applied to the college authority for getting a quantum of leased property in lieu of Taka 2005 and upon being refused the plaintiffs applied to get back the said amount on 30-12-1989. The defendants are holding and possessing the 11 decimals of land by construction and fencing by barbed wire. The defendants did not issue any sort of threat to the plaintiffs. The 8 decimals of suit land is government property and the plaintiff by creating some forged papers and in collusion with some government staffs brought the instant suit and, as such, defendant prayed for dismissal of the suit.
5.
Pursuant to trial the trial court upon adducing documentary evidences and by way of depositions by both sides heard the suit and decreed the same by its judgment and decree dated 19-7-2006 passed by the learned Assistant Judge, Kalihati, Tangail in Other Class Suit No. 8 of 2003 in favour of the plaintiffs (opposite parties in the revisional application).
6.
Being aggrieved by the judgment and decree dated 19-7-2006 passed by the learned Assistant Judge, Kalihati, Tangail in Other Class Suit No. 8 of 2003 the defendants No. 3-5 government of Bangladesh preferred an appeal being Other Class Appeal No. 163 of 2006 which was heard by the learned Joint District Judge, 1st Court, Tangail who upon hearing the appeal affirmed the judgment of the trial court upon concurrent findings and thereby dismissed the appeal.
7.
Being aggrieved by the judgment and decree dated 16-6-2008 passed by the learned Joint District Judge, 1st Court, Tangail in Other Appeal No. 163 of 2006 dismissing the appeal and thereby affirming the judgment and decree dated 19-7-2006 passed by the learned Assistant Judge, Kalihati, Tangail in Other Class Suit No. 8 of 2003 the defendant Nos. 3-5 appellant as petitioner preferred the instant Civil Revisional application which is before me for disposal.
8.
The defendants No. 1 and 2 in the suit that is Khalihati college Tangail appears in the revisional application as proforma opposite party Nos. 15 and 16.
9.
Learned Deputy Attorney-General Mr Abdus Salam Mondal along with Mrs. Shahida Khatoon, Assistant Attorney-General appeared on behalf of the petitoners while Mr Probir Neogi, Senior Advocate along with Mr Md Mozammel Hoque Bhuiyan, Advocate along with Mr Sumon Ali, Advocate represented by the opposite party Nos. 2-13 and Mrs. Sarwat Siraj, learned Advocate represented the pro-forma opposite party Nos. 15-16.
10.
Learned DAG on behalf of the petitioners commences his submission upon assertion that both courts below upon absolute misreading of evidences and non consideration of facts and non appreciation of the relevant laws came upon erroneous findings occasioning serious mis courage of justice causing severe damage to the interest of the petitioners and therefore the Judgments are not sustainable at all. Learned DAG argues that the plaintiffs claim is not bonafide and the suit is not maintainable. He relies upon the records of the case and continues that the plaintiffs originally claimed 0.08 acres of land out of a total of 24 decimals of land by 3 seperate LA cases in the year of 1942-43, 1958-59 and in the year 1992-93 respectively. The learned DAG contends that however the opposite parties plaintiffs by way of amendment in the plaint subsequently during trial claimed another acquisition of 10 decimals of land by LA case No. 9 of 1972-73 by the government. In pursuance of these claims of the opposite parties the learned DAG for the petitioner draws this court's attention to the records wherefrom he shows that it is the plaintiffs' case as in the plaint that the total amount of land in Dag No. 122, Khatian No. 14 is 24 decimals of land and the plaintiffs claim that out of 24 decimals of land 16 decimals of land in total was acquired by the government by 3 separate cases LA case No. 1/1942-43, LA case No. 10/1958-59 and LA case No. 9/1972-73. The plaintiffs claim 0.08 acres of land from the 24 decimals of land. He submits that the. plaintiffs admittedly do not claim the 16 decimals of land acquired by the government in the LA case. He next submits that however the plaintiffs subsequently amended the plaint by way of amendment. He further asserts that plaintiffs claim that 10 decimals of land was acquired by the government by LA case No. 9/1972-73 and that the same 10 decimals of land acquired by LA case 9/1972-1973 was released later on by the government in favour of the plaintiffs returning back the compensation releasing the land accordingly are totally untrue not having any factual basis. Learned DAG contends that plaintiffs have themselves stated in the plaint that the total land comprises of 24 decimals of land but yet the plaintiffs opposite parties later claimed by way of amendment of plaint another 10 decimals of land as being acquired by the government by LA case No. 9 of 1972-73. On this issue the learned DAG shows that as a result the total area of land amounts to 26 decimals of land and not 24 decimals of land. He continues that these inconsistent claims alone are adequate proof that the plaintiffs did not come with clean hands. He argues that it is admitted by both sides that the Dag No. 122 comprises of an area of 24 decimals of land. He further argues that under such circumstances the plaintiffs' later claim of another 10 decimals of land making the total land into 26 decimals of land is an absurdity not having any factual basis. Learned DAG also draws this court's attention to the records and to exhibits “ঘ”/ Gha wherefrom he points out that some of the plaintiffs in the suit had filed another suit previously 1984-85 regarding the same dag from which they claimed 4 decimals of land. Learned DAG asserts that such inconsistency in the conduct of the plaintiffs only prove that they do not have any genuine claim to the suit land and, as such, they filed the suit with malafide intention to usurp the property. Learned DAG also submits that the suit is not even maintainable given that against any such order as the impugned order passed by the Deputy Commissioner land or relating to revenue, the plaintiff could have made an application before the land appeal board if aggrieved by such order. He contends that therefore resorting to the civil court by filing the present suit is not maintainable at all. The learned DAG by way of his argument as to non maintainability of the suit draws attention to section 14(A) of the Emergency Requisition Property Act-1948 and asserts that section 14(A) of the act expressly barred jurisdiction of Civil courts to entertain any such suit or application against any such order passed by the authorities. In the context of the plaintiff-opposite parties' claim that the plaintiffs claim that the land acquired vide LA case No. 9 of 1972-73 comprising of 10 decimals of land was subsequently released by the authority upon returning the compensation money which was earlier paid to the plaintiffs upon acquisition, the learned DAG by way of controverting such claim submits that pursuant to any acquisition by any LA case there is no scope to release the property under the relevant laws, neither under the Emergency Requisition Property Act-1948 nor the later amended Act of 1982. He submits that the plaintiffs themselves stated that the land was acquired by an "LA" case that is "land acquisition" case. In pursuance he contends that such being the claim of the plaintiffs it was not a case of "requisition" by the plaintiffs own admission and therefore under the relevant laws relating to acquisition and requisition of property there is no scope to release a property which has once been acquired. He next contends that the plaintiffs' claim to the LA case No. 9 of 1972-73 is actually baseless having no basis in fact in as much as that the plaintiffs could not produce any documents relating to acquisition of the property by way of any LA case during 1972-73. He argues that this particular claim of the plaintiffs is only a subsequent claim by way of amendment at a later stage. He continues that the learned courts below yet failed to comprehend that admittedly the total amount in Dag No.122 comprise of 24 decimals of land but by the subsequent amendment this 24 decimals of land became 26 decimals. He asserts that the courts below failed to apply their judicial mind and failed to question such significant inconsistency in the claims of the plaintiffs. He also takes me to the judgment of the trial court wherefrom he shows that the trial court states:
“উপরোক্ত কাজগুলো বাদীপক্ষের অনুকূলে সরকার কর্তৃক ডি-রিকুইজিশন মূলে ১০ শতাংশ জমি ফেরত দেয়ার ক্ষেত্রে দালিলিক সাক্ষ্য প্রমাণ করে।”
In this context the learned DAG submits that however the trial court failed to ascertain or point out of as to which দালিলিক সাক্ষ্য or documentary evidences the plaintiffs relied upon to prove the claim that land was acquired in 1972-73. The learned DAG also points out that the trial court in its finding stated that the land was derequisitioned. In pursuance he submits that the trial court upon total misapplication of mind came to a finding of "derequisition" of the suit land itself given that the claim arose out of an "LA" case that is "land acquisition" case being LA case No. 9/72-73. He continues that a claim of derequisition under the relevant law is not sustainable since there is no scope or provision for derequisition in the statute once a land is requisitioned under the law. The learned DAG also assails that the original claim of the plaintiffs was for 0.08 acres of land out of 0.24 acres of land and continues that therefore their subsequent claim of 10 decimals of land out of total 26 decimals of land only proves the uncertainty of the plaintiffs in their inconsistent claims and is manifest of their malafide and dishonest motive. In support of his submissions that there is no basis of the LA case No. 9 of 1972-73, the learned DAG takes me to the LCR to the deposition of PW 1's where by PW 1 deposes
“কোন কাগজ পত্র দাখিল করি নাই”.
He asserts that the P.W-1 's express admission that they could not produce any documents in support of their claim in LA case No. 9 of 1972-73 is adequate proof that their claim to title is not based on facts. He takes me to the LCR and draws my attention to the exhibit No. 5 the notice which is signed by the হুকুম দখল কর্মকর্তা (Additional Requisition Officer) and exhibits 6 challan which is signed by the treasury officer. In this context he argues that in exhibit 5 significantly the signature and seal of the Deputy Commissioner who is the concerned authority is missing. He argues that the provisions of land acquisition in both the Acts of 1948 and 1982 respectively provide that anything relating to acquisition or requisition of land whatsoever confers the sole authority and power to the Deputy Commissioner to do all acts pertaining to it or arising out of it whatsoever. He asserts that all the provisions in the section relating to acquisition expressly provide that the concerned Deputy Commissioner shall be the sole authority to undertake necessary measures and do the acts relating to any acquisition. He now takes to me exhibit 7 which is another notice wherefrom he shows that in the said 'notice' the initial only appears which the plaintiffs claim to be the Deputy Commissioner's but simultaneously he also points out that there is no officials seal to indicate that the notice has been issued from the DC's office neither is there anything else to indicate that any other concerned officer has been authorized to issue such notice. He next takes me to exhibit 7(Ka)-7(ga) which seems to be a notice of delivery of possession issued to the plaintiffs and which bears seal of the hukum dakol kormokorta (হুকুম দখল কর্মকর্তা) and not the DC's. He points out that only a signature claimed to be the DC's in the absence of official seal is not sustainable. He submits that the courts below completely over looked such significant inconsistencies in these exhibits in as much as that the plaintiffs in the suit being opposite parties in the instant civil Revision failed to prove the authenticity of the documents produced in respect of the said LA case No. 9 of 1972-73 from which their claim to "derequisition" of 10 decimals of land arise. He asserts that the petitioner government has no record of the LA case No. 9 of 1972-73 and the learned DAG denied existence of any LA case such having been filed relating to the "so called" 10 decimals of land in LA case No. 9 of 1972-73. He asserts that these concocted and created papers by way of exhibits 5, 7, 7(ka)-7(ga) are only proof that no LA case of 9 of 1972-73 comprising of 10 decimals of land was ever filed and it is only the plaintiffs' opposite parties' creation upon collusion by way of fraud upon creating some false papers to usurp title in the suit land. The learned DAG on behalf of the petitioner in support of his contentions cites a few decisions of this court and our Apex court inter alia in the cases of Golam Moula vs Gourpada Das reported in 50 DLR (AD) 95, in the case of Shahabuddin Bhuiyan vs Madar Mia and others reported in 5 MLR (AD) 2000 page 256, in the case of Abani Mohan Saha vs Assistant Custodian reported in 39 DLR (AD) 223, and in the case Abul Basher vs Bangladesh reported in 50 DLR (AD) 11. He concludes his submissions upon assertion that the concurrent findings of the courts below upon stark misreading and nonreading of evidences and upon non comprehension of the relevant laws relating to acquisition and requisition and the suit being filed in the wrong forum and not being maintainable, therefore those judgments and decree of the courts below ought to be set-aside and the Rule bears merit and be made absolute for ends of justice.
11.
On the other hand learned Senior Advocate Mr Probir Neogi appearing for the opposite parties opens his submission upon assertion that the courts below upon correct appraisal of evidences and taking into consideration the relevant laws relating to acquisition and requisition came upon their concurrent findings which are correctly given and do not call for interference by this court sitting in revision. At the onset he commences upon contending that the proforma respondent Kalihati college are not proper parties in the civil revision at all. In pursuance of his assertion he continues that Kalihati college the proforma respondent here, even through were defendants No. 1 and 2 in the original suit and suit was dismissed but yet they did not make themselves party to the appeal in Other Appeal No. 163 of 2006. He argues that since they were not parties to the appeal it is to be understood that they have acquiesced with the judgment of the trial court and therefore they have waived their right to oppose at this stage being barred by the doctrine of estoppel. He continues that not being a party to the appeal amounts to conceding with the judgment of the trial court. By way of attempting to ascertain the proper meaning of "Appeal" he further contends that there is no definition of Appeal in section 96 of the Code of Civil Procedure and takes me to the chapter and submits that "appeal" has not been defined in the code. By way of supporting his contention he cites a decision of the Privy Council 1932 in the case of Nagendra Nath vs Suresh whereby the takes me to the part he is relying upon which reads thus:
"Appeal" is any application by party to appellate court to set-aside or revise decision of subordinate Court"
12.
In pursuance of his reliance on this decision he submits that the college is barred under the law being estopped by their conduct in being a party at the revisional stage as proforma opposite parties. He next draws my attention to the scope of this court sitting in revision. He contends that this court sitting in revision must confine itself within the scope of revision and argues that this court under section 115(1) it can only interfere with the order of the courts below or any other order in case of "any error of law resulting in an error in such decree or order occasioning failure of justice." He persuades that therefore this court is purely a court of law and cannot assess the evidence on record unless there is misreading or non consideration of evidences by the courts below on the face of the record. He continues that in the instant case the courts below committed no error of law and came to their findings upon correct appraisal of the evidences and therefore those need not be interfered with sitting in revision. He next travels toward his contention that in the plaintiffs' case regarding the suit land in question it is a matter of "requisition" and not "acquisition". He persuades that the land "requisioned" in LA case No. 9 of 1972-73 comprising of 10 decimals of land subsequently upon repayment of the compensation money was released and given back to the plaintiffs. He persuades that it was a case of prior "requisition" and not acquisition. By way of supporting his contention he submits that the translation of the word acquisition in Bangla is “অধিগ্রহণ” while requisition in bangla translation is হুকুম দখল. He submits that in this case the land was "requisitioned" and not "acquired" and therefore pursuant to the requisition the plaintiffs were given compensation but that at one stage the authority decided to give back the suit land upon repayment of the compensation and the requisitioned property was subsequently released in favour of the plaintiffs in accordance with law. He submits that the evidences of the release documents are produced as exhibits 5, 6, 7, 7(ka), 7(kha) and 7(ga). He takes me to the trial court's finding wherein the Trial Court in its judgment at one place stated:
“নালিশী ১২২ নং দাগের মোট ভূমির পরিমাণ ০.২৪ শতাংশ উক্ত ১২২ দাগে ০.২৪ শতাংশ ভূমির মধ্যে কালিহাতি-রতনগঞ্জ এবং টাঙ্গাইল ময়মনসিংহ মহাসড়ক উন্নয়ন প্রকল্পে উক্ত সাতুটিয়া মৌজার সিএস ১৪ নং খতিয়ানের অন্তর্গত ১২২ দাগের ০.০২ শতাংশ ভূমি বিগত ইং ১৯৪২-৪৩ সনের ১নং এল, এস কেস মূলে একোয়ার করা হয়।”
In pursuance he submits that plaintiffs do not claim the 0.16 acres of land and that the plaintiffs' claim is confined to only 8 decimals of land and the 16 decimals of land acquired by the government petitioner is not claimed by the plaintiffs out of 24 decimals of land. He also submits that the plaintiffs do not claim the 11 decimals of land that have been leased out by the government to the defendant No. 3-5 in the suit. He persists that such being the situation, there is no inconsistency in the claim of the plaintiff-respondent-opposite parties here. He also submits that the government could not show that section 5(7) of the Act of 1948 provides that gazette notification must be issued pursuant to acquisition but in this case there is no such gazette notification and submits that it is a process that must be exhausted by stages. Upon a query from the bench regarding the petitioners' claim that the opposite parties are their tenants and that the opposite parties could not directly deny this during trial the learned Senior Advocate Mr Probir Neogi replied that compensation is also sometimes given in requisition in the form of rents. He takes me to section 7(f) of the Emergency Requisition Act 1948 which section provides the payment of compensation to the heirs of the deceased owner. He takes me to section 8 of the Emergency Requisition Act 1948 which provides for the procedure for release from requisition. He submits that in this case the requisition was "wrongly" called অধিগ্রহণ (acquisition) whereas it should actually be “হুকুম দখল” (requisition). He takes me to the Exhibits 7 series wherefrom he shows that the signature of the DC who is the authorized person to deal with matters related to acquisition and requisition that features in the exhibits. In pursuance he submits that the signature of the proper authority being manifest from those exhibits, therefore the procedure from release from requisition was done in a valid manner. He persuades that the courts below correctly came to their finding regarding the exhibits. He draws attention to section 114 of the Evidence Act 1872 and submits that exhibits are not private documents and section 114(e) of the Evidence Act provides for presumption of regularity in official acts and that the court may presume regularity in judicial and official acts in absence of proof to the contrary. He now takes me to the LCR and submits that plaintiffs' claim for 8 decimals of land and not 16 decimals of land which was acquired by the petitioner government. He takes me to the deposition of DW 1 that is Vice Principal, Kalihati college wherefrom the deposition of DW 1, he points that to the DW 1's admission that the disputed 8 decimals land is on the west side of the land owned by the college. He also draws attention to the deposition of DW 1's deposition that he has no knowledge of the derequisition. He then takes me to the trial court's finding that the defendants did not prove that the exhibits are false. In support of his submissions he cites a few decision of this court and the appellate division in the cases of Nagendra Nath vs Suresh in Privy Council 1932 page 165, in the case of Abdul Mannan vs Jobeda Khatun reported in 44 DLR (AD) 37, in the case of Joynal Abedin vs Mafizur Rahman reported in 44 DLR (AD) page-163, in the case of AR Niazi vs Pakistan reported in 20 DLR (SC) 205. He concludes his submissions upon assertion inter alia that the trial court arrived upon their findings upon proper appraisal of the laws and upon correct reading of the evidences and that the suit here actually arises out of a case of requisition and not acquisition therefore the instant revisional application bears no merit and ought to be discharged for ends of justice.
13.
Learned Advocate Mrs. Sarwat Siraj appearing for the proforma opposite-parties college submits that the plaintiff opposite parties produced forged documents in the LA case No. 9 of 1972-73 to prove their case. By way of her arguments, she contends at the very outset, the defendant-petitioners challenged the veracity of the exhibits in the LA case No. 9/1972-73. She continues that section the Evidence Act was invoked and suggestions were put forward to the plaintiff-opposite party witnesses during cross examination. She also submits that the plaintiff-opposite parties exhibited the certified copy of the LA Case No. 1 of 1942-43 (Exhibit 4), but failed to exhibit the certified copy of the more recent LA case No. 9 of 1972-73, although their case was solely reliant on the LA case No. 9 of 1972-73. She submits that even if for sake of argument it is conceded that the suit land was "requisitioned" and not "acquisitioned" under LA case No. 9 of 1972-73 the plaintiff opposite parties failed to produce the necessary documents to prove their case. The plaintiffs-opposite parties could not produce any papers as exhibits pertaining to LA case No. 9 of 1972-73, by way of certified copy of the LA case or the Notice of the so called "requisition". It is also asserted that requisition of land is a temporary measure under the Emergency Requisition of Property Act, 1948 and in this context she submits that requisition can only be done for a short period of time but yet the plaintiff claims to have received the notice of return of their land, 7 years after the "so-called" requisition. She continues that some evidences of the plaintiffs being tenants of the college have been produced as exhibit `ga' in the suit in the courts below and are evidences of the tenant and landlord relationship between the college and the plaintiffs. Countering the submissions of learned Senior Advocate Mr Probir Neogi submits that college cannot be made a party in the revisional stage, Mrs. Sarwat Siraj submits that counters that if they are not a party to the appeal yet since the college is a lessee from the government and there exists a lessor and lessee relationship between the government and the college therefore the interests of the government and the interest of the college is similar therefore the colleges not making themselves party at the appellate stage will not affect the outcome of the case. She argues that since the interest of the government and the college being same non appearance at the Appellate stage does not create any legal bar for them and the college is quite competent to appear as proforma respondents in the instant Civil Revision.
14.
On the issue of maintainability Ms Sarwat Siraj in support of her argument that the suit is not maintainable in its present form in the absence of evidence of exclusive possession and that the plaintiffs are barred from filing a suit for declaration of Title, cites a decision of our Apex Court in the case of Tayeb Ali vs Abdul Khaleque reported in 43 DLR (AD) page 87 where the relevant portion cited reads thus:
Maintainability of suit—The suit being one for declaration of title to an unspecified share of an undivided pot of land on the basis of gift and there being no evidence that the donor thereof was in exclusive possession at any time, is not maintainable without a prayer for partition.
15.
I have heard the learned Advocates for both sides, perused all materials on record including the judgments of the courts below, perused the LCR and decisions cited. The first issue I am inclined to address is the issue to whether the suit property is at all an acquired property or a property under requisition. I have gone through the documents on record. Regarding the LA case No. 9 of 1972-73 comprising of 10 decimals of land which the plaintiff claims was "requisitioned" but "released" subsequently to requisition by the government. I have gone through the records of the case and the relevant exhibits. Apparently I find that the plaintiffs could not show any documents of 1972-73 which may prove that 10 decimals of land from dag No. 122 was actually acquired by LA case No. 9 of 1972-73. The plaintiffs however produced some documents as exhibits before the courts below by way of Exhibits 5, 6, 7, 7(ka), 7(kha) and 7(ga) to prove that the property which the plaintiffs claim were acquired in 1972-73 by an LA case being LA case no 9 of 1972-73. I have carefully examined those exhibits. Exhibit 5 appears to be the original copy of the notices dated 19-11-1979 for return of compensation of money. Upon scrutiny, it is revealed that only the initials of the Deputy Commissioner seems to appear there. Exhibit-5 is the initial notice of release apparently signed by the Hukum Dokhol Kormokorta and not the Deputy Commissioner. Next I go to exhibit 7 wherein an initial supposed to be the DC's appears, but strangely enough there is no official seal from the DC's office rather the seal that appears is that of the Hukum Dakol Kormokorta হুকুম দখল কর্মকর্তা. In consonance with Exhibit 7, 7(ka), 7(kha) and 7(ga) also similarly appears to have a signature of the DC but the official seal is that of the Hukum Dakol Kormokorta.
16.
Now let me examine the relevant provisions of law relating to the case, being the provisions under The (Emergency) Requisition Property Act 1948 which is applicable to the suit land claimed to have been acquired in 1972-73 and supposedly released in 1979, therefore the Act of 1948 and not the latter amendment Act of 1982 or ordinance will be applicable in the instant case.
17.
I have gone through the relevant provisions oi the Act of 1948 specially sections 3, 4, 5, 5(A)(B)(C), 7, and section 8 of the Act. From perusal of these sections it appears to me that in a case of acquisition (অধিগ্রহণ) once property upon which compensation paid is acquired there is no scope to release such property any more under the provisions of the Act. Scope of releasing the property however in case of requisition has been provided in the Act. In a case of requisition provisions for subsequent scope of release is provided by the law even if compensation has been paid but there is no scope of release in case of acquisition (ভূমি দখল) any where in the act.
18.
Such being the provisions of the law it becomes imperative to examine whether the suit land from which the plaintiffs' case arises from was at all ever acquired or whether it was requisitioned or rather whether the plaintiffs' claim amounts to requisition or acquisition. Learned Senior Advocate Mr Probir Neogi for the opposite parties submitted that the plaintiffs' case was one of requisition and not acquisition. The Courts below appear to be quite uncertain and inconsistent in their findings. The trial court at one place referred to the case as one of "requisition". But however the Trial Court does not mention the source of its observation that is the property is a case of "requisition". From my examination of the records and exhibits it is clear that the plaintiffs admittedly based their claim arising out of an LA case being LA case No. 9 of 1972-73. The alphabets LA stands as an abbreviation for "land acquisition" and the plaintiffs as it evident have been consistently asserting that the case arose out of an "LA" case. Exhibits 5, 6, 7, 7(ka), 7(kha) and 7(ga) pertaining to "release" of the land including concerning delivery of possession to the plaintiffs. The exhibits relied upon by the plaintiffs all relate to LA case of 9/72-73 and in my considered view it is evident that the plaintiffs are claiming out of an "LA" or "Land Acquisition" case. Hence there is no scope to change their stance at this stage and they are now estopped from shifting from their earlier position. They cannot now claim that the suit land was a requisitioned land and not an acquisitioned or acquired land.
19.
The learned Advocate for the proforma respondent opposite party Nos. 15-16 continues that all through the trial in the appellate court the plaintiffs did not claim earlier that the land was not an acquired property but that it was requisitioned. Such being the circumstances as is apparent from the records my considered view is that the submission of the learned Senior Advocate Mr Probir Neogi that the land was requisitioned and not acquired does not carry much force in this case.
20.
Learned DAG counters the submissions of the learned Advocate for the opposite parties wherein Mr Probir Neogi submitted that this court sitting in revision cannot interfere except in case of non consideration and misreading of evidences or misinterpretation of law. In this context the learned DAG submits that this court may very well interfere with the findings of courts below in such a situation in case of non-consideration and misreading of evidence. He assails that a careful scrutiny and examination of exhibits 5, 6, 7, 7(ka), 7(kha) and 7(ga) them-selves manifest the fact that these documents are not genuine documents but created as a result of fraud and collusion. Upon scrutiny into the provisions of the Act of 1948, I have also noticed that the authorized person to deal with anything relating to acquisition is the DC (Deputy Commissioner) himself and no other person. A perusal of the provisions of the relevant sections express that once a property is acquired upon the statutory procedure being exhausted, pursuant to acquisition the person or persons whose property has been acquired shall receive compensation subject to any objection or discussion as to the amount of compensation which shall also be settled in accordance with the relevant provisions of the act. But once compensation has been given and accepted, the acquisition is final. The spirit of the law is that payment and receiving of compensation expresses the finality in the whole process of acquisition of a property which vested with the government and cannot he subsequently released in favour of the original owner.
21.
Learned DAG drew the court's attention to section 2(i) of the Act of 1948 and section 2(B) of the Act of 1982 and agitated that those sections specify the authorized persons who may exercise power in place of the DC. In the exhibits however I do not find any seal of any such authorized person. The, express provisions of section 2(i) of Act of 1948 reads thus:
2. Definitions-In this Act, unless there is anything repugnant in the subject or context-
(i) "Deputy Commissioner" includes an Additional Deputy commissioner and a Joint Deputy Commissioner and also an Assistant Commissioner or [Deputy Magistrate and Deputy Collector] authorised by the Deputy Commissioner to exercise any power conferred, or perform any duty imposed, on the Deputy Commissioner by or under this Act."
22.
While section 2(b) of the act of 1982 reads thus:
2. Definitions—In this Ordinance, unless there is anything repugnant in the subject or context-
(b) ["Deputy Commissioner" includes an Additional Deputy Commissioner and any other officer authorised by the Deputy commissioner to exercise any power conferred, or perform any duty imposed, on the Deputy Commissioner by or under this Ordinance”]
23.
Apparently plaintiffs also claimed that they have no claim over the 16 decimals of land acquired by the government nor do they have any claim over the 11 decimals of land leased out by the college.
24.
I am not inclined to mull over this issue because in my opinion the pivotal issue before me is whether the 10 decimals of land in LA case No.9 of 1972-73 was at all acquired and if acquired can it be released under the eye of law. It is revealed from the records that the plaintiffs could not produce any document to the effect that the land was actually acquired vide LA case No. 9 of 1972-73.
25.
The non-production and absence of any document pertaining to the so called land acquisition in the so called LA Case 9/72-73 is only indicative of the subsequent creation of some manufactured papers created upon collusion which were produced as exhibits in the courts below being exhibits 5, 7, 7(Ka), 7(Kha) and 7(Ga).
26.
There are no supporting evidences on record relating to claim of the plaintiffs pertaining to the act of the 'acquisition' in the so called LA case 9/1972-73. It is regrettable that the courts below completed overlooked the fact that these exhibits are created and manufactured papers only. The courts below failed to comprehend the law related to acquisition and requisition given that inspite of the DC being the competent authority, nevertheless his official seal does not appear in the exhibits which are supposed to be documents to prove subsequent "release" of the property. Moreover for the sake of discussion, given that the land of 10 decimals of land vide LA case No. 9 of 1972-73 was at all acquired, nevertheless under the Act of 1948 and also under the subsequently amended in 1982, such land once acquired cannot be released subsequent to acquisition since the provisions of the relevant law does not allow the scope of release subsequent to acquisition.
27.
Learned Senior counsel Mr Probir Neogi submits that the college net being a party to the Appeal is barred by the doctrine of estoppel and is therefore estopped from being a party to the Civil Revision Application presently before this court. He asserted that it is a principle of law that when a court's Judgment goes against a party and he does prefer an appeal against it, it amounts to conceding with that Judgment. It was also asserted that the term "Appeal" has not been defined anywhere in the Judgment. In support of his assertions he cited a decision of the privy council in the case of Nagendra Nath vs Suresh in Privy Council 1932 page 165 wherein the Privy Council held:
(a) Words and Phrases- "Appeal" is any application by party to appellate court to set-aside or revise of subordinate court.
28.
By way of continuation of this particular argument, he cited a decision of the Supreme Court in the case of Abdul Mannan vs Jobeda Khatun reported in 44 DLR page 36. In this decision also the meaning of "Appeal" has been discussed in similar strain as the Privy Council case. However, I am of the view that analysis of the term 'Appeal' or attempting to do so is a misplaced endeavour in this case and does not bear much applicability.
29.
In addressing opposition parties' Senior Counsel Mr Probir Neogi contention that the proforma respondent college are barred from a making themselves a party in this revisional application, I find force the argument of the counsel for the proforma-respondent and her argument is correct to the effect that the government and college are in a lessor and lessee relationship regarding the suit land and having similar interests those interests merge together and hence not being a party to the appeal does not create any embargo on their being a party in this Civil Revision.
30.
In course of hearing, Learned Counsels from both sides cited decisions of this Court and our Apex Court in support of their respective contentions, I have perused those, a few of which needs this Court's attention to arrive at a proper finding. In support of his submissions that property once acquired cannot be subsequently released, Learned DAG for the petitioner cited a decision of our Apex Court in the case of Abul Basher vs Bangladesh reported in 50 DLR (AD) 11 which is reproduced hereunder:
Mere non use of the acquired land for the purpose for which it was acquired will not give any right to get return of the same. Once a property is validly acquired after meeting the legal formalities it vests in the Government and it previous owner does not have any right to ask, return of the same for its non-utilization for the specific purpose for which it was acquired.
31.
However my considered opinion regarding this issue is that it bears applicability in the instant case in so far as the principle of this Judgment being in consonance and echoing the laws related to "acquisition" that property once validly acquired cannot be released later under any circumstances. By way of his countering the claims of the plaintiffs' (respondents-opposite-parties) failure to prove veracity of the incident of acquisition of the suit land and subsequent release and claim to title to these suit lands and other claims including the claim that the proforma Respondents intimidated the plaintiffs upon of operation of "যৌথবাহিনী" (Joint forces) to evict the plaintiffs, the learned DAG submits that the opposite parties failed to prove any of these claims by adequate evidence and which ought to have been proved by the plaintiffs.
32.
The learned DAG asserted that it ought to be noted that in this case the plaintiffs claimed title to the suit land and that it goes without saying that the onus of proving Title lies on the plaintiffs. He draws support on his assertion from a principle expounded by our Apex Court in the case of Abani Mohan Saha vs Assistant Custodian reported in 39 DLR (AD) 225 as reproduced below:
The initial onus lies on the plaintiff to prove his title.
33.
It was asserted by the opposite parties that pursuant to acquisition the petitioner Government could not show any evidence of acquisition upon publishing such acquisition by issuing gazette notification in accordance with section 5(7) of the Act of 1948.
34.
My considered view is that in this case since the so called acquisition of the 10 decimals of land vide LA Case "9/72-73" did not take place at all, therefore question of publishing the acquisition by gazette notification does not arise and is therefore a non-issue in this case.
35.
Under the foregoing facts and circumstances and in the light of the submissions made by the learned Advocates for both parties the discussions made above and relying upon the decisions cited by the learned Advocate from both sides. I find merit in this Rule.
36.
In the result, the Rule is absolute and the judgment and decree dated 16-6-2008 passed by the learned Joint District Judge, 1st Court, Tangail Other Appeal No. 163 of 2006 dismissing the appeal by affirming the judgment and decree dated 19-7-2006 passed by the learned Assistant Judge, Kalihati Tangail in Other Class Suit No. 8 of 2003 dated 19-7-2006 is hereby set-aside.
Send down the lower courts records at once. Communicate the judgment at once. End.
High Court Division
(Civil Revisional Jurisdiction)
Present:
Mr. Justice Md. Zakir Hossain
Civil Revision No. 2148 of 2022.
Sree Sree Tagore Anukul Chandra Satsangha Hemayetpur, Pabna, represented by its Secretary General Dr. Rabindra Nath Sarker, Pabna
Defendant-Appellant-Petitioner
VS
Satsanga Bangladesh, represented by its Secretary, Dhritabrata Adiyata and others
Plaintiffs-Respondents-Opposite Parties
Judgement Date : November 03, 2022
Counsels:
AM Amin Uddin, Senior Advocate with, M. Saiful Alam, Prahlad Debnath and Mohammad Mohsin Kabir, Advocates—For the Petitioner.
Khair Ejaj Masood, Senior Advocate with Monoj Kumar Bhowmik and Uzzal Kumar Bhowmick, Advocates —For the opposite-party No. 1.
No one Appear—For the Opposite party Nos. 2-4.
Judgment
At the instance of the petitioner, the Rule was issued on 5-6-2022 by this Court with the following terms:
"Let a Rule issue calling upon the opposite party No. 1 to show case as to why the impugned order dated 15-11-2021 passed by the learned Additional District Judge, First Court, Pabna in Other Class Appeal No. 119 of 2018 rejecting the application filed by the petitioner for local inspection under Order 39, Rule 7 read with section 115 of the Code of Civil Procedure shall not be set-aside and/or such other or further order or orders as to this Court may seem fit and proper.
Pending hearing of the Rule, let the operation of the impugned order dated 15-11-2021 passed by the learned Additional District Judge, 1st Court, Pabna in Other Class Appeal No. 119 of 2018 be stayed for a period of 2(two) weeks from date."
2.
The opposite party No. 1 being plaintiff filed Other Class Suit No. 51 of 2007 before the Court of Senior Assistant Judge, Sadar, Pabna with the following prayer:
“অতএব বাদীর প্রার্থনা এই যে,
(ক) বাদী “সৎসঙ্গ বাংলাদেশ” বাংলাদেশে বৈধ কর্তৃপক্ষ সঙ্গ সৎসঙ্গ হিসাবে নালিশী (খ) তপশীল বর্ণিত ভূমির দখল বুঝিয়া পাইতে অধিকারী মর্মে ঘোষণামূলক ডিক্রী দিতে;
(ক)(১) নালিশী (গ) তপশীল বর্ণিত আদেশসমূহ সম্পূর্ণ অন্যায়, বেআইনী, যোগসাজসী গন্যে তাহা রদ রহিত বাতিল করিয়া পাইবার নিমিত্তে বিবাদীপক্ষের বিরুদ্ধে বাদীপক্ষকে ডিক্রী দিতে;
(ক)(২) ২ নং বিবাদী কর্তৃক রিজাম্পশন ০১/১৫-১৬ নং মোকদ্দমার যাবতীয় কার্যক্রম ও আদেশ সম্পূর্ণ অন্যায়, বেআইনী মর্মে তাহা রদ রহিত বাতিলের ডিক্রী দিতে;
(ক)(৩) নালিশী (ঘ) তপশীল বর্ণিত স্মারক পত্রে নালিশী (খ) তপশীল বর্ণিত সম্পত্তি “সৎসঙ্গ পাবনা” বরাবরে প্রত্যর্পণের আদেশ অন্যায় বেআইনী মর্মে বিবাদীপক্ষের বিরুদ্ধে বাদীপক্ষকে ঘোষণার ডিক্রী দিতে;
(ক)(৪) বাদী সৎসঙ্গ বাংলাদেশে একমাত্র বৈধ কর্তৃপক্ষ সঙ্গ সৎসঙ্গ মর্মে প্রচার ও ঘোষণা বাবদ বাদীকে ডিক্রী দিতে;
(খ) সাকুল্যে আদালত খরচা বাদীকে বিবাদীগণের বিরুদ্ধে পাইবার ডিক্রী দিতে;
(গ) আইন ও ইকুইটি মূলে বাদীপক্ষ আরও যে সকল প্রতিকার পাইতে অধিকারী তাহাও বাদীপক্ষের অনুকূলে বিবাদীগণের বিরুদ্ধে পাইবার ডিক্রী দিতে মর্জি হয়।”
3.
Having received the summons the defendants-respondents entered appearance in the suit and contested the same by filing written statement denying the material allegations set out in the plaint.
4.
On the pleadings of the parties to the suit, the following issues were framed namely:
“(১) মোকদ্দমাটি বর্তমান আকারে ও প্রকারে চলিতে পারে কি না?
(২) মোকদ্দমার আর্থিক মূল্যমান (Suit Valuation) সঠিক আছে কি না?
(৩) মোকদ্দমাটি পক্ষদোষে বারিত কি না?
(৪) বাদী “সৎসঙ্গ বাংলাদেশ” বাংলাদেশে একমাত্র বৈধ কর্তৃপক্ষ সঙ্গ সৎসঙ্গ কি না?
(৫) নালিশী (ঘ) তপশীল বর্ণিত স্মারকপত্র মূলে নালিশী (খ) তপশীল বর্ণিত সম্পত্তি “সৎসঙ্গ পাবনা” বরাবরে প্রত্যর্পণের আদেশ যথার্থ কি না?
(৬) বাদী নালিশী (খ) তপশীল বর্ণিত ভূমির দখল বুঝিয়া পাইতে হকদার কি না?
(৭) নালিশী (গ) তপশীল বর্ণিত আদেশ সমূহ যোগসাজসী, অন্যায় ও বে-আইনী কি না?
(৮) ২ নং বিবাদী কর্তৃক রিজাম্পশন ০১/২০১৫-১৬ নং মোকদ্দমার যাবতীয় কার্যক্রম ও আদেশ অন্যায় ও বে-আইনী কি না?
(৯) বাদীপক্ষ প্রার্থী মতে প্রতিকার পাইতে হকদার কি না?”
5.
After conclusion of hearing, the trial Court decreed the suit. Being highly aggrieved by and dissatisfied with the same, the petitioner being appellant filed Other Class Appeal No. 119 of 2018 before the Court of learned District Judge, Pabna. Thereafter, the learned District Judge, Pabna transmitted the case record to the learned Additional District Judge, 1st Court, Pabna for disposal of the appeal on merit.
6.
During pendency of the appeal, the appellant filed an application under Order XXXIX, rule 7 read with section 151 of the Code of Civil Procedure, 1908, in short 'the CPC', praying for local inspection which was resisted by the respondents. Upon hearing, the learned Additional District Judge was pleased to reject the application for local inspection. Challenging the legality and propriety of the said order, the petitioner moved before the Court presided over by Mr Justice Rezaul Hasan, who upon hearing was pleased to dispose of the revisional application allowing the petition for local inspection. Questioning the legality and propriety of the said order, the opposite parties went to the Appellate Division. Upon hearing, the Appellate Division was pleased to dispose of the Civil Petition for Leave to Appeal No. 401 of 2022 directing this Court to hear the matter as a motion afresh and pass necessary order in accordance with the law.
7.
Upon hearing the said matter as a motion afresh, this Court was pleased to issue the aforesaid Rule and stay therewith.
8.
Mr AM Amin Uddin, the learned Senior Advocate along with, Mr M. Saiful Alam, Mr Prahlad Debnath and Mr Mohammad Mohsin Kabir, Advocate appearing for the petitioner submits that for final and complete adjudication of the dispute arisen in the suit, local inspection is sine qua non nevertheless, the appellate Court below without considering the materials on record most illegally rejected the petition for local inspection and, as such, committed an error of law in its decision causing serious failure of justice; therefore, the impugned order passed by the appellate Court is liable to be turned down to secure ends of justice.
9.
He next submits that while passing the impugned order, the appellate Court below traveled beyond the law that the purpose of local inspection is to determine the actual position, possession and custody of the suit property and the real matter in dispute. He further adds that the present petitioner has been running and managing more than 20 institutions and organizations in the welfare of the pilgrims and devotees of Sree Sree Tagore Anukul Chandra but the learned Court below hopelessly failed to perceive these vital aspects of law and, as such, committed error of law in passing the judgments resulting in an error in the decision occasioning failure of justice.
10.
He further submits that appeal is a continuation of the suit and the appellate Court shall have same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the CPC on Court of original jurisdiction in respect of suits instituted therein.
11.
He finally submits that for final and complete adjudication of the dispute arisen in the suit in hand, the local inspection is necessary; otherwise, it will entail serious prejudice to the petitioner; therefore, the appellate Court ought to have allowed the petition for local inspection to secure ends of justice.
12.
Per contra, the learned Senior Advocate Mr Khair Ejaj Masood along with Mr Monoj Kumar Bhowmik and Mr Uzzal Kumar Bhowmick appearing on behalf of the opposite party submits that the learned Additional District Judge applying his judicial mind was pleased to reject the application for inspection and therefore, there is no reason to interfere with the same.
13.
He further submits that the application is not maintainable as core issue involved in the suit is as to whether the plaintiff or the defendant is the recognized representative of Satsang. He also submits that the defendant while praying for local inspection stated that PW 1 in his cross-examination denied the existence of the establishments in the Hemayetpur Satsango Ashram as stated in their application and to elucidate the matter in disputes, though the law is settled in that respect that no inspection can be sought for under Order XXXIX, rule 7 of the CPC for collecting evidence. He further submits that the plaintiff categorically stated in the plaint as to the structures of the disputed premises; therefore, the inspection petition at the belated stage is redundant. Taking thread from counter affidavit dated 2-11-2022 appended to paragraph No. 22, he finally submits that the plaintiff-respondent-opposite party admitted to the effect that the Establishments as mentioned in the application for inspection are there in the "Sree Sree Tagore Anukul Chandra Satsango Ashram" -premises.
14.
Heard the submissions advanced by the learned Advocates of both the parties and perused the entire materials on record with due care and attention as it deserves.
15.
Now the pertinent issue is whether the impugned order is sustainable in the eye of law.
16.
The reason for filing petition for local inspection is as follows:
“দরখাস্ত পত্রে আপীল্ল্যান্ট পক্ষের বিনীত নিবেদন এই যে, এই আপীল্ল্যান্ট হিমায়েতপুর শ্রী শ্রী ঠাকুর অনুকূলচন্দ্র সৎসঙ্গ আশ্রমে ঠাকুরের স্থাপিত মন্দির এবং তৎপর ভক্তদের দ্বারা অতিথি শাখা, ফিলালেথ্রোপী ভবন, অতি বৃহৎ পাকা মন্দির, পাবলিসিং হাউজ, দাতব্য চিকিৎসালয়, পোষ্ট অফিস, উৎসব মঞ্চ, শিক্ষা প্রতিষ্ঠান লাইব্রেরী বিদ্যমান থাকিলেও PW1 তাহার জেরাতে এরূপ কোন সংস্থা হিমায়েতপুর শ্রী শ্রী ঠাকুর অনুকূলচন্দ্র সৎসঙ্গ আশ্রমে বিদ্যমান রহিয়াছে বলিয়া সরাসরি অস্বীকার করিয়াছেন এবং তাহাদের বক্তব্য অনুযায়ী হিমায়েতপুর সৎসঙ্গ আশ্রমে কোন অস্তিত্ব নাই এবং পাকুড়িয়াতেই সৎসঙ্গের অফিস স্থানান্তর করা হইয়াছে। এ কারণে ন্যায় বিচারের স্বার্থে হিমায়েতপুর সৎসঙ্গ আশ্রমে প্রকৃত ভাবে কোন কোন প্রতিষ্ঠান বিদ্যমান রহিয়াছে তাহা সরজমিনে তদন্ত হওয়া একান্ত আবশ্যক নচেৎ ন্যায় বিচারের বিঘ্ন সৃষ্টি হইবে।”
17.
In the application, it was mentioned:
“যাহা তদন্ত করিতে হইবে তাহার বিবরণঃ
হিমায়েতপুর শ্রী শ্রী ঠাকুর অনুকূলচন্দ্র সৎসঙ্গ আশ্রমে নিম্নলিখিত প্রতিষ্ঠানগুলি আছে কিনা?
১ পাকা বৃহৎ আকারের মন্দির; ২ চারতলা বিশিষ্ট ফিলালেথ্রোপী অফিস ভবন; ৩ শ্রী শ্রী পিতৃ-মাতৃ স্মৃতি মন্দির; ৪ লাইব্রেরী; ৫ ঋত্বিক ভবন; ৬ হিমায়েতপুর সৎসঙ্গ পোষ্ট অফিস; ৭ সৎসঙ্গ পাবলিশিং হাউজ; ৮ দাতব্য চিকিৎসালয়; ৯ শ্রী শ্রী ঠাকুর অনুকূলচন্দ্র তপবন উচ্চ বিদ্যালয়; ১০ ছাত্রাবাস; ১১ আনন্দ বাজার (ভোজনালয়); ১২ উৎসব মঞ্চ; ১৩ বাধানো ঘাটসহ ২টি বৃহৎ পুকুরিনী; ১৪ দুইতলা বিশিষ্ট অতিথি ভবন; ১৫ সৎসঙ্গ বিপনী বিতান (৮০টি দোকান বিশিষ্ট সৎসঙ্গ মার্কেট)।”
18.
The learned Additional District Judge rejected the petition with the following findings:
“মূল মামলার আরজী এবং জবাব পর্যালোচনা করা হলো। দরখাস্তকারী পক্ষের আনীত দেওয়ানী কার্যবিধির অর্ডার ৩৯ রুল ৭ তৎসহ ১৫১ ধারার লোকাল ইন্সপেকশনের দরখাস্ত পর্যালোচনা করা হলো। উভয় পক্ষের বিজ্ঞ কৌশুলীদের উপস্থাপিত মৌখিক বক্তব্যসমূহ পর্যালোচনা করা হলো। মূলত অপরপক্ষের সাক্ষীরা জেরার বক্তব্য কি প্রকাশ করেছে এবং বিজ্ঞ বিচারিক আদালত রায়ের পর্যবেক্ষণ কি উল্লেখ করেছেন, সে বিষয়ের উপরেই লোকাল ইন্সপেকশনের দরখাস্তটি আনয়ন করা হয়েছে। সাক্ষীদের জবানবন্দি ও জেরার বক্তব্যসমূহের বিশ্বাসযোগ্যতা এবং গ্রহণযোগ্যতা অন্যান্য সাক্ষীদের বক্তব্যের সঙ্গে এবং অন্যান্য দালিলিক সাক্ষ্যের সাথে বিবেচনা করে নিরূপিত হয়ে থাকে। বিজ্ঞ বিচারিক আদালতের রায়ের পর্যবেক্ষণ সঠিক আছে কিনা তা উপস্থাপিত সাক্ষ্য প্রমাণের আলোকে আপীল আদালতে বিবেচনা করা হয়ে থাকে। এভাবে সাক্ষীদের জেরার বক্তব্যের উপরে এবং বিচারিক আদালতের রায়ের পর্যবেক্ষণের উপরে লোকাল ইন্সপেকশন হওয়া আইনানুগ নয়। তাছাড়া, প্লিডিংস বহির্ভূত বিষয়ে লোকাল ইন্সপেকশন করার কোন আবশ্যকতা নাই। সার্বিক বিবেচনায় প্রতীয়মান হয় যে, আপীল্ল্যান্ট দরখাস্তকারী পক্ষের আনীত লোকাল ইন্সপেকশনের দরখাস্ত মঞ্জুরযোগ্য নয়। কাজেই উক্ত দরখাস্ত নামঞ্জুর করা হলো।”
19.
It transpires from the record that the suit was filed for declaration and recovery of possession of the property mentioned in the 2nd schedule to the plaint and the opposite party in his counter affidavit clearly stated that the structure for which local inspection is sought by the appellant are very much available within the premises of "Sree Sree Tagore Anukul Chandra Satsango Ashram". Moreover, in the plaint under paragraph No. 1 the plaintiff respondent categorically admitted to that effect. The defendant-respondent petitioner in his written statement under paragraph No. 6 depicted as to the said Establishments.
20.
Under the provisions of section 30 and 94(e) read with Order XXXIX, rule 7 of the CPC, the Court may appoint a commissioner for holding inspection for ascertaining the nature and feature of the subject matter of the suit, damage, the changes after institution of the suit or particular order or to determine the age of a subject-matter or to make an inventory of structure, fixture etc.
21.
Local investigation is essential for identification of disputed land that means to determine the dispute which cannot be seen by naked eyes and where measurement or identification of land is sine qua non. On the other hand, local inspection may be made to resolve the disputed matter which can be seen by naked eyes. At. times, the Lawyers and Judges and other stakeholders fail to conceive the distinction between the local inspection and local investigation and, as such, they make a mess between the two. The Court is empowered to direct local investigation under Order 26, rule 9 of the CPC while local inspection is directed under Order XXXIX, rule 7 or in an appropriate case by invoking section 151 of the CPC the Court may direct local inspection. Even the Court itself may inspect the disputed matter in view of Order 18 rule 18 of the CPC.
22.
To sum up, my conclusion is as under:
(i) In appropriate case, the Appellate Court may allow the petition for local inspection, if the same is essential for final and complete adjudication of the dispute. But the case is in hand does not require any inspection since the establishments as claimed by the defendant-appellant-petitioner have not been denied in material particulars by the plaintiff-respondent-opposite party;
(ii) the petition for local inspection is not bonafide, rather a device to prolong the hearing of Appeal on merit;
(iii) the petition for local inspection is nothing but a surprise at the time of hearing the appeal on merit;
(iv) the appointment of Commissioner for holding local inspection should not be made on mere asking for the same as a fashion.
(v) the appointment of Advocate Commissioner for local inspection its discretionary, but that discretion has to be exercised carefully, cautiously, judiciously, but not arbitrarily or whimsically or fancifully;
(vi) the factum for holding local inspection in no way related to the issues formulated by the trial Court and, as such, the prayer for holding local inspection is redundant.
(vii) The question as posed in the petition for local investigation is as follows:
হিমায়েতপুর শ্রী শ্রী ঠাকুর অনুকূলচন্দ্র সৎসঙ্গ আশ্রমে নিম্নলিখিত প্রতিষ্ঠানগুলি আছে কিনা?
23.
The answer is in the affirmative; therefore, urging for local inspection is superfluous.
24.
In view of above observations, the Rule is discharged, however, without passing any order as to costs. The earlier order of stay thus stands recalled and vacated.
25.
In accordance with law, the Appellate Court is directed to dispose of the Appeal upon independent assessment of the evidence on record with utmost expedition. Let a copy of the judgment be transmitted to the Court below at once.
End.
High Court Division
(Special Original Jurisdiciton)
Present:
Mr. Justice Md. Mozibur Rahman Miah
Mr. Justice Kazi Md. Ejarul Haque Akondo
Writ Petition No. 6134 of 2022.
Dilara Begum and another
Petitioners
VS
Artha Rin Adalat and others
Respondents
Judgement Date : December 04, 2022
Counsels:
AF Hassan Ariff, Senior Advocate with TM Shakil Hasan, Advocate—For the Petitioners.
Khondaker lqbal Ahmed, Advocate—For the Respondent No. 3.
Judgment
Md Mozibur Rahman Miah, J:
On an application under Article 102 of the Constitution of the People's Republic of Bangladesh, this Rule Nisi was issued calling upon the respondents to show cause as to why the order No. 153 dated 24-4-2022 passed by the Judge, Artha Rin Adalat, Chattagram in Artha Execution Case No. 23 of 2008 (Annexure- 'I' to the writ petition) allowing an application under order XL, rule 1 and section 151 of the Code of Civil Procedure appointing receiver should not be declared to have been passed without lawful authority and is of no legal effect and/or pass such other or further order or orders passed as to this court may seem fit and proper.
2.
At the time of issuance of the Rule, this court also stayed the operation of the impugned order No. 153 dated 24-4-2022 passed by the Judge, Artha Rin Adalat, Chattagram in Artha Execution Case No. 32 of 2008 for a period of 1(one) month and it was lastly extended on 22-8-2022 for another 1(one) month.
3.
The precise facts so have been described in the instant writ petition are:
The present respondent No. 3 as plaintiff originally filed a suit being Artha Rin Suit No. 354 of 2004 against the present petitioners and others making them as defendants in the suit claiming an amount of Taka 76,55,89,664/42 as of defaulted loan. In the said suit, as many as five defendants entered appearance and contested the same by filing a joint written statement denying all the material statement so made in the plaint. Ultimately, the respondent No. 1, Judge of the Artha Rin Adalat, Chattogram by his judgment and decree dated 24-5-2007 decreed the suit on contest against the defendant Nos. 1-5 and 10 and ex pane against the defendant No. 11. In order to execute the said decree, the respondent-bank then filed an execution case being Artha Execution Case No. 23 of 2008 claiming an amount of Taka 99,45,52,229/04 against the defendants as judgment-debtors. In course of the said execution case, the decree-holder-bank on 8-11-2021 filed an application under order XL, rule 1 read with section 151 of the Code of Civil Procedure for appointing a receiver to receive the rent out of the building and godown built on the property mortgaged with the bank. However, against that application, the judgment-debtors filed written objection on 11-1-2022 and prayed for rejecting the application. The learned Judge took up the application on 24-4-2022 and upon hearing the parties to the application allowed the same and thereby appointed the Upazilla Nirbahi Officer, Sitakunda, Chattogram as receiver giving authority to realize rent from the tenants of the building and to deposit the same in the name of the judgment-debtors in respondent No. 3-bank fixing his remuneration at Taka 25,000 per month. It is at that stage, the judgment debtor Nos. 5 and 4 as petitioners came before this court and obtained the instant Rule and order of stay.
4.
Mr AF Hassan Ariff, the learned senior counsel along with Mr TM Shakil Hasan, the learned counsel appearing for the petitioners upon taking us to the writ petition and all the documents appended therewith at the very outset submits that, there has been no scope to file any application for appointing receiver in an Artha Rin Suit which is guided by a special law.
5.
The learned counsel then by referring to section 69A of the Transfer of Property Act, 1882 (though the learned Judge in a misconceived manner made his reliance in section 69 kha of the Act, having no existence in it) also contends that, that very provision is not applicable in appointing receiver as application of that provision is also absent in Artha Rin Adalat Ain yet since the respondent No. 3 got the decree it is only obliged to follow the provision which has only been provided in Artha Rin Adalat Ain, 2003 (hereinafter referred to "the Ain") and therefore, the learned Judge has erroneously passed the order going beyond his remit which cannot be sustained.
6.
When we pose a question to the learned senior counsel about the locus standi of the petitioners to file this writ petition since they are fugitive from justice as on two consecutive occasions warrant of arrest was issued against them under section 34(1) of the Ain, he then placed his reliance in two decisions reported in 64 DLR 189 and 65 DLR 579 and read out paragraph Nos. 12-13 of 64 DLR 189 and those of paragraph No. 9 of 65 DLR 579 and submits that, since the petitioners were not convicted in any criminal proceedings so there has been no scope to find the petitioners as fugitive from justice and they have perfectly filed this writ petition which is well maintainable.
7.
The learned counsel then supplements his above submission contending that, since section 34(1) of the Ain clearly denotes the phrases that, "in order to compel a judgment-debtor to pay back the decretal amount" (ডিক্রীর টাকা পরিশোধে বাধ্য করিবার প্রয়াস হিসাবে) so the warrant of arrest cannot be said to be any order in a criminal case and therefore, though the learned Judge of the Artha Rin Adalat issued warrant of arrest but by that the petitioners would not be debarred from filing this writ petition through their constituted attorney by virtue of registered power of attorney furnished far back on 25-1-2017 (Annexure-'C' to the writ petition). On those legal counts, the learned counsel finally prays for make the Rule absolute.
8.
In contrast, Mr Khondaker Iqbal Ahmed, the learned counsel appearing for the respondent No. 3-bank by filing two affidavits-in-opposition one, dated 2-8-2022 and another dated 21-11-2022 very robustly opposes the contention so taken by the learned senior counsel for the petitioners. In the first place, the learned counsel submits that, the impugned order has rightly been passed as this respondent No. 3 filed the application under order XL, rule 1 of the Code of Civil Procedure in line with the provision of section 26 of the Artha Rin Adalat Ain where it clearly provides that the provision of Code of the Civil Procedure will be applicable in the execution of a decree unless it goes inconsistent with the provision laid down in the Ain.
9.
Insofar as it relates to the maintainability of the instant writ petition, the learned counsel has then placed his reliance on the provision of section 53D of the Transfer of Property Act as well as section 27Ka of the Bank Company Act, 1991 and contends that, since there has been no scope to transfer any mortgaged property mortgaged with the bank by any borrower-judgment-debtor so the power of attorney dated 25-1-2017 through which the present attorney is representing the petitioners in the instant writ petition cannot be maintained.
10.
The learned counsel then by giving reference to the provision of section 27ka of Bank Company Act goes on to submit that, without the prior approval of the Board of Directors of the creditor-bank no share of any director or shareholder of the borrowing company can be transferred but that provision has also been flouted by furnishing the alleged power of attorney in favour of the one, Mahmudul Islam Chowdhury who thus cannot represent the petitioners in the instant writ petition and therefore, the writ itself is not maintainable.
11.
The learned counsel finally contends that, since the petitioners are admittedly fugitive from justice so under no circumstances, can they file the instant writ petition until and unless, the warrant of arrest so issued against them is set-aside or stayed by the higher court but nothing sort of this has ever been happened in this case so the petitioners cannot file this writ petition as fugitive and thus the writ itself is not maintainable.
12.
However, to substantiate the said assertion, the learned counsel has also placed his reliance in a slew of decisions reported in 15 BLC (AD) 44; 20 BLC (AD) 243; 62 DLR (AD) 225; 62 DLR 446 and an unreported decision passed in Writ Petition No. 6312 of 2012 dated 25-2-2013 and finally prays for discharging the Rule.
13.
We have considered the submission so advanced by the learned senior counsel for the petitioners and that of the respondent No. 3 at length and perused the writ petition, affidavits-in-opposition and the documents appended therewith and also gone through the decisions so cited at the bar very meticulously.
14.
We have also gone through the impugned order against which the instant writ has been filed. In the first place, ongoing through the impugned order, we find that, in passing the impugned order, the learned Judge has based his decision on the provision of section 69kha of the Transfer of Property Act and appointed a Upazilla Nirbahi Officer as receiver to look after the mortgaged property so mortgaged with the respondent-bank but upon careful perusal, we don't find any existence of section 69Kha in the Transfer of Property Act even though the Act was promulgated in 1882 though the learned Judge mentioned it as 1869. However, the learned senior counsel appearing for the petitioners then convinced us that, perhaps the learned Judge wanted to rely on section 69A of the Transfer of Property Act and then read out the said provision before us. On going through the said provision, we find that, some authority has been given to a `mortgagee' to appoint a receiver of a mortgaged property if it is stipulated in the deed of mortgage but in absence of any name of any receiver in a deed of mortgage then the authority has been given to a court to appoint a receiver but the said provision has got no manner of application in the execution proceeding initiated under Artha Rin Adalat Ain, 2003 because on going through the provision provided in section 26 of the Ain, we clearly find that, how a decree will be executed that has been mentioned from its following sections that is, from sections 27 to 38 of the Ain and in all the sections, it has been mentioned how the decree will be executed having no provision to execute a decree by way of appointing receiver so appointing any receiver basing on section 69A of the Transfer of Property Act is thus inconsistent with Artha Rin Adalat Ain as per section 26 of the Ain and therefore, the learned Judge has wrongly relied upon section 69Kha of the Transfer of Property Act which is absolutely unsustainable in law.
15.
Further, in regard to the application of section 53D of the Transfer of Property Act, we are also not at one with the submission of the learned counsel for the respondent No. 3 because section 53D speaks debarring transfer of the property if mortgaged with any creditor-bank but if we go through Annexure-'C' to the writ petition, we find that, an irrevocable general power of attorney has been executed by the judgment-debtors in favour of its attorney named, Mahmudul Islam Chowdhury so on the face of the document it cannot be said that any transfer has been made by virtue of that power of attorney, rather out of different conditions so embodied in the said power of attorney, in particular, in condition No. XIII, the authority was given to the attorney to sale or make an agreement for sale so section 53D will not be applicable in that case.
16.
Revert back to the application of section 27ka of the Bank Company Act as canvassed by the learned counsel for the respondent No. 3, we also find no substance in it as by virtue of that very power of attorney, as mentioned earlier no share is found to have transferred in favour of the attorney, Mahmudul Islam Chowdhury so section 27ka is not applicable here as well.
17.
Then again, though the learned counsel for the respondent No. 3 with regard to the maintainability of the writ petition has cited a host of decision of our Appellate Division to show that, the petitioners are fugitive having no legal scope to file this writ petition but all those decisions were held in criminal proceedings particularly in corruption related cases initiated by the Anti-Corruption Commission but fact remains, the impugned warrant of arrest was issued against the petitioners by virtue of section 34(1) of the Artha Rin Adalat Ain where it has clearly been postulated that in order to compel the judgment-debtor to pay back the decretal dues Bengali version of which is "ডিক্রীর টাকা পরিশোধে বাধ্য করিবার প্রয়াস হিসাবে" so those decisions will have no manner of applicable in the facts and circumstances of the instant case.
18.
On the contrary, the decision so cited by the learned senior counsel for the petitioner reported in 64 DLR 189 as well as 65 DLR 579, we rather find that in both the decisions, it has been held that if any warrant of arrest is issued against a judgment-debtor he/she cannot be termed as "fugitive from justice" and that very consistent views taken by this court has not yet been interfered with by the Appellate Division as no decision has been placed by any of the parties to the Rule to the contrary. The above decisions placed for the petitioners have got persuasive value upon us and we are also in agreement with the said decisions. However, the fact of the case in hand is bit different because from the order sheet so have been annexed in the affidavit-in-opposition filed by the respondent No. 3 Annexure-'11' to the affidavit-in-opposition dated 21-11-2022, we find that on two consecutive occasions dated 24-6-2009 and then on 2-6-2013, warrant of arrest was issued and show cause notice thereof against all the judgment debtors including the present petitioners. Even, to sale the property mortgaged with the bank, this respondent No. 3 took several initiatives to sell the said property by relying upon the provision of section 33(1) and 33(4) of the Artha Rin Ain dated 12-9-2009 and then 13-10-2013 and even fixed a date for issuing certificate under section 33(7) of the Artha Rin Adalat Ain on 24-6-2009 but for reasons best known to the present respondent No. 3-bank, the court has not issued certificate in favour of this respondent-bank and this execution case dragged on for last 14 years but 'yet not disposed of. Curiously enough, the present petitioners executed and registered a power of attorney in favour of one, Mahmudul Islam Chowdhury on 25-1-2017 (Annexure-'C' to the writ petition) when a contesting decree stands for the decree-holder-bank and after nine years on filing the Execution Case No. 23 of 2008, the alleged power of attorney was executed when under no circumstances, the said property can be claimed by the judgment debtors as moment decree is passed, the property described in the decree goes under the authority of the decree-holder-bank ceasing authority over that property by the judgment-debtor having no legal avenue to execute power of attorney or any legal instrument to dispose of the mortgaged property when the property already went to the possession of the decree-holder-bank. So the said power of attorney cannot be taken as any legal instrument by which any authority is vested upon a judgment-debtor let alone to execute any power of attorney in favour any 3rd party and by virtue of that Mahmudul Islam Chowdhury also reserves no right to represent the judgment-debtors to file this writ petition.
19.
Before parting, we expressed our profound displeasure finding the sheer negligence of the decree holder-bank in dragging on the execution case for long 14 years and for that, we directed the learned counsel for the respondent No. 3 to bring in the certified copy of all the orders of the execution case as well as asked the respective Judge of the Artha Rin Adalat to send the record of the execution case who accordingly did it. On going through the orders so passed in the execution case, we find that, many extraneous issue has also been taken into consideration by the learned Judge of the Artha Rin Adalat which the Artha Rin Adalat Ain, 2003 does not permit. Even in the impugned order, he was misdirected applying section 69Kha of the Transfer of Property Act which does not exist and appointed receiver thereby. Since from sections 37 to 38 of the Ain clearly provides how a decree of an Artha Rin Adalat will be executed so there has been no scope for the learned Judge to go beyond the said provision by importing a provision of the Transfer of Property Act when fact remains the Ain is a special law and there has been a non-obstante clause in section 3 thereof.
20.
On top of that, it is totally incompre-hensible to us how the mortgaged property is being possessed by the judgment-debtors for which it became necessary to appoint a receiver in place of them when a decree was passed in favour of the respondent-bank and execution case is being proceeded.
21.
Regard being had to the above facts and circumstances, though we don't find any merit in the impugned order which is thus set-aside but since the attorney of the petitioners have no locus standi to represent them (judgment-debtors) by virtue of power of attorney on that count, the writ itself is not maintainable.
22.
Resultantly, the Rule is disposed of with the following direction.
23.
We thus direct the respondent No. 1 to dispose of the Artha Execution Case No. 23 of 2008 as expeditiously as possible preferably within 6(six) months from the date of receipt of the copy of this judgment.
24.
At any rate, the order of stay granted at the time of issuance of the Rule stands recalled and vacated. Let a copy of this order be communicated to the respondent No. 1 at once.
End.
High Court Division
(Special Original Jurisdiciton)
Present:
Mr. Justice Md. Ashfaqul Islam
Mr. Justice Md. Iqbal Kabir
Writ Petition No. 13378 of 2018.
Syed Nazmul Haque and others
Petitioners
VS
Government of Bangladesh and others
Respondents
Judgement Date : February 17, 2022
Counsels:
Fida M. Kamal, Senior Advocate Purninda Bikash Das, Advocate—For the Petitioners.
SM Zahurul Islam, Advocate—For the Respondent No. 6.
Judgment
Md Ashfaqul Islam, J:
This Rule under adjudication, at the instance of the petitioners, issued on 29-10- 2018, was in the following terms:
"Let a Rule Nisi be issued calling upon the respondents to show cause as to why the Notice Nos. 56 and 57 dated 5-8-2018 in LA Case No. 3/2016-17, Magura issued by the Respondent no. 3 (Annexure-A & A 1) by invoking section 7 of the Acquisition and Requisition of Immovable Property Ordinance, 1982 though the petitioners are entitled to get award/compensation by virtue of the Acquisition and Requisition of Immovable Property Act, 2017 in respect of the scheduled property should not be declared malafide, arbitrary, illegal and without jurisdiction and/or such other or further order or orders passed as to this court may seem fit and proper."
2.This writ petition is directed against the notice Nos. 56 and 57 issued by the respondents under section 7 of the Acquisition and Requisition of Immovable Property Ordinance, 1982 (hereinafter referred to as Ordinance, 1982) in respect of a schedule property arising out of LA Case No. 3/2016-2017.
3.Facts leading to the issuance of the Rule in short is that the petitioners, as stated to the petition, have exclusive title and possession over 17.21 decimals out of 75 decimals of land situated under District Magura, Police Station and Mouza Magura Sadar, JL No. 96, SA Khatian Nos. 727 and 852, SA Plot No. 4732 which is the subject matter of notice No. 56 as per Annexure-`A' dated 5-8-2018 and also have exclusive title and possession over 7.46 decimals out of 10 decimals of land under the same district, Police Station and Mouza SA Khatian number of which is 3608 SA plot No. 4733/5978 which is the subject matter of notice No. 57 slated 5-8-2018 (Annexure-`A-1').
4. While the petitioners were in exclusive possession of the aforementioned land, the government started a project for increasing road under the name and style “জাতীয় মহাসড়ক এন-৭ মাগুরা শহর অংশের রামনগর হতে আবালপুর পর্যন্ত সড়ক প্রশস্থকরণ” and accordingly L.A case No. 03/2016-17 was started on 13-3-2017, notice under section 3 of the Ordinance, 1982 was issued upon the petitioners for acquiring 7.48 decimals of land of SA Khatian No. 3608, SA Plot No. 4733/5978, JL No. 96, Mouza-Magura under Upazilla-Magura Sadar, District-Magura of the petitioners (Annexure-'C' and `C- I ').
5. Pursuant to the notice the petitioners submitted necessary documents in respect of their ownership of land which was received by the respondent No. 3, Land Acquisition Officer (In charge), Magura, Deputy Commissioner's Office, Magura (Annexure-'D') and objection was also given to the respondent No. 3. Thereafter upon issuing a notice on 11-6-2017 the petitioners were directed to appear on 15-6-2017 before the respondent No. 3 for hearing of the objection (Annexure-`E' and `E-1').
6. It has been further stated that inspite of the objection of the petitioners, without considering the same the respondent No. 3 on 10- 1-2018 proceeded with the LA Case and accordingly issued the impugned notice under section 7 of the Ordinance, 1982 (Annexure-`A' and `A-1') against which this petitioners moved this petition and obtained the present Rule and order of stay.
7. Mr Fida M. Kamal, the learned Senior Advocate appearing for the petitioners upon placing the petition and other materials on record mainly submits that the petitioners are aggrieved for the issuance of the impugned notice under Ordinance, 1982 instead of Act, 2017. Since the new law and in particular, section 9 of the said Act has fixed the rate of compensation which is much more than the amount of compensation fixed by notice impugned against. In elaborating his submissions the learned Senior Advocate has drawn our notice to the relevant provisions of section 7 of the Ordinance 1982 and the new enactment Act, 2017. He submits that with the promulgation of the new law after repealing the Ordinance, 1982 the provisions of the new law have been made applicable from the date of its coming into force on 21-9-2017. The learned counsel therefore submits that on 5-8-2018 that is the day when notice under section 7 of the Ordinance, 1982 was issued upon the petitioners the new Act, 2017 had already came into force with effect from 21-9-2017. Therefore, in terms of section 15 of the new Act the compensation should have been evaluated under section 9 of the new Act, 2017.
8. He further submits that if the preamble of the new Act be read together with sections 1, 9, 10 and 50 it becomes clear that the Act, 2017 have been certainly operating on the date of promulgation repealing the earlier Ordinance, 1982. Therefore, the impugned notices Annexure-'A' and `A-1' are ex facie illegal being violative of the scheme of the new law specially the purpose of its enactment. The Act, 2017 as he submits, has been promulgated on 21-9-2017; the predeceased law i.e. the Acquisition and Requisition of Immovable Property Ordinance 1982 has been repealed by section 50 of the Act, 2017 and section 50 of the said Act, 2017 also provides that after promulgation of this Act, all land acquisition proceedings which have been continuing will be proceeded in accordance with the Act, 2017. For that reason after promulgation of the Act, 2017, issuance of impugned notices dated 5-8-2018 (Annexure-`A.' and 'A-1') by invoking the provision of repealed Ordinance 1982 are exfacie illegal and without jurisdiction.
9. Next he submits that admittedly there are some shops and business center situated over the land which is under process of acquisition. Section 9 of the Act, 2017 provides that the affected persons will get compensation in addition 200% of the market value of the proposed acquired land and shall also get 100% compensation for removing the business structure; contrarily the repealed ordinance 1982 provides only 50% of addition value to the acquired property, so the petitioners are deprived from their right to property conferred under Article 42 of the Constitution and, as such, the impugned notices are ultra-virus, without jurisdiction and is of no legal effect.
10. He further submits that the petitioners are entitled to get award/compensation money under the provisions of section 9 of the Act, 2017 as per section 50(2)(ka) and (kha) of the said Act, 2017 in that during pendency of the LA proceedings (which was initiated under the repealed Ordinance, 1982), a new law i.e. the "Acquisition and Requisition of Immovable Property Act, 2017" has been promulgated and, as such, fixation of the compensation money by the impugned Notice dated 5-8-2018 is illegal, unlawful and is of no legal effect. Therefore he submits that the all fairness the Rule should be made absolute.
11. On the other hand Mr SM Zahurul Islam appearing with Mr Mizanur Rahman, the learned Advocate(s) for the added respondent No. 6, the Executive Engineer, Roads and Highways Department, Magura Road Division, Magura by filing affidavit-in opposition opposes the Rule. He submits that as per section 6 of the General Clauses Act, 1897 any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. Since notice under section 3 has been issued on 13-3-2017 under Ordinance, 1982 hence it is a pending proceeding of LA Case No. 3/2016-17 under the said Ordinance and that will be saved by implication of the provision of section 6 of the General Clauses Act as a pending proceeding. Therefore, the respondent has no scope to pay compensation money under new enacted law as such the Rule issued by this Court is liable to be discharged.
12. He has further drawn our notice to Annexure 12 of the affidavit-in-opposition. He refers paragraph 25 wherein it has been stated that—
“স্থাবর সম্পত্তি অধিগ্রহণ ও হুকুমদখল আইন, ২০১৭ গেজেট প্রকাশের পূর্বে যে সকল এল, এ কেস ‘স্থাবর সম্পত্তি অধিগ্রহণ ও হুকুমদখল অধ্যাদেশ, ১৯৮২’ এর আওতায় চালু হইয়া ৩ ধারায় নোটিশ জারি হইয়াছে সেই সকল এল, এ কেস উক্ত অধ্যাদেশ এবং উহার আওতায় পূর্বে জারিকৃত নির্দেশাবলী/পরিপত্র মোতাবেক নিষ্পত্তি করিতে হইবে”
and submits that directive No. 25 as aforesaid has clearly directed the procedure or stating that the pending proceedings of any LA Case under the Ordinance 1982 shall be dealt and disposed of under the Ordinance.
13. Mr Md Nasim Islam, the learned Assistant Attorney-General appearing with Mr M Nazrul Islam Khandaker, the learned Assistant Attorney-General for the respondent No. 1 also adopted the same argument as pressed into service by the learned Counsel representing respondent No. 6.
14. We have heard the learned Senior Advocate for the petitioners and the learned Advocate for the respondent No. 6 and the learned Assistant Attorney-General at length and considered theirs submissions. We have also perused the petition, affidavit-in-opposition, related law, Ordinance, 1982 and Act, 2017 with precision.
15. The only question that faces this Division in this writ petition is whether under the circumstances of the case the impugned order would sustain being issued without keeping with the scheme and provisions which should have been applicable under the new Act, 2017.
16. For appreciation and better understanding of the issue in hand we have to see what the new Act, 2017 has mandated:
“১। সংক্ষিপ্ত শিরোনাম ও প্রবর্তন—(১) এই আইন স্থাবর সম্পত্তি অধিগ্রহণ ও হুকুমদখল আইন, ২০১৭ নামে অভিহিত হইবে। (২) এই আইন অবিলম্বে কার্যকর হইবে।
২। সংজ্ঞা—বিষয় বা প্রসঙ্গের পরিপন্থী কোনো কিছু না থাকিলে, এই আইনে-
(১) “অধিগ্রহণ” অর্থ ক্ষতিপূরণ বা পুনর্বাসন বা উভয়ের বিনিময়ে প্রত্যাশী ব্যক্তি বা সংস্থার জন্য কোনো স্থাবর সম্পত্তির স্বত্ব ও দখল গ্রহণ;
(২) “আরবিট্রেটর” অর্থ ধারা ২৯ এর অধীন নিয়োগপ্রাপ্ত কোনো আরবিট্রেটর;
(৩) “কমিশনার” অর্থে বিভাগীয় কমিশনার এবং অতিরিক্ত বিভাগীয় কমিশনারও উহার অন্তর্ভুক্ত হইবেন;
(৪) “জাতীয় গুরুত্বপূর্ণ প্রকল্প” অর্থ সরকার কর্তৃক জাতীয় গুরুত্বপূর্ণ প্রকল্প হিসেবে ঘোষিত কোনো প্রকল্প;
(৫) “জেলা প্রশাসক” অর্থে জেলা প্রশাসক এবং অতিরিক্ত জেলা প্রশাসক বা, ক্ষেত্রমত, জেলা প্রশাসক কর্তৃক ক্ষমতা প্রাপ্ত অন্য কোনো কর্মকর্তা উহার অন্তর্ভুক্ত হইবেন;
(৬) “দেওয়ানি কার্যবিধি” অর্থ Code of Civil Procedure, 1908 (Act V of 1908);
(৭) “নির্ধারিত” অর্থ বিধি দ্বারা নির্ধারিত;
(৮) “প্রত্যাশী ব্যক্তি বা সংস্থা” অর্থ স্থাবর সম্পত্তি অধিগ্রহণ বা হুকুম দখলের জন্য প্রস্তাবকারী সরকারি বা বেসরকারি কোনো ব্যক্তি বা সংস্থা;
(৯) “মালিক” অর্থে কোনো স্থাবর সম্পত্তির স্বত্বাধিকারী ও দখলদারও অন্তর্ভুক্ত হইবেন;
(১০) “যৌথ তালিকা” অর্থ অধিগ্রহণ বা হুকুম দখলের জন্য প্রস্তাবিত ভূমির উপর বিদ্যমান স্বত্ব বা অধিকার এবং উহার উপরিস্থিত অবকাঠামো, ফসল ও বৃক্ষরাজিসহ সকল বিষয়ের বিবরণ সম্বলিত তালিকা;
(১১) “স্থাবর সম্পত্তি” অর্থ কোনো ভূমি এবং উহাতে স্থায়ীভাবে সংযুক্ত যে কোনো কিছুর স্বত্ব বা অধিকার;
(১২) “স্বার্থ সংশ্লিষ্ট ব্যক্তি” অর্থ স্থাবর সম্পত্তি অধিগ্রহণ বা হুকুম দখলের কারণে প্রাপ্য ক্ষতিপূরণ বা পুনর্বাসন বা উভয়ের দাবিদার বা দাবি করিবার যোগ্য কোনো ব্যক্তি বা প্রতিষ্ঠান; এবং
(১৩) “হুকুম দখল” অর্থ প্রত্যাশী ব্যক্তি বা সংস্থার জন্য ক্ষতিপূরণের বিনিময়ে সাময়িকভাবে নির্দিষ্ট সময়ের জন্য কোনো স্থাবর সম্পত্তির দখল গ্রহণ।
৩। আইনের প্রাধান্য—আপাতত বলবৎ অন্য কোনো আইনে যাহা কিছুই থাকুক না কেন এই আইনের বিধানাবলি প্রাধান্য পাইবে।
৫০। রহিতকরণ ও হেফাজত—(১) Aquisition and Requisition of Immovable Property Ordinance, 1982 (Ordinance No. II of 1982), অতঃপর উক্ত অধ্যাদেশ বলিয়া উল্লেখিত, এতদ্দ্বারা রহিত হইবে।
(২) উক্ত অধ্যাদেশ রহিতকরণ সত্ত্বেও উহার অধীন-
(ক) কৃত কোন কাজ-কর্ম ও গৃহীত কোন ব্যবস্থা বা কার্যধারা এই আইনের অধীন কৃত বা গৃহীত বলিয়া গণ্য হইবে;
(খ) প্রদত্ত সকল নোটিশ, বিজ্ঞপ্তি, আদেশ, ক্ষতিপূরণ বা রোয়েদাদ এই আইনের অধীন প্রদত্ত নোটিশ, বিজ্ঞপ্তি, আদেশ, ক্ষতিপূরণ বা রোয়েদাদ বলিয়া গণ্য হইবে; এবং
(গ) কোনো কর্তৃপক্ষ, আরবিট্রেটর এবং আরবিট্রেশন আপিলেট ট্রাইব্যুনাল সমীপে কোনো কার্যধারা অনিষ্পন্ন থাকিলে, নিষ্পত্তি না হওয়া পর্যন্ত, উহা এমনভাবে চলমান থাকিবে যেন উক্ত অধ্যাদেশ রহিত হয় নাই।”
17. On a plain reading of section 50 of the new act it appears that even after repealing of Ordinance of 1982 all the Acts and proceedings initiated under the said Ordinance shall be dealt under the new Act, 2017. Section 50(2)(ka) and (kha) if be read together with the words and phrases ‘এই আইনের অধীন’ invariably refers Act, 2017. Therefore, the notice under question which was admittedly issued on 5-8-2018 certainly was issued after the promulgation of the new Act, 2017 and the implication of the same shall have to be evaluated in terms of the relevant provisions of law under the new Act, 2017.
18. Further we are of the view that section 6 of the General Clauses Act will not apply in the instant case. Section 6 of the General Clauses Act which is as follows:
"6. Where this Act, or any '[Act of Parliament] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not—
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any repealed; or
(d) after any penalty, punishment incurred enactment so forfeiture or in respect of any offence committed against any enactment so repealed; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."
19. Section 6 of the General Clauses Act clearly contemplates that "Unless a different intention appears" the application of the section 6 would be restricted. On a plain reading of section 50 of the new Act, 2017 we find no ambiguity or we cannot read that there is a different intention emanating from the law other than what we have discussed as above. Therefore, section 6 of the General Clauses Act has no manner of application in the facts and circumstances of the instant case.
20. That being the situation we are of the view that this Rule merits substance which should be made absolute.
21. In the result the Rule is made absolute. The impugned order is declared to have been passed without lawful authority having no legal effect and set-aside.
22. There will be no order as to cost. Communicate at once.
End.
High Court Division
Civil Revision Jurisdiction
Present:
Mr. Justice Md. Rezaul Hasan
Civil Order No. 3418 of 2022.
Ismail Hossain (Md)
Plaintiff-Petitioner
VS
Abdur Rahaman Shohag and others
Defendant-Opposite Party
Judgement Date : June 05, 2022
Counsels:
AM Amin Uddin, Attorney-General for Bangladesh with Prahlad Debnath, AAG with Shovana Banu, AAG—As instructed by Court.
Khair Ezaz Maswood with Omar Faruk, Advocates —For the Petitioner
Judgment
The delay of 8 days in filing the revisional application is hereby condoned.
2. This is an application filed under section 115(4) of the Code of Civil Procedure, 1908, by the petitioner, being aggrieved by and dissatisfied with the judgment and order dated 12-1-2022, passed by the. District Judge, Lakshmipur, in Civil Revision No. 7 of 2021, disallowing the revisison and thereby affirming the judgment and order dated 18-11-2021, passed by the Joint District Judge, 1st Court, Lakshinipur, in Title Suit No. 40 of 2021, whereby the suit was dismissed.
3. I have heard the learned Attorney-General and the learned Assistant Attorney- General, appeared as instructed by the Court.
4. I have also heard the learned Advocate for the petitioner, perused the plaint, the application for revision, the impugned order as well as the order of the trial court and the documents annexed.
5. The petitioner Md Ismail Hossain has filed a suit before the Joint District Judge, 1st Court, Lakshinipur, against Abdur Rahaman Shohag and 19 others, for cancellation of a registered deed No. 1524, dated 21-4-2016, as described in schedule "Kha" to the plaint, which is a deed of partition. Valuation of the suit has been made at Taka 1,66,33,000, for the purpose of jurisdiction and court fees and the plaintiff has paid ad-valorem court-fees accordingly.
6. Then, the trial court has passed the following order,
"১/৯-৩-২০২১। বাদীপক্ষ নালিশী বন্টননামা দলিল বাতিলের প্রার্থনায় অত্রাদালতে অত্র মোকদ্দমা দায়ের করেন। দেখিলাম। বালামভুক্ত করা হোক। বাদীর দেওয়া আরজির তায়দাদ আপাতত: গৃহীত হইল। ফিরিস্তি যোগে কাগজপত্র, তলবানাসহ সমনাদি দাখিল করেন। নথির সামিলে রাখা হোক। আগামী ৪-৪-২০২১ ইং তারিখ অত্র মামলার রক্ষণীয়তা বিষয়ক শুনানী।"
7. The issue of the trial court, on 18-11-2021, has dismissed the suit on maintainability. The following order was passed-
“অদ্য মোকদ্দমা রক্ষণীয়তা বিষয়ক আদেশের জন্য দিন ধার্য আছে। বাদীপক্ষ হাজিরা দেয়। নথি রক্ষণীয়তা বিষয়ক আদেশের জন্য পেশ করা হল।
বিজ্ঞ কৌসুলীর বক্তব্য শুনলাম। নথি আদেশের জন্য নেয়া হল। নথি পর্যালোচনায় দেখা যায় যে, অত্র মামলার বাদী নালিশী বন্টননামা দলিল বাতিলের প্রার্থনায় অত্র মামলাটি আনয়ন করেন। নথি পর্যালোচনায় দেখা যায়, বাদীপক্ষ দাখিলী ফিরিস্তিতে ৭নং ক্রমিকে চন্দগঞ্জ এসআর অফিসের বিগত ১১-৪-১৬ ইং তারিখে ১৫২৪ নং পারিবারিক বন্টননামা তথা নালিশী দলিলের সহিমোহর নকল দাখিল করেছেন। স্বীকৃতমতেই এটি একটি রেজিঃ দলিল এবং বাদী সেখানে দলিলের পক্ষ ছিলেন। বাদী দাখিলী আরজি পর্যালোচনায় দেখা যায় বাদী নিজে দলিলে পক্ষ থেকে সম্মতি জ্ঞাপনে উক্ত দলিলের যাবতীয় তথ্যাদি স্বীকৃতি দানে উক্ত নালিশী দলিলের রেজিঃ করা হয়। তাছাড়া রেজিষ্ট্রিকৃত নালিশী দলিলটি বাতিলের কোন গ্রহণযোগ্য যুক্তি সঙ্গত আইনগত ব্যাখ্যা প্রতীয়মান হয়না।
এমতাবস্থায় অত্র বাদী কর্তৃক অত্র আকারে প্রকারে মামলাটি রক্ষণীয় নয়।
আমার কথিত মতে লিখিত ও সংশোধিত।
স্বাক্ষরঃ
যুগ্ম জেলা জজ ১ম আদালত,
লক্ষ্মীপুর।
১৮-১১-২০২১”
8. Against the said order of the trial court, the plaintiff has filed Civil Revision No. 7 of 2021, before the Court of District Judge, Lakshmipur, in which he has stated, inter-alia, that,
“নালিশী দলিলের সম-সাময়িক কালে ১নং বাদীপক্ষ বিদেশ হইতে দেশে আসিলে তাহার মেজপুত্র অকাল মৃত্যুবরণ করেন। এমতাবস্থায় বাদী তাহার ভগ্নিপতির (৯নং পক্ষের স্বামী) বন্টননামা দলিল করে পৃথক হইয়া যাওয়ার প্রস্তাবে ভগ্নিপতি শিক্ষিত ব্যক্তি হওয়ায়, দলিলাত সম্পর্কে পারদর্শী থাকায় বিশ্বাস করিয়া নালিশী দলিল প্রস্তুত করা সহ সার্বিক দায়িত্ব ভায়রাভাই মাওলানা হোসাইন আহাম্মদ দায়িত্ব শুধুমাত্র অবহেলা নহে, বরং অন্যায় লাভের আশায় দূরভীসন্ধি ভাবে নালিশী বন্টননামা দলিলে মূল মৌরশের মালিকানা বহুলাংশে বেশি ভূমি প্রদর্শন করিয়া নিজের স্ত্রী ও শ্যালিকাগণের মালিকানায় ভূমি বৃদ্ধি দেখাইয়া একটি তঞ্চক ও অকার্যকরী বন্টননামা দলিলে পক্ষগণকে পড়িতে ও বুঝিতে না দিয়া লেখক ও সাব রেজিষ্ট্রী অফিসের কর্মচারী যোগাযোগে সৃজন করিয়াছেন। নালিশী দলিল কোন ভাবেই আইনানুগ ও কার্যকরী বন্টননামা দলিল হয় নাই। নালিশী দলিলের অন্যান্য সকল পক্ষগণের সহিত ও দলিল প্রস্তুতের কার্যকারক সঠিক ভাবে যোগাযোগ করেন নাই। নালিশী বন্টননামা দলিলে ২-৭ নং পক্ষগণের মাতা রাহেনা আক্তারকে দলিলের সময়ে এবং বর্তমানেও জীবিত থাকা এবং বন্টনের ভূমিতে তাহার স্বামীর জজিয়ত সূত্রে মালিক-দখলকার থাকা সত্বেও কোনরূপ পক্ষ করেন নাই কিংবা বন্টনের ভূমি প্রদান করেন নাই। তঞ্চকতার বিষয়ে ধরা পড়ার আশংকায় কার্যকারক ৯নং পক্ষের স্বামী নালিশী দলিল রেজিষ্টার সময়ে ১-১৭ নং পক্ষগণের মধ্যে ৩নং, ৪নং, ৭নং ও ১৪ নং পক্ষগণকে উপস্থিত করেন নাই এবং উক্ত ৩/৪/৭/১৪ নং পক্ষগণ নালিশী দলিলে সম্পাদন সুচক তাহাদের দস্তখত দেন নাই, কিংবা রেজিষ্ট্রীর জন্য উপস্থাপন করেন নাই, কিংবা নালিশী দলিলের হলফনামায় স্বাক্ষর/দস্তখত করেন নাই।”
9. The revisional court below, after hearing the plaintiff-petitioner, on 12-1-2022, has summarily rejected the revisional application and has concurred with the lower court view for the reason that,
“মূল মোকদ্দমার বাদী তথা এই সিভিল রিভিশন মামলার দরখাস্তকারী মোঃ ইসমাইল হোসেন বিগত ১১-৪-২০১৬ ইং তারিখে ১৫২৪ নং পারিবারিক বন্টননামা তথা নালিশী দলিলটি সই স্বাক্ষর সম্পাদন করেন মর্মে মূল মোকদ্দমার আরজী ও এই সিভিল রিভিশন মামলার নথি পর্যালোচনায় প্রমাণিত হয়েছে। উক্ত মোঃ ইসমাইল হোসেন একজন শিক্ষিত মানুষ তিনি স্বজ্ঞানে জেনে-শুনে, বুঝে উক্ত নালিশী দলিলটি সম্পাদন ও রেজিষ্ট্রি করায় তিনি ১১-৪-২০১৬ ইং তারিখের ১৫২৪ নং পারিবারিক বন্টননামা তথা হেবানামা দলিলটি বাতিলের প্রার্থনায় মোকদ্দমা আনয়ন করতে পারেন না মর্মে এই রিভিশন আদালত কর্তৃক সিদ্ধান্ত গৃহীত হলো।”
10. The lower revisional court, therefore, was of the opinion that,
“বিজ্ঞ নিম্ন আদালতের বিগত ১৮-১১-২০২১ ইং তারিখের তর্কিত আদেশ আইনানুগ হয়েছে। তর্কিত আদেশ দ্বারা ন্যায় বিচার ব্যহত হয় নাই। উক্তরূপ সিদ্ধান্তের আলোকে এই সিভিল রিভিশন মামলাটি নামঞ্জুর যোগ্য মর্মে সিদ্ধান্ত গৃহীত হলো। প্রদত্ত কোর্ট ফি সঠিক আছে। অতএব,
অত্র সিভিল রিভিশন মামলাটি গ্রহণযোগ্য নয় মর্মে সরাসরি নামঞ্জুর করা হলো।
বিজ্ঞ নিম্ন আদালতের ১৮-১১-২০২১ ইং তারিখের তর্কিত আদেশ বহাল রাখা হলো।
অত্র আদেশের অনুলিপি অবগতি ও প্রয়োজনীয় ব্যবস্থা গ্রহণের জন্য সত্ত্বর সংশ্লিষ্ট আদালতে প্রেরণ করা হোক।
স্বাক্ষরঃ
জেলা জজ, লক্ষ্মীপুর
১২-১-২০২২ ইং”
11. Being aggrieved by and dissatisfied with the order dated 12-1-2022 of the inferior revisional court, the plaintiff, as petitioner, has filed and moved this revisional application under section 115(4) of the Code of Civil Procedure, 1908, before this Court and this Court.
12. In my considered opinion, this suit having been duly instituted, a summons ought to have been issued, in this case, as mandated by Rule 1 of Order V, Code of Civil Procedure, 1908. But, by the impugned orders, this right of the plaintiff, to have a summons issued in his case, has been denied and, thereby, non-compliance of Rule 1, order V of the Code of Civil Procedure, 1908, has been committed.
13. The petitioner can, in this circumstances, allege that he was not treated in accordance with law by the said two judges of the subordinate courts, while the article 31 of the Constitution of the People's Republic of Bangladesh guarantees the petitioner's right to be treated in accordance with law, which is a right enforceable as per Article 44 of the Constitution. Hence, the petitioner could have asserted that he is aggrieved by the acts of the persons performing functions in connection with the affairs of the republic.
14. The impugned order was not passed on any application of the defendant's. No summons were served upon them and they were not present before the court, nor had filed any application challenging the maintainability of the suit or otherwise asserting that the plaint was liable to be rejected. The judges in the subordinate court, at their own motion, have passed the impugned orders.
15. It is to be noted here that the expression, "any act" referred to in clause a(ii) of Article 102(2) of the Constitution, is wide enough to include any order, judgment, decision of all kinds, be it judicial, quasi judicial or executive, including the order dated 18-11-2021, impugned under section 115(4) of the Code of Civil Procedure.
16. The High Court Division, in exercise of it's civil jurisdiction under section 115(1) or 115(4) of the Code of Civil Procedure, 1908, cannot enforce the fundamental right if that were asserted by the petitioner. Hence, the remedy under section 115 of the Code of Civil Procedure, 1908, is not a remedy equally efficacious to that as provided under Article 102 of the Constitution.
17. Therefore, in the facts and circumstances of this case, the petitioner could have claimed a clear standing to move the High Court Division under Article 102(2)(a) of the Constitution of the People's Republic of Bangladesh, to declare the impugned order ultra-vires and to seek direction to restore the suit to it's original file and for issuance of summons, in which case the said two judges could have been impleaded as the respondents. The judges should decide the disputes. They should not become a party to the dispute.
18. No doubt, the averments made in the plaint can be considered for the purpose of Order 7, rule 10 or Order 7, rule 11 of the Code of Civil Procedure, 1908, but this was not the case here, while for passing an order on maintainability point, the trial court must frame issues of law, as permitted Order 14 of the Code of Civil Procedure, 1908. That stage has not yet come in this suit.
19. In many cases, a preliminary issue may arise for consideration before proceeding further, for instance, if a plain reading the averments made in the plaint requires a decision under section 20 of the Artha Rin Adalat Ain, 2003, or under section 7 of the Arbitration Act, 2001, then the averments made in the plaint should be considered, but there was no such case here.
20. However, having considered the impugned order dated 12-1-2022 of the subordinate revisional court and the order dated 19-11-2021 of the trial court, I find that, the courts below have passed these orders on the basis of the averments made in the plaint and, thereby, both of them have ignored the settled law that the pleadings are not evidence. As such, the impugned orders were not based on evidence.
21. The plaintiff had legal right to adduce evidence to prove his case, which has been denied to him. Indeed, this is a clear case of denial of access to justice to the plaintiff, who had a strong and clear prima facie case to get the matter heard in accordance with law.
22. Hence, in exercise of the power vested in this Court under Articles 109 of the Constitution read with sections 115(1) and 151 of the Code of Civil Procedure, 1908, the impugned order dated 12-1-2022, passed by the District Judge, Lakshmipur, in Civil Revision No.7 of 2021, disallowing the revisison and thereby affirming the judgment and order dated 18-11-2021, passed by the Joint District Judge, 1st Court, Lakshmipur, in Title Suit No. 40 of 2021, dismissing the suit as being not maintainable, should be set aside.
23. Before parting of, it may not be out of place to mention here that, an order passed under Article 109, while hearing a motion, is passed to keep the Sub-ordinate courts within the confine of their jurisdictions. Such an order is passed in exercise of the supervisory jurisdiction vested in the High Court Division by Article 109 of the Constitution, which is an embodiment of the solemn will of the people. An order passed in exercise of Article 109 of the Constitution is not related to the merit of the case, nor about determining the rights or obligations of the parties to a litigant. Such an order can be passed ex-parte when the misuse of jurisdiction is apparent and when the materials on record are adequate to form an opinion.
24. I find merit in this application. The trial court shall fix date for issuance of summons upon the defendants and shall proceed with this case as per law.
Order
The impugned judgment and order dated 12-1-2022, passed by the District Judge, Lakshmipur, in Civil Revision No. 7 of 2021, thereby affirming the order dated 18-11-2021, passed by the Joint District Judge, 1st Court, Lakshmipur, in Title Suit No. 40 of 2021, is set-aside.
With these observations and directions, this application (Motion) filed under section 115(4) of the Code of Civil Procedure, 1908, is disposed of.
The District Judge, Lakshmipur, is directed to transfer this case to any other court of competent jurisdiction and the transferee court should proceed with case as per law.
The Copies of this order shall be sent (1) to the learned Attorney-General for Bangladesh, (2) to the Chairman, Judicial Training Institute and (3) to the Registrar, Supreme Court of Bangladesh, High Court Division, Dhaka.
Copies of this judgment also be sent to the District Judge, Lakshmipur and to the court concerned for information and necessary action.
End.
High Court Division
(Special Original Jurisdiction)
Present:
Mr. Justice Farah Mahbub
Mr. Justice S. M. Maniruzzaman
Customs Appeal No. 108 of 2012.
M/s Haseen Knit Composite Ltd
Appellant
VS
Customs, Excise and VAT Appellate Tribunal and others
Respondents
Judgement Date : September 16, 2020
Counsels:
SM Arif, Advocate—For the Appellant.
Rehana Sultana, AAG—For the Respondent No.2.
Judgment
Farah Mahbub, J:
This appeal is directed against the impugned order dated 14-8-2012 passed by the Customs, Excise and VAT Appellate Tribunal in Customs Appeal No. CEVT (Customs) 617 of 2012.
2. Facts, relevant for disposal of the appeal are that the appellant is a private limited company incorporated under the Companies Act, 1994 and is a 100% export oriented industry engaged in the business of dying, finishing and garments. For smooth functioning of its respective business the company also obtained Bonded warehouse license bearing No. 491/Cus-PBW/2008 dated 2-12-2008 which has been duly renewed from time to time.
3. During the course of business the office of the Customs, Excise and Bond Commissionerate, Dhaka made an inspection at the factory premises of the petitioner company. While doing so they examined the bond register and found some discrepancy in connection with 5 (five) Bill of Entry bearing Nos. C-388015, C-388133 both dated 14-8-2011, C-426477 dated 19-3-2011, C-547958 dated 28-11-2011, C-3941 dated 3-1-2012 and C-3950 dated 3-1-2012 respectively for importing 69,080.00 kg of dyes chemical by using bond facility. Consequently, the respondent No.1 initiated proceedings under section 156 of Customs Act, 1969 (in short, the Act) with the issuance of a show cause notice dated 15-6-2012 demanding, inter alia, customs duties amounting to Taka 57,86,229.27 for alleged violation of section 13(1) read with sections 86 and 97 of the Act, 1969. In response thereof, the petitioner gave reply on 18-6-2012. After hearing the petitioner the respondent concern ultimately passed an adjudication order dated 26-6-2012 imposing duty of Taka 57,86,229.27 with penalty of Taka 25,00,000, in total Taka 82,86,229.27. Being aggrieved the petitioner as appellant filed customs appeal bearing No. CEVT (Customs) 617 of 2012 before the Customs, Excise and VAT Appellate Tribunal along with an application seeking waiver under section 194(1) of the Act from depositing 50% of the demanded sum on the ground of severe financial hardship. Said application for waiver was ultimately rejected by the Tribunal vide order dated 11-7-2012 (Annexure G-5). Later, the petitioner again made an application for re-consideration, which was also turned down by the Tribunal concerned on 12-9-2012 and at the same time appeal was dismissed for non-compliance of the requirement of law. Hence, the appeal.
4. Mr SM Arif, the learned Advocate appearing for the appellant submits that the appellant filed an application before the Tribunal concerned under the proviso to section 194(1) of the Customs Act, 1969 praying for exemption from making deposit on the ground of hardship, but the Tribunal without considering the said application has most illegally rejected the same and subsequently, dismissed the appeal for non deposit of penalty and thereby committed an error of law. As such, he submits that the order dated 12-9-2012 passed by the Tribunal is not sustainable in law and is liable to be set-aside.
5. Ms. Rehana Sultana, the learned Assistant Attorney-General appearing on behalf of the respondent submits that this appeal is liable to be dismissed in view of the fact that the appellant has invoked wrong forum in agitating its grievances upon challenging the impugned order passed by the Tribunal concern. In this regard, drawing attention to section 196B of the Act, 1969 the learned Assistant Attorney-General goes to argue that vide the said provision of law the appellate Tribunal after hearing the respective contending parties may pass such order confirming, modifying or annulling the decision or order or may even referred the case back to the authority concern with such direction as it may deem fit for fresh adjudication or decision. In the instant case, she submits it is apparent from impugned order dated 12-9-2012 that the appeal before Tribunal was dismissed for non compliance of section 194 of the Act, which does not come within the ambit of the word "confirmed, modified or annulled" as contemplated under section 196B of the Act and that be so preferring appeal under section 196D of the Customs Act, 1969 is not maintainable. Accordingly, she submits that this appeal is liable to be dismissed.
6. It is fact that the impugned demand of Taka 56,86,229.27 for evasion of tax along with penalty of Taka 25,00,000, in total Taka 82,86,229.27 so made by the respondent No.1 vide order dated 26-6-2002 along with the order dated 12-9-2012 passed by the respondent No.3 (Tribunal) are under challenge in the instant appeal. Section 196B, however, provides as under:—
"196B.—Orders of Appellate Tribunal. —(1) The Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against [or may refer the case back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary].
(2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendments if the mistake is brought to its notice by the Commissioner of Customs or the other party to the appeal:
Provided that an amendment which has the effect of enhancing the assessment or reducing a refund or otherwise increasing the liability of the other party shall not be made under this sub-section, unless the Appellate Tribunal has given notice to him of its intention to do so and has allowed him a reasonable opportunity of being heard.
(3) The Appellate Tribunal shall send a copy of every order passed under this section to the Commissioner of Customs and the other party to the appeal.
(4) Save as otherwise provided in section 196D, orders passed by the Appellate Tribunal on appeal shall be final."
7. In view of the said provision of law the Appellate Tribunal after hearing the respective contending parties is empowered to pass such order as it deems fit confirming, modifying or annulling the decision or order or may even refer the case back to the authority concerned for fresh adjudication or decision, as the case may be, after taking additional evidence, if finds necessary. When an order is passed under the said provision challenging thereof the aggrieved party is entitled to prefer appeal before the High Court Division invoking forum as provided under section 196D of the said Act within a prescribed period.
8. In the instant case, the Tribunal vide order dated 12-9-2012 dismissed the appeal for non-compliance of the requirement of law as provided under section 194(1) of the Act, 1969.
9. For ready reference said order dated 12-9-2012 is quoted below—
“গণপ্রজাতন্ত্রী বাংলাদেশ সরকার
অভ্যন্তরীণ সম্পদ বিভাগ
কাস্টমস, এক্সাইজ ও ভ্যাট আপীলাত ট্রাইব্যুনাল
জীবন বীমা ভবন (৪র্থ তলা)
১০, দিলকুশা বা/এ, ঢাকা-১০০০
নথি নং- সিইভিটি/কেইস (কাস) ৬১৭/২০১২
সূত্রঃ ৫৫১৩)১৮৯/কাস-বন্ড/লাইঃ/২০০৮/১০৩৫২
তারিখঃ ২৬-৬-১২ ইং
ট্রাইব্যুনালের আদেশ
অদ্য মামলাটি টাকা জমার জন্য দিন ধার্য আছে। আপীলকারী গত ১২-৮-১২ ইং তারিখে একটি হার্ডশীপ বিষয়ে আবেদন দাখিল করেন কিন্তু কোন টাকা জমা প্রদান করেননি। উল্লেখ্য যে, গত ১১-৭-১২ ইং তারিখে আপীলকারীর হার্ডশীপ আবেদন শুনানীক্রমে টাকা জমার আদেশ প্রদান করা হয়। এ ক্ষেত্রে নতুনভাবে পুনরায় হার্ডশীপ বিষয়ে বিবেচনার সুযোগ নেই। ফলে মামলাটি আপীলকারী কর্তৃক ট্রাইব্যুনালের গত ১১-৭-১২ ইং তারিখের আদেশ প্রতিপালন না করায় খারিজযোগ্য।
অতএব আদেশ হইল যে, আপীলকারী কাস্টমস আইন ১৯৬৯ এর ১৯৪ ধারার বিধান প্রতিপালন না করায় মামলাটি খারিজ করা হলো। আদেশের কপি পক্ষদের প্রতি জারী করা হোক।
স্বাক্ষরিতঃ ১৪-৮-১২ ইং
(শেখ রওনাকুল ইসলাম)
সদস্য (বিচার)
স্বাক্ষরিত ১৪-৮-১২ ইং
(হোসাইন আহমেদ)
(সদস্য টেকনিক্যাল)
নথি নং- সিইভিটি/কেইস (কাস) ৬১৭/২০১২ তাং ১২-৯-১২ ইং সদয় অবগতি ও প্রয়োজনীয় কার্যাথে অনুলিপি প্রেরিতঃ ১ আপীলকারীঃ মেসার্স হাসিন নিট কম্পোজিট লিঃ, মুলাইদ, মাওনা, পোঃ টেংরা, থানা- শ্রীপুর, গাজীপুর।
২। প্রতিবাদী/রেসপনডেন্টঃ বন্ড কমিশনার, কাস্টমস বন্ড কমিশনারেট, ৩৪২/১ সেগুনবাগিচা, ঢাকা।
৩। অফিস কপি
(মোঃ বশীর আহমেদ)
রেজিস্ট্রার
ফোনঃ- ৯৫৫০২৪২”
10. It is apparent on the face of the said order that it is not an order confirming, modifying or annulling the decision or order passed by the respondent No.1 under section 196B of the Act, 1969. Hence, preferring appeal by the appellant under section 196D of the Customs Act, 1969 challenging the order dated 12-9-2012 is not maintainable.
11. In the result, instant appeal is dismissed.
12. There will be no order as to costs. Send down the LCR at once.
End.
High Court Division
(Special Original Jurisdiction)
Present:
Mr. Justice Borhanuddin
Mr. Justice Sardar Md. Rashed Jahangir
Income Tax Reference Application No. 279 of 2014.
MJL Bangladesh Limited
Applicant
VS
Commissioner of Taxes, Large Tax Payers Unit
Respondent
Judgement Date : February 04, 2021
Counsels:
Sarder Jinnat Ali alongwith Md Umbar Ali, Advocates—For the Applicant.
Farzana Rahman Shampa, AAG—For the Respondent.
Judgment
Sardar Md Rashed Jahangir, J:
At the instance of assessee this reference application having been filed under section 160 of the Income-tax Ordinance, 1984 (hereinafter referred to as 'the Ordinance'), arising out of the order dated 18-12-2013 passed by the Taxes Appellate Tribunal, Division Bench-1, Dhaka (hereinafter referred to as 'the Tribunal') in Income Tax Appeal No. 814 of 2013-2014 (assessment year 2011-2012). At the very outset learned Advocate for the assessee-applicant submits that he has instruction not to proceed with the questions formulated in the main application and now applicant is referring questions of law reformulated through Supplementary Affidavit dated 26-8-2020 instead; those are in the following:
Reformulated Questions of Law:
I. Whether on the facts, and, in the circumstances of the case, under sections 159(2)/82C(4) of the Income Tax Ordinance, 1984, the Tribunal is justified, legally, in maintaining further computation of income, under sub-sections (6) and (7) of the new section 82C inserted by the Finance Act, 2011?
II. Whether on the facts, and, in the circumstances of the case, the Tribunal, under sections 159(2)/30(e) of the Income Tax Ordinance, 1984, was justified, legally, in maintaining the disallowance made on surmise and conjecture from salaries as perquisite while salaries and allowances were paid did not attract section 30(e)?
III. Whether on the facts, and in the circumstances of the case, the Tribunal, under sections 159(2)/82C (4)/82C(6)/ 82C(7) of the Income Tax Ordinance, 1984 was justified, legally in maintaining the assessment order when the alleged sub-sections (6) and (7) were non-existent in the income year 2010-2011?
IV. Whether on the facts, and, in the circumstances of the case, the Tribunal, under sections 159(2)/53/52/82C of the Income Tax Ordinance, 1984 is justified in maintaining the demand in excess of the tax collected by the withholding authority as far as the referred tax under sections 53 and 52 is the final discharge of tax liability provided in sub-section (1) of section 82C?
2. Facts, relevant for disposal of this reference application, are that assessee-applicant is a public limited company and its income is derived from export and sale of Mobil in local market. For the assessment year 2011-2012, assessee submitted its income-tax return declaring total income at Taka 49,90,57,336 and thereafter filed a revised return declaring its amended total income at Taka 44,91,79,185, dividing its income into 2 (two) parts, taxable and tax exempted. Deputy Commissioner of Taxes concerned (hereinafter referred to as `DCT') upon receiving the said revised return issued notices under sections 79 and 83(1) of the Ordinance; in response of notices, authorised representative of assessee-company appeared before the DCT, explained its submitted return and produced some necessary documents in support of the return. After hearing and on perusal of submitted return, audited statements of accounts and produced documents and evidences, DCT completed assessment of the assessee, computing its total income at Taka 70,27,73,411; in particular, computed income under section 82C at Taka 39,62,76,952 and rest are computed other than section 82C of the Ordinance.
3. Being aggrieved by the assessment to tax made under section 83(2) of the Ordinance for the assessment year 2011-2012, assessee took an appeal under section 153(1A) of the Ordinance before the Commissioner of Taxes (Appeals), Taxes Appeal Zone-2, Dhaka (hereinafter referred to as the 'CT appeal'), being Aikor Appeal Patra No. 466/LTU/2012-2013, raising specific objection against computation of income under section 82C and also against computation of income pursuant to disallowance on account of excess perquisite under section 30(e) of the Ordinance. CT appeal, after hearing the assessee-appellant by his order dated 23-6-2013, rejected the contention of assessee applicant so far the above mentioned 2 (two) grounds are concerned.
4. Having aggrieved by and dissatisfied with the judgment and order dated 23-6-2013, passed by the CT appeal, assessee preferred a second appeal before the Taxes Appellate Tribunal, Division Bench-1, Dhaka, contending inter alia that the CT appeal under misconception of law and fact erroneously maintained the unlawful computation of income under sections 82C(6), 82C(7) of the Ordinance and upheld the disallowance of excess perquisite under section 30(e) of the Ordinance. Tribunal, after hearing both the parties by its order dated 18-12-2013, rejected the objection of assessee-appellant, so far it relates to the computation of income under section 82C of the Ordinance and excess perquisite.
5. Being aggrieved by the said order of Tribunal dated 18-12-2013, assessee filed this reference application, questioning the legality and propriety of the order passed by the Tribunal under section 159 of the Ordinance by referring aforementioned questions of law.
6. Mr Sarder Jinnat Ali alongwith Mr Md Umbar Ali, learned Advocates appearing for the assessee applicant and submits that the Tribunal under misconception of law and facts maintained the erroneous and unlawful computation of income under sections 82C(4), 82C(6), 82C(7) of the Ordinance. He next submits that the Tribunal as well as the taxing authorities below failed to consider that at the time of computation of income for the assessment year 2011-2012 the provisions of substituted section 82C, enacted through Finance Act, 2011, was non existent and thus, resorting the said substituted provisions of 82C of the Ordinance, computation made by the DCT is not sustainable in law. He further submits that the subject matter of assessment, assessee's income for the assessment year 2011-2012 is the income earned in the income year 2010-2011, corresponding to financial year 2010-2011 ended on 30th June, 2011; thus, the contention of Mr Ali is that in that year when the income was earned or received the provisions of substituted section 82C was not in force and is only come into force on 1st July, 2011; Mr Ali continues, the law applicable for the assessment year 2011-2012, is the law applicable for the period, when the income was earned or received; in other words, the law of income year. And the law brought into through amendment by the Finance Act, 2011, came into force on 1st July, 2011, which is applicable for the purpose of assessment of the next assessment year; thus, the computation made by the DCT concerned under sections 82C(4), 82C(6) and 82C(7) of the Ordinance is unauthorized, unconstitutional and not sustainable in law. He also contended that settled principles of law is that any amendment brought into in existing law, operates prospectively unless those are retrospectively made applicable by express words. Mr Ali next submits that under Article 83 of the Constitution of the People's Republic of Bangladesh, no tax can be imposed upon a citizen or assessee without authorization of law of Parliament and according to him, the assessing officer's invoked provision and computation procedure is beyond the scope of the provisions of Income-tax Ordinance and therefore ultra vires to the Article 83 of the Constitution of the People's Republic of Bangladesh.
7. The next objection raised by Mr Ali, is against the computation of income from disallowance on account of unauthorized perquisite; according to him, the assessing officer without considering the provisions of section 2(45), section 30(e) of the Ordinance read with Rule 33 and 33A-33J of the Income Tax Rules, 1984 disallowed the authorised allowances and the component of basic salary as excess perquisite and thereby committed error of law. Both the appellate authorities below without applying their judicial mind whimsically and illegally maintained the order of said computation. Learned Advocate for the assessee-applicant finally contended for answering the reformulated questions of law in favour of assessee-applicant and against the commissioner-respondent.
8. In support of his contentions, he cited the following judgments: (i) Jalaluddin alias Faruque vs Ehsanuddin, reported in 49 DLR (AD) 116; (ii) Two unreported judgments of this Court passed in the case of (a) Mercantile Bank Limited vs Commissioner of Taxes in Income Tax Reference Application No. 62 of 2005 and the case of (b) Proshika Manobik Unnayan Kendra vs Commissioner of Taxes, passed in Income Tax Reference Application Nos.23 of 2004 and 24 of 2004; (iii) the case of Mobil Jamuna Lubricants Limited vs Commissioner of Taxes, reported in 63 DLR 308; and (iv) the case of Commissioner of Income-tax vs Essar Teleholdings Ltd, reported in (2018) 401 ITR 445 (SC).
9. On the other hand, Ms. Farzana Rahman, learned Assistant Attorney-General, appearing for the respondent-commissioner submits that the Finance Act, 2011 came into force on 1st July, 2011, amending the provisions of section 82C of the Ordinance and according to the provisions of section 16 of the Ordinance, the income tax shall be charged at the prescribed rate or rates and subject to the provisions (amendment or others) of the said Finance Act (Act of Parliament) for the assessment year commencing on the date of promulgation of the Finance Act or Act of Parliament. In other words, in accordance with the law enacted at the beginning of the assessment year through the Finance Act, 2011 and, as such, the DCT was to compute the income of assessee-applicant in accordance with the substituted provisions of section 82C, brought into by the Finance Act, 2011, because of the mandate of section 16 of the Ordinance. She next submits that the provisions of section 16 of the Ordinance is the parent charging provision, under which the charge of income tax is being implemented in accordance with the provisions of the Ordinance, subject to the provisions of the Act of Parliament comes into force through the year to year by the Finance Act. She further submits that it is consistently settled by the judgments of Hon'ble Appellate Division, Supreme Court of Bangladesh, Pakistan Supreme Court (before liberation) and the Privy Council, the income-tax is charged in respect of the total income of the income year (previous year) and the law to be applicable is that in force in the assessment year, unless there is any statutory provision to the contrary. She next submits that any amendment brought into in force through the Finance Act at the beginning of corresponding assessment year shall govern the assessment of that year; that is, in the assessment of the income which was earned or received in the immediately preceding year of the assessment year, which is called income year or previous year. She submits that in the Income-tax Ordinance, the income earning year is defined as income year, which was earlier stated as previous year in the Income-tax Act, 1922; the words income year and previous year is quite synonymous and in fact, the words previous year has been substituted by the words income year in the present Ordinance. She next contended that according to section 16, the subject of the charge is not the income of the year of assessment but the income generated, earned, received in the income year, immediately preceding to the assessment year, but the law to be applicable is that in force in the assessment year. Her final contention is that the assessing officer rightly applied the amended provisions of section 82C of the Ordinance in the assessment of assessee for the assessment year 2011-2012 and the Commissioner of Taxes (Appeals), as well as the Tribunal legally and justly maintained the said order of assessment and computation of income thereof. Thus, the instant reference application should be answered is in affirmative and in favour of commissioner-respondent.
10. When the judgment of Proshika Manobik Unnayan Kendra brought into her notice, learned AAG submits that when a judgment was passed in ignorance of the provisions of statute or earlier binding precedents that judgment does not constitute any binding effect; because, the earlier judgments (of Proshika's case or of Mercantile Bank's case) passed by this Court according to her, sub silentio in respect of the applicable law of section 16 of the Ordinance and settled principles by the Apex Court. In support of her contentions, she referred the following judgments: (i) The Commissioner of Income-tax vs M/s. Everett Orient Line Corporation and others, reported in 28 DLR (AD) 30 (ii) Radhashyam Agarwala vs The Commissioner of Income-tax, reported in 12 DLR (SC) 25 (iii) Maharajah of Pithapuram vs Commissioner of Income-tax, reported in AIR 1945 (Privy Council) 89, (iv) Commissioner of Income-tax, West Bengal vs Isthmian Steamship Lines, reported in (1951) 20 ITR 572 (v) BRAC vs National Board of Revenue, reported in 29 BLD (AD) 63 = 14 BLC (AD) 113 and thereby prayed for deciding the reference application in favour of respondent-commissioner.
11. Heard learned Advocate Mr Sarder Jinnat Ali for the applicant and Ms. Farzana Rahman, learned AAG for the respondent; perused the reference application alongwith the annexures appended thereto; the supplementary affidavit and reply to the affidavit-in-reply filed on behalf of the applicant, affidavit-in-reply and reply to the supplementary affidavit filed on behalf of respondent; the provisions of law and the cited judgments.
12. It appears that at the time of assessment DCT divided the income of assessee in 2 (two) parts, one is income computed under section 82C of the Ordinance and the other one is income computed other than section 82C of the Ordinance; in order to compute income under section 82C, DCT has taken the amount of tax deducted at source at import stage and at the stage of supply/sale of goods to be the basis of computation; in particular, tax deducted at import stage + deducted tax at supply/sale stage, i.e. (4,83,07,673 + 87,01,588) amounting to Taka 5,70,09,262 was taken as the base amount; on the basis of which DCT determined the income of assessee under section 82C(4) of the Ordinance at Taka 15,20,24,699, applying taxation rate 37.5%, applicable for the assessee-applicant in the relevant assessment year; that is, the procedure adopted (applied) by the DCT is (the amount of tax deducted and collected at source x applicable taxation rate x 100); i.e., (Taka 5,70,09,262 x 1/37.5 x 100) = Taka 15,20,24,699 and thereafter computed Taka 22,67,11,079 as income under sub-section (6) of section 82C of the Ordinance as excess of the amount of income determined under sub-section (4) of section 82C. DCT also computed income of assessee at Taka 41,67,994 under sub-section (7) of section 82C.
13. It is contended by the assessee-applicant that the law applicable for the assessment of assessee in the assessment year 2011-2012 is the law of income year, during the period when the income was received or earned; the substituted provisions of section 82C has been enacted through the Finance Act, 2011 which came into force from 1st July, 2011; in other words, the contention of Mr Ali is that in the year when the income was earned or received the substituted provisions of section 82C was not in force and the amended provisions through the Finance Act, 2011, would be applicable for the assessment of next assessment year, i.e. in the assessment year 2012-2013.
14. The contention, on the other hand put forward on behalf of respondent is that once an amendment is brought into the Income-tax Ordinance, 1984 through the Finance Act or an Act of Parliament, by virtue of section 16 of the Ordinance that amendment comes into operation immediately and is applicable to all the assessments for the assessment year beginning from the date on which the amended provision brought into force.
15. To appreciate the rival contentions, let us first consider the provisions of section 16 of the Ordinance, which runs as follows:
"Section-16: charge of income-tax.—(1) Where an Act of Parliament provides that income tax shall be charged for any assessment year at any rate or rates, income tax at that rate or those rates shall, subject to the provisions of that Act, be charged, levied, paid and collected in accordance with the provisions of this Ordinance in respect of the total income of the income year or income years, as the case may be of every person:
Provided ..............................
(2) ..............................
(3) ..............................
(i) ..............................
(ii) ..............................
(iii) .............................."
16. On examination of the aforesaid provision, it appears to us section 16 of the Ordinance provided, where an Act of Parliament provides that income-tax shall be charged for any assessment year at any rate or rates, income-tax at that rate or rates shall, subject to the provisions of the said Act of Parliament, be charged, levied, paid and collected in accordance with the provisions of the Ordinance in respect of the total income received or earned by any assessee in its income year; meaning thereby, the income which was received in the income year (financial year), immediately preceding the assessment year [see section 2(35) (a)]; i.e., tax on income of the income year shall be charged, levied paid or collected at the rate or rates provided by the Finance Act for any assessment year in accordance with the provisions of the Ordinance, subject to the provisions of that (Finance) Act.
17. From the textual context of the charging provision of section 16, it appears that tax on income of the income year shall be charged at the rate specified by the Act of Parliament or Finance Act in accordance with the provisions of this Ordinance, subject to the provisions of the Finance Act or Act of Parliament brought into at the beginning of the assessment year.
18. In the earlier Act, i.e. in the Income-tax Act, 1922, contemplation of charging of income-tax was governed and determined under section 3 of the Act. While dealing with charge of income-tax under section 3 of the Income-tax Act, 1922, our Apex Court settled the question of law in the following:
19. In the case of Commissioner of Income-tax vs M/s Everett Orient Line Corporation, reported in 28 DLR (AD) 30, Hon'ble Appellate Division of the Supreme Court of Bangladesh held as under:
"The Income Tax Act is a dormant act and is activated year to year as for the recovery of the tax on income at the rate provided in Finance Act. Income-tax is assessed on the previous year set out in the Act. The machinery for realization of the tax is furnished by the Finance Act of the year of assessment. The law in operation on the first date of assessment year will clinch and govern the income of the previous year which in terms of the Act is the date immediately ending on the first day of the assessment year ...........”
20. In the case of Radhashyam Agarwala vs Commissioner of Income-Tax, reported in 12 DLR (SC) 25, the Pakistan Supreme Court (The then Apex Court of the country) held as under:
"The Machinery provided by the Act for the enforcement of a liability comes into motion only when the Finance Act determines the rate or rates of tax on the total incomes of different classes of assessees for the previous year. When these rates have been specified, then, by virtue of section 3, tax at these rates has to be charged for the assessment year in question in accordance with the provisions of the Income Tax Act in respect of the total income of the "previous year" of different classes of assessees. If there be no Finance Act, the Income Tax Act remains a dormant statute but, with the passing of the Finance Act, it comes at once into activity and the machinery created by it immediately gets into gear to enforce the liabilities of different classes of assesses."
21. In the case of Maharajah of Pithapuram vs Commissioner of Income-Tax, reported in AIR 1945 (PC) 89, their Lordships of the Privy Council held as under:
"In the first place, it is clear to their Lordships that under the express terms of section 3, Income-tax Act, 1922, the subject of charge is not the income of the year of assessment, but the income of the previous year..........
In the second place, it should be remembered that the Income-tax Act, 1922, as amended from time to time, forms a code, which has no operative effect except so far as it is rendered applicable for the recovery of tax imposed for a particular fiscal year by a Finance Act. This may be illustrated by pointing out that there was no charge on the 1938-1939 income either of the appellant or his daughters, nor assessment of such income, until the passing of the Finance Act, 1939, which imposed the tax for 1939-1940 on the 1938-1939 income and authorised the present assessment. By sub-section (1) of section 6, Finance Act, 1939, income-tax for the year beginning on 1st April, 1939, is directed to be charged at the rates specified in Part-1 of Sch.2 and rates of super-tax are also provided for, and by sub-section (3) it is provided that:
"for the purpose of this section and of Sch.2, the expression 'total income' means total income as determined for the purposes of income-tax or super-tax, as the case may be, in accordance with the provisions of the Income-tax Act, 1922."
This can only refer to the Income-tax Act, 1922, as it stood amended at the date of the Finance Act, 1939, and necessarily includes the alterations made by the Amending Act, which had already come into force on 1st April, 1939."
22. It is needless to mention here that their Lordships of the Apex Court while deciding identical issues considered the provisions of section 3 of Income-tax Act, 1922 and thereafter laid down the aforesaid law. It is pertinent to mention here that even in absence of specific wording in section 3 of the Income-tax Act, 1922 ("subject to the provisions of that Act", wording enacted later on in present section 16 of the Income-tax Ordinance, 1984) their Lordships decided that the law/amendment/alterations brought into through the Finance Act for the assessment year in concern, shall apply and govern the assessment to income-tax for the income earned or received by assessee in the previous year (now income year).
23. In the case of Commissioner of Income-Tax, West Bengal vs Isthmian Steamship Lines, reported in 20 ITR (1951) 572 (SC), the Indian Supreme Court while considering the provisions of section 3 of the Income-tax Act, 1922, held as under:
"The first question to be answered is whether these dates are to apply to the accounting year or the year of assessment. They must be held to apply to the assessment year, because in income-tax matters the law to be applied is the law in force in the assessment year unless otherwise stated or implied."
24. In the case of Commissioner of Income-Tax vs Essar Teleholdings Ltd. reported in 401 ITR (2018) 445 (cited by the assessee-applicant), the Indian Supreme Court while deciding the case and the related issues also relied upon a judgment passed in the case of CIT vs Scindia Steam Navigation Co. Ltd., reported in AIR 1961 SC 1633, in which it was held as under:
"as the liability to pay tax is computed according to the law in force at the beginning of the assessment year, i.e., the first day of April......”
25. Contention of learned Advocate for the applicant is that in the year in which the income was received or earned, the amended provisions of section 82C was not in force; identical contention was earlier rejected by our Apex Court with a consistent view by a series of judgments. Here the assessee attempted to challenge the assessment and computation made under the amended provisions of section 82C, in particular, invoking section 82C(4), 82C(6), 82C(7) introduced through the Finance Act, 2011, on the ground that the amending Act was not in force when the income of assessee was earned. As we found earlier, identical contention was rejected by our Apex Court holding the view that the material date was the first day of the assessment year, i.e. first day of July on which the Finance Act or amending Act came into force and the liability to tax depended upon the provisions of the Income-tax Act (here the Income-tax Ordinance) as it was in force on that date. In the case in hand, the amended law has come into force on 1-7-2011. And the Apex Court through consistent view construing the language of section 3 of the Income tax Act, 1922 (identical provisions now under section 16 of the Income-tax Ordinance, 1984), held that the computation of the total income in accordance with the provisions of the Income-tax Act, 1922 (the Income-tax Ordinance, 1984), means the Income Tax Act (now the Ordinance) as it stood amended on the date of the coming into force of the Finance Act.
26. The judgments cited on behalf of the assessee-applicant bears no assistance to improve applicant's case.
27. From the premises stated in above, it appears to us there is no scope to decide or lay down the law differently from those of the Apex Court. Accordingly, our answer to the question Nos. (I), (III) and (IV) are in affirmative against assessee-applicant.
28. Now regarding previous judgment of this Court passed earlier in Proshika's case (both of us parties to that judgment), upon accepting the contentions put forward on behalf of assessee-applicant and following the judgment of Mercantile Bank Limited passed in Income-tax Reference Application No. 62 of 2005. Our considered view, both the judgments were passed in sub-silentio (ignorance) in respect of the provisions of section 16 of the Income-tax Ordinance, 1984; because, at the time of hearing of that case said provision was not placed before us and as well as the judgments passed and law laid down by our Apex Court in the case of Commissioner of Income-tax vs M/s Everett Orient Line Corporation, reported in 28 DLR (AD) 30; the Case of Radhashyam Agarwala vs The Commissioner of Income-tax, reported in 12 DLR (SC) 25; the case Maharajah of Pithapuram vs Commissioner of Income-tax, reported in AIR 1945 (Privy Council) 89 were not placed before the High Court Division from either of the parties and if those could be placed the fate of the cases of Proshika's and other one would be otherwise.
29. It is therefore, not only necessary but obligatory on the Court to step into correct its wrong view taken in the earlier judgment, passed in Proshika Manobik Unnayan Kendra case and it appears to us the said judgment and the relying case of Mercantile Bank, do not lay down the correct law and thus, we feel it necessary to revisit into our earlier incorrect view of law.
30. Now regarding question of law No. II.
31. On examination, it appears to us that we are not in a position to deal with or answer the question; because aforesaid referred question is a mixed question of law and fact. In such a situation, Mr Jinnat Ali upon his second thought submits that in that case he is not pressing the question No. II.
32. From the context above our answer to the reformulated questions of law No. I, III and IV are in affirmative against assessee-applicant and question No. II is not pressed.
33. No order as to cost. The Registrar of the Supreme Court of Bangladesh is directed to take steps in view of the provisions of section 161(2) of the Income-tax Ordinance, 1984.
End.
High Court Division
(Civil Revision Jurisdiction)
Present:
Mr. Justice Md. Badruzzaman
Civil Revision Nos. 298 and 299 of 2005.
Balai Chandra Saha and others
Petitioners
VS
Sukumar Chakroborty and others
Opposite Parties
Judgement Date : July 24, 2022
Counsels:
Ranjit Barman, Advocate—For the Petitioners in both cases.
AB Roy Chowdhury, Advocate—For Opposite parties in both cases.
Judgment
1. Both Rules arose out of common judgment and decree dated 1-1-2004 (decree signed on 8-11-2004) passed by learned Additional District Judge, Kishoreganj in Other Class Appeal Nos. 3 of 1991 and 4 of 1991, allowing the appeals by reversing the judgment and decree dated 17-11-1990 (decree signed on 22-11-1990), passed in Other Class Suit No. 67 of 1987 analogously with Other Class Suit No. 80 of 1987 by learned Senior Assistant Judge, Bajitpur, Kishoreganj, dismissing Other Class Suit No. 67 of 1987, and decreeing Other Class Suit No. 80 of 1987.
2. Since common questions of law and facts are involved in both Rules, those have been heard together and now are being disposed of by this common judgment.
3. Relevant facts, for the purpose of disposal of these Rules, are that one Sukumar Chakraborty and Sudeb Chandra Chakraborty [the predecessors of opposite party Nos. 2(a)-2(c) in both Rules] as plaintiffs instituted Other Class Suit No. 67 of 1987 on 4-8-1987 against Balai Chandra Saha [predecessor of petitioner Nos. 1(a)-1(c) and Parul Rani Saha (petitioner No. 1(c) in both Rules] and another in the Court of Senior Assistant Judge, Bajitpur, Kishoreganj praying for demarcating boundary as well as establishment of their title and recovery of possession of 0.03 acre land out of 0.52 acre land of suit plot No. 2157 of Mouza-Sararchar under Police Station–Bajitpur, District–Kishoreganj.
4. The case of the plaintiffs of Other Class Suit No. 67 of 1987 was that 0.52 acre land was originally belonged to Gopinath Sharma to the extent of 12 anna share and Katayani Debi to the extent of 4 anna share and accordingly, CS Khatian was prepared and finally published in their name. While Katayani Debi was owning and possessing her 4 anna share i.e 0.13 acre land, died without any issue and leaving behind Gopinath Sharma as the elder brother of her husband and accordingly, he inherited the share of Katayani Debi and thereafter, he died leaving behind Harigobinda Chakraborty as his only son to inherit his share and Harigobinda Chakraborty while was owning and possessing said 0.52 acre land died leaving behind two sons, the plaintiffs to inherit his share. Having inherited entire 0.52 acre land of suit plot, the plaintiffs have been owning and possessing the same by constructing dwelling house, planting various types of tress and producing crops therein. The plaintiffs, subsequently, came to know that SA kahtian had been wrongly prepared and published in the name of Biraja Sundari Daisya and accordingly, they instituted Other Class Suit No. 100 of 1986 in the Court of learned Senior Assistant Judge, Bajitpur, Kishoreganj praying for declaration that SA record was wrong and then got ex-parte decree against Biraja Sundari Daisya. The residential house of the defendant situates just adjacent to the eastern side of suit plot and they forcefully dispossessed the plaintiffs from 0.03 acre land out of 0.52 acre land on 30-6-1978 corresponding to 15th Baishak, 1394 BS by erecting cowshed therein and, as such, they have constrained to institute the suit.
5. Petitioner No. 1(c) and Balai Chandra Saha [predecessor of petitioner Nos. 1(a)-1(c)] entered appearance in the suit and thereafter, filed Other Class Suit No. 80 of 1987 on 10-9-1987 against the plaintiffs of Other Class Suit No. 67 of 1987 in the same Court praying for declaration that the judgment and decree passed in Other Class Suit No. 100 of 1986 was void, illegal and not binding upon the plaintiff and also declaration of his title in respect of 0.13 acre land out of 0.52 acre land. He along with his wife as defendants filed joint written statement in Other Class Suit No. 67 of 1987 stating the facts as stated in the plaint of Other Class Suit No. 80 of 1987. The plaintiffs of Other Class Suit No. 67 of 1987 as defendants of Other Class Suit No. 80 of 1987, contested the suit by filing joint written statement stating the facts, as stated in their plaint of Other Class Suit No. 67 of 1987.
6. The case of the defendant-petitioners (plaintiff of Other Class Suit No. 80 of 1987) is that 0.52 acre land was originally belonged to Gopinath Sharma to the extent of 12 anna share and Katayani Debi to the extent of 4 anna share as rioti Jote right and CS kahtian was prepared and published in their names. Katayani Debi then transferred her share by a pattan dated 5th Baishakh, 1361 BS to Biroja Sundary Daisya and handed over possession thereof to her and while Biraja Sundari Daisya was owning and possessing said 0.13 acre land, SA kahtian was prepared and finally published in her name jointly with the plaintiffs without any objection from any quarter. Biroja Sundary Daisya brought her daughter namely, Horidashi Saha and her husband Amar Chandra Saha in her own house and transferred said 0.13 acre land by way of oral gift in favour of them and handed over possession thereof to them. Thereafter, she died leaving behind one daughter Horidashi Saha and one grandson, Direndra Chandra Saha (son of her deceased daughter Roydashi). Thereafter, Horidashi and her husband Amar Chandra Saha transferred said land to Balai Chandra Saha (the defendant No. 1) vide registered sale deed dated 28-4-1969 being No. 2113 and handed over possession thereof to him and after purchase, Balai Chandra Saha mutated his name in the revenue office of the Government and had been owning and possessing the same by paying rents to the Government. Thereafter, Dhirendra Chandra Saha claimed title over 0.13 acre land for which Balai Chandra Saha again purchased the same from Dhirendra Chandra Saha vide registered sale deed dated 6-2-1982 being No. 780 for avoiding future complications.
7. His further case was that during BS operation said land was recorded in his name in field survey and bujarat khatian was prepared in his name against which the plaintiffs, Sukumar and Sudeb, filed objection case and the same was rejected and then they filed appeal under Rule 30 of the State Acquisition and Tenancy Rules and the appeal officer, after considering oral and documentary evidence, dismissed the appeal vide order dated 15-2-1987. The plaintiffs of Other Class Suit No. 67 of 1987 by collusion and fraud obtained ex-parte decree in Other Class Suit No. 100 of 1987 against dead person because the defendant of that suit, Biroja Sundari Daisya, was not alive at the time of filing of the suit.
8. The trial Court tried both the suits analogously. Sukumar Chandra Chakraborty and Sudeb Chandra Chakraborty adduced three PWs and produced documentary evidence which were marked as Exhibits 1-3(ka) and on the other hand, Balai Chandra Saha adduced 5 DWs and produced documentary evidence, which were marked as Exhibits Ka-Uma.
9. The trial Court, upon considering the evidence on record, dismissed Other Class Suit No. 67 of 1987 and decreed Other Class Suit No. 80 of 1987 vide common judgment and decree dated 17-11-1990. Being aggrieved by said judgment and decree Sukumar and Sudeb preferred Other Class Appeal Nos. 3 of 1991 and 04 of 1991 before the learned District Judge, Kishoreganj which were transferred to learned Additional District Judge, Kishoreganj for disposal who, upon hearing the parties, allowed both appeals by common judgment and decree dated 1-11-2004 and thereby decreed Other Class Suit No. 67 of 1987 and dismissed Other Class Suit No. 80 of 1987.
10. Being aggrieved by and dissatisfied with said judgment and decree of the appellate Court, the heirs of Balai Chandra Saha as petitioners have preferred these two revisions under section 115 of the Code of Civil Procedure and obtained Rules and orders of stay operation of the impugned judgment.
11. Both Rules have been opposed by the heirs of Sukumar Chandra Chakraborty and Sudeb Chandra Chakraborty by filing vokalatnama.
12. Mr Ranjan Barman, learned Advocate appearing for the petitioners in both Rules by taking me to the judgments of the Courts below, evidence and other relevant documents submits that the trial Court, upon proper appreciation of the evidence and materials on record, came to its findings and decision but the appellate Court, as the last Court of fact, by misreading and non-consideration of material evidence and without reversing the findings of the trial Court came to its findings and decision and reversed its judgment and accordingly, committed an error of law resulting in an error in the decision occasioning failure of justice.
13. Learned Advocate further submits that, upon sifting the evidence on record, the trial Court found that though Balai Chandra Saha could not prove pattan and oral gift but he have continuous possession of the suit property since his predecessors, in that after transfer by Katayani Debi SA record was prepared and finally published in the name of the transferee, Biroja Sundari and after purchase from her, Balai Chandra Saha mutated his name in the Government revenue office and paid rent and accordingly, Balai Chandra Saha acquired title in the suit land. Learned Advocate further submits that though Sukumar Chandra Chakraborty and Sudeb Chandra Chakraborty claimed title over 0.13 acre suit land but they could not produce any single paper or document to show that they were in possession of the suit land inasmuch as they or their predecessors could not record their names in the SA or BS Khatian and could not mutate their names in respect of said 0.13 acre land and did not pay any rent to the Government and accordingly, their right, title or possession have not been established by oral and documentary evidence but the appellate Court without considering the case of the parties side by side or discussing the evidence independently, came to a wrong conclusion that Sukumar Chandra Chakraborty and Sudeb Chandra Chakraborty acquired title in respect of 0.13 acre land.
14. Learned Advocate further submits that the trial Court, after considering the evidence, came to the conclusion that Sukumar Chandra Chakraborty and Sudeb Chandra Chakraborty got ex-parte decree in Other Class Suit No. 100 of 1986 against dead person and accordingly, the same was void but the appellate Court without reversing said finding of the trial Court came to a wrong finding that Balai Chandra have got no right to challenge the decree passed in Other Class Suit No. 100 of 1986.
15. By filing application and producing original unregistered pattan dated 5th Baishakh, 1361 BS (Annexure A) learned Advocate further submits that during trial and appellate stage Balai Chandra Saha could not produce said pattan and this Court may consider the pattan as additional evidence. The opposite parties do not file any counter-affidavit against the application.
16. However, Mr AB Roy Chowdhury, learned Advocate appearing for the opposite parties submits that the appellate Court, as the last Court of facts, after considering the evidence on record rightly passed its judgment and, as such, no interference is called for by this Court. Learned Advocate further submits that the suit property was ayautaka stridhana of Katayani Debi and after her death, the said land was inherited by her husband's elder brother Gopinath as per provision of section 157 of the Mulla's Hindu Law which was rightly observed by the Court of appeal and accordingly, Balai Chandra Saha did not acquire any title, interest or possession in the suit land.
17. I have heard the learned Advocates for both parties, perused the judgments of the Courts below and also scrutinized the pleadings of the parties, evidence, both oral and documentary, and also considered the submissions of the learned Advocates for the parties.
18. It is admitted by both parties that 0.52 acre land was originally owned and possessed by Gopinath Chandra Sharma to the extent of 12 anna share and Katayani Debi to the extent of 4 anna share as royoti jote holders and accordingly, said land was recorded and finally published in CS Khatian No. 550 (Exhibit 1) of CS plot No. 2157 in their name to the extent of their respective share. The plaintiffs of Other Class Suit No. 67 of 1987 claimed that Katayani Debi held her share as ayautaka stridhana and after her death, said land was inherited by her husband's elder brother Gopinath Chandra Sharma as per section 157 of Mulla's Principle of Hindu Law, 14th Edition. In their pleadings, the plaintiffs did not plead that said land was ayutuka stridhana. However, the trial Court, upon taking that said property as ayautaka stridhana of Katayani Debi, found that as per section 157 of Mulla's Hindu Law only husband's younger brother inherits ayautaka stridhana and accordingly, Gopinath Chandra Sharma, being the elder brother of the husband of Katayani Debi did not inherit said land and as heirs of Gopinath Chandra Sharma, Sukumar and Sudeb did not acquire any right, title or interest in the suit property. On perusal of section 157 of Mulla's Hindu Law, appears that on the death of a Hindu widow her ayautaka stridhana devolves upon the following heirs:
(1) brother;
(2) mother;
(3) father;
(4) husband;
(5) husband's younger brother;
(6) husband's brother's son;
(7) sister's son;
(8) husband's sister's son;
(9) brother's son.
19. The above list of section 157 of Mulla's Hindu Law, suggests that a widow's ayautaka stridhana does not inherit by her husband's elder brother and, as such, the trial Court rightly observed that Gopinath Chandra Sharma did not inherit the share of Katayani Debi as he was the elder brother of the husband of Katayani Debi. But the appellate Court on a misconception of law came to the conclusion that in the absence of husband's younger brother, Gopinath Sharma inherited her share as the husband's elder brother of Katayani Debi.
20. The plaintiffs of Other Class Suit No. 67 of 1987 adduced three PWs. PW 1, Sudeb (plaintiff No.2) deposed on 6-11-1990 and in his cross-examination he stated that—
“৬ বৎসর আগে আমি খাজনা দিতে গেলে CO Office আমার খাজনা না নিলে জানতে পারি যে, আমার আর ও আর ভুলে বিরজা সুন্দরীর নামে লিপি হইয়াছে। বিবাদীগণ তাহার পূর্বেই নাঃ দাগের ১৩ শতক খারিজ করিয়া নিয়া যায় বলিয়া জানি কিন্তু উক্ত খারিজ বাতিলের জন্য আমি কোন মামলা করি নাই ---------- আজকের সাক্ষীগণই ৩০ ধারার আপত্তি কালে সাক্ষী দিয়াছিল। নাঃ দাগের ৩ শতকে ২টি ঘর আছে প্রথমটি কবে তুলা হইয়াছিল বলিতে পারি না।”
PW-2 Dhirendra Banik deposed on 6-11-1990 who, in his examination-in-chief stated that—
”নালিশী দাগের ভূমি পূর্বে বাদীপক্ষ দখল করিত তবে গত ২/৩ বৎসর যাবৎ নালিশী দাগের পূর্ব-দক্ষিণ দিক দিয়া অনুমান ২ শতক বিবাদী দখল করে।”
In cross-examination he stated that—
“বিরজা মারা যাওয়ার পর তার মেয়ে ও জামাই ১ নং বিবাদীকে কবালা করিয়া দিয়াছিল কিনা জানিনা। নাঃ দাগের পূর্ব দক্ষিণে বিবাদীগণ ২/৩ বৎসর পূর্বে প্রথম ঘর তুলেছিল।”
PW-3, Molu Mia in his examination-in-chief stated that—
“নাঃ দাগের ৫২ শতক ভূমিতে সুকুমার চক্রবর্তী গং দখলকার আছে প্রায় তিন আষাঢ়ের আগের আষাঢ় বলাই চঃ সাহা নাঃ দাগের দক্ষিণ-পূর্ব দিকে ঘর তুলিয়াছে।”
In cross examination he stated that—
“আমি ৩০, ৩১ ধারায় সুকুমারের পক্ষে কিশোরগঞ্জ গিয়া সাক্ষী দিয়াছি। বিরজার জায়গায় হরিদাসী ও অমর চান থাকত। বিরজা মারা যাওয়ার পর হরিদাসী ও অমর চান ঐ খানেই মারা যায়। শুনিয়াছি যে, বলাই চঃ তাহাদের নিকট হইতে উক্ত ভূমি ক্রয় করিয়াছে।”
21. On perusal of the testimony of the PWs as a whole it appears that though PW 1 stated that Gopinath inherited the share of Katayani Debi to the extent of 0.13 acre land as her husband's elder brother but no documentary or oral evidence was produced to support such claim. PW 2 and 3 did not state anything supporting such statement and they did not state anything about the date of death of Katayani Debi and from when said Gopinath Sharma went into possession of said 0.13 acre land or when his son Hari Gobinda and after his death, when the plaintiffs got into possession of the suit land. Though PW 2 stated that the suit land was possessed by the plaintiffs before their dispossession from 0.02 acre land but he could not state from when the plaintiffs were possessing said land. PW 2 in cross-examination could not state the date of erection of 1st hut in the suit land by the defendants. Though plaintiffs claimed that they were dispossessed from 0.03 acre land but PW 2 stated that the plaintiffs were dispossessed from 0.02 acre land. Thus, it appears that the witnesses of the plaintiffs made contradictory statements and they could not establish the plaintiffs claim in regards title and possession of 0.13 acre land and the fact of dispossession from 0.03 acre land by the defendants which has been rightly observed by the trial Court.
22. Now question arises whether plaintiff (Balai Chandra Saha) of Other Class Suit No. 80 of 1987 and defendant No.1 of Other Class Suit No. 67 of 1987 could prove his title and possession in 0.13 acre land.
23. The claim of Balai Chandra Saha is that Katayani Debi, while owning and possessing .13 acre land, transferred the same to Biroja Sundari Dasya by jote pattan dated 5th Baishakh, 1361 BS and while she was owning and possessing the same, SA Khatian No. 727 (Exhibit-l ka) was prepared and finally published in her name and thereafter, she transferred the same to her daughter Haridashi Saha and son-in-law Amar Chandra by way of oral gift and then they, by registered sale deed dated 28-4-1969 being No. 2113 (Exhibit-Ga), transferred the same to Balai Chandra Saha (plaintiff of Other Class Suit No. 80/87) and being owner in possession he mutated his name in the revenue office vide Mutation Case No. 1329 (IX-DP of 75-76) and got DCR (Exhibit-Ka) and was owning and possessing the same on payment of rents (Exhibits ka series) and said land was also recorded in his name in BS Jarip in Bujarat khatian No. 58 and DP khatian No. 1939 in plot No. 4075. His further case is that Sukumar and Sudeb filed objection against said Bujarat Khatian which was rejected and thereafter, they filed appeal under Rule 30 of the SAT Rules and after hearing, said appeal was dismissed vide judgment dated 15-2-1987 (Exhibit-kha). It is also claimed that Biroja Sundary had another daughter namely, Roydashi and when her son Dhirendra Chandra Roy claimed said 0.13 acre land, Balai Chandra Saha got sale deed registered from Dhirendra Chandra Roy being No. 780 dated 6-2-1982 (Exhibit. Gha) in respect of said 0.13 acre land for avoiding future complications.
24. To prove his claim, Balai Chandra produced and proved original sale deed dated 28-4-1969, DCR, rent receipts, certified copy of order dated 15-2-1987 passed in appeal under Rule 30 of SAT Rules and original sale deed dated 6-2-1982. DW 1 (defendant No.2 of Other Class Suit No. 67 of 87) is the wife of Balai Chandra Saha, who deposed in support of their pleadings. DW 2 Abdul Hye in his examination-in chief stated that he wrote sale deed dated 28-4-1969 and the same was registered on 29-4-1969. He identified his signature in the deed (Exhibit Ga-1). DW-3 Hari Charan Saha Roy deposed on 6-11-1990 and in examination-in-chief, he stated that he was the witness of purchase deed of Balai Chandra and he identified his signature in the deed (Exhibit Ga-2). He stated that Balai Chandra has been possessing 0.13 acre land. In cross-examination he stated that Balai went into possession of 0.13 acre land before independence. DW-4 Badhu Mia deposed that 0.13 acre land was owned and possessed by Biroja Sundari and her daughter Hari Dasi sold the same to Balai Chandra and at present he is in possession of said 0.13 acre land. In cross-examination he stated that there was a cowshed in 0.13 acre land. DW-5, Abu Syed Mia deposed that he was deed writer of sale deed dated 6-2-1982 and he identified his signature in the deed (Exhibit Gha-1). He also stated that the vendor put his signature in the deed in his presence. From DCR and rent receipts (Exhibits Ka series), it reveals that Balai Chandra mutated 0.13 acre land from the recorded tenant Biroja Sundari vide mutation case of 1975-76, paid rents on 19-5-1976, 26-4-1982 and 30-3-1984 up to 1390 BS.
25. The plaintiffs of Other Class Suit No. 67 of 1987 could not prove by evidence that those two sale deeds of 1969 and 1982, SA khatian, mutation of Balai, rent receipts and BS record in the name of Balai Chandra as forged or collusive.
26. On perusal of order dated 15-2-1987 passed by the settlement officer in appeal, it appears that during BS field survey said 0.13 acre land was recorded in Bujarat khatian No. 58 in BS plot No. 4075 in the name of Balai Chandra against which Sukumar and Sudeb filed objection and the same was rejected and accordingly, DP khatian No. 1939 was published in the name of Balai Chandra. It also reveals that against said DP khatian, Sukumar and Sudeb filed appeal under Rule 30 of the SAT Rules and during hearing of said appeal Sukumar adduced Sudhendra Chandra Roy as witness who, on 10-2-1987, deposed that Balai forcefully entered into possession in said 0.13 acre land in the month of Magh of previous year. On 15-2-1987 Sukumar adduced (1) Dhirendra Chandra Banik, (2) Omesh Chandra Banik, (3) Md Manu Mia and (4) Mujibuddoulla as witnesses out of whom Dhirendra and Omesh stated that dispute suit was continuing for 2/3 years and before 2/3 years back appellant was in possession in the suit land. Manu Mia stated that dispute was continuing between the parties in regards possession for 4/5 years and Mujibuddoula stated that dispute was continuing between the parties for 7/8 years. It appears the witnesses made contradictory statements in regards possession of the appellants before the appeal officer. On the other hand, Balai Chandra adduced (1) Md Mahram Ali (2) Md Jadu Mia and (3) Khurshid Mia as witness who, stated that Balai Chandra has been owning and possessing the suit land since 1969 and before that Biroja Sundari was in possession thereof. The settlement officer, after considering oral and documentary evidence like SA khatian, sale deeds, rents receipts, found that after purchase in 1969 Balai Chandra mutated his name vide mutation case of 1975-76 and paid rents up to 1390 BS and also observed that the appellants (plaintiffs of Other Class Suit No. 67 of 1987) could not prove their possession thereof and the opposite party Balai Chandra could prove his possession in the suit land and accordingly, dismissed the appeal. It appears that the opposite parties did not challenge said order of the settlement officer before any higher forum.
27. It is settled principle that record of right and rent receipts are document of possession. On the other hand, section 110 of the Evidence Act provides for a presumption of ownership in favour of the person who is in possession and casts burden of proof on the party who denies his ownership. It appears that Balai Chandra proved his exclusive possession in 0.13 acre land including 0.03 acre suit land by oral and documentary evidence which could not be disproved by the plaintiffs of Other Class Suit No. 67 of 1987.
28. It appears that Balai Chandra, during trial, could not produce pattan dated 5th Baishakh, 1361 BS executed by Katayani Debi to Biroja Sundari during trial but produced the same before this Court for considering it as additional evidence. It appears that the document (Annexure A) is an unregistered private document and, as such, it cannot be taken as additional evidence in revision by this Court without proof of its genuineness by proving its execution by evidence. Though the defendants could not prove the pattan and oral gift by Biroja Sundari to her daughter Hari Dasi and Amar Chandra but chronological facts of publication of SA khatian in the name of Biroja Sundari in respect of 0.13 acre land, transfer of said land by Hari Dasi and Amar Chandra to Balai Chandra by registered sale deed dated 6-2-1969, mutation of said land in the year 1975 in the name of Balai, payment of rents by him to the Government and subsequent preparation of BS khatian in his name suggest that, Balai Chandra Saha had been possessing said 0.13 acre land from the time of his predecessor Biroja Sundari against said Sukumar and Sudeb and their predecessors uninterruptedly for more than 12 years and accordingly, he has acquired title by way of adverse possession against them. Accordingly, the trial Court rightly held that Balai Chandra could able to prove his title and possession in the suit land.
29. Another question arises whether the ex-parte decree passed in Other Class Suit No. 100 of 1986 was collusive and not binding upon the plaintiff of Other Class Suit No. 80 of 1987, Balai Chandra.
30. On perusal of ex-parte order and decree dated 12-4-1987 of Other. Class Suit No. 100 of 1986 [Exhibits 2(ka) and 2(kha)] it appears that said suit was filed by Sukumar and Sudeb on 15-11-1986 against Biroja Sundari challenging SA khatian prepared and published in her name and got ex-parte decree against her. On sifting evidence of the parties, the trial Court found that Biroja Sundari died before filing of the suit and, as such, the decree which was passed against dead person is a nullity in the eye of law.
31. It appears that the appellate Court, without reversing said finding of the trial Court, observed that Balai Chandra Saha has got no authority to challenge whether Sukumar and others have got decree against late Biroja Sundari.
32. Now, question arises whether, Balai Chandra Saha has got any right to challenge the ex-parte decree or whether he was a necessary party to that suit. PW 1 Sudeb Chakraborty, in his cross-examination recorded on 6-11-1990, stated that 6 year back he learnt that RoR was wrongly prepared in the name of Biroja Sundari when he had gone to CO office for payment of rent and before that the defendants mutated their names but he did not file any case for cancellation of the mutation. He also stated that field record was prepared in the name of Balai against which they filed objection case under rule 30. Admittedly, the plaintiffs lost therein on contest. The testimony of PW 1 suggests that before filing of OC Suit No. 100 of 1986 Sukumar and his brother knew that Balai Chandra got his name mutated in the SA khatian in place of Biroja Sundari and was paying rents to the revenue office. After mutation from SA recorded tenant Biroja Sundari, Balai Chandra stepped into her shoes and thus, acquired subsisting interest in the suit jote. Moreover, during resent BS operation, the suit land was recorded in BS DP Khatian No. 1939, on contest, in the name of Balai Chandra Saha. Accordingly, he was a necessary party in OC Suit No. 100 of 1986. The suit, which has been filed against his predecessor-in-interest was bad for defect of parties and is not binding upon him and, as such, he has got every right to challenge said ex-parte decree passed therein. Accordingly, the finding of the appellate Court that Balai Chandra have got no authority to challenge the ex-parte decree is misconceived and not tenable in law.
33. On perusal of the judgment of the Court of Appeal, it appears that the appellate Court upon misreading and non-consideration of material evidence and misconception of law reversed the findings and decision of the trial Court. The impugned judgment is not a proper judgment of reversal. Accordingly, interference is called for by this Court.
34. In view of the above, I find merit in these Rules which should be made absolute.
35. In the result, the Rules are made absolute, however, without any order as to costs.
36. The impugned judgment and decree of the appellate Court are hereby set-aside and those of the trial Court are restored.
37. The orders of stay granted earlier are hereby vacated.
38. Communicate a copy of the judgment along with LCR to the Courts below at once. The learned Advocate for the petitioner is permitted to take back the original copy of pattan dated 5th Baishakh, 1361 BS (Annexure-A to the application for adducing additional evidence) by substituting Photostat thereof.
End.
High Court Division
(Civil Appellate Jurisdiction)
Present:
Mr. Justice Bhishmadev Chakrabortty
Mr. Justice Md. Ali Reza
First Appeal Nos. 331 & 335 of 2007.
Jamaluddin Sarkar (Md)
Appellant
VS
Alhaj Mohammad Abdul Aziz and others
Respondents
Judgement Date : February 19, 2023
Counsels:
Md Shahidul Islam, Advocate—For the Appellant. (in FA No. 331 of 2007)
Md Abdul Alim Miah, Advocate—For the Appellants. (in FA No. 335 of 2007)
Rajiuddin Ahmed, Advocate—For the Respondents. (in both the appeals)
Judgment
Md Ali Reza, J:
These two appeals are taken up together for analogous hearing pursuant to order dated 12-1-2022 and accordingly disposed of by this common judgment. Title Suit No. 39 of 1999 was filed by the predecessor of the respondents named Md Abdul Aziz on 27-5-1999 impleading 10 defendants. Subsequently by amendment 37 defendants were impleaded in the suit. Defendants 1-9, 10, 14, 16, 18, 20 and 30-34 contested the suit. Defendant 10 and defendants 1-9 have preferred First Appeal No. 331 of 2007 and First Appeal No. 335 of 2007 respectively challenging the judgment and decree dated 21-6-2007 passed by the Joint District Judge, Court No. 2, Gazipur in Title Suit No. 39 of 1999 decreeing the suit in part in respect of 1.45 acres of land out of 1.48 acres of land. Plaintiff respondents did not file any cross appeal in respect of the rest 0.03 acres of land. Suit was filed for declaration of title and recovery of possession with regard to Ka schedule land and for further declaration that the documents mentioned in schedules Kha-Chha and schedule Ka/1 respectively are illegal, inoperative, null and void and not binding upon the plaintiffs. In presence of both parties issues were framed on 11-5-2000.
2. The case of the plaintiff, in short, is that the suit land measuring 1.48 acres of land appertaining to CS and SA plots 850 and 852 of CS khatian 186 and SA khatian 299 corresponding to RS plots 1332 and 1335 of RS khatian 125 belonged to Sheikh Abdul, CS khatian was correctly prepared in his name. He died leaving behind 3 (three) sons named Sheikh Sobhan, Sheikh Koran and Sheikh Alimuddin who sold entire 1.24 acres of land of CS and SA plot 852 to Monmohan Saha and Lalit Mohan Saha through kabala 3818 dated 11-4-1924 and delivered possession. Thereafter Sobhan, Koran and Alimuddin surrendered entire 0.24 acres of land of CS and SA plot 850 to superior landlord of CS Khebot 138 named Thakur Gobinda Roy in the first part of the year 1928 from whom Monmohan Saha took settlement and maintained possession upon payment of rent. All papers of settlement of 0.24 acres were lost during liberation war in 1971. Thus Monmohan acquired 1.48 acres of land of CS khatian 186 derived from CS Khebot 138. Monmohan then died leaving behind son Satish Chandra Saha who sold 1.48 acres of land to Abdul Mozid through kabala 1768 dated 6-10-1948 and delivered possession. Mozid transferred 1.48 acres of land to plaintiff Abdul Aziz through kabala 3946 dated 5-5-1954 and possession was delivered. Abdul Aziz maintained possession in the suit land through bargadars until dispossession on 29-11-1990. Defendants are very influential persons in the locality and always engaged to grab the property of others by misusing their power and creating false and forged deeds and nobody dared to protest against their illegal and nefarious activities. It is further stated that defendant 1 with the cooperation of his deceased brother Shahajuddin who was the former Chairman of Tongi Pourashava illegally trespassed in the suit land with some dangerous men armed with weapons on 29-11-1990 at around 11 a.m. and dispossessed the plaintiff on denial of his title and cut away the paddy cultivated by bargadars. Defendants then erected a tinshed house in plot 852 and established a school named "Shahajuddin Sarker Adarsha High School" and formed a committee collusively in which defendants 3-9 are members and defendants 1 and 2 are president and secretary respectively. The school has yet not been approved by the Ministry of Education. Defendant 2 Amin Uddin subsequently at the end of 1991 constructed 08 (eight) semi brick built and 03 (three) tine shed houses on 0.24 acres of plot 850 and planted some trees. Plaintiff's son Shahjahan earlier filed Title Suit No. 12 of 1990 on 7-6-1990 against Amin Uddin for permanent injunction which was withdrawn on 23-8-1992 after such dispossession. Defendants have no title and possession in the suit land because their predecessors transferred the suit land to the predecessor of the plaintiff by kabalas dated 11-4-1924 and 6-10-1948. Plaintiff came to learn the impugned documents including the gift dated 11-4-1991 executed by defendant 2 Amin Uddin in favour of school on 21-4-1991. The cause of action arose on 29-11-1990, 21-4-1991, 2-5-1999. Later on plaintiff by way of amendment specifically denied the case of defendant 10 and introduced the documents of defendant 10 and prayed relief with respect to schedules Ka-Chha. During pendency of the suit the sole plaintiff Abdul Aziz died and the respondents were substituted as plaintiffs in the suit on 4-2-2002.
3. Defendants 1-9, 10, 14, 16, 18, 20 and 30-33/34 appeared in the suit and filed four sets of written statements.
4. Defendant 10 contested the suit by filing written statement denying all material averments made in the plaint contending, inter alia, that the suit land measuring 1.48 acres pertained to CS plots 850 and 852 of CS khatian 186 belonged to two brothers named Sheikh Abdul and Ebadulla Fakir. Ebadulla maintained possession in 0.03 acres out of 0.24 acres from plot 850 by amicable partition. Ebadulla died leaving behind son Hafijuddin who sold 0.03 acres to Asadullah, Tukka Mia and Gadu Mia by deed 8457 dated 19-8-1948 and handed over possession and RS khatian 125 was prepared in their names. They sold 0.03 acres by deed 4890 dated 3-6-1974 to Samirannessa who is the mother of defendant 10. Samirannessa mutated her name by Mutation Case No. 389 of 1985-86 and was in possession in self made homestead on payment of rent. Samirannessa sold the aforesaid land to her son defendant 10 by deed 86 dated 8-1-1998. Defendant 10 mutated his name by Mutation Case No. 6048 of 1997-98. It is further stated that CS tenant Abdul died leaving behind 03 (three) sons named Sobhan, Koran and Alim. Koran died leaving behind son Rafiq and daughter Asia. Rafiq sold 0.05 acres from plot 850 to defendant 10 through deed 710 dated 14-3-1988. Siddiqur Rahman who is the son of Asia also transferred 0.01½ acres from the same plot to defendant 10 by deed 1400 dated 28-5-1997. Thus defendant 10 acquired 0.09½ acres from suit plot 850 and constructed 03 (three) semi pucca building and have been in possession. The case of the plaintiff being false is liable to be dismissed.
5. The case of defendants 1-9 is that CS tenant Sheikh Abdul died leaving behind 4 (four) sons named Sobhan, Korban, Hossain and Alimuddin. Sobhan is the father of defendant 2. Sobhan got the suit land by amicable partition and after his death defendant 2 acquired the same. In 1990 Sahajuddin Sarker was looking for a land to setup a school for which defendant 2 desired to gift 0.50 acres of land and accordingly a school started to run from class VI-VIII with its name as `Sahajuddin Sarker Adarsha Bidyalaya'. Thereafter in order to get approval from Ministry of Education defendant 2 executed a gift deed 584 on 11-4-1991 in favour of the school. There are 21 (twenty one) teachers and other office assistants with night guards and sweepers working in this school. The other defendants have been in possession in plot 850 and the school is situated in 0.50 acres at the northern side of plot 852 and the rest land is under possession of the heirs of CS tenant Abdul and they are not made parties to the suit. One of the sons of plaintiff Aziz earlier filed Title Suit No. 12 of 1990 for permanent injunction against defendant 2 Aminuddin alias Aman Kari with a different claim and the suit was ultimately withdrawn. Plaintiff's claim that he had no knowledge about the deed dated 11-4-1991 is false and the suit is liable to be dismissed.
6. Defendants 14, 16, 18, 20 supporting the case of defendants 1-9 and defendants 30-33/34 supporting the case of defendant 10 filed two separate written statements and contested the suit but they did not approach this Court in appeal showing their discontent.
7. In presence of parties 5 (five) issues were initially framed by the Court which were recast and reframed as 6 (six) issues. During the course of trial plaintiffs examined 8 (eight) witnesses and defendant examined 8 (eight) witnesses and both the parties adduced documentary evidence in order to prove their respective cases.
8. The Joint District Judge upon perusal of the pleadings and evidence decreed the suit in part in modified form by judgment and decree dated 21-6-2007. As against the same defendant 10 preferred First Appeal No. 331 of 2007 and defendants 1-9 preferred First Appeal No. 335 of 2007.
9. Mr Md Shahidul Islam, learned Advocate appearing on behalf of the appellant of First Appeal 331 of 2007 submits that the trial Court without considering the evidence on record erroneously decreed the suit in part by granting saham of only 0.03 acres to defendant 10 although the suit was for declaration of title and recovery of possession. He further submits that there may be thousands of defects in defence case but that will not entitle the plaintiffs to get the decree under section 101 of the Evidence Act. He then submits that plaintiffs totally failed to prove the case of surrender and subsequent settlement under section 86 of the Bangal Tenancy Act by producing any evidence. Plaintiffs also failed to prove the transfer by Sotish to Mojid by kabala deed dated 6-10-1948 and the kabala of defendant 10 dated 19-8-1948 being earlier in point of time shall prevail over the kabala dated 6-10-1948 and plaintiffs failed to prove their title and possession in plot 850. He further contends that the fact as given by the plaintiffs in earlier Title Suit No. 12 of 1990 is different from the present suit but the trial Court did not consider this aspect of the case and wrongly decreed the suit. The document dated 19-8-1948 being 30 (thirty) years old document bears strong presumption under section 90 of the Evidence Act. He then submits that plaintiffs failed to prove possession followed by dispossession and this suit cannot be decreed. He then refers to Exhibit-3 and submits that although Monmohan paid rent to Thakur Gobinda Roy but CS khatian shows that the superior landlord is Kali Narayon Roy and the rent was paid for a portion of land. He referred the cases of Mst. Gola Bewa and others vs Md Abdur Rashid and others, 4 MLR (AD) 420; Mansur Ali vs Bangshidhari Thakur and others, 46 DLR 645 in support of his submission.
10. Mr Md Abdul Alim Miah, learned Advocate appearing on behalf of appellants of First Appeal No. 335 of 2007 submits that the recital of document of Sotish dated 6-10-1948 shows that he acquired the property through settlement but the plaintiffs claimed that his father took settlement from Monmohan. Thus the claim of the plaintiffs appears to be contradictory and oral evidence will be excluded by documentary evidence but trial Court failed to appreciate this aspect of the case. Trial Court also failed to consider that no decree can be passed against school because school was not made party in the suit and defendants 1-9 are not school. Since pourashava and school were not parties this suit suffers defect of party and cannot be decreed. He leads us to the prayer portion of the plaint and submits that no issue was framed against the gift document dated 11-4-1991 as well as possession followed by dispossession according to prayer and the impugned judgment is a nullity being decided without issue. He points out that PW 1 admitted in cross that there is a deep tubewell in plot 850 installed by pourashava but pourashava was not made party and since plaintiffs did not disclose any date of installation of such tubewell their case on date of dispossession is false and not proved in evidence. Plaintiffs have no reliable and credible case because the claim in earlier Title Suit No. 12 of 1990 is totally different from the present claim and the trial Court erred in law and wrongly decreed the suit. The trial Court did not discuss the evidence of the witnesses of the plaintiffs and upon wrongful consideration decreed the suit which is not tenable in the eye of law. Referring to the ordering portion of the impugned judgment he submits that plaintiffs since did not prefer any cross appeal they are not entitled to relief. He submits that the document dated 6-10-1948 showing settlement instead of acquisition from father proves that the case of the plaintiffs is false. He refers to the case of Barada Sundari Paul and others vs The Assistant Custodian and others, 1995 BLD (AD) 95 and finally prays that the appeal may be allowed.
11. Mr Rajiuddin Ahmed, learned Advocate appearing on behalf of the respondents submits that at the time of dispossession in 1990 there was no school and plaintiffs' grievance is against persons involved in dispossession and moreover defendants 1-9 representing school are duly made parties to the suit. Defect of party was cured on several occasions through interrogatories and ultimately 37 defendants were added instead of 10 defendants while the suit was first filed on 27-5-1999. The case of possession followed by dispossession is clearly made out in the plaint. He takes us through the evidence on record and submits that the averment on chain of acquisition of title of the plaintiffs is in conformity with the documents and oral evidence led by the plaintiffs. Refering to Order 41 Rules 22 and 33 of the Code of Civil Procedure he contends that respondents can have the remedy against the point decided against them even without preferring cross objection. He argues that trial Court misconceived the law and facts of the case and wrongly held that defendant 10 acquired title in 0.03 acres of land from plot 850 by adverse possession but failed to understand that the claim of defendant 10 is based upon documents and this Court can examine the decision of the lower Court on such point without a separate cross objection. In support of his submission he refers the cases of Haque Brothers Ltd. vs BSRS, 37 DLR (AD) 63; Hazrat Ali and others vs Yakub Ali Khan and others, 1983 BLD (AD) 62; Mohammad Hussain vs Abul Kashem, 3 BLC 131; Sonali Bank vs Rana Oil Mill, 52 DLR (DB) 130 and Abdul Motaleb vs State, 25 DLR (DB) 21. He finally submits that appeals do not have any merit and prays for a full decree of the suit by dismissing the appeals.
12. We have heard the learned Advocates and perused the pleadings of the parties and the evidence on record and also gone through the grounds taken in the appeals as well as the judgment passed by the Court below.
13. The suit was filed on 27-5-1999. Defendants 1-9 appeared in the suit on 7-6-1999 and filed written statement on 5-9-1999. On 17-5-2001 defendants 1-9 raised further question on defect of party by amendment. Plaintiffs filed application on 26.09.2001 for interrogatories which was replied by the defendants on 31-10-2001 and accordingly plaint was amended on 12-11-2001. Plaintiffs subsequently impleaded as many as 37 defendants which was allowed on 28-6-2003. Defendants 1-9 proceed with the allegation that the suit is bad for defect of parties because school and pourashava were not made parties to the suit. Question of defect of party should be raised at the earliest opportunity and in this suit plaintiffs brought all the necessary parties to the suit. It appears that at the time of dispossession in 1990 there was no school in the suit land and moreover defendants 1-9 stood for representing the school in proper way. Pourashava is also defendant 13 in the suit. The purpose of law of joinder of parties is to enable the Court to be in a position to determine the real controversy between the parties and to avoid allowing a mere technical objection successful to defeat a just claim. Law is settled that suit does not fail on account of misdescription of parties when the same does not affect the merit of the controversy and cause failure of justice. This aspect has been decided in many cases including the case of Divisional Forest Officer vs Mohammad Sahabuddin and others, reported in 12 MLR (AD) 287 = 12 BLC (AD) 138. Moreover no issue on defect of party was framed in the suit although Court framed issues in two times. On 11-5-2000 issues were framed in presence of both parties without any objection. Law says that mere omission to frame an issue is not fatal unless such omission affects the trial of the suit and when parties are not prejudiced and substantial justice having been done with opportunity to adduce evidence absence of an issue does not vitiate the proceeding. We find the submission made by Mr Mia on point of defect of parties bears no substance.
14. The lower Court ended the judgment with an allotment of 0.03 acres of land from CS plot 850 in favour of defendant 10 in the form of a relief of partition under Order 7 Rule 7 of the Code of Civil Procedure and it appears that such decision originated from the misconstruction of the word "admission" as is seen from the beginning of disposing of issues 3-5. Plaintiffs never admit that the CS recorded tenants are Sheikh Abdul and Sheikh Ebadullah. The CS record 186 (Exhibit-1) also does not mention so. But the Court assumed the fact mistakenly at the initial stage and could no longer move away from this misconception till reaching to its conclusion. This is a suit for declaration of title and recovery of possession and plaintiffs never made out any case that either of the defendants is co-sharer to them and as such any relief in the name of partition is absolutely uncalled for and misconceived. In the name of granting general or other relief the Court can not and would not mount any surprise on the other side. A party cannot be granted a relief which is not claimed and if it works serious injustice to the other party and deprives him of a valuable right the Court cannot make out a third case in the name of granting general and special relief. In the instant case defendant 10 is claiming under documents of title not through adverse possession. The decision of the Court on this point is not sound, legal and proper.
15. Plaintiffs claim that the CS tenant Abdul was owner in possession in 1.48 acres of land of CS plots 850 and 852 of CS khatian 186 (Exhibit-1). Plaintiff Aziz was examined as PW 1 on 17-4-2001. After the death of sole plaintiff Aziz his heirs were substituted in the suit as present plaintiff-respondents. Subsequently, defendant 10 filed written statement on 7-3-2002 against which plaint was amended on 28-6-2003 and PW 8 being son of Aziz deposed on 9-5-2006. He denied the relation and existence of Ebadullah Fakir in his examination-in-chief. He was not cross examined but only confronted suggestion on this point. It is the definite case of defendant 10 that CS tenant Abdul had a brother named Ebadullah who got 0.03 acres of land from CS plot 850 by amicable partition. Defendant 10 himself as DW 1 deposed in the suit and was mainly supported by 2 witnesses Mosharaf Hossain and Nur Mohammad. But defendant 10 did not take any step to prove the existence and relation of Ebadullah with Sheikh Abdul by producing any witness relating to the family of Ebadullah or by local aged person or persons having knowledge of the existence of Ebadullah. Defendant 10 claimed that Ebadullah died leaving behind son Hafiz Uddin. DW 2 Mosharaf Hossain stated in cross that he does not know how many brothers and sisters Ebadullah had. There is no evidence to show that Sheikh Abdul had a brother named Ebadullah and Hafizuddin was Sheikh Abdul's nephew. It is the settled principle of law that CS record has got a strong presumptive value under section 103B of the Bengal Tenancy Act and the same is presumed to be correct until it is found to be incorrect. Therefore it is held that defendant 10 could not prove the existence of Ebadullah and since he is an imposter the successive transfers claiming under him have got no value. The document dated 19-8-1948 [Exhibit-Kha(2)] was not proved either by scribe, identifier, attesting witness or by calling the volume from the concerned office. Exhibit-Kha(2) is not filed in original and the same is not a 30 (thirty) years old document. The submission of Mr Islam on this point bears no value. Defendant 10 acquired no title by Exhibit-Kha(2) as well as by the following document dated 3-6-1974 [Exhibit- Gha(2)] and document dated 8-1-1998 [Exhibit-Gha(2)(1)]. RS record 125 [Exhibit-1(kha)] is wrong so far it relates to the entry of the names of Asad Ullah, Tukka Baksh, Gedu Baksh because the basis of such entry is absolutely unfounded. The findings of the trial Court in respect of document dated 14-3-1988 [Exhibit-Gha-2(2)] and document dated 28-5-1997 [Exhibit-Gha-2(3)] that those documents are illegal, ineffective and void is based on proper appreciation of evidence. Defendant No.10 failed to prove his title to the suit land.
16. The case of defendants No.1-9 is that CS raiyot Sheikh Abdul died leaving behind 04 (four) sons named Sobahan, Koran, Hoshen, Alim Uddin and among them Sobahan acquired the suit land by amicable partition. Defendant 2 Amin Uddin is the son of Sobahan. Sobahan and his brothers never sold 1.24 acres of plot 852 nor surrendered 0.24 acres of plot 850. They and their descendants have been maintaining title and possession in the suit land. In 1990 a school named Sahajuddin Sarker Adarsha Bidyalaya was established in 0.50 acres of land at the northern portion of plot 852 and a gift document was accordingly executed and registered by defendant 2 on 1-11-1991. Defendant 2 as DW 1 stated in examination-in-chief that the school was established in 1990. DW 2 Mir Siddiqur stated in examination-in chief that Sahajuddin Sarker established the school through discussion with the eminent persons. DW 3 Barek stated in examination-in-chief that Sahajuddin established the school before 20 (twenty) years. DW 4 Anisur Rahman is the teacher of the school. DW 5 Sukkur Ali stated in examination-in-chief that founder Sahajuddin was the Chairman of Tangi Pourashava for two times. On the other hand plaintiffs claimed that CS raiyot Sheikh Abdul was the owner in possession in 0.24 acres and 1.24 acres of CS plots 850 and 852 respectively appertaining to CS khatian 186. He died leaving behind 3 (three) sons named Sobhan, Koran, Alim Uddin. They sold entire 1.24 acres from plot 852 to Monmohan and Lalit both sons of Ram Chandra by kabala 3818 dated 11-4-1924 (Exhibit-7) and delivered possession in which Monmohan maintained possession by amicable arrangement. This document was proved by PW 3 Belal Uddin who brought the volume book as per call of the Court. Further case of the plaintiffs is that 3 (three) sons of Sheikh Abdul surrendered 0.24 acres of land of plot 850 to the superior landlord from whom Monmohan took settlement and became owner in possession in the entire 1.48 acres of land of CS khatian 186. He died leaving behind son Sotish who sold the land to Mojid by kabala 1768 dated 6-10-1948 the certified copy of which dated 9-5-1985 was marked in evidence as Exhibit-6 and the same is proved by PW 6 Badiuzzaman who brought the volume book as per order of the Court. Both PW 3 and PW 6 were cross examined but their depositions remained unshaken. Mojid then sold the suit land to the plaintiff Aziz by kabala 3946 dated 5-5-1954 the original of which is Exhibit-4. It is a 30 (thirty) years old document produced before the Court from the proper custody and it attaches presumption under section 90 of the Evidence Act that the same was duly executed and attested. Defendants could not produce any cogent and tangible evidence to dislodge the value of Exhibit-4. The contention that the kabala dated 19-8-1948 Exhibit-Kha(2) being earlier in point of time shall prevail over Exhibit-4 under section 47 of the Registration Act is wrong and misconceived because the basis of Exhibit-Kha(2) is unfounded in evidence.
17. Plaintiffs have asserted in the plaint that they maintained possession in the suit land till 29-11-1990 through bargaders. On 29-11-1990 defendants along with some dangerous persons entered into the suit plots and dispossessed them. Earlier there was a threat of dispossession by defendant 2 in collusion with other defendants for which plaintiff-1(ka) filed Title Suit No. 12 of 1990 for permanent injunction and the suit was withdrawn on 23-8-1992 due to subsequent dispossession by the defendants. As discussed above the entry of the names of the vendors of defendant 10 in RS khatian 125 Exhibit-1(kha) in respect of 1 anna 10 gondas share is without basis and wrong. Defendants claim that their predecessors neither sold nor surrendered the property and they have been in possession since CS record was finally published in the name of Sheikh Abdul. It appears from record that the SA record 299 [Exhibit- 1(ka)] was finally published in the name of Abdul Aziz on 1-8-1963 and the subsequent RS record was also prepared in his name. From Exhibit-1 series, 2 series and 3 it appears that the plaintiffs paid rent from 1339 BS to 1403 BS. Exhibit-3 which is register II showing payment of arrear rent with respect to 1.48 acres of land was then under sikimi or in other words subordinate taluk of register-1 under landlord Thakur Gobinda Roy. The defendants did not adduce any documentary evidence showing their previous possession since 1924 the time when Exhibit-7 was executed. Since exhibits-4, 6, 7 are duly proved in evidence as genuine documents, the gift document 584 dated 11-4-1991 executed by defendant 2 appears to us a completely sham transaction and it does not confer any title to the school. The case of surrender as made out by the plaintiffs is proved by other evidence and subsequent act and conduct of the parties. The ratio laid down in 4 MLR (AD) 420 and 46 DLR 645 cases is not applicable considering the facts and circumstance of the present case because in those cases the claim of surrender was not supported by any documentary and circumstantial evidence. But in the instant case the surrender is impliedly proved by Exhibit-4, Exhibit-6, Exhibit-1(ka), 1(kha), Exhibit-2 series and Exhibit-3.
18. It is the definite case of the defendants that the school was established in 1990. PW 1 stated in cross examination that school was forcibly established in 1990. PW 2 who was the bargadar stated in examination-in-chief that defendants dispossessed the plaintiffs by cutting down the paddy and establishing school in 1990. He stated in cross examination that the deep tubewell is outside the suit land. PW 5 was also one of the bargadars and he stated in examination-in-chief that—
“আমার নাম মোঃ আঃর আলী নাঃ জিম চিনি নাঃ জিম বাদী আব্দুল আজিজের থেকে নিয়া আমি ১৯৬৩ সন থেকে বর্গাদার হিসাবে বর্গা করিতাম তার আগে বর্গা করত মোজাফফর ( / 2) নামীয় ব!ি" নালিশী জমি বাইদ (নৌচু) জমি ৮৫২ দাগে জমির পরিমান ১.২৪ একর আমি ২৯-১১-১৯৯০ সন পর্যন্ত বর্গা করি ঐ তাং এ বিবাদী ও চেয়ারম্যান সহ লোকজন লইয়া নাঃ জমি হইতে ধান কাটিয়া নিয়া যায় আমরা বাধা দিলে তারা বলে যে, তোদের জমি না, জমির মালিককে নিয়ে আয় বিচার মানছিলাম কিন্তু চেয়ারম্যানের বিরুদ্ধে কেহ সাক্ষী দিতে আসে নাই মালিক আব্দুল আজিজকে জানালে তিনি বলেন যে, তিনি থানায় কেস করেছেন।”
He was not cross-examined on point of such dispossession but only was confronted a suggestion. PW 7 who is the brother of PW 5 also deposed as bargadar. He stated in examination-in-chief that—
“আমার নাম মোঃ জয়নাল আবেদীন বাদী আব্দুল আজিজকে চিনি নালিশী জমির দাগ নং ৮৫২ এবং পরিমান ১.২৪ একর অপর দাগ নং ৮৫০ এবং পরিমান ০.২৪ একর। জমির প্রকৃতি বাইদ জমি নাঃ জমি বাদীর থেকে লইয়া আমার পিতা ১৯৬৩ সন হইতে বর্গা করতেন বর্তমানে পিতার গতায়ুঅে/ আমরা ৩ ভাই উক্ত জমি চাষাবাদ করি বর্গাদার হিসেবে ১৯৬৩ সনের পূর্বে জনৈক মোজাহার বর্গা করতেন এই জমি ইং ২৯-১১-১৯৯০ তাং পর্যন্ত আমরা বর্গা করছি এ দিন নাঃ জমি হইতে আমান কারী ধান জোর করিয়া দখল করিয়া নেয় এবং পাকা ধান কাটিয়া নিয়া যায় এবং আমরা বাধা দিতে আসিলে আমাদেরকে বলে যে, “ তারা বর্গা করিস তবে তারা তোদের মালিককে জানা এই ধান কাটিয়া নিয়া গেলাম এই পাকা ধান কাটিয়া নিয়া গেলে সালিশ করতে সালিশ হয় নাই সবাই বলে যে, মামলা করো তখন বাদী মামলা করে থানায় কারণ বিবাদীরা খুব প্রতাপশালী লোক ৮৫০ দীগের জমি বিভিন্ন সময় বিভিন্ন লোক দিয়া বর্গা করায়।”
His statement of dispossession was not challenged in cross examination and he stated in cross examination that there is a school in the suit plot since 1990. Thus the documentary and oral evidence showing earlier possession of the plaintiffs followed by dispossession in consonance with the averment of pleading is apparently proved in evidence.
19. Trial Court decreed the suit in part in a modified form in respect of 1.45 acres out of 1.48 acres of land. Respondents did not file any cross appeal against such decision. Learned Advocates for the appellants raised objection for not filing such cross objection. Learned Advocate for the respondents refers the provisions of Order XLI, rules 22 and 33 of the Code of Civil Procedure along with the decisions of 25 DLR (DB) 21, 52 DLR (DB) 130, 1983 BLD (AD) 62, 37 DLR (AD) 63 and 3 BLC 131 cases and submits that respondents can urge a point decided against him without filing cross objection considering the facts and circumstances of an appropriate case and mere fact that respondents having not filed any cross appeal would not by itself be sufficient to justify refusal to exercise the power conferred under Order XLI, rules 22 and 33 of the Code of Civil Procedure. We have gone through the referred cases and found substance in his submission. In view of the ratio laid down in those decisions, we find merit in his submission and accordingly the same is accepted.
20. As discussed above the trial Court was wrong in granting saham of 0.03 acres of land in favour of defendant No.10 and this finding arrived at by the trial Court is hereby expunged and set-aside. Plaintiffs have been able to prove their title in the entire suit land and they are also entitled to recovery of possession in respect of suit land measuring 1.48 acres of land of CS plots 850 and 852 of CS khatian 186. Documents mentioned in schedules Kha-Chha are declared illegal, inoperative, null and void and not binding upon the plaintiffs and RS record 125 is also declared wrong so far it relates to the entry of the names of Asadulla, Tukka Baksh, Gedu Baksh with their share.
21. It is sad but true that the school students will experience temporary difficulties but we have got nothing to do with it because law shall take its own course.
22. It is therefore held that the judgment and decree passed by the trial Court is affirmed in the modified form and the suit is decreed in full and both the appeals are dismissed. Defendants are directed to deliver khas possession of 1.48 acres of land as mentioned to the schedule of the plaint within 60 (sixty) days from the date of this judgment failing which plaintiffs shall get khas possession of the same through Court in accordance with law.
23. Send down the lower Court's record with the copy of this judgment. Communicate this judgment and order to the concerned Court.
End.
High Court Division
(Criminal Appellate Jurisdiction)
Present:
Mr. Justice S M Kuddus Zaman
Mr. Justice Fahmida Quader
Death Reference No. 40 of 2017
With
Criminal Appeal No. 4494 of 2017
and
Jail Appeal No. 139 of 2017.
State
Petitioner
VS
Etua Mura
Respondent/condemn prisoner
Judgement Date : November 23, 2022
Counsels:
Md Hafizur Rahman, State Defense Lawyer—For the Convict-Accused-Appellant in Criminal Appeal No. 4494 of 2017.
SM Fazlul Haque, Deputy Attorney-General—For the State.
Judgment
SM Kuddus Zaman, J:
This Death Reference under section 374 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the Code) has been submitted by the learned Judge of the Nari-o-Shishu Nirjatan Daman Tribunal, Moulvibazar for confirmation of sentence of death imposed upon the condemned prisoner namely Etua Mura, in Nari-o-Shishu Nirjatan Daman Case No. 82 of 2003 arising out of Komolgonj Police Station Case No. 20 dated 28-10-1999 corresponding to GR Case No. 645 of 1999 (Komol) under section 6(4) of Nari-o-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995.
2. As against aforesaid judgment and order of conviction and sentence the condemned accused appellant preferred Criminal Appeal No. 4494 of 2017 and Jail Appeal No. 139 of 2017.
3. Above Death Reference, Criminal Appeal and Jail Appeal have emerged out of the self-same judgment and order of conviction and sentence and the question of law and facts involved in those reference and appeals are common and same and hence, above Death Reference, Criminal Appeal and Jail Appeal are being disposed of by this single consolidated judgment.
4. Facts in short are that victim Jahera Khatun a poor woman of 45 years of age used to earn livelihood by collecting fire woods from Kalachara Reserve Forest and selling the same in the local market. On 27-10-1999 at 9-00 pm Kasim Ali and Amina Khatun, children of above victim came to the shop of the informant and stated that their mother went to Kalachara Reserve Forest at 8-00 am for collecting fire woods but she did not return home. All endeavors for search and find out victim Jahera Khatun ended in the failure. Muktar Ali and Syed Miah disclosed to the informant that the dead body of above victim was lying in the Kalachara Forest Tila. The informant rushed to the above place and identified the dead body of his sister with marks of injury on the face, head and other areas of her body. The neck of the victim was tied with her wearing apparel. He heard from the local people that on 27-10-1999 at 11-00 am one woman raised alarms and sought help to save her life. In the noon forest Headman convict-appellant Etua Mura was found loitering in above area. He suspects that the guards of above forest were involved in the commission of rape and murder of her sister.
5. Stating above facts Md Rowshan Ali brother of victim Jahera Khatun lodged an ejahar with Komolgonj Police Station on 28-10-1999 at 14-15 hours. Dulal Chandra Das, Officer-in-Charge of Komolgonj Police Station filled up formal columns of FIR and instituted this case.
6. The investigation of the case was assigned to PW 12 Mr Soliamen Ahmed, Officer-in-Charge of above Police Station, who in course of investigation visited the place of occurrence prepared a sketch map of same alongwith an index thereof, prepared an inquest report of the dead body of victim Jahera Khatun and forwarded above dead body for post-mortem examination and seized alamats of the above offence by dint of a seizure-list and recorded statement of witnesses under section 161 of the Code of Criminal Procedure, 1898.
7. In the above investigation offence punishable under section 6(4) of the Nari-o-Shishu Nirjatan Daman (Bishesh Bidan) Ain, 1995 having prima facie proved against five accused persons namely convict appellant Etua Mura and acquitted accused persons Badal Mura, Putam Mura, Ershad Ali and Pachu Mura he submitted charge-sheet No. 45 dated 29-6-2000 against them.
8. The learned Judge of the Nari-o-shishu Nirjatan Daman Tribunal, Moulvibazar framed charge against above five accused persons under section 6(4) of the Nari-o-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 and read over the same to above mentioned five accused persons who claimed to be not guilty and demanded trial.
9. At trial prosecution examined 12 witnesses who were cross-examined by the defense and tendered two witnesses whose cross-examinations were declined. Documents and materials produced and proved by the prosecution were marked as Exhibit No. 1 series, Exhibit No. 2 series, Exhibit 3 series, 4 series, 5 series, 6 series and material Exhibit Nos. I-V respectively.
10. On conclusion of prosecution evidence above accused persons were examined under section 342 of the Code of Criminal Procedure to which above accused persons reiterated their claim of not guilty and declined to adduce any evidence in support of the defense case.
11. The defense version of the case as it transpires from the trend of cross-examination of Prosecution Witnesses is that the accused persons are innocent and they have been falsely implicated in this case.
12. On consideration of the facts and circumstances of the case and evidence on record the learned Judge of the Nari-o-Shishu Daman Tribunal, Moulvibazar convicted accused Etua Mura under section 6(4) of the Nari-o-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 and sentenced him thereunder to death and acquitted other four co-accused persons namely Pachu Mura, Badal Mura, Kutum Mura and Ershad Ali as mentioned above.
13. Mr SM Fazlul Haque, learned Deputy Attorney-General took us through the First Information Report, Post-Mortem, seizure-list, charge-sheet, evidence of the prosecution witnesses and the impugned judgment and order of conviction and sentence passed by the learned Judge of the Nari-o-Shishu Nirjatan Daman Tribunal, Moulvibazar and submitted that since the convict appellant and acquitted accused persons were on security duty in the Kalachara Reserve Forest on the date and time of the occurrence and they could not provide any explanation as to how a third party could enter into the Reserve Forest and committed the above offence of rape and murder the learned Judge of the Trial Court has rightly held that all the five accused persons collectively committed rape on victim Jahera Khatun and to destroy the evidence of above offence murdered her.
14. But since PW 1 Md Rowshan Ali, PW 2 Abdul Gani, PW 3 Abul Hossain, PW 5 Abdul Matin, PW 6 Sukur Ali and PW 7 Siddiq Miah have consistently disclosed the name of the condemned appellant Etua Mura alone the learned Judge of the Trial Court has rightly and legally convicted and sentenced the appellant as mentioned above which calls for no interference.
15. Mr Md Hafizur Rahman Khan, learned State appointed Defense Lawyer for convict appellant Etua Mura submits that in this case there is no eye witness who saw the commission of rape and murder of victim Jahera Khatun. The appellant did not make any confessional statement under section 164 of the Code of Criminal Procedure. Nor any statement of any other competent person was recorded under above provision of the Code. No prosecution witness has stated that convict appellant was involved in the commission of rape and murder of victim Jahera Khatun. PW 1, PW 2, PW 3, PW 4, PW 5 and PW 6 have merely expressed their doubt and speculation as to who committed the murder of rape of the victim. Their statement cannot be treated as legal evidence against the convict appellant.
16. The learned Judge held that all five accused persons collectively raped and murdered the victim but acquitted four co-accused persons and convicted and sentenced only the convict appellant without assigning any reason whatsoever. The impugned judgment and order of conviction and sentence stands not on a single piece of legal evidence, but on the contradictory assumption, presumption and speculation which is not tenable in law.
17. This is a case of no evidence and the impugned judgment of conviction and sentence against the appellant is liable to be set-aside and he is entitled to be acquitted of the charge. As such, the Death Reference may be rejected and both the Appeals may be allowed, concluded the learned Advocate for the appellant.
18. We have considered the submissions of the learned Advocates for respective parties and carefully examined the FIR, charge-sheet, evidence, the impugned judgment and order of conviction and sentence and other materials on record.
19. We now turn to examine and analyze the evidence on record in order to appreciate the legality and rationality of above submissions of the learned Advocates for respective parties.
20. PW 1 Md Rowshan Ali is the informant, of this case and brother of the victim Jahera Khatun. He stated that on 27-10-1999 at 9-00 pm Kasim Ali and Amina Khatun, children of victim Jahera Khatun informed him that their mother did not return home. He started to search and find out his sister. Mukter Ali and Syed Miah informed him that the dead body of his sister was lying inside the Kalachara Reserve Forest. He rushed to above location and identified the dead body of victim Jahera with marks of injuries on head, face and various parts of her body. Many people came to see the dead body who disclosed that at 11-00 am they heard alarms raised by a woman from the occurrence place. Stating above facts he lodged an oral ejahar to the Police Station. The witness proved the FIR and his signature of the same which are marked as Exhibits-1, 1/1 and ½ respectively. He believes that on duty forest guards had raped his sister and to destroy evidence murdered her. In cross-examination he stated that he did not see who raped and murdered his sister. In above forest beat there are about 200 persons who are forest department employees and villagers. Accused persons are guards of the above forest.
21. PW 2 Abdul Gani stated that the occurrence took place on 27-10-1999 at 11-00 am in the Kalachara Reserve Forest. At above time he was grazing his cows beside the hill and he heard alarms raised by a woman. He did not go to the above place of occurrence. On the next morning he heard that unknown persons have murdered victim Jahera Khatun in the above hill. In cross-examination the witness stated that he could not say who murdered victim Jahera Khatun and by what means.
22. PW 3 Abul Hossain stated that the occurrence took place in the Kalachara Reserve Forest on 27-11-1999 at 11-00 am. At above time he was on the above hill and heard alarms raised by woman. But he did not go to above place. He found accused Etua Mura in the resting place of forest employees. He asked Etua Mura as to above alarms who said that he was coming from above place and above alarms was without any reason. At 10-00-11-00 pm he heard about the murder of victim Jahera Khatun. In cross examination the witness stated that he did not see where and how victim Jahera was murdered.
23. PW 4 Arab Ali was tendered by the prosecution whose cross-examination was declined by the defense.
24. PW 5 Abdul Matin stated that on 27-10-1999 at 11-00 am he was going to the west with his cattle when accused Etua Mura alongwith other 4/5 persons were going towards the east. They met before the Bagmara hill inside the Kalachara Reserve Forest. They were passing quickly and they were on duty. On the next day he heard that victim Jahera Khatun was raped and murdered. In cross-examination the witness stated that he did not see where and how victim Jahera was murdered.
25. PW 6 Shukur Ali stated that after about 1 month from the occurrence he heard that the accused persons raped and murder of victim Jahera Khatun. The witness was declared hostile by the state and cross-examined. In his cross-examination by the state the witness denied that he was giving false evidence to protect the accused persons. In cross-examination by the defense he stated that the accused persons are not his relatives.
26. PW 7 Siddiq Miah stated that on 17-10-1999 at 11/12 o'clock he was passing by the hill of the place of occurrence. He saw accused Etua Mura alongwith 4/5 persons in the above hill. They were passing quickly. On the next day he heard that victim Jahera Khatun was raped and murdered. In cross examination he stated that the accused persons performed sentry duty in the above hill. He heard that the accused person committed rape and murder of victim Jahera Khatun, but he cannot mention the name from whom he learnt that.
27. PW 8 Dr. Sosimol Sinha is the Medical Officer who performed post-mortem examination of the dead body of victim Jahera Khatun on 29-1-1999 and found following injuries:
(1) Body as a whole is swollen and emits foul smell, soaked in kerosene oil.
(2) Facial region is swollen and stained with extravasated blood and left side of facial region is grossly congested.
(3) One L/W on the right maxillary area, measuring 1¾" x 1½" x 1½" bone depth.
(4) One incised wound on the upper part of occipital region, measuring 2¾" x 1½" x bone depth in oblique direction.
(5) Neck was grossly swollen and one ligature mark (post-mortem) around the neck prominent anteriorly ¼" broad, which is deficient posteriorly.
(6) Multiple abrasion and ecchymosis of different sizes and shape on anterior and left lateral aspect of lower chest field and abdomen.
(7) Diffuse ecchymosis on the left side of facial region, on dissection soft tissues and muscles are grossly congested.
(8) Vagina was grossly lacerated and congested Death.
In his opinion death was due to combined effect of haemorrhage, shocked and asphyxia resulting from injuries mentioned on head, neck and throat which were ante-mortem and homicidal in nature. Vaginal injury mentioned was due to forceful sexual intercourse and ante-mortem in nature.
28. The cross-examination of the above witness was declined by the defence.
29. PW 9 Moni Begum was tendered by the prosecution whose cross-examination was declined by the defence.
30. PW 10 Constable Abdul Ahad stated that on 28-10-1999 he carried the dead body of victim Jahera Khatun to Moulvibazar Sadar Hospital for post-mortem examination. The cross-examination of the witness was declined by the defense.
31. PW 11 Dulal Chandra Das is the Recording Officer of the case. He stated that on 28-10-1999 on receipt of an oral ejahar from PW 1 Md Rowshan Ali he filled up formal columns of the FIR and instituted this case. The witness proved the FIR and his signature on above document which was marked as Exhibits-1, 1/3, 1Ka and 1Ka/1 respectively. The defense declined cross-examination of above witness.
32. PW 12 Solaiman Ahmed is the Investigating Officer of this case. The witness stated that the Officer in-charge of the Police Station handed over the case to him for investigation. In course of investigation he visited the place of occurrence prepared a sketch-map of the same alongwith an index thereof prepared an inquest report of the dead body of victim Jahera Khatun and forwarded the same for post-mortem examination by a chalan and seized alamat by a seizure-list and recorded statement of the witnesses under section 161 of Code of Criminal Procedure. In above investigation offence punishable under section 6(4) of the Nari-o-shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 having prima facie proved against five accused persons he submitted charge-sheet No. 40 on 29-6-2000 against them.
33. In cross-examination the witness stated that he seized a dao from the occurrence place. But he could not say who owned or possessed above dao. At `Dha' Marked place in the sketch-map is a house but he could not examine any inmate of above house. In this case there is no eye-witness. All the accused persons are forest guards and villagers. He did not examine any witness from the Forest Office about the occurrence of this case.
34. PW 13 Abdul Quiyum @ Kahir Mia is a witness to the inquest report of the dead body of victim Jahera Khatun. The witness proved above inquest report and his signature on the same which was marked as Exhibit-4 and 4/Kha respectively.
35. PW 14 Md Soleman Hossain is the witness of the seizure-list of the alamats seized by the Investigating Officer of this case. The witness proved the seizure-list, his signature on the above document and some articles as the alamats of the offence which were marked as Exhibit-6/Kha and Material Exhibits-I, II, III, IV and V respectively. In cross-examination the witness stated that he does not know the place from where above articles were recovered and seized. Nor he knows who produced above articles or Materials.
36. Above is all about the evidence oral and documentary adduced by the prosecutions to bring home the charge leveled against five accused persons under section 6(4) of the Nari-o-Shishu Nirjatan Daman (Bishesh bidhan) Ain, 1995.
37. As mentioned above the prosecution has examined 12 witnesses and tendered two to prove the charge leveled against the accused person. Two tendered witnesses were not cross-examined by the defence. Besides the defense did not cross-examine PW 8 Dr. Sosimol Sinha who performed Post Mortem examination of the deadbody of victim Jahera, PW 10 Abdul Quiyum who carried the dead body of above victim for post-mortem examination, PW 11 Dulal Chandra Das who recorded this case and PW 13 Abdul Quiyum who witnessed the preparation of the inquest report. The defense did not adduce any evidence oral or documentary in support of the defense case.
38. The Learned Deputy Attorney-General has reiterated that the prosecution has succeeded to prove the charge leveled against the convict appellant by circumstantial evidence as well.
39. Now let us examine how far the prosecution has succeeded to prove the complicity of the condemned appellant in the commission of rape and murder of victim Jahera Khatun by legal evidence.
40. It is well settled that in order to prove a criminal offence the prosecution has to prove the place of occurrence, date and time of the occurrence and the manner of the occurrence and more importantly connect the accused person with the commission of the offence by legal evidence and beyond reasonable doubt.
41. PW 1 Md Rowshan Ali is the brother of victim Jahera Khatun who has stated that he saw the dead body of his sister victim Jahera Khatun was lying in the Kalachara Reserve Forest on 28-10-1999 with visible marks of injuries on the head, face and other areas of her body. The defense did not cross examine PW 1 Md Rowshan Ali as to above mentioned part of his evidence. PW 13 Abdul Quiyum @ Kahir Miah has given evidence in support of the inquest report of the dead body of above victim. PW 12 Soliyman Ahmed and PW 13 Abdul Quiyum @ Kahir Miah have given mutually corroborated evidence as to the recovery of the dead body of victim Jahera Khatun with above marks of injuries. The evidence of above two PWs as to marks of injuries on the person of victim Jahera Khatun was not cross-examined by the defense.
42.
PW 8 Dr. Sosimol Sinha performed post-mortem examination of the dead body of the above victim Jahera Khatun and he found following injuries:
(1) Body as a whole is swollen and emits foul smell, soaked in kerosene oil.
(2) Facial region is swollen and stained with extravasated blood and left side of facial region is grossly congested.
(3) One L/W on the right maxillary area, measuring 1¾" x 1½" x 1½" bone depth.
(4) One incised wound on the upper part of occipital region, measuring 2¾" x 1½" x bone depth in oblique direction.
(5) Neck was grossly swollen and one ligature mark (post mortem) around the neck prominent anteriorly ¼" broad, which is deficient posteriorly.
(6) Multiple abrasion and ecchymosis of different sizes and shape on anterior and left lateral aspect of lower chest field and abdomen.
(7) Diffuse ecchymosis on the left side of facial region, on dissection soft tissues and muscles are grossly congested.
(8) Vagina was grossly lacerated and congested.
In his opinion death was due to combined effect of haemorrhage, shock and asphyxia resulting from injuries mentioned on head, neck and throat which were ante-mortem and homicidal in nature. Vaginal injury mentioned was due to forceful sexual intercourse and ante-mortem in nature.
43. The defense did not cross-examined PW 8 as to his findings of above mentioned injuries on the person of victim Jahera Khatun and his opinion as to cause of death.
44. In view of above mutually corroborated evidence of PW 1 Md Rowshan Ali, PW 13 Abdul Quiyum @ Kahir Miah, PW 12 Soleman Ahmed @ Kahir Mia and PW 8 Dr. Sosimal Sinha we hold that the prosecution has succeeded to prove beyond reasonable doubt that victim Jahera Khatun was brutally murdered by causing grievous injuries on head, face and other parties of body and before above murder she was also subjected to forcible rape.
45. As mentioned above in this case there is no eye witness who saw the above occurrence of rape and murder of victim Jahera Khatun.
46. None of five accused persons has made any confession as to the complicity of all or any accused person in the commission of above offence.
47. In the FIR it was stated that the informant received information as to the missing of victim Jahera Khatun from her children namely Kasim Ali and Amina Khatun. But none of them has been examined at trial as prosecution witnesses.
48. In his evidence as PW 1 informant Md Rowshan Ali stated that Mukter Ali Miah and Syed Miah informed him that the dead body of victim Jahera Khatun was lying in the Kalachara Reserve Forest. But above Mukter Ali Miah and Syed Miah were not examined as prosecution witnesses in this case.
49. PW 2 Abdul Gani, PW 3 Abul Hossain, PW 5 Abdul Matin, PW 6 Sukur Ali and PW 7 Siddiq Miah have given evidence as prosecution witnesses. But none of them has been endorsed as such by PW 1 Md Rowshan Ali. In his evidence as PW 1 Md Rowshan Ali did not say that he heard anything about the occurrence of rape and murder of his sister victim Jahera from above prosecution witnesses.
50. All above PWs have given mutually conflicting evidence as to the place of occurrence and could not say specifically from whom he learnt about the complicity of the accused persons in the commission of above rape and murder.
51. In the FIR the place of occurrence has been stated to be Kalachara Reserve Forest (Bagmara). In the body of the FIR it has been stated that the dead body was found on the hill of Kalachara Reserve Forest. PW 2 Abdul Gani stated that the occurrence took place in the Kalachara Reserve forest but he did not visit the occurrence place nor he knows who raped and murdered the victim. PW 3 Abul Hossain also stated in his cross-examination that he did not know at what place and how victim Jahera Khatun was murdered. PW 6 Sukur Ali stated that he heard that Jahera Khatun was raped and murdered in the Bagmara hill. PW 7 Siddiq Miah stated that the place of occurrence was hill. In cross-examination he stated that the accused person performed chowkidari duty in the above hill.
52. The Kalachara Reserve Forest comprises a huge area of land and it is a Government Forest which is managed, secured and controlled by the department of Forest of the Government of Bangladesh. It has been alleged that all five accused persons are guards of the Forest Department and they were on duty in the above reserve forest when the occurrence took place. But in support of above claim the prosecution could not produce any oral evidence of any competent witness or any official document.
53. In his cross-examination PW 12 Solaiman Ahmed who is the Investigating Officer of this case stated that he did not examine any person from the Forest office of above reserve forest. No duty roster of the guards of above forest was produced at trial to show that five accused persons were forest guards and they were on duty at the time of the alleged occurrence.
54. As such, the prosecution has miserably failed to prove that five accused persons were forest guards and they were on duty in the above Reserve Forest at the time of the commission of the offence by legal evidence.
55. We are shocked to notice from the impugned judgment and order of conviction and sentence that the learned Judge of the Trial Court below held without any legal evidence that all five accused persons were forest guards and at the relevant time they were on duty in the above forest as such the accused persons are responsible for commission of rape and murder of victim Jahera collectively.
56. If it was not possible for a criminal to enter into the reserve forest bypassing the surveillance and security of the forest guards then how victim Jahera Khatun a woman of 45 years age could enter into the occurrence place?
57. The learned Judge of the Trial Court held all five persons collectively responsible for commission of rape and murder of victim Jahera Khatun but surprisingly convicted and sentenced only the convict appellant and acquitted the other four accused persons.
58. It is crystal clear that the learned Judge of the trial court does not have the basic knowledge as to what constitutes circumstantial evidence and despite miserable failure of the prosecution to adduce an iota of evidence showing the complicity or involvement of condemned Appellant Etua Mura in the commission of rape and murder of Jahera Khatun most illegally convicted and sentenced him with death which is a tragedy of the dispensation of justice.
59. As far as the condemn Appellant is concerned this is a case of no evidence, but the learned Judge of the Trial Court has most illegally convicted and sentenced him under section 302 of the Penal code as mentioned above which is liable to be set-aside.
60. In above view of the materials on record we are unable to find any substance in this reference and the same is liable to be rejected. On the contrary we find substance in both the Criminal Appeal and Jail Appeal which deserve to be allowed.
61. In the result, the Death Reference is rejected and both the appeals being Criminal Appeal No. 4494 of 2017 and Jail Appeal No. 139 of 2017 are allowed.
62. The impugned judgment and order of conviction and sentence dated 27-3-2017 passed by the learned Judge of Nari-o-Shishu Nirjatan Daman Tribunal, Moulvibazar, in Nari-o-Shishu Nirjatan Daman Case No. 82 of 2003 arising out of GR No. 645 of 1999(Komol) and Komolgonj Police Station Case No. 20 dated 28-10-1999 under section 6(4) of Nari-o-shishu Nirjatan (Bishesh Bidhan) Ain, 1995 convicting the appellant and sentencing him thereunder to death is hereby set-aside. Convict-accused Appellant Etua Mura is acquitted of the charge leveled against him under section 302 of the Penal Code, 1860. Let appellant Etua Mura be set at liberty at once if not wanted in connection with any other case. Let the lower court's record along with a copy of this judgment be transmitted down at once.
End.
High Court Division (Criminal Miscellaneous Jurisdiction)
Present:
Mr. Justice S M Kuddus Zaman
And
Mr. Justice Fahmida Quader
Criminal Miscellaneous Case No.49766 of 2021
Professor Muhammad Yunus @ Professor Dr. Muhammad Yunus
------------- Accused-Petitioner
VS
The State
------- Opposite Party
Judgement Date : August 17, 2022
Counsels:
Mr. Abdullah-Al-Mamun, with Mr. Khaja Tanvir Ahmed, Mr. Md. Ibrahim, Advocates
—For the Petitioner.
Mr. Md. Khurshid Alam Khan, Advocate
—For the Opposite Party No.2.
Mr. K. M Masud Rumy, DAG
—For the State.
Judgment
S M Kuddus Zaman, J:
On an application under section 561A of the Code of Criminal Procedure this Rule was issued calling upon the opposite parties to show cause as to why the proceedings of B.L.A. (Criminal) Case No.228 of 2021 under Sections 303(Uma) and 307 of Bangladesh Labor Act, 2006, now pending in the Court of learned third Labor Court, Dhaka, so far it relates to the petitioner shall not be quashed and after hearing the parties, and perusing the record, and the cause shown, if any, make the Rule absolute and/or pass such other or further order or orders as to this Court may seem fit and proper.
Facts in short are that Mr. S.M. Arifuzzaman, Labour Inspector (General), Department of Inspection Factories and Establishments, Dhaka, lodged a petition of complaint with the Third Labour Court, Dhaka on 20.08.2021 alleging that in course of inspection of GTC (hereinafter referred to as GTC) he detected infringements of the following provisions of Bangladesh Labor Ain, 2006 and Bangladesh Labor Rules, 2015:
(1) On completion of probationary period jobs of the labors and employees are not made permanent in violation of section 4(7) of বাংলাদেশ শ্রম আইন, ২০০৬;
(2) Labors and Employee are not granted annual leave with pay or money against earned leave in violation of Section 117 of Bangladesh Labor Ain, 2006, and
(3) Labor Participatory Fund and labor welfare Fund were not constituted and 5% of the net profit was not deposited in above fund under the Labor Welfare Foundation Law, 2006.
The complaint sent by registered post a letter to the defendants vide Memo No.3982/উঃমঃপঃ/ঢাকা on 01.03.2020 for stopping above violations and taking remedial measures. The defendants sent a letter of compliance on 09.03.2020, but the same was found to be not satisfactory. On the direction of the higher authority he again inspected GTC on 16.08.2021 and sent another letter on 19.08.2021 to the defendants who again sent a letter of reply but the same was again found to be not satisfactory. The defendants have committed an offence punishable under Section 303(UMO) and 307 of Bangladesh Labor Law, 2006 and Bangladesh Labor (Amendment) Law, 2013. The learned Judge of the Labor Court took cognizance of above complaint and initiated the instant proceedings.
Being aggrieved by and dissatisfied with above order of the learned Judge of the Labor Court the petitioner moved to this Court and obtained this Rule.
Mr. Abdulla-Al-Mamun, learned counsel appearing for the petitioner submits that there is no date of occurrence of this case and this case is barred by the law of limitation for not having filed within 6 months as provided in Section 314 of Bangladesh Labor Ain, 2006. A clear and plain reading of the petition of complaint does not disclose any offence under the Bangladesh Labor Ain, 2006. Even if all the averments made in the complaint are taken as true in its entirety even then no complicity of the petitioner can be established with alleged infringement of any above provisions of the Bangladesh Labor Ain, 2006.
The learned Advocate further submits that the complainant has stated in the complaint that the GTC gave replies to the letters issued by the complainant, but the complainant did not make a decision on the basis of above replies nor communicated the same to the petitioner enabling the GTC to prefer an appeal to the Government under Section 3(4) of Bangladesh Labor Ain, 2006. As such, filing of this case is both premature and violative of the provision of Section 3(4) of above Ain.
The learned Advocate further submits that the defendant is a Nobel laureate and an internationally acclaimed personality who had no role in the management of financial or administrative affairs of the GTC. The petitioner has been implicated in this case due to personal rivalry and grudge and in violation of Section 312 of the Bangladesh Labor Law, 2006.
The GTC is a nonprofit organization registered under Section 28 of the Companies Act, 1991 for advancement of telecom facilities in the rural Bangladesh and thereby empowering the poor people. The Directors of the company do not get any profit from the Company. As such, the labor and employees of the company are not legally entitled to get 5% of the net profit in their welfare fund.
The learned Advocate again submits that the GTC works in the telecommunication sector on the basis of its contract with other companies, namely, Polly Phone Services and Nokia sales Services. Since the GTC works on contractual basis its labors and employees are also appointed on contractual basis and although their jobs are not made permanent they are given all facilities and benefits of permanent labors and employees, stated the learned Advocate.
In view of above facts and circumstances and legal position the taking of cognizance of the above false and unfounded complaint by the learned Judge of the Labor Court is an abuse of the process of the Court. All the allegations made in the complaints preposterous and not tenable in law and above still born proceedings shall only cause harassment to the innocent petitioner without bringing any fruitful result. As such, this still born, preposterous and illegal proceeding may be quashed, concluded the learned Advocate.
In support of above submission the learned Advocate refers to the case laws reported in 28 DLR (AD) Page-38, AIR 1989 (SC) Page-2222 and 17 BLD (AD) 1997 Page-44.
On the other hand Mr. Md. Khurshid Alam Khan, learned Counsel appearing for the opposite party No.2 submits that the complainant an inspector of labor in course of inspection detected some violations of the labor law by the GTC which have been stated in the petition of complaint. The complainant issued two letters on 01.03.2020 and 16.08.2021 respectively to the defendants to refrain from continuous violations of the labor laws and implement remedial measures. The defendants have admitted the facts of above violations and tried to justify those in their replies to the complainant. Accordingly, the complainant has filed this case under Section 319(5) of the Bangladesh Labor Ain, 2006.
The learned advocate further submits that the complaint discloses several infringements of the Labor Ain by the GTC. The questions whether the GTC is exempted from implementation of above labor laws or whether the petitioner as the Chairman of the Board of Directors is responsible for above violations of the labor laws or not are contentious questions of facts which will be determined at trial on consideration of evidence. The learned Advocate lastly submits that the Appellate Division of the Supreme Court of Bangladesh has clearly defined the areas and competence of a court while dealing with a petition under Section 561A of the Code of Criminal Procedure in the case reported in 70 DLR (AD) 2018 and in above yard stick this petition has no substance and all the claims made by the petitioner are defense case which must go through the trial process for determination. In support of above submissions the learned Advocate refers to the case law reported in 70 DLR(AD) 2018 page-1990.
We have considered the submissions of the learned Advocates for respective party and carefully examined the petition of complaint and other materials on record.
As mentioned above Opposite No.2 an Inspector of Labor in course of inspection of the GTC on 09.02.2020 and 16.08.2021 under Section 319 of the Bangladesh Labor Ain, 2006 detected some violations of the labor law and submitted a complaint under Section 219(5) of the above Ain. In above complaint mention has been made about following violations of the Labor Law by the GTC;
Firstly on completion of probationary period job of the labors and employees are not made permanent.
Secondly, the labors and employees are not granted annual leave with pay or encashment of leave or money in lieu of annual leave and;
Lastly, the company did not constitute Labor Participation Fund and Labor Welfare Fund nor deposited 5% of net profit in above fund under the Sramik Kollan Foundation Ain, 2006.
In view of above specific allegations of violations we are unable to find any substance in the submissions of the learned Advocate for the petitioner that if above complaint is taken in its face value and accepted as true in its entirety even then no prima facie case of violations of above provisions of Bangladesh Labor Ain, 2006 against the GTC is made out.
The learned Advocate for the petitioner mentions about not making of a decision by the complainant on the basis of two replies of the GTC and communicate the same to the GTC under Section 3(2) of above Ain which could enable the GTC to prefer an appeal to the government under Section 3(4) of the above Ain. As such the learned Advocate submits, above proceeding is premature and violative of section 3(4) of above Ain.
As mentioned above the complaint of this case was lodged under section 319(5) of the Bangladesh Labor Ain, 2006 not under section 3 of above Ain. Secondly, it turns out from above replies of the GTC as reproduced at paragraph No.8 of this application under Section 561A of the Code of Criminal Procedure that the GTC has in fact admitted all the allegations made in the complaint. The GTC has tried to justify its position in above replies stating that the GTC was registered under Section 28 of the Companies Act as a non-profit company so the provisions of constitution of a Labor Welfare Fund and deposit of 5% of the net profit to that account are not applicable for the GTC.
As far as the allegation that after completion of probationary period the jobs of the labors are not made permanent is concerned it has been stated that all the employees and labors of the GTC are appointed on contractual basis. So, their jobs cannot be made permanent.
As to not granting of the annual leave with pay or encashment of annual leave it has been stated that after completion of six years contractual service the employees and labors get leave with pay or one month full salary in lieu of leave.
In view of above replies of the GTC it is not understandable as to what a different decision could be made by the complainant excepting a decision to present a complaint to the concerned labor court and exactly that has been done by the complainant.
The learned Advocate for the petitioner repeatedly submits that the GTC is a nonprofit company and registered under Section 28 of Companies Act. As such GTC is not liable to contribute 5% of the net profit to the Labor Welfare Fund. In support of above submission the learned Advocate produced the Memorandum and Articles and Association of the GTC. But there is no mention in above Memorandum that the GTC is a nonprofit company. On the contrary Article 71 of above Memorandum shows that GTC may earn profit but the profit shall be utilized for the advancement of the objectives as stated in the above Memorandum. Since the GTC is a profit earning company it is not understandable as to why the company will not contribute a very insignificant part of its net profit for the welfare of its labors. There is nothing in Section 28 of the Companies Act which exempts any Company registered under above provision from making above contribution to the Labor Welfare Fund.
The petitioner is the Chairman of the Board of Directors of the GTC. The learned Advocate for the petitioner submits that the petitioner holds a ceremonial position. He merely presides over the meeting of the Board and he has no role or contribution in the management of the affairs of the company.
Article 33 and 34 of the Memorandum and Articles and Association of the GTC mentions about the constitute of Board of Directors, its powers and functions in following terms;
"33. The affairs of the GTC shall be supervised by a Board of Directors, which shall have the responsibility to determine the direction and scope of the activities of the GTC. The Board of Director shall exercise full management and financial control of the GTC. For the purpose of the Act, the Board of Directors shall be deemed to be the Directors of the GTC.
The Board of Directors, subject to the general control and supervision of the General Body, Shall generally pursue and carry out the objects of the GTC as set forth in the Memorandum of Association and the Board Shall be responsible for the management and administration of the affairs of the GTC in accordance with the Articles of Association and the Rules, Regulations and Bye-laws made hereunder."
It is crystal clear form above Articles that the Board of Directors exercises full managerial and financial control over the GTC and is responsible for the management and administration of the affairs of GTC. As such it cannot be said at this stage of the proceedings that the petitioner has no role in the financial management and administration of the GTC.
The learned Advocate for the petitioner mentions that this case does not have a date of occurrence and the case is barred by limitation as the same has not been filed within six months as provided in Section 314 of the Bangladesh Labor Ain, 2006.
The alleged violations were first detected by the complainant on 09.02.2020. He issued a letter to the GTC for taking remedial measures. No satisfactory reply having received a second inspection was held on 16.08.2021 and again the same violations were discovered. This Complaint was filed in the concerned labor court on 28.08.2021. As such, it prima facie appears that this case has a date of occurrence and the same has been filed within six months from the date of occurrence as provided in Section 314 of Bangladesh Labor Ain, 2006. Moreover it is well settled that a question of limitation is a mixed question of law and facts which can be determined on consideration of evidence to be adduced at trial.
The facts and circumstances of the cases referred to above by the learned Advocate for the Petitioner are distinguishable from those of the case in hand, as such; above cited case laws have no application in the instant case.
On consideration of above facts and circumstances of the case and materials on record and relevant laws we are unable to find any substance in this petition under section 561A of the Code of Criminal Procedure and the rule issued in this connection is liable to be discharged.
In the result, the Rule is discharged.
Communicate this judgment and order to the Court concerned at once.
Fahmida Quader, J: I agree.
End.
High Court Division (Statutory Original Jurisdiction)
Present:
Mr. Justice Muhammad Khurshid Alam Sarkar
Company Matter No. 143 of 2022
Syed Deedarul Alam
------------- Petitioner
VS
Zenov BPO Limited and others
------- Respondents
Judgement Date : December 18, 2022
Counsels:
Nazmus Saliheen, Advocate
—For the Petitioner.
AKM Badrudduza, Advocate
—For the Respondent No.2.
Judgment
1. By filing this application under section 396 of the Companies Act, 1994 (briefly, the Companies Act) read with section 36 of the Companies Act and section 151 of the Civil Procedure Code, 1908 (shortly, CPC), the petitioner prays for exonerating Zenov BPO Limited, a private limited company with an authorised share capital of Taka 1,00,00,000 (one crore) divided into 1,00,000 (one lac) ordinary shares of Taka 100 (one hundred) (hereinafter referred to either as the respondent No. 1 or the company), and its Directors/Officers from the liability of the fine incurred for default under section 36(5) of the Companies Act and, consequent thereto, allow the company to file its Schedule-X as on 31-12-2021 afresh, paying requisite late fees to RJSC incorporating therein the transfer of 600 shares of UVS Logistics in favour of the petitioner, upon destroying the company's Schedule-X made upto 31-12-2021 (Annexure-D).
2. The fact relevant for the disposal of the present application is that at the time of incorporation of the company on 18-1-2018, the company had 4 (four) shareholders with the following share-structure: (1) Mohammad Abdul Moyeen - 600 (six hundred) shares, (2) Syed Deedarul Alam 400 (four hundred) shares, (3) UVS Logistics 600 (six hundred) shares and (4) Josheph Wilson 400 (four hundred) shares. On 9-9-2021 UVS Logistics (a foreign company, shares of which are owned by an American citizen who lives in New York), by execution of a share transfer instrument (Affidavit), transferred its entire 600 (six hundred) shares in favour of Mr Syed Deedarul Alam (the present petitioner) and, thereafter, the said share transfer instrument dated 9-9-2021 showing transfer of 600 shares of UVS Logistics in favour the petitioner on 9-9-2021 was attested by the Department of State, New York USA on the same day i.e. on 9-9-2021 and then it was verified by the concerned official of the Bangladesh Embassy in New York on 21-9-2021 and, finally, on 20-2-2022 the Ministry of Foreign Affairs in Bangladesh attested the verification made by its Consulate General Office in New York; that in course of completion of the process of endorsement of transfer documents by the Ministry of Foreign Office at Dhaka through communicating with Consulate General Office in New York, the concerned calendar year (2021) was ended and the AGM for the calendar year 2021 was held on 31st December 2021 and the Annual Summary of share capital report (Schedule-X) was submitted in due course but the said transfer was not incorporated in the Schedule-X of 2021; that because of that, the company has defaulted in complying with the requirement of section 36(2)(b) of the Companies Act and, consequently, the company and its concerned officer/s have become liable to a fine of Taka 200 (Taka two hundred) for everyday during which the default continued and, that is why, it is now incumbent upon the company to tear down/ destroy the Schedule-X made upto 31-12-2021 with permission to file the Schedule-X as on 31-12-2021 afresh paying requisite late fees to RJSC incorporating therein the transfer of 600 shares of UVS Logistics in favour of the petitioner and, unless the Company Court exonerates the Directors/Officers of the company from the liability of fine incurred for default in complying with the requirements stipulated in section 36(5) of the Companies Act and extends the time to file Schedule-X as on 31-12-2021 afresh, RJSC shall not accept the same. Hence, this application.
3. Ms Nazmus Saliheen, the learned Advocate appearing for the petitioner, at the very outset takes me through section 43 of the Companies Act alongside the Annexure-C and contends that the legal requirements as to transferring of shares in favour of the petitioner have been fulfilled. She, then, takes this Court through Annexure-D, which is the company's Schedule-X for the year 2021 and, side by side, reads out the provisions of section 36(2)(b) of the Companies Act, and submits that as per section 36(2) (b) of the Companies Act, the company was obligated to file Schedule-X as on 31-12-2021 showing the transfer of 600 shares of UVS Logistics to the petitioner on 9-9-2021; but the company submitted Schedule-X made upto 31-12-2021 to RJSC without showing the transfer occasioned on 9-9-2021 which caused a default under sub-section (5) of section 36 for not fulfilling the requirements of sub-section (2)(b) of section 36 of the Companies Act. She further submits that by exercising power conferred by section 396(2) of the Companies Act, if this Court exonerates the company and its Directors/Officers from the liability of fine, the default shall be cured and, following the aforesaid remedy, this Court should pass necessary directions upon the RJSC to destroy the Schedule-X made upto 31-12-2021 and allow the company to file Schedule-X as on 31-12-2021 afresh incorporating therein the transfer of 600 shares of UVS Logistics to the petitioner on 9-9-2021, with further direction upon RJSC to record the same in accordance with law; otherwise the remedy under section 396(2) will not be useful for the company, as she submits. She contends that there was no willful laches or negligence on the part of the company in causing the default, and after fulfilling all the statutory requirements, the company now has taken steps for taking permission of this Court for extension of the period for filing Schedule-X as on 31-12-2021 afresh upon paying requisite late fees to RJSC incorporating therein the transfer of 600 shares of UVS Logistics in favour of the petitioner. In reply to a query, the learned Advocate for the 'petitioner informs this Court that no proceeding has been initiated by the office of the RJSC as of now. The learned Advocate for the petitioner submits that in view of the fact that it is a statutory requirement to file Schedule-X to the RJSC and failure to file it within the prescribed time leads to serious consequence i.e. the company shall be slapped with huge penalties, hence, the petitioner-company prays for relieving the Managing Director and other Directors of the company from the aforesaid consequence. She finally submits that since the failure to file Schedule-X as on 31-12-2021 showing the transfer of 600 shares of UVS Logistics to the petitioner on 9-9-2021 to the RJSC occurred unintentionally and there was no willful laches or negligence on the part of the company in complying with the legal requirements stipulated in section 36 of the Companies Act and, further, since by the said omission no one will be prejudiced, this Court should allow the present petition for ends of justice; otherwise the shareholders of the company will suffer irreparable loss and injury.
4. Mr AKM Badrudduza, the learned Advocate having appeared for the respondent No. 2-RJSC, takes me through the provisions of sub-section (2)(b) of section 36 of the Companies Act and, in line with the submissions made by the learned Advocate for the petitioner, submits that the Schedule-X as evident from Annexure-D cannot be treated as a proper one under the meaning of sub-section (2)(b) of section 36 of the Companies Act as it did not stipulate the transfer of shares made on 9-9-2021, and it is his opinion that the said Schedule-X be declared annulled by this Court and pursuant to obtaining a declaration as to annulment of the present Schedule-X for the year 2021, this Court may allow the company to file Schedule-X as on 31-12-2021 afresh showing the transfer therein.
5. Upon hearing the learned Advocates for both the sides, perusing the petition along with the documentary evidence annexed therewith and also reading the relevant provisions of law, it appears to this Court that the issues to be adjudicated upon by this Court are whether the transfer in question has been made in complying with the relevant provisions of law and, secondly, whether this Court is competent to pass any Direction upon the RJSC to destroy the Schedule-X submitted by the company for the year 2021 towards permitting the company to file a fresh Schedule-X for the year 2021.
6. For an effective adjudication of the first issue, the provisions of section 38 of the Companies Act should be quoted to see whether the transfer of 600 (six hundred) shares by UVS Logistics was done in consonance with the said provisions. Section 38 runs as follows:
৩৮। (১) কোম্পানীর শেয়ার হস্তান্তর নিবন্ধিতকৃত করার সময়ে শেয়ার হস্তান্তরকারী বা উহার হস্তান্তর গ্রহীতা উক্ত হস্তান্তর নিবন্ধনের জন্য আবেদনপত্র পেশ করিতে পারেন, তবে ফেক্ষেত্রে হস্তান্তরকারী অনুরূপ কোন আবেদনপত্র পেশ করেন সেক্ষেত্রে, কোম্পানী হস্তান্তরগ্রহীতাকে উক্ত আবেদনপত্র সম্পর্কে নোটিশ প্রদান না করিলে, আংশিক পরিশোধিত শেয়ার হস্তান্তর কার্যকর হইবে না; এবং হস্তাস্তরগ্রহীতাকে এইরুপ নোটিশ প্রদানের ক্ষেত্রে উক্ত নোটিশ প্রাপ্তির তারিখ হইতে দুই সপ্তাহের মধ্যে তিনি আপত্তি না করিলে কোম্পানী, উপ-ধারা (৭) এর বিধানাবলী সাপেক্ষে, উহার সদস্য-বহিতে হস্তান্তরথহীতার নাম এইরূপে লিপিবদ্ধ করিবে যেন উক্ত আবেদনপত্র হস্তান্তরগ্রহীতাই পেশ করিয়াছিলেন।
(২) উপ-ধারা (১) এর উদ্দেশ্যপূরণকল্পে, হস্তান্তর দলিলে হস্তান্তরগ্রহীতার যে ঠিকানা থাকে সেই ঠিকানায় কোন নোটিশ আগাম পরিশোধিত ডাকে হস্তান্তরগ্রহীতার উদ্দেশ্যে প্রেরিত হইয়া থাকিলে, তাহা হস্তান্তরগ্রহীতাকে যথাযথভাবে প্রদান করা হইয়াছে এবং তাহা ডাক বিভাগের সাধারণ নিয়ম অনুযায়ী বিলি করা হইয়াছে বলিয়া গণ্য হইবে।
(৩) সঠিক হস্তান্তর-দলিলে উপযুক্ত স্ট্যাম্প লাগাইয়া এবং উক্ত দলিলে হস্তান্তরকারী ও হস্তান্তরগ্রহীতা উভয়েই সম্পাদন করিয়া এবং সংশ্লিষ্ট শেয়ার বা ডিবেঞ্চার সার্টিফিকেটসহ হস্তান্তর-দলিলটি কোম্পানীর নিকট উপস্থাপন না করা হইলে, কোম্পানীর পক্ষে শেয়ার বা ডিবেঙ্গরের হস্তান্তর নিবন্ধন করা বৈধ হইবে না; তবে শর্ত থাকে যে, যদি কোম্পানীর পরিচালকগণের সন্তুষ্টি মতে প্রমাণিত হয় যে, হস্তান্তরকারী এবং হস্তান্তরগ্রহীতা কর্তৃক স্বাক্ষরিত হস্তাত্তর-দলিল হারাইয়া গিয়াছে, তবে পরিচালকগণ উপযুক্ত বিবেচনা করিলে এবং হস্তস্তরের জন্য প্রয়োজনীয় স্ট্যাম্পসহ হস্তান্তরগ্রহীতা লিখিতভাবে আবেদন করিলে, কোম্পানীর পরিচালকগণের বিবেচনামতে দায়মুক্তি (indemnity) সংক্রান্ত যথাযথ শর্তাবলী সাপেক্ষে, উক্ত হস্তান্তর নিবন্ধিকৃত করা যাইবে।
(৩ক) শেয়ার হস্তান্তর দলিলে শেয়ার হস্তান্তরকারীর স্বাক্ষর নিম্নবর্ণিতভাবে নিশ্চিত করিতে হইবে, যথা:-
(ক) শেয়ার হস্তান্তরকারী সংশ্লিষ্ট পরিচালকের তালিকা, বার্ষিক মূলধনের বিবরণী, শেয়ার হস্তান্তর দলিল এবং শেয়ার হস্তান্তরের স্বপক্ষে প্রদত্ত হলফনামা রেজিস্ট্রারের দপ্তরে দাখিল করিবার পর সংশ্লিষ্ট শেয়ার হস্তান্তরকারীকে স্বশরীরে উপস্থিত হইয়া পুনঃস্বাক্ষরপূর্বক শেয়ার হস্তান্তরের সত্যতা নিশ্চিত করিতে হইবে;
(খ) শেয়ার হস্তান্তরকারী বিদেশি নাগরিক হইলে বা বিদেশে অবস্থান করিলে শেয়ার হস্তান্তরের সমর্থনে শেয়ার হস্তান্তর দলিল ও হলফনামা সংশ্লিষ্ট দূতাবাসের ক্ষমতাপ্রাপ্ত কর্মকর্তা কর্তৃক প্রত্যয়নপূর্বক প্রেরণ করিতে হইবে; এবং
(গ) শেয়ার হস্তান্তরকারী যুক্তিসঙ্গত কারণে রেজিস্ট্রারের কার্যালয়ে উপস্থিত হইতে না পারিলে নির্ধারিত ফি আদায় সাপেক্ষে রেজিস্ট্রার কর্তৃক কমিশন প্রেরণ করা যাইবে।
7. It is worthwhile to mention here that provisions of sub-section (3A) have been inserted in section 38 of the Companies Act by the Companies (Amendment) Act 2020 which has been published in the Gazette on 25-2-2020. From a plain reading of the above-quoted entire provisions of section 38 of the Companies Act, it emerges that it is incumbent upon a company to cause transfer of shares in its members' list (Share Register) when the following conditions are fulfilled; at first, a proper instrument of transfer (i.e. Form-117 together with a deed of transfer) upon being duly stamped and executed by the transferor and transferee has been delivered to the company along with share certificates; thereafter, following receiving Particulars of Directors (Form-XII), Annual Summary Statement of the company's capital, share transfer instrument and the affidavit confirming transfer of shares by the Office of the Registrar of the Joint Stock Companies and Firms (RJSC), the Register is to be satisfied that the transferor having been appeared before him has confirmed that the signatures contained in the instrument of transfer are genuine. However, the aforesaid formalities may be done through commissioning if the transferor, due to any reasonable cause, is not able to attend the office of the RJSC in person. And, if the transferor is a foreigner or staying abroad, in that event, the concerned authorized official of the Embassy of Bangladesh shall certify that the transferor has signed on the share transfer instrument and affidavit in his presence.
8. In this case, it is evident from the annexures that the transferor is a foreigner who is living in the State of New York, USA. It is further evident that the foreign-transferor transferred her entire 600 (six hundred) shares by swearing an Affidavit before the competent authority of the Home Department of New York State, USA and, thereafter, the transferor's signatures on the instruments of transfer (namely, the Affidavit made in support of the transfer) was verified by the concerned authorized official of the Embassy of Bangladesh in the New York, USA. But, it took few months time for the Ministry of Foreign Affairs in Bangladesh to attest the said papers, for the reason that the Ministry had to send the said documents to the Bangladesh Consulate General Office in the New York to find the veracity of the seal and signature of the concerned officer of the Bangladesh Consulate General office in New York who has verified the signatures of the foreign-transferor. Therefore, it is held that the transfer of 600 (six hundred) shares by UVS Logistics has been done in compliance with the provisions of section 38 of the Companies Act.
9. Now, I may take up the second issue, namely, whether this Court is competent to pass any Direction upon the RJSC to destroy the Schedule-X submitted by the company for the year 2021 towards permitting the company to file a fresh Schedule-X for the year 2021.
10. For an effective disposal of the issue, an understanding on the provisions of section 36 of the Companies Act is required. Section 36 of the Companies Act, therefore, quoted below:
36. Annual list of members and summary:-(1) Every company having a share capital shall within eighteen months from its incorporation and thereafter once at least in every year make a list of all persons who on the day of the first or only ordinary general meeting in the year are members of the company, and of all persons who have ceased to be members since the date of the last return or in the case of the first return of the incorporation of the company.
(2) The following shall be stated in the list namely:-
(a) the names, addresses, nationality and occupation of all past and present members;
(b) the number of shares held by each of the existing members at the date of return specifying the shares transferred since the date of last return or, in the case of first return, since the date of incorporation, by persons who are still members and by persons who have ceased to be members respectively and also the dates of registration of such transfer; and
(c)
(3)
(4)
(5) If a company makes default in complying with the requirements of this section, it shall be liable to a fine not exceeding two hundred taka for every day during which the default continues, and every officer of the company who knowingly and willfully authorises or permits the default shall be liable to the like penalty.
11. As per the provisions of section 36 of the Companies Act, every company with a share capital is required to prepare and file a Return to the Registrar in a form as mentioned in Schedule-X to the Companies Act within maximum eighteen months of its incorporation and, thereafter, each year, at least once, on or before the last date of the concerned Gregorian calendar year, containing the names of the persons who remain members of the company on the date of the company's AGM and, also, of all the persons who have ceased to be members since the last AGM, within twenty one days from the date of holding the AGM, stating the names, addresses, nationality and occupation of present and past members, the number of shares held by each of the current members, at the date of submission of the Return specifying the shares transferred since the date of last Return or, in the case of first return, since the date of incorporation, by persons who are still members and by persons who have ceased to be members respectively and also the dates of registration of such transfer. And, sub-section (5) of section 36 states about penalty against the responsible officers of the company if the company fails to comply with the provisions of sub-section 1 to 4 of section 36 of the Companies Act.
12. From a minute scrutiny of the Schedule-X as on 31-12-2021 (Annexure-D), it appears that it did not fulfill the requirements of the provisions of section 36(2)(b) of the Companies Act in showing the transfer of shares; in other words, the statements in the Schedule-X as to the number of shares held by each of the existing members at the date of submission of the Return (Schedule-X) as on 31-12-2021 specifying the shares transferred since the date of submission of the last Return by persons who are still members and by persons who have ceased to be members respectively and also the dates of registration of such transfer have not been made. Apparently, the company has occasioned a default stipulated in sub-section (5) of section 36 of the Act and, consequently, the company and its responsible officers are liable to pay fine of Taka 200 (two hundred) for every day from the date of submission of the Return i.e. from 31-12- 2021 to the date of filing the instant application. However, if this Court finds that the default was not intentional, then, the company and its responsible persons may be exonerated from payment of the fine.
13. Now, let me see whether the default was intentional or unintentional. It appears from the annexed papers that the transferor executed the transfer deed (Affidavit) on 9-9-2021 and, thereafter, the signatures of the transferor were verified by the Embassy of Bangladesh in New York on 21-9-2021. So, it is evident that the legal formalities stipulated in section 38 of the Companies Act were complied with by the transferor well before holding the AGM for the calendar year 2021. However, after sending the same to Bangladesh, it was the Ministry of Foreign Affairs who took a few months' time to have information as to the authenticity of the seal and signature -of the Bangladesh Embassy's concerned officer. Therefore, this Court finds the default in filing Schedule-X as on 31-12-2021 showing the transfer of 600 shares of UVS Logistics to the petitioner on 9-9-2021 to the RJSC on the part of the company to be unintentional and, secondly, the RJSC has not come up with any affidavit to allege that the petitioner is a habitual defaulter in complying with the provisions of the Companies Act; rather it supports the submissions made by the learned Advocate for the petitioner. Further, since no proceeding for slapping fine upon the concerned responsible person of the company has been started, as has been confirmed by the learned Advocates for the petitioner and the RJSC, this Court, having found itself to be competent to adjudicate upon the issue under section 396(2) of the Companies Act, holds that the default has been occurred due to a reason which was beyond the control of the company and, thus, if the petition is not allowed, the Managing Director of the company shall suffer serious loss inasmuch as he shall be subjected to huge penalty for default. Considering the interest of the shareholders of the company as well as the fact that the default was bonafide, this Court is inclined to exonerate the Managing Director and other responsible officers of the company from the fine incurred due to the default in filing Schedule-X as on 31-12-2021 containing the reflection of the transfer of 600 shares of UVS Logistics to the petitioner on 9-9-2021 to the RJSC and extend the time for filing Schedule-X as on 31-12-2021 showing the transfer of 600 shares of UVS Logistics to the petitioner on 9-9-2021 to the RJSC.
14. Now, the question comes up for consideration of this Court as to whether this Court is competent to direct the RJSC to destroy the Schedule-X which has been submitted by the company for the calendar year 2021. In the light of the statutory requirements that Schedule-X of each calendar year must contain the number of shares held by each of the existing members at the date of submission of the Return (Schedule-X) specifying the shares transferred since the date of submission of the last Return, and given that the company and its responsible officer have approached this Court seeking exoneration in the face of incurring a fine for non-compliance of the aforesaid legal requirements, and because this Court is inclined to so exonerate as held above if this Court, at this juncture, does not pass necessary consequential Order by exercising its power under section 151 of the CPC, the Order exonerating the company and its responsible officers shall be meaningless. Thus, this Court finds it appropriate to direct the RJSC to destroy the Schedule-X filed by the company for the calendar year 2021 and, thereby, receive a fresh one containing the particulars as to the changes in share-structure. In any litigation of civil nature, where provisions of CPC have been made applicable, when a Court allows an application of a party to the litigation, but because of not having a relevant provision in the law, the order passed by the Court is likely to become useless or infructutous, it becomes incumbent upon the Court to apply the provisions of section 151 of the CPC for ends of justice, as was held in the cases of (1) Shahidul Islam vs RJSC, 74 DLR 575 and (2) Md Shaiful Islam Sarker vs RJSC, 26 ALR 81=28 BLC 372.
15. In the result the petition is allowed, but there will be no order as to costs.
16. Accordingly, the Managing Director of the company and the other officers who were responsible for submission of the filing Schedule-X as on 31-12-2021 showing the transfer of 600 shares of UVS Logistics to the petitioner on 9-9-2021 to the RJSC, are relieved/exonerated from payment of the aforesaid fine that has incurred from the date of filing Schedule-X on 31-12-2021 for not showing the transfer of 600 shares of UVS Logistics to the petitioner on 9-9-2021 to the RJSC therein.
17. The RJSC is directed to destroy the Schedule-X (Annexure-D) which has been filed by the company for the Gregorian calendar year 2021 as on 31-12-2021 and the company is directed to file the Schedule-X for the Gregorian calendar year 2021 as on 31-12-2021 afresh, showing the transfer of 600 shares of UVS Logistics to the petitioner on 9-9-2021 to the RJSC paying applicable late fees. The time to file Schedule-X as on 31-12-2021 afresh showing the transfer of 600 shares of UVS Logistics to the petitioner on 9-9-2021 to the RJSC, is hereby extended till 18-2-2023.
18. The Registrar of Joint Stock Companies and Firms shall do the needful accordingly, if the company approaches him before 18-2-2023.
19. The petitioner has expressed its willingness to spend an amount of Taka 50,000 (fifty thousand) only as part of company's CSR expenditure, through Pay Orders (which is to be deposited to the concerned company section) to Upandranagar Jannatul Ferdous Gorosthan, Sujanagar, Pabna. On furnishing receipt of payment, the Order may be drawn up, if so prayed for.
Office is directed to send back the company's record to the RJSC at once.
End.
High Court Division (Special Original Jurisdiction)
Present:
Mr. Justice Zafar Ahmed
And
Mr. Justice Kazi Zinat Hoque
Writ Petition No. 2904 OF 2020
Mohammad Mominul Islam
------------- Petitioner
VS
Government of Bangladesh represented by the Secretary, Ministry of Civil Aviation and Tourism, Bangladesh and others
------- Respondents
Judgement Date : April 06, 2022
Counsels:
Mr. Salah Uddin Dolon, Senior Advocate with Mr. Muhammad Mizanur Rahaman and Mrs Nahid Sultana Jenny, Advocates
—For the Petitioner.
Mr. Mehedi Hasan Chowdhury, Additional Attorney General with Mr. Nawroz Md. Rasel Chowdhury, DAG Mr. MMG Sarwar (Payel) and Ms. Yeshita Parvin, AAGs
—For the Respondent No.1.
Mr. Probir Neogi, Senior Advocate with Mr. Md. Ekramul Haque, Advocate
—For the Respondent Nos.2-3.
Judgment
Zafar Ahmed, J:
1. This Court on 02.03.2020 issued a Rule Nisi calling upon the respondents to show cause as to why the order issued under Nothi No. 30.34.0000.068.02.056.20.311 dated 25.02.2020 by the respondent No. 3 Managing Director and CEO, Biman Bangladesh Airlines Ltd. (Annexure P) giving retirement to the petitioner under rule 5(Ka) of "বাংলাদেশ বিমান কর্পোরেশন কর্মচারী (অবসরভাতা ও আনুতোষিক) বিধিমালা, ১৯৮৮" should not be declared to have been issued without lawful authority and is of no legal effect and as to why the respondents should not be directed to reinstate the petitioner in the post of Director of Biman Bangladesh Airlines Ltd. and allow him to continue in service till the age of 59 years.
2. At the time of issuance of the Rule, this Court directed the respondent Biman Bangladesh Airlines Ltd. (in short, the 'Biman') to bring the personal file of the petitioner along with the connected file on the basis of which the impugned order was passed for perusal of this Court. The respondents were further directed to maintain status quo in respect of appointment to the post held by the petitioner.
3. The respondent No. 1 (Ministry of Civil Aviation and Tourism) entered appearance in the Rule, but did not file any affidavit-in-opposition.
4. The respondent Nos. 2 and 3, namely Biman Bangladesh Airlines Ltd. and the Managing Director and CEO of the Biman jointly entered appearance in the Rule and filed two sets of affidavit-in-opposition. They also brought the personal file of the petitioner and the connected file as per order of this Court.
5. The petitioner also filed a supplementary affidavit and affidavit-in-reply.
6. The petitioner joined in the service of the then Biman Bangladesh Airlines as Junior Security Officer on 03.11.1986. His service was confirmed on 10.05.1987. Eventually, he was promoted to the post of Executive Director of the Biman on 19.04.2017 and was posted as Director (Administration). He was given additional responsibility of Director (Procurement and Logistic Support) for the period from 02.07.2017 to 19.09.2018. While the petitioner was discharging his responsibilities as Director of the Biman, the respondent No. 3 (Managing Director and CEO of Biman) issued the order dated 25.02.2020 retiring him from service under rule 5(Ka) of "বাংলাদেশ বিমান কর্পোরেশন কর্মচারী (অবসরভাতা ও আনুতোষিক) বিধিমালা, ১৯৮৮" (Bangladesh Biman Corporation Employees (Pension and Gratuity) Rules, 1988) (hereinafter referred to as 'Rules, 1988') after completion of 25 years of service (Annexure-P) which is the subject matter of the Rule.
7. The relevant portion of the impugned order is quoted below:
নম্বর: ৩০.৩৪.০০০০.০৬৮.০২.০৫৬.২০.৩১১ তারিখ: ২৫ ফেব্রুয়ারি ২০২০
আদেশ
যেহেতু, বিমান বাংলাদেশ এয়ারলাইন্স লিমিটেড এর পরিচালক জনাব মোহাম্মদ মমিনুল ইসলাম (পি-৩৩৭৪০) গত ০৩ নভেম্বর ১৯৮৬ তারিখে জুনিয়র সিকিউরিটি অফিসার হিসাবে চাকুরিতে যোগদান করেন এবং ইতোমধ্যে তার চাকুরিকাল ২৫ (পঁচিশ) বছর পূর্ণ হয়েছে;
এবং
০২। যেহেতু, বিমান বাংলাদেশ এয়ারলাইন্স লিমিটেড এর স্বার্থে তাঁকে চাকুরি থেকে অবসর প্রদান করা প্রয়োজন;
০৩। সেহেতু, বিমান বাংলাদেশ এয়ারলাইন্স লিমিটেড কর্তৃক গৃহীত ও "অনুসৃত বাংলাদেশ বিমান কর্পোরেশন কর্মচারী (অবসরভাতা ও আনুতোষিক) বিধিমালা, ১৯৮৮" এর বিধি ৫(ক) অনুযায়ী তাকে বিমান বাংলাদেশ এয়ারলাইন্স লিমিটেড এির চাকুরি হতে অবসর প্রদান করা হলো।
০৪। তিনি বিধি মোতাবেক অবসরজনিত সুবিধাদি প্রাপ্য হবেন।
০৫। জনস্বার্থে জারিকৃত এই আদেশ অবিলম্বে কার্যকর হবে।
(মোঃ মোকাব্বির হোসেন)
ব্যবস্থাপনা পরিচালম ও সিইও
বিমান বাংলাদেশ এয়ারলাইন্স লিমিটেড
তারিখ: ২৫ ফেব্রুয়ারি ২০২০
8. Mr. Md. Salahuddin Dolon, the learned Senior Advocate of the petitioner, assails the impugned order on two grounds: firstly, the Managing Director and CEO of the Biman had no authority to give retirement to the petitioner under rule 5(Ka) of Rules, 1988, only the Board of Directors of the Biman preserves such power, and secondly, the order of retirement was malafide. In support of the argument, Mr. Dolon refers to various provisions of the relevant statutory laws, rules and the Articles of Association of the Biman and materials on record.
9. Mr. Probir Neogi, the learned Senior Advocate appearing with Mr. Md. Ekramul Hoque the learned Advocate of the respondent Biman and its Managing Director and CEO, refers to the cases of Bangladesh Biman Corporation and others vs. Md. Yousuf Haroon and others, 10 BLT (AD) 22=54 DLR (AD) 161 and Bangladesh Biman Airlines Limited vs. Captain Mir Mazharul Huq and others, 70 DLR (AD) 16 and submits that the Managing Director has the power and authority to pass the order of retirement. Mr. Neogi further submits that the allegation of malafide is baseless and is not supported by any materials. Mr. Neogi also refers to illustration (e) to Section 114 of the Evidence Act, 1872 and Shinepukur Holdings Ltd. and others vs. Securities and Exchange Commission and another, 50 DLR (AD) 189 and submits that illustration (e) to Section 114 presumes that official acts are done rightly and regularly in accordance with law. Mr. Neogi submits that in the instant case, the petitioner failed to rebut the presumption contained in illustration (e).
10. Mr. Md. Mehedi Hasan Chowdhury, the learned Additional Attorney General appearing for the respondent No. 1, adopts the arguments of Mr. Neogi.
11. A brief discussion of the history of the inception of the Biman as a statutory body under the nomenclature "Bangladesh Biman Corporation" and then conversition of the same into "Biman Bangladesh Airlines Ltd." is relevant to appreciate the factual and legal issues raised in the case.
12. Bangladesh Biman was established by the Bangladesh Biman Order, 1972 (P.O. No. 126 of 1972). The said P.O. was repealed by the Bangladesh Biman Corporation Ordinance, 1977. Under Section 3 of the Ordinance Bangladesh Biman Corporation was established. All assets, rights, powers, authorities, privileges, properties including aircrafts etc. of the Biman established by the P.O. stood transferred to and vested in the Corporation.
13. Section 28A was inserted into the Ordinance by Bangladesh Biman Corporation (Amendment) Act, 2009 (Act No. XX1 of 2009) with effect from 11.07.2007.
14. Section 28A is reproduced below:
"28A.(1) Notwithstanding anything contained to the contrary in this Ordinance, Government may, in public interest, convert the Corporation into a public limited company under the Company Act, 1994 (Act no. XVIII of 1994) [কোম্পানী আইন, ১৯৯৪ (১৯৯৪ সনের ১৮ নং আইন)].
(2) The Government may, by agreement, transfer the entire undertaking of the Corporation to the Company referred to in sub-section (1) on such terms and conditions as may be specified in the agreement.
(3) As soon as the Corporation has been converted into a public limited company and undertaking of the Corporation has been transferred to the Company, the Government shall notify the fact in the official Gazette and shall, by the same notification, declare that the corporation has been dissolved.
Explanation:
The word "undertaking of the Corporation" includes its employees, business, projects, schemes, assets, rights, powers, authorities and privileges, its properties, movable and immovable, reserve funds, investments, deposits, borrowings, liabilities and obligations of whatever nature.
(4) The Government may, for the purpose of removing any difficulty in relation to the transfer of the undertaking of the Corporation under subsection (2) or the dissolution thereof under sub-section (3), make, by a notification published in the official Gazette, such order as it considers expedient and any such order shall be deemed to be, and given effect to as, part of the provisions of this Ordinance."
15. On 23.07.2007 Biman Bangladesh Airlines Limited was registered as a public limited company under the Company Act, 1994. Pursuant to Section 28A, the Government on 31.07.2007 by S.R.O. No. 191- Ain/2007 converted Bangladesh Biman Corporation into Biman Bangladesh Airlines Limited and transferred the entire undertaking of the Corporation to the Biman Airlines Ltd. and dissolved the Corporation with effect from 31.07.2007. The said SRO No. 191-Ain/2007 was published in the Official Gazette on 02.08.2007 in additional issue. Thereafter, by another S.R.O. No. 268-Ain/2009 dated 21.12.2009 (published in the gazette on 27.12.2009 in additional issue) the earlier S.R.O. was amended and the date of dissolution of the Corporation was given effect from 22.07.2007.
16. The Ordinance, 1977 was declared void and non est by the apex Court on 01.02.2010 in Civil Petition Nos. 1044-1045 of 2009 (commonly known as the Constitution 5th Amendment Case, reported in 2010 BLD Special issue, p.1). Subsequently, the Ordinance was made effective retrospectively as an Act of Parliament by Section 4 of "১৯৭৫ সালের ১৫ আগস্ট হইতে ১৯৭৯ সালের ৯ এপ্রিল তারিখ পর্যন্ত সময়ের মধ্যে জারিকৃত কতিপয় অধ্যাদেশ কার্যকরন (বিশেষ বিধান) আইন, ২০১৩."
17. The upshot of the above discussions is that Bangladesh Biman Corporation was dissolved on 22.07.2007. Biman Bangladesh Airlines Ltd. was registered as public company on 23.07.2007. The entire undertaking of the Corporation has been transferred to and vested in the Company. However, the Ordinance, 1977 is still effective subject to subsequent developments done pursuant to Section 28A of the Ordinance.
18. For the purpose of disposal of the Rule, which involves determination of the legality of the order retiring the petitioner from service by the Managing Director and CEO of the Biman Bangladesh Airlines Ltd., the applicable laws are - the Ordinance, 1977 and Rules, 1988 made under the Ordinance. Since the Biman has been converted into a public limited company under the Company Act, 1994 the memorandum and the articles of association of the company have to be examined to see whether they contain any provision regarding removal of its employee.
19. There is an issue. Bangladesh Biman Corporation is dissolved. Biman Bangladesh Ltd. was born under Section 28A of the Ordinance and the same was incorporated under the Company Act. Now, the question is whether judicial review is maintainable against the Biman which is now a company limited by shares. The issue was not raised by the learned Advocate of the respondents.
20. In Md. Arif Sultan vs. Chairman, Dhaka Electric Supply Authority and others, 60 DLR (2008) 431, a Full Bench of this Division was called upon to decide two questions: (1) whether lifting the veil would be necessary in a case where the impugned order is issued by a company limited by shares held by the Government, and (2) whether the company, entire share of which is held by the Government, comes within the meaning of "local authority" so as to maintain writ petition against the same.
21. Same issue was raised in respect of Teletalk Bangladesh Ltd. (TBL) in Mahbubur Rahman vs. Bangladesh and others, 66 DLR (2014) 615 wherein the following passage from Md. Arif Sultan was quoted,
"In this age of survival of the fittest, the company must have the option to fire its employees in order to hire the most skilled ones. With the advent of the welfare state, it began to be increasingly felt that the frame-work of civil service was not sufficient to handle the new tasks which are often of specialized and highly technical character. The inadequacy of civil service to deal with the new problems came to be realized and it became necessary to form companies incorporated under the Companies Act by the Government. But it is important to note that the company must be allowed to determine its own fate according to Memorandum and Articles of Associations after its incorporation and that so long that is not allowed the company is deemed to be an instrumentality or agency of the Government or local authority. The interest of the Government will be taken care of by its nominated directors and not by the Government itself."
22. Referring to Md. Arif Sultan, it was observed in Mahbubur Rahman,
"The Court then proceeded to lay down a five-fold test to determine whether a company is an instrumentality or agency of the Government. The fivecritera test put in place appears not to be meant as exhaustive rather in the sense that the cumulative effect assessed on the criteria should indicate the answer. The conditions enumerated are as follows:
1. If the entire share capital of the company is held by the Government, it will go a long way towards indicating that the company is an instrumentality or agency of the Government.
2. Existence of deep and pervasive control of the Government.
3. The true rationale in setting up the company.
4. The company is fully dependent on the financial assistance of the Government.
5. The company is not run by the Memorandum and Articles of Association."
23. It was further observed in Mahbubur Rahman,
"Here in this case it is difficult to identify TBL as an identity distinct from the Government. The huge venture is still entirely dependent on the public exchequer for its finance. Its Board is predominantly manned by the public functionaries who hold the position ex officio as servants of the Republic. All the Directors are nominated by the Government. The Board is substantially dependent on the Government for every major policy decision of the company. Exactly as is done by a government department, TBL acts under direction and supervision of the Ministry and keep the Ministry informed at least about important official transactions. Government control on TBL management and policy is as unusually deep and pervasive as to admit of no separate corporate autonomy or character of its own. It has no independent will distinct from the Government. All the indicators available on records lead to the irresistible conclusion that TBL as a company is nothing but a sham or facade. It is only identifiable as an instrumentality or agency of the Government. It follows that TBL must be subjected to same constitutional and public law limitation as the Government is."
24. Reverting back to the case in hand, rule 5 (Ka) of Rules, 1988, which was made by the Government in exercise of the powers conferred upon it by Section 30 of the Ordinance, 1977, was invoked in giving retirement to the petitioner after completion of 25 years of service.
25. Having gone through the memorandum and articles of association of the Biman, the Ordinance and other materials on record and being fortified with the principles laid down in Md.Arif Sultan, 60 DLR 431 and Mahbubur Rahman, 66 DLR 615 and the fact that the statutory Rules, 1988 is still being followed by the Biman, we have no hesitation to hold that the instant writ petition is maintainable.
26. It is settled principle of law that memorandum and articles of association being the constitution of the company regulate the affairs of the company including the powers of the board of directors and others and thus, articles are mandatory to be followed if they are not in conflict with the company law.
27. Article Nos. 58 and 59 of the Articles of Association of the Biman deal with powers and duties of directors. Article 59 (b) states,
"To manage all concerns and affairs of the Company, to appoint, recruit and employ officers, organizers, workmen, day labourers for the purpose of the Company and to remove or dismiss them and appoint others in their place and to pay such persons as aforesaid such salaries, wages or other remuneration as may be deemed fit and proper."
(emphasis supplied)
28. The power to appoint, recruit and to remove or dismiss employees by the board of directors is not expressly provided in Section 8 of the Ordinance, 1977 which states that general power of superintendence of the affiars and business of the Corporation (now dissolved) shall vest in the board of directors subject to rules and regulations made under the Ordinance and the board may exercise all powers and do all acts and things which may be exercised or done by the Corporation. Under article 59(x) of the Articles of Association of the Biman, the board of directors is authorised to delegate all or any of its powers and authorities to the Managing Director, who is also the Chief Executive Officer (CEO) of the Biman. Similar provision is contained in Section 10 of the Ordinance so far as it relates to delegation of authority to the Managing Director by the board of directors.
29. Rule 5 (Ka) of the Rules, 1988 provides that the Corporation may retire any of its employees after he has completed 25 years of service if it considers that he should be retired from the service in the interest of the Corporation.
30. In Bangladesh Biman vs. Md. Yousuf Haroon, 10 BLT (AD) 22, which has been relied on by the respondent Biman, two employees of the Biman holding the post of General Manager and Chief Purser respectively were given retirement under Section 9(2) of the Public Servants (Retirement) Act, 1974 on completion of 25 years of service. The retirement order also quoted Bangladesh Biman Corporation Employees (Service) Regulations, 1979 and Rules, 1988. This Division set aside the order of retirement. The apex Court allowed the appeal filed by the Biman. The apex Court observed,
"Under section 10 of the Ordinance of 1977 Managing Director is the Chief Executive of the Corporation and shall exercise such power and perform such functions as may be assigned to him by the Board of Directors of the Biman Corporation of which he is a member or as may be prescribed. Prescribed means u/s 2(f) prescribed by rules or regulations made under the Ordinance. Under regulation 2(g) competent authority in relation to exercise of any power or performance of any function means the Board, the Chairman, Managing Director or any other person duly authorized to perform such duty. There is nothing in the Regulations and Rules what powers and functions may be exercised or performed by the Managing Director. Under Section 8 of the Ordinance subject to the Rules and Regulations general direction and Superintendence of the affairs and business of the Corporation shall vest in the Board of Directors. In the writ petitions respective petitioner (respondent No. 1) alleged that there is no decision of the Board of Directors approving the respective impugned order of retirement. But there is no challenge to the authority of the Managing Director to pass such an order. In the affidavits-in-opposition appellants asserted that the Managing Director as the Chief executive of the Corporation has the power and competence to pass the impugned orders. No affidavit-in-reply has been filed by the respective respondent No. 1 denying the assertion made in the affidavit-in-opposition filed in the respective writ petition. When power and competence of the Managing Director has not been challenged by the respective respondent No. 1 High Court Division was not justified in holding in W.P. No. 779 of 1998 that the order of retirement of the writ petitioner (respondent No. 1 of C.A. 37/1999) passed by the Managing Director without approval of the Board of Directors was without jurisdiction. When Managing Director has power and authority to pass an order of retirement approval of the Board of directors is not at all necessary." (emphasis supplied)
31. Mr. Salah Uddin Dolon draws our attention to documents annexed to the affidavit-inreply filed by the petitioner and submits that it is now consistent practice of the Biman that the board of directors either takes the decision in matters relating to removal of its employees from service or delegates that power to the Managing Director and CEO.
32. Upon perusal of the documents, it appears that the Chief Engineer (Engineering Services) of the Biman was suspended, vide memo dated 04.09.2019 under regulation 58 of the Service Regulations, 1979 as per decision of board of directors taken in its 228th meeting. Similarly, the Deputy General Manager of the Biman was suspended, vide memo dated 21.01.2020 under regulation 58 as per the board's decision taken in its 234th meeting. It further appears that in the 265th meeting of the board of directors of the Biman, the board delegated its power to remove the cockpit crews (special pay group) against whom allegations were made to the Managing Director and CEO of the Biman. In exercise of the said power, the Managing Director and CEO of the Biman terminated the service of a Captain of the Biman, vide memo dated 29.11.2021. It was stated in the said memo, "In exercise of the power conferred under Article 59 (b) of the Articles of Association of Biman Bangladesh Airlines Ltd and such power is conferred/delegated to MD and CEO by the 265th meeting of the Board of Directors, Biman Bangladesh Airlines on 31st October, 2021, accordingly, your service is terminated with immediate effect as per decision of Biman Bangladesh Arilines Ltd". (emphasis supplied)
33. It is apparent from the above that under the changed circumstances as to the identity of the Biman following the amendment of the Ordinance and giving effect to the same by dissolving the Corporation and converting it into a public limited company, the Biman gave effect to article 59(b) of the articles of association in consonant with other applicable laws/rules/regulations which are still effective subject to developments taken place after insertion of Section 28A to the Ordinance. Md. Yousuf Haroon was decided on 22.05.2000 i.e. prior to insertion of Section 28A to the Ordinance, 1977 and dissolution of the Corporation and conversion of the same into a public limited company. In captain Mir Mazharul Huq, 70 DLR (AD) 16 (decided on 11.04.2017) the apex Court endorsed the views taken in Md. Yousuf Haroon. The ratio laid down in Md. Yousuf Haroon to the effect, "When Managing Director has power and authority to pass an order of retirement approval of the Board of Directors is not all necessary" is no longer being followed by the Biman itself. In our view, the Biman rightly applied article 59(b) of the articles of association since the same is not in conflict with applicable laws/rules/regulations rather a coherent interpretation and application of article 59(b) has been given effect to in the backdrop of applicable legal regime. For this reason the Biman did not follow and apply Md. Yousuf Haroon after dissolution of the Corporation and conversion of the same into company due to change of circumstances and accordingly, it obtained prior approval and/or authorisation of the board in the matter of removal of its employees from service in other cases discussed above.
34. In the affidavit-in-opposition dated 27.01.2022 note sheets under Nothi No. 30.34.0000.068.02.056.20 have been annexed as Annexure-2. It is stated in note No. 14, dated 24.02.2020, "বর্নিত অবস্থায় জনাব মমিনুল ইসলাম, পি-৩৩৭৪০ পরিচালক প্রকিউরমেন্ট এন্ড লজিস্টিক সার্পোট এর বিষয়ে করণীয় সম্পর্কে সিদ্ধান্তের জন্য পেশ করা হল". Note No. 15 signed by Managing Director and CEO on 25.02.2020 runs as follows:
"১৫। নথির নোটানুচ্ছেদ-১ থেকে ১৪ এবং আনুসঙ্গিক ও নথি পত্র পর্যালোচনা করা হলো। পর্যালোচনায় প্রতীয়মান হয় বিমান বাংলাদেশ এয়ারলাইন্স লিমিটেডের স্বার্থে বিবেচ্য কর্মকর্তা জনাব মমিনুল ইসলাম (পি-৩৩৭৪০) ডিপিএলএস কে কোম্পানীর দায়িতে বহাল না রাখাই এয়ারলাইন্স এর জন্য মঙ্গলজনক্ বাঞ্চনীয়। বিমান বাংলাদেশ এয়ারলাইন্স কর্তৃক গৃহীত ও অনুসৃত বাংলাদেশ বিমান কর্পোরেশন কর্মচারী (অবসর ও অনুতোষিক) বিধিমালা ১৯৮৮ এর বিধি ৫(ক) অনুযায়ী সংস্থার স্বার্থে ২৫ বৎসর চাকুরি সমাপনান্তে অবসর প্রদান করা প্রয়োজন মনে করলে কর্মকর্তা/কর্মচারীকে অবসর প্রদান করা যাবে। জনাব মমিনুল ইসলাম (পি-৩৩৭৪০) গত ০৩/১১/১৯৮৬ থিঃ তারিখে জুনিয়র সিকিউরিটি অফিসার হিসেবে চাকুরিতে যোগদান করেছেন এবং ইতোমধ্যে চাকুরিকাল ২৫ (পঁচিশ) বৎসর পূর্ণ হয়েছে, বিমান বাংলাদেশ এয়ারলাইন্স লিমিটেডের স্বার্থে বর্ণিত বিধিমালা ১৯৯৮ এর বিধি ৫(ক) অনুযায়ী জনাব মমিনুল ইসলাম (পি-৩৩৭৪০) ডিপিএলএসকে অবসর প্রদান করা হলো-যা অদ্য ২৫/২/২০২০ থেকে কার্যকর গন্য। পরিচালক প্রশাসন জনাব জিয়াউদ্দিন অহমেদ (জি-৫১৩৯৪) পরবর্তী নির্দেশ প্রদান না করা পর্যন্ত নিজ দায়িতের অতিরিক্ত ডিপিএলএস এর দায়িত্ব পালন করবেন। আদেশ জারী করুন।"
35. In the affidavit-in-opposition dated 07.02.2022 separate note sheets under reference No. 30.34.0000.68.10.005.20 have been annexed as Annexure-22. Note No. 13 of the said Nothi, which was signed by the Managing Director and CEO on 25.02.2020, is quoted below,
"১৩। অনুচ্ছেদ-৮ থেকে ১২ দেখলাম। জনাব মুমিনুল ইসলাম পরিচালক হিসেবে দায়িতে পালনে যথাযথ ভূমিকা রাখার পরিবর্তে নানাবিধ ঝামেলা সৃষ্টি করছেন। বিষয়টি পরিচালনা পর্দকে অবহিত করা হয়েছে। পরিচালক হিসেবে কোন পদেই যেহেতু তিনি মানসম্মত দায়িত পালন করতে পারছেন না এবং স্বল্প সময়ের মধ্যে অত্যান্ত তিনটি পরিচালকের পদে দায়িত্ব প্রদান করেও তেমন উন্নতি হয়নি। পরিচালনা পর্ষদ তাকে with benefit চাকুরি থেকে অবসর প্রদানের সম্মতি দিয়েছে। সার্বিক বিষয়াদি প্রতীয়মান হয় বিমান বাংলাদেশ এয়ারলাইন্স লিঃ এর স্বার্থে জনাব মুমিনুল হককে চাকুরি থেকে অবসর প্রদান করা প্রয়োজন। এ প্রেক্ষাপটে, বিমান বাংলাদেশ এয়ারলাইসেন্স লিঃ গৃহীত ও অনুসৃত বাংলাদেশ বিমান কপোররেশন কর্মচারী (অবসরভাতা ও অনুতেষিক) বিধিমালা, ১৯৮৮ এর বিধি ৫(ক) অনুযায়ী জনাব মুমিনুল হককে বিমান বাংলাদেশ এয়ারলাইসেন্স এর চাকরি হতে অবসর প্রদান করা হলো। আদেশ স্বাস্থর করা হলো। জারী করুন।" (emphasis supplied)
36. It appears from the above that in note No. 15 dated 25.02.2020 the approval/decision/resolution of the board was not mentioned, but surprisingly in note No. 13 dated 25.02.2020 of a separate Nothi it is stated that the board had given consent to retiring the petitioner with benefit. It further appears from note No. 12 of the same note sheets that those were placed before the Managing Director and CEO on 25.02.2020. The impugned order was issued on 25.02.2020. So, when did the board of directors decide the matter and gave consent to the same? Is it on 25.02.2020? What is the number of the board meeting? Where are the minutes of the meeting? The respondents could not give any answer to these questions. No decision of the board was placed before us. We have examined the personal file of the petitioner and the connected file provided by the Biman. We have not found any decision of the board. Mr. Dolon submits that Note No. 13 is after thought and was created to justify the malafide action of the Managing Director and CEO of the Biman.
37. The impugned order does not mention any decision of the Board of directors of the Biman, whereas, it is already noted that in the matter of removal from the service, the Biman follows article 59(b) of its articles of association and in the respective office orders reference of the decision of the board is mentioned. In the circumstances, the respondents are not allowed to rely on the case of Md. Yousuf Haroon on the basis of the principle of approbation and reprobation.
38. In judicial review of administrative actions, the Court has to start with the presumption of regularity of the official acts which is incorporated in illustration (e) to Section 114 of the Evidence Act. The burden of proof is on the party who alleges the contrary. In the present case, the petitioner has successfully rebutted the presumption. The case of Shinepukur Holdings Ltd., 50 DLR (AD) 189 is of no assistance to the respondents.
39. The ratio laid down in Bangladesh Shipakala Academy vs. Shahidul Islam and another, 50 DLR (AD) 1 in respect of competency of the authority in the matter of removal/dismissal from the service is relevant here. It was held,
"It is true that the Director General was authorised to take all action under the said Rules but in order to take the decision of dismissal of the respondent it was clearly necessary to authorise the Director General in specific terms in that behalf since he was not the appointing authority of the respondent. Dismissal from service is a serious matter and only a competent authority under the law is entitled to pass an order of dismissal. If the Parishad decided that the Director General should be invested with the power to dismiss a Director who has been appointed by the Parishad then a very clear and explicit resolution was required to be taken authorising the Director General to pass an order of dismissal of a Director who was appointed by the Parishad. The resolutions which have been relied upon by the learned Advocate for the appellant are clearly not adequate enough to read in them a power authorising the Director General to dismiss a person appointed by the Parishad."
(emphasis given)
40. In the case in hand, the Managing Director and CEO of the Biman issued the impugned order retiring the petitioner from service without any decision of the board of directors. No power was delegated to him to take the decision. Therefore, he was not competent authority to retire the petitioner. For this reason coupled with the attending facts and circumstances of the case, the unauthorised exercise of power by the Managing Director and CEO of the Biman is also without jurisdiction, arbitrary and malafide. Accordingly, we find merit in the Rule.
41. In the result, the Rule is made absolute. The impugned order dated 25.02.2020 (Annexure-P) giving retirement to the petitioner is declared to have been passed without any lawful authority and is of no legal effect. The respondents are directed to reinstate the petitioner in the service forthwith with arrear salary and other attendant benefits.
42. Communicate the order to the respondents at once.
End.
High Court Division (Criminal Miscellaneous Jurisdiction)
Present:
Mr. Justice Jahangir Hossain
And
Mr. Justice Md. Badruzzaman
Criminal Miscellaneous Case No. 63389 of 2018
Fahrnida Mizan and others
------------- Accused-Petitioners
VS
State and another
------- Opposite Parties
Judgement Date : March 18, 2021
Counsels:
Syed Ahmed Raza with Md Mohinul Islam, Advocates
—For the Accused-Petitioners.
Khaled Hamid Chowdhury with Md Ibrahim Khalil, Advocates
—For the Opposite Parties.
Dr Md Bashir Ullah, DAG with Mizanur Rahman Khan Shaheen, AAG Md Shafayet Zamil, AAG Ashik-uz zaman Bablu, AAG and Ms Syeda Jahida Sultana (Rama), AAG
—For the State.
Judgment
Jahangir Hossain, J:
1. This Rule was issued by a Division Bench of the High Court Division on 11-11-2018 following an application filed under section 561A of the Code of Criminal Procedure calling upon the opposite party to show cause as to why the proceeding of Metro. Sessions Case No. 4731 of 2018 arising out of CR Case No. 1317 of 2017 under sections 138 & 140 of the Negotiable Instruments Act, 1881 now pending in the 1st Court of Additional Metropolitan Sessions Judge, Dhaka should not be quashed.
2. The prosecution case is briefly described as under:
Opposite party No.2, National Finance Limited filed petition of complaint against the accused petitioners and two others in the Court of Chief Metropolitan Magistrate, Dhaka for allegedly committing offence under sections 138/140 of the Negotiable Instruments Act, 1881 [briefly as Act] stating that accused No.1 [Ibrahim Raihana Industries Limited] is the borrower who availed credit facilities from complainant- opposite party No. 2, National Finance Limited. Accused No. 2 is the Managing Director while accused Nos. 3-6 in the complaint are directors of the said company. They failed to repay the loan money within the stipulated time. Accordingly, they became defaulter-borrowers to opposite party No.2. For repayment of the dues, accused No.2 issued a Cheque being No. CDA 0207405 dated 29-5-2017 for an amount of BDT 15,00,00,000 [Taka fifteen crore] only on behalf of the company in favour of the complainant drawn on the account of the accused, maintained with the Mutual Trust Bank Limited. The complainant presented the cheque in the concerned branch of the Bank for encashment on 31-5-2017 which was returned unpaid on the same day with remarks "Insufficient Fund & Dormant Account". Thereafter, opposite party No. 2 informed the accused persons about the dishonour and requested to pay the debt amount in cash but they failed. Then the accused urged opposite party No.2 to present the cheque again for encashment and then opposite party No. 2, again placed the cheque on 5-7-2017 for encashment but the Cheque was again dishonoured with remarks "Insufficient found & Dormant Account".
3. Despite repeated persuasion and all out co-operation by the complainant, the accused did not pay the amount mentioned in the cheque. Thereafter, the complainant sent legal notices on 11-7-2017 through registered post with acknowledge due [AD] to their respective office and home addresses requesting them to pay the cheque amount within 30 [thirty] days from the date of receipt of the notices which were received by them. On receipt of notices they did not make payment within the stipulated period and accordingly, the complaint was made for prosecution under sections 138/140 of the Act. Thereafter, the learned Magistrate on examination of the authorized person of the complainant issued process against the accused- petitioners and others under sections 138/140 of the Act, and after compliance of all formalities, transmitted the case records to the learned Metropolitan Sessions Judge, Dhaka who, thereafter, sent the case records to learned Additional Metropolitan Sessions Judge, 1st Court, Dhaka for trial, and framed charge against the accused-petitioners and another in their presence under sections 138/140 of the Act, to which they pleaded not guilty and claimed to be tried.
4. Thereafter, the accused-petitioners moved this Court with an application under section 561A of the Code of Criminal Procedure for quashing the entire proceeding of the case and obtained the present Rule with an order of stay. The Rule is opposed by opposite party No. 2 by filing counter-affidavit.
5. In support of the Rule, Mr Syed Ahmed Raja, learned Advocate appearing for the accused petitioners mainly contends as follows:
(i) that the primary responsibility is on the complainant to make specific averments as required under the law in the complaint as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every director knows about the transaction and the accused-petitioners, who are mere directors of the company, are not liable to be prosecuted under sections 138/140 of the Act.
(ii) that is settled principle of law that the implication of the persons, who are not signatory of the cheque in question is illegal and not sustainable in the eye of law. Since there is no allegation in the complaint against the accused Nos. 3-6 [petitioners] under sections 138/140 of the Act, 1881 and they are not in any way connected with alleged cheque and they are not signatories to the cheque in question, they cannot be prosecuted under sections 140 of the Act.
(iii) that vicarious liability can be inferred against a director or manager of the company registered or incorporated under the Companies Act only if the requisite statements are made in the petition of complaint that the accused were in-charge of and responsible for the business of the company and by virtue of their position they are liable to be proceed with. Vicarious liability on the part of a person must be pleaded and proved and not inferred and since no such standing was made in the petition of complaint, the proceeding of the case is liable to be quashed.
6. On the contrary, Mr Khaled Hamid Chowdhury, learned Advocate appearing with Mr Md Ibrahim Khalil, learned Advocate for opposite party No. 2 submits as follows:
(i) that the company is a separate legal personality and all the directors along with the Managing Director are equally liable for company's day to day affairs/activities. Without prior permission or by way of resolution being approved by the Board of Directors, important decisions, dealings, transactions, taking loans or giving cheques are not possible. One single director, let alone the Managing Director, cannot take such important decision without raising the issue to the Board of Directors. If a cheque is signed by the Managing Director of the company for repayment of the dues of defaulted loan, it is to be deemed that by default all the directors gave consent to do so and, as such, dishonour of such cheque issued on behalf of the company for insufficiency of fund, all directors shall be prosecuted under sections 138 read with section 140 of the Act;
(ii) that as per section 140(1) of the Act, if the person committing an offence under section 138 of the Act is a company, every person who, at the time of committing the offence, was in-charge of, and was responsible to, the company for the conduct of the business of the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly;
(iii) that the director(s) of a company by virtue of his position under the Companies Act, 1994 is deemed to be responsible for the conduct of the business or was in- charge of the affairs of the company and such person cannot be allowed to deny the liability for the acts or omissions of the company or he cannot be exonerated from liability if he cannot prove by evidence that the offence has been committed without his knowledge or he had exercised all due diligence to prevent the commission of offence and such burden lies upon him to prove such defense during trial by adducing evidence before the trial Court and accordingly, the present proceeding cannot be quashed under section 561 A of the Code of Criminal Procedure and, as such, the Rule is liable to be discharged.
7. We have heard the submissions of the learned Advocates of both the parties, perused the application, supplementary-affidavits, counter-affidavit filed by the complainant-opposite party and other connected documents available on record wherefrom it transpires that the petitioners' company, availed loan facilities from the complainant, financial institution and defaulted to pay the installments and other dues as per sanction letter dated 1-4-2015 and for repayment of outstanding dues accused No.2, as the Managing Director, issued a cheque on behalf of the company on 29-5-2017 for an amount of Taka 15,00,00,000 [fifteen crore] in favour of the complainant. But the cheque was dishonoured on 31-5-2017 and 5-7-2017 for 'insufficiency of fund and dormant account' when it was presented before the Bank for encashment. The accused-petitioners' claim is that they are mere directors and were not responsible for the issuance or dishonour of the cheque and they are not liable for the offence committed by the company.
8. The main issue before us as to whether for the offence committed by the company, the petitioners being Directors of the company can be prosecuted and punished under sections 138/140 of the Act.
9. It has pleaded in the petition of complaint, that the company, accused No.1 took credit facilities from the complainant and accused No. 2 is the Managing Director and accused Nos.3-6 [the present petitioners] are directors of accused No. 1 and after default of payment of installments and outstanding dues, the complainant by several letters urged the accused petitioners and others to pay the installments and other dues and they issued the cheque on 29-5-2017 on behalf of the company under the signature of accused No.2 for payment of outstanding dues and after dishonour of the cheque for insufficiency of fund on 31-5-2017 and 5-7-2017, the complainant sent legal notices on 11-7-2017 through registered post with A/D to them and they received those notices but failed to pay the amount mentioned in the cheque in stipulated time.
10. Under Company Law, a company is a juristic person comprised of its members/share holders, governed by its own Article of Association through the Board of Directors selected/appointed by the Members for taking decisions in the formal meeting in accordance with the Article of Association as well as in accordance with law. It is run through the Board of Directors. A company cannot be run alone or by one Director.
11. Before deciding the points raised at the bar, it is necessary to reproduce sections 138 and 140 of Act, 1881 as under:
"138. Dishonour of cheque for insufficiency, etc. of funds in the account. - (1) Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished.
Provided that nothing contained in this section shall apply unless;
(a)
(b)
(c)
140. Offences of companies.-(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was incharge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly:"
12. In the case of Eusof Babu (Md) and others vs State and another; reported in 68 DLR (AD) 298 two questions were raised before the Appellate Division. The first question was whether if a company incorporated under the Companies Act committed an offence punishable under section 138 of the Act, is excluded from prosecution, can a director, manager, secretary or other officer of the company be prosecuted for that offence, and secondly, whether if more than one cheques issued by the same drawer can be prosecuted in a single case. In deciding the first issue the Apex Court, elaborately discussed the provisions under sections 138 and 140 of the Act, 1881, as quoted above, and in paragraph Nos.6-12 fixed the criteria of liabilities of directors and other persons when the offence is committed by the company under section 138 of the Act as follows:
"6. Chapter XVII under the heading 'Notaries Public' was substituted by Act No.XIX of 1994 by chapter XVII with the heading 'On penalties in case of dishonour of certain cheques for insufficiency of funds in the account'. Sections 138 and 139 were newly inserted in the chapter and sections 140 and 141 were added by the said amendment. Sub-section (IA) was inserted in section 138 by Act No. III of 2006 providing the manner of service of notice upon the drawer of the cheque if the cheque is dishonoured. Section 138A was also inserted by Act III of 2006 restricting appeal against conviction unless the drawer deposits fifty percent of the amount of the dishonoured cheque. Section 139 was repealed in July, 2000 which provides 'presumption in favour of holder.
7. Section 138 is a special law which was inserted with the intention to preventing the drawee from being defrauded of a negotiable instrument by a drawer of the same. The object is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. A plain reading of section will show that once a cheque is drawn and handed over to the drawee and the latter has presented it in his account for encashment and thereafter, if the cheque is returned to him with an endorsement that the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid for that account or that it was dishonoured because of 'stop payment' instructed by the Bank, an offence punishable under the said section would constitute provided that if the drawee fulfills the conditions provided in the proviso to sub-section (1). If the drawer of the cheque is a company, firm or an association of individuals would also be prosecuted for commission of offence under section 138 subject to the fulfillment of the conditions.
8. A combined reading of sub-sections (1) and (2) of section 140 would discern three categories of persons to be brought within the ambit of section 138, through legal fiction envisaged therein. The first category is the Company which committed the offence; the second category is every person who was in- charge of and was responsible for the business of the company at the time of commission of offence; and the third category is, any other person who is a Director, Manager, Secretary or officer of the company, with whose connivance or neglect, the company has committed the offence. Though sub- section (1) of section 138 speaks of a drawer of the cheque who would alone have been the offender of the offence, because of section 140, penal liability has been cast on other persons connected with the company. The difference between sections 138 and 140 is that in respect of section 138 the offence is committed by human being that is to say, natural person and in section 140 though the expression "the person" is used which is qualified by a company which means "anybody corporate and includes a firm or other association of individuals" which is a juristic person or not. It can be prosecuted for the offence under section 138.
9. In sub-section (1) of section 140 the use of the phrase 'as well as' necessarily involve in a discord the persons mentioned in the second category within the umbrella of the offence on a par with the offending company. Again, by reason of the use of the expression 'shall also' in sub- section (2) of section 140 bring the third category of persons additionally within the drag chain of the offence. Thus the effect of a literal meaning of section 140 is that when a cheque is issued by the company and the same is dishonoured, there is no doubt that the company is the principal offender under section 138 but that alone does not mean that it is solely liable for the offence. The other two categories of persons are also similarly liable for the same offence by fiction of law. If a case is instituted against the company alone, excluding the person who was responsible to the affair of the company it can be prosecuted and punished.
10. But, when such offence was committed by the company alone, the other two categories of persons can also be prosecuted and punished if arraigned in the category as accused. Neither sub-section (1) nor sub- section (2) puts an embargo for the prosecution of the said two categories of persons excluding the company. If the drawee opts to prosecute against the second or the third categories of persons, the case will not fail in the absence of the company if he can show that though the offence was committed by the company, they were responsible for the conduct of the business of the company or that the offence was committed with their consent or that due to their neglect the company has committed the offence. Section 140 does not contain that the prosecution of company is indisputable for the prosecution of the other categories of persons. If the company is not prosecuted, the other two categories of persons cannot, on that ground alone, escape from criminal liability.
11. The proviso to sub-section (1) of section 140 exonerates the second category of a person if he can show that the company has committed the offence without his knowledge or that he could not prevent the commission of the offence despite his endeavour to prevent the same. This will be deducible from the facts and circumstances of the case and it can only be shown and proved by evidence. Similarly, the third category of the persons can be exonerated from being prosecuted if the drawee of the chaque fails to prove that the offence has been committed with their consent or connivance or neglect. The onus on the part of the drawee is primary being based on the maxim e.i: 'incurnbit probatio qui dicit, non qui negat' this is because the liability envisaged in sub-section (1) is on the person in-charge of, and was responsible to the business of the company is fixed by the legislature because he is directly responsible for the offence.
12. If for any reason the company is not prosecuted, the other persons who are in-charge of the affairs of the company or in the management of the company or have knowledge about the affairs of the company cannot escape from criminal liability if they are served with the notice. These persons need not have done any specific overt act or omitted to do anything to be fastened with liability. The very fact that the company has committed the offence is sufficient to make them liable. No company transacts business without the help of human agency. When the Court presumes the existence of a fact, the burden of proving its non existence is on the party that asserts its non existence."
13. Review petitions were filed against the judgment reported in 68 DLR (AD) 298 and the Appellate Division vide judgment dated 13-2-2017 [reported in 11 ALR (AD) 111] dismissed those petitions by endorsing its earlier view and holding that for proper and effective adjudication of cases, the complainant(s)/drawee(s) may add the company as one of the accused in the case but for not impleading the company, the case will not fail'.
14. In Yusuf Babu (supra) the Apex Court divided three categories of persons to be brought within the ambit of section 138 of the Negotiable Instruments Act, 1881 when the offence is committed by a company. The first category is the Company which committed the offence; the second category is every person who was in-charge of and was responsible for the conduct of the business of the company at the time of commission of offence; and the third category is, any other person who is a director, manager, secretary or other officer of the company with whose connivance or negligence, the company committed the offence.
15. The proviso to sub-section (1) of section 140 of the Act exonerates the second category of a person if he can show that the company has committed the offence without his knowledge or that he could not prevent the commission of the offence despite his endeavour to prevent the same. This will be deductible from the facts and circumstances of the case and it can only be shown and proved by evidence. The liability envisaged in sub-section (1) of section 140 of the Act is on the person who was in-charge of, and was responsible to the company for the conduct of the business of the company is fixed by the legislature because he is directly responsible for the offence. This category of persons need not have done any specific overt act or omitted to do anything to be fastened with liability. The very fact that the company has committed the offence is sufficient to make them liable. Accordingly, no averment is required to be made in the petition of complaint specifying their overt act in the commission of the offence by them.
16. Similarly, as per sub-section (2) of section 140 of the Act, 1881, the third category of the persons can be exonerated from being prosecuted if the drawee of the cheque fails to prove that the offence has been committed with their consent or connivance or negligence. Thus the onus is primarily upon the drawee of the cheque. This is also deducible from the facts and circumstances of the case and it can only be shown and proved by evidence during trial.
17. The effect of a literal meaning of section 140 of the Act is that when a cheque is issued by the company and the same is dishonoured, there is no doubt that the company is the principal offender under section 138 of the Act but that alone does not mean that it is solely liable for the offence. The other two categories of persons are also similarly liable for the same offence by fiction of law.
18. Moreover, section 2(m) of the Companies Act, 1994 clearly narrates that the Managing Director of a company, although he has been given substantial power of management, must act under the superintendent and control of the Board of Directors. In the case of Alhaj Md Harun and others vs the State and others, reported in 36 BLD 200=68 DLR 535, a Division Bench of this Court observed as follows:
"We have also taken into consideration the submission of the learned Advocate appearing for the accused-petitioners that, no specific averment has been made as to who of the accused was in charge of running or managing the affairs of the company. On this ground, our considered view is that, it need not be emphasized that a company cannot work without the board of directors. The accused petitioners are, respectively, the Managing Director, Chairman and the Director. Their presence is necessary to form the quorum of the meetings of the board of directors as well as for adopting any resolution by the board of directors, for operating the accounts of the company, for entering into any deal with any other party as well as for running day to day business of the company, subject to their supervision. As such, apparently they are active party in managing the affairs of and operation of the business of the company. Companies Act, section 95, requires that the Board must sit at least 4 (four) times in each year. This also proves the active participation of accused, as required by law, in running the affairs of the company. The board decides the date of and hold the AGM and EGM etc. too. The accused persons being the MD. Chairman and Director their participation in running and managing the affairs of the company hardly needs any further proof, although the accused-petitioners one entitled to adduce evidence at the time of hearing of the case, before the Trial Court, on this issues."
19. We are in respectful agreement with the above view of the Division Bench.
20. In the petition of complaint, it has stated that opposite party No.2 granted a loan to the company [accused No.1], which is run by the Board of Directors [accused Nos.2-6]. The company availed loan facilities and the cheque was issued in the name of the company which was dishonoured for 'insufficiency of fund and dormant account'. The company falls under the first category of offender. The question whether at the time of committing the offence by the company the accused-petitioners, being directors of the company, were in charge of or were responsible to the company for the conduct of the business of the company or whether the offence has been committed without their knowledge or they had exercised all due diligence to prevent the commission of offence are questions of facts which can only be decided upon taking evidence during trial of the case.
21. In the light of discussions made above, we find no substance in the submissions of the learned Advocate for the accused-petitioners.
22. Accordingly, we find no merit in the Rule.
23. Thus, the Rule, issued by this Court earlier, is discharged without any order as to cost.
24. The order of stay granted earlier shall stand vacated.
25. The trial Court is directed to proceed with the case in accordance with law and in view of the observations made above.
Let a copy of this judgment be communicated to the concerned Court below at once.
End.
High Court Division (Civil Appellate Jurisdiction)
Present:
Mr. Justice Mahmudul Hoque
And
Mr. Justice Mohi Uddin Shamim
First Appeal Nos. 315 & 385 of 2017
Managing Director, Shatabdi Properties and Development Limited
------------- Appellant
VS
Hossain Electrical Industries Private Ltd.
------- Respondent
Judgement Date : November 29, 2022
Counsels:
M. Belayet Hossain with M. Mahmudul Hasan and Sheikh Golam Sarwar, Advocates
—For the Appellant.
Habibul Islam Bhuiyan, Senior Advocate with Mohammad Mijanur Rahman Advocates
—For the Respondent.
Judgment
Mahmudul Hoque, J:
1. Both the appeals are taken up for joint consideration and for disposal given that those pertain to the same appellant and involve common issues of law as shall need be addressed and arises from a single judgment decreeing Other Class Suit No. 331 of 2013 filed by the respondent in both the appeals, as plaintiff and dismissing Money Suit No. 08 of 2015 filed by the appellant, as plaintiff, by the Learned Joint District Judge, 1st court, Bagura.
2. Facts relevant for disposal of these appeals, in short, are that the respondent, M/s Hossain Electrical Industries (Private) Limited, as plaintiff ("seller"), instituted Other Class Suit No. 331 of 2013 against the appellant ("purchaser"), as defendant, praying for cancellation of registered agreement for sale deed Nos. 22252 and 22253 both dated 31-10-2011 and the appellant, as plaintiff, filed Money Suit No. 08 of 2015 against the respondent, as defendant, praying for recovery of Taka 1,70,00,000 (one crore and seventy lac) with interest from the defendant, M/s Hossain Electrical Industries (Private) Limited.
3. Plaintiff's case in Other Class Suit No. 331 of 2013 is that the suit property as shown in the plaint appertaining to schedule No. 1 measuring 1.065 acres and schedule No. 2 measuring 0.325 acres of land situated in the mouza Fulbari under PS and District Bagura originally belonged to the plaintiff. The plaintiff has been carrying his business by establishing electrical Industries on the suit land. His electrical business has become dull due to financial constraints and heavy burden of bank loan. To adjust the loan he offered to sell out the same and the defendant agreed to purchase the suit land at a consideration of Taka 3,45,00,000 (three crore and forty-five lac) for the schedule-1 land measuring 1.065 acres and Taka 1,05,00,000 (one crore and five lac) for the schedule-2 land measuring 0.325 acres. The plaintiff executed and registered deed of agreement for sale No. 22252 dated 31-10-2011 for schedule-1 land upon receipt of Taka 95,00,000 (ninety five lac) as advance out of Taka 3,45,00,000 (three crore and forty-five lac) and on the same day he executed another registered deed of agreement No. 22253 for schedule-2 land and received Taka 55,00,000 (fifty five lac) as advance out of Taka 1,05,00,000 (one crore and five lac) on the condition that the defendant shall get the sale deeds executed and registered by paying the balance amount of Taka (2,50,00,000+50,00,000)= totalling Taka 3,00,00,000 (three crore) to the plaintiff within one year from the date of execution and registration of the agreements, failing which the agreements shall stand cancelled. Subsequently, both the seller and purchaser entered into an undertaking duly notarisd by the Notary Public on the same day stipulating the terms and conditions that the defendant purchaser shall pay interest at the rate of 2% per month on the balance amount of Taka 3 (three) crore to the seller and time for conclusion of the transactions will be upto 31-12-2013. After expiry of the expected date as mentioned in the contract, the plaintiff orally and over phone requested the defendant to get the sale deeds registered by paying the rest principal amount but the defendant took time on various lame excuses. The defendant took away all the original documents of the suit land on the date of Bainapatra but he neither paid the principal amount nor the interest @ 2% amounting to Taka 6,00,000 (six lac) per month to the plaintiff as per contract. The plaintiff had to face financial problems due to non- payment of principal amount as well as interest of Taka 6,00,000 (six lac) per month. Finally, the plaintiff, on 23-4-2013, requested the defendant by sending two legal notices through his lawyer to get the sale deed registered by paying the rest principal amount of Taka 3,00,00,000 (three crore) as per contract, failing which the earnest money shall be forfeited. After receipt of legal notices the defendant did not replay to the same within stipulated time as mentioned in the notice. As the defendant denied to get the sale deed registered by paying the rest principal amount within time and violated the terms and conditions of the agreement, the two agreement Nos. 22252 and 22253 both dated 31-10-2011 stand cancelled and the earnest money shall also be forfeited. Hence, the present suit for cancellation of agreements dated 31-10-2011.
4. On the other hand, the defendant (plaintiff of Money Suit No. 08 of 2018) contested the suit by filing written statement denying all the material allegations set out in the plaint, contending inter alia, that the suit is not maintainable in its present form; the plaintiff has no cause of action; the suit is barred by principles of waiver, estoppel and acquiescence. In short the case of the defendant is that the suit property appertaining to schedule No. 1 measuring 1.065 acres and schedule No. 2 measuring 0.325 acres situated in the mouza Fulbari under P.S. Bagura Sadar, District of Bagura belonged to the plaintiff. The plaintiff, proposed to sell the same and the defendant agreed to purchase the suit land at a consideration of Taka 3,45,00,000 (three crore and forty-five lac) for 1.065 acres of land and consideration of Taka 1,05,00,000 (one crore and five lac) for 0.325 acres of land respectively. The plaintiff executed and registered deed of agreement for sale Nos. 22252 and 22253 both dated 31-10-2011 on receipt of advance of Taka 95,00,000 (ninety-five lac) out of total Taka 3,45,00,000 (three crore and forty-five lac) for 1.065 acres of land and an amount of Taka 55,00,000 (fifty-five lac) out of taka 1,05,00,000 (one crore and five lac) for 0.325 acres of land on the conditions that the plaintiff shall execute and register the sale deed by receiving the rest amount of Taka (2,50,00,000+ 50,00,000) = Taka 3,00,00,000 (three crore) in favour of the defendant within one year from the date of the agreements. On the same day the plaintiff and defendant jointly executed an undertaking before the notary public stipulating few terms and conditions that plaintiff-vendor shall handover all original documents of the suit land and deliver possession of the same to the defendant and the defendant will pay the rest principal amount of Taka 3,00,00,000 (three crore) within 31-12-2013 and also pay interest @2% per month amounting to Taka 6,00,000 (six lac) more, till registration of the sale deed. Thereafter, on 10-1-2013 the defendant paid Taka 10,00,000 (ten lac) and on 3-2-2013 paid Taka 10,00,000 (ten lac) out of balance consideration of Taka 3 (three) crore by cheque to the vendor and he also paid Taka 63,00,000 (sixty-three lac) as interest to the plaintiff as per contract from 4-12-2011 to 2-2-2013 by 15 cheques. On 30-12-2013 the plaintiff-vendor denied to execute and register the sale deed as per contract by receiving balance consideration money and refused to return back the earnest money. The defendant is entitled to get back the advance price money amounting to Taka 1,70,00,000 (one crore and seventy lac) and interest of Taka 63,00,000 (sixty-three lac) totalling Taka 2,33,00,000 (two crore and thirty-three lac) from the plaintiff-vendor. Having no lawful cause of action, the plaintiff filed this suit with ill motive to deprive the purchaser. So, the suit is liable to be dismissed with costs. Similar statements made in the plaint and written statement in Money Suit No. 08 of 2015 and as such, need not repetation.
5. The trial court framed five issues for determination of the dispute between the parties. In course of hearing, both the parties adduced evidences both oral and documentary which were duly marked as exhibits. The trial court after hearing by the impugned judgment and decree dated 16-4-2017 decreed Other Class Suit No. 331 of 2013 and dismissed Money Suit No. 08 of 2015, hence the present appeals.
6. Mr M. Belayet Hossain with Mr M. Mahmudul Hasan and Mr Sheikh Golam Sarwar, learned Advocates appearing for the appellant in both the appeals submit that admittedly the plaintiff entered into two registered agreements for sale with the appellant on 31-10-2011, consideration for schedule-1 property was settled at Taka 3,45,00,000 (three crore and forty-five lac) out of which the appellant paid Taka 95,00,000 (ninety-five lac) as advance, the price for schedule-2 land was fixed at Taka 1,05,00,000, (one crore and five lac) out of which the appellant paid Taka 55,00,000 (Fifty-five lac) totalling Taka 1,50,00,000 (one crore fifty lac) as advance to the respondent. On the same date the parties executed an undertaking, extending the time upto 31-12-2013 with a condition that the purchaser shall pay to the seller interest @ 2% per month, on the balance consideration of Taka 3,00,00,000 (three crore) till conclusion of transaction by 31-12-2013, accordingly, the appellant as purchaser was making payment of interest per month to the seller and paid 63,00,000 (sixty-three lac) as interest and made further payment of Taka 20,00,000 (twenty lac) as part payment of the consideration money against both the agreements to the seller.
7. He further, submits that as per terms and conditions of undertaking dated 31-10-2011 time was settled and fixed by the parties to the agreement upto 31-12-2013 and within that period the seller was entitled to claim and get interest at the rate of 2% per month from the purchaser appellant. Had there been any arrear of interest, the seller was entitled to claim the same from the purchaser by issuing letter or notice, but within the time fixed by the parties amicably, the seller allegedly served two legal notices on 23-4-2013 upon the purchaser but could not prove before the trial court that the notices were served, however, the seller under the teens and conditions of the agreement and undertaking cannot serve such notices demanding balance consideration from the purchaser and asking him to obtain the sale deed executed and registered where the time was fixed upto 31-12-2013, as such, the legal notices as well as filing of the suit is absolutely pre-planned and with the intention to depart and resile from the contract by the seller. It is submitted that in both the agreements dated 31-10-2011 there is no term or clause entitling the seller to forfeit the advance paid and, as such, during subsistence of the agreements, the seller cannot ask the purchaser to get the sale deed register and in default, the agreement shall be cancelled and the money paid to the seller shall be forfeited, in the absence of such forfeiture clause in the agreement.
8. He argued that where there is no term or clause in the agreements entitling the seller to forfeit the advance money paid to him for failure to conclude the transaction and in the absence of any prayer or claim of the plaintiff in suit in that regard or claiming any interest from the defendant, the trial court cannot go beyond the prayer in suit as well as terms and conditions of the agreements and undertaking, but the trial court while decreeing the suit in favour of the plaintiff failed to find that the plaintiff filed the suit before expiry of the period provided in the contract, did not claim forfeiture of the advance money as well as any arrear interests from the defendant, but the suit was only for cancellation of two registered agreements for default of the purchaser, as such, the trial court committed illegality in decreeing Other Class Suit No. 331 of 2013 and dismissing Money Suit No. 8 of 2015. Citing the case of Satish Batra vs Sudhir Rawal passed in Civil Appeal No. 7588 of 2012 by the Supreme Court of India he submits that, to justify the forfeiture of advance money being part payment, the terms of the contract should be clear and explicit. Because of absence of such terms or clause in the agreement part payment of purchase price cannot be forfeited.
9. Mr Habibul Islam Bhuiyan, Senior Advocate with Mr Mohammad Mijanur Rahman, learned Advocates appearing for the respondent in both the appeals, at the very outset referring terms and conditions of the agreement submit that the agreement provided covenant imposing obligation upon both the parties. Firstly, upon the purchaser that he shall conclude the agreement within the time fixed in the agreement by making payment of the balance amount to the seller and shall get the sale deed executed and registered. Secondly, the seller is under obligation to execute and register the sale deed in favour of the purchaser upon receipt of the balance amount within the time fixed.
10. He further submits that there was an undertaking in between the parties which provides that the time for conclusion of the transaction shall be 31-12-2013 and the purchaser shall make payment of interest at the rate of 2% per months on the balance amount to the seller amounting to Taka 6,00,000 (six lac), but the purchaser as per terms of undertaking did not make payment to the seller, though paid a sum of Taka 63,00,000 (sixty lac) by several installments and repeatedly failing to make payment of rest amount at the rate of 2%, consequently, the seller by two legal notices dated 23-4-2013 requested the purchaser to make payment of balance consideration and get the sale deed executed and registered but the purchaser did not come forward with the demand of the seller even felt it necessary to send a reply whether he is willing to get the sale deed executed and registered upon payment of balance amount to the seller. Consequently, the seller have no reasons or occasions to wait further for execution and registration of the sale deed in favour of the purchaser. Not only that, after service of legal notices, the plaintiff awaited about six months to have a favourable response from the purchaser, but did not get any response, consequently, filed Other Class Suit No. 331 of 2013 on 6-10-2013 for cancellation of both the agreements for default of the purchaser.
11. It is argued that, the plaintiff in their plaint, specifically stated that the plaintiff has become over burdened with the loan obtained from schedule bank for running its business but ultimately failed to pay the loan for which under compulsion entered into an agreement for sale of the property to adjust the loan with the bank. Because of failure of the purchaser in making payment of balance amount and getting the sale deed executed and registered the plaintiff suffered huge loss on account of bank interest as well as business, as such, the plaintiff is entitled to forfeit the advance price paid by the purchaser.
12. He further submits that the purchaser-defendant did not make payment of interest at the rate of 2% per months and on that account the plaintiff also entitled to get the arrear interest at the rate of Taka 6,00,000 (six lac) per months from the purchaser. The trial court while decreeing the suit made the forfeiture of the advance money valid, but did not decree the arrear interest which the plaintiff legally entitled to recover from the defendant, as such, the trial court committed no illegality in decreeing Other Class Suit No. 331 of 2013 and dismissing Money Suit No. 08 of 2015.
13. He submits that the money suit filed by the purchaser is a counter blast of Other Class Suit No. 331 of 2013 and it was filed only to save the purchaser from further payment of interest to the seller. It is argued that when the transaction falls through by reason of the default or failure of the purchaser the seller is entitled to forfeit the advance or earnest money paid by the purchaser, as the advance money paid to the seller is a security for performance of the contract as per terms and conditions embodied therein. In the instant case from the plaint, written statement, evidences led by both the parties as PWs and DWs amply established that the purchaser was not at all willing to get the sale deed executed and registered upon payment of balance amount to the seller, as such, the purchaser is a guilty on non-performance of the contract. Where a party to the contract is found guilty of non-performance of contract or in default that party is liable to compensate other party to the agreement. Here the purchaser being defaulted in performing their part of the contract, the seller is entitled to forfeit the earnest money paid by the purchaser in accordance with law, as such, the court below rightly decreed Other Class Suit No. 331 of 2013 and dismissed Money Suit No. 08 of 2015.
14. Heard the learned Advocates of both the sides, have gone through the appeal memo and the grounds setforth therein, plaint and written statement in both the suits along with the amendments and additional written statements, evidences led by the parties both oral and documentary available in lower court records and impugned judgment and decree of the trial court.
15. Admitted case of the parties are that the seller and the purchaser entered into a registered agreement No. 22252 dated 31-10-2011 (exhibit-1) for purchase of schedule- property at a consideration of Taka 3,45,00,000 (three crore and forty-five lac), similarly, entered into another agreement No. 22253 dated 31-10-2011 for purchaser of schedule-2 property at a consideration of Taka 1,05,00,000 (one crore and five lac). The purchaser made advance payment of Taka 95,00,000 (ninty-five lac) out of total consideration of Taka 3,45,00,000 (three crore and forty-five lac) for the schedule-1 property, leaving a balance of Taka 2,50,00,000 (two crore and fifty lac) and also made payment advance of Taka 55,00,000 (fifty-five lac) out of 1,05,00,000 (one crore and five lac) for schedule-2 property leaving a balance of Taka 50,00,000 (fifty lac). There was an undertaking executed by both the parties on the same date providing some terms that the period for conclusion of the transaction shall be extended upto 31-12-2013 and upto that date the purchaser shall make payment of interest at the rate of 2% per months on the balance consideration of Taka 3,00,00,000 (three crore) amounting to Taka 6,00,000 (six lac) to the seller. As appearing from the written statement and the evidences led, the purchaser made payment of Taka 63,00,000 (sixty-three lac) to the seller on account of interest which is admitted by the plaintiff seller before the trial court while was cross examined by the defendant. It is also not denied that the purchaser made payment of Taka 83,00,000 (eighty-three lac) in total including interest to the seller subsequent to the agreements and undertaking.
16. The purchaser claimed that they made payment of Taka 20,00,000 (twenty lac) to the seller as part payment of balance consideration against two agreements Taka 10,00,000 (ten lac) each, consequently, the balance amount stood at Taka 2,40,00,000 (two crore forty lac) against the first schedule and 40,00,000 (forty lac) against the second schedule. As such, the purchaser made advance to the seller on account of consideration money amounting to Taka 1,70,00,000 (one crore and seventy lac) as claimed by them. From perusal of oral evidences we find correctness of the claim of the purchaser and admitted .by the seller.
17. Now, the question before us whether the seller filed the suit and served the legal notices upon the purchaser contrary to the terms and conditions of the agreement and undertaking.
18. Admittedly, two registered agreements for sale were executed and registered on 31-10-2011 which provides terms for conclusion of the transactions within one year only. On the same date by an undertaking duly notarized by the Notary Public executed by both the parties, terms and conditions of the original agreement was changed in respect of time for conclusion of the transaction and payment of interest at the rate of 2% per month on the balance amount of Taka 3,00,00,000 (three crore). By the undertaking the time for conclusion of the transaction was further extended but there is no stipulation that in the event of failure of the purchaser to pay interest per month to the seller the undertaking shall stand cancelled or the seller shall be entitled to forfeit the money whatever paid to the seller, it means that, both the agreements or undertaking had no consequences as penalty for failure of any of the party. The registered agreement for sale in its clause 3 and 9 provides only that the purchaser shall conclude the transaction within one year and shall get the sale deed executed and registered upon payment of balance consideration to the seller, in default both the agreements for sale shall stand cancelled. Similarly, the seller shall execute and register the sale deed in favour of the purchaser upon receipt of the balance consideration, handover all the title deeds to the purchaser and deliver possession within that period. The time for conclusion of transaction was extended by subsequent undertaking upto 31-12-2013 subject to payment of interest at the rate of 2% per months. Therefore, within the currency of the undertaking the seller was entitled to get interest at the rate of 2% per months from the purchaser and the seller could have demanded the interest accrued on the balance consideration from the purchaser by letter or legal notice demanding payment of such interests, but in the instant case the seller during subsistence of the period for conclusion of the contract, by alleged legal notices dated 23-4-2013 demanded balance consideration of the property and asked the purchaser to get the sale deed registered within 15 days, whereas the purchaser had time to perform their obligation or conclude the transactions upto 31-12-2013. As such, the seller cannot serve such legal notices contrary to the terms and conditions of the agreement and undertaking, moreover, the seller after service of legal notices received Taka 50,000 (fifty thousand) from the purchaser on 23-8-2013 on account of interest, it means that till 23-8-2013 there was no dispute between the parties about time limit and the seller took no stand that because of failure of payment of monthly interest on the balance money to the seller, the transaction between the parties has become frustrated rather by receiving that amount the seller consented that the transaction between the parties shall subsist upto 31-12-2013.
19. It is not understandable, what has prompted the seller to serve legal notice, upon the purchaser demanding payment of balance consideration and execution of sale deed in favour of the purchaser as well as filing of the suit before expiry of period provided in the undertaking, where the agreement itself explicitly provided the term that after expiry of the period agreed in between the parties to the contract, the agreement shall stand cancelled. Therefore, when the suit was filed by the seller praying for cancellation of the agreement for sale on 6-10-2013, the period of agreement was subsisting and in its plaint only stated that the purchaser-defendant has failed to obtain sale deed from the seller upon payment of balance consideration within one year from the date of execution and registration of the agreement, referring terms and conditions embodied therein, but nowhere in the plaint disclosed execution of an undertaking on 31-10-2011 and claimed forfeiture of earnest money or arrear interests and compensation.
20. Now, the question arises, whether the seller can claim and the court on its own motion can forfeit the advance made by the purchaser.
21. The plaintiff got the plaint amended on four times. Firstly, on 17-8-2016 by correcting valuation of the suit, secondly, on 10-10-2016, added statements regarding loan of the bank, decree in favour of the bank, filing of execution case for recovery of money, thirdly, on 30-1-2017, for the first time the plaintiff disclosed that there was an undertaking between the parties which provides payment of interest @ 2% per months, fourthly, in the month of February 2018 denying payment of interests by the purchaser to seller. Though the plaintiff by way of amendment on 10-10-2016 after three years of filing of the suit incorporated statement of taking loan from the bank as well as private loan and adjustment of the same but did not state a single figure how much loan was outstanding, how much interest he paid, how much loan from private sources he obtained and for non-compliance of the terms and conditions of the agreement by the purchaser, how much amount he suffered loss. In forfeiting any earnest money made by the purchaser to the seller there must be a definite case of the seller that he suffered a quantified loss for non-performance of the contract by the purchaser, but in the present suit we find that such claim of the plaintiff is totally absent though a lump statement has been incorporated at paragraph three of the plaint by way of amendment in the year 2016. On a vague statement the plaint was filed, moreover, the plaintiff while deposing before the trial court as PW in support of his case did not utter a single word that he has suffered loss of taka so and so for failure of the purchaser to conclude the transaction as per terms and conditions of the of the agreement.
22. In the absence of any stipulation in the agreement for sale and undertaking in respect of forfeiture of advance money for default of the purchaser as well as in the absence of pleading or statements specifically mentioning the quantum of loss and the manner of suffering such loss for breach of contract, advance price made by the purchaser cannot be forfeited unless a loss in explicit term is pleaded by the claimant in the plaint and on oath. Apart from this, in the event of having a clause for forfeiture of earnest money in the contract, it can be seen whether for non-performance of the contract the seller has suffered any loss and forfeiture by the seller is reasonable and legal in law. If the seller suffered no loss for non- performance of the contract and the value of the land is not decreased, rather increased by laps of time, in that case also, the seller cannot forfeit the earnest money. Besides, the seller has been deriving advantage from the advance paid by the purchaser and enjoying the property throughout this period.
23. To claim compensation or forfeiture of earnest money it is a sine qua non for the claimant to prove that for failure of the purchaser, the seller has suffered loss, that should be quantified. In the present case in one hand there is no forfeiture clause in the agreement, on the other hand, the seller could not prove by any evidence before the trial court how he has suffered loss and what amount of loss he has suffered, moreover, in the plaint at paragraph No. 3, the plaintiff clearly stated that he paid all the outstanding dues of the bank and got relieved from loan, definitely with the money given by the purchaser as advance, therefore, in the absence of any proof of damage arising from the breach of the contract, the advantages derived from the enjoyment of earnest money and possession of the property during all this period would be sufficient compensation to the seller and, as such, the trial court while decreeing the suit for cancellation of the agreements cannot pass an order justifying forfeiture of the earnest money by the seller.
24. The trial court in its judgment observed that the earnest money was primarily a security for the due performance of the alleged bainapatra and since the purchaser wilfully disregarded the terms and conditions of the contract, the plaintiff seller is entitled to forfeit the entire deposit but failed to find that while the seller served alleged legal notices upon the purchaser asking them to pay the balance consideration and get the sale deed executed and registered within 15 days, the period mutually agreed upon between the parties was not expired, as such, the seller cannot ask the purchaser to get the sale deed registered within 15 days by notice dated 23-4-2013. It must be borne in mind that purchaser is not bound to wait an indefinite time; if he can arrange balance consideration and offers the sellers and demand execution of sale deed, the seller is bound to complete the transaction, but the seller cannot terminate the agreement and forfeit earnest money before expiry of the period, but he is to wait till last day of agreement. Moreover, when the suit was filed the period of agreement was subsisting and the attempt whatever taken by the seller during subsistence of the period of the contract either by serving legal notice asking the purchaser to get the sale deed registered within 15 days or by filing the suit in the month of October, 2013, three months ahead from the date of expiry, the plaintiff seller is not at all entitled to forfeit the advance paid to him. Accordingly, the seller very consciously did not serve legal notice upon the purchaser finally taking stand that for the failure of the purchaser to obtain sale deed both the agreements stand cancelled and the money paid in advance have become forfeited and not prayed for such forfeiture or recovery of payment of arrear interests and compensation in the plaint at the time of filing of the suit or by subsequent amendment. The conduct of the seller amply established that they only wanted to get the agreement cancelled and not wanted to have the earnest money forfeited or any arrear interests to be recovered.
25. The trial court put emphasis on various sections of the Contract Act, such as, sections 37, 53, 55, 73 and 74 which provides liability of the party to the contract, failure to perform the contract within fixed time, compensation for loss or damage caused by the breach of contract and the penalty for non-compliance of the obligation by one party. To fix the liability of the purchaser, the trial court tried to link all those provisions with the conduct and behaviuor of the purchaser, but failed to find that none of the provision of sections 53, 55, 73 and 74 of the contract Act, apply in the instant case. Here, to make the purchaser defaulter the seller ought to have awaited upto 31-12-2013 and before that date, in our view, the purchaser cannot be made guilty of non performance of his part of obligation except payment of interests to the seller. The seller-plaintiff acted in contravention to the terms and conditions of the agreement firstly, by serving notices dated 23-4-2013 asking the purchaser to get the sale deed registered within 15 days, secondly, by filing the suit on 6-10-2013 before three months of expiry of the agreement. Such act, and steps amply proved that they wanted to get rid of the contract themselves, otherwise they would have awaited upto 31-12-2013 or can ask the purchaser to conclude the transaction at least for the schedule-2 property as the purchaser made advance of Taka 1,50,00,000 which covers entire consideration of the schedule-2 property valued at Taka 1,05,00,000. As such, because of absence of any clause in the agreement, forfeiture of advance money and claiming any compensation or penalty as well as because of serving legal notice and filing suit before expiry of period of the agreement, the seller/plaintiff in suit made him disentitled to forfeit the advance money paid by the purchaser.
26. The trial court ought to have found that this is a suit only for cancellation of agreement, not for forfeiture of earnest money or for compensation in the form of penalty. Therefore, in view of the observations made hereinabove, the trial court ought not to have dismissed the Money Suit No. 08 of 2015 making the forfeiture valid and legal, decreeing Other Class Suit No. 331 of 2013. It is to be mentioned that the defendant purchaser by filing written statement though claimed that they offered the balance consideration money to the seller on 30-12-2013 and demanded execution and registration of the sale deed, but the seller refused, but in cross, the defendant purchaser clearly stated that they are not willing to purchase the property and claimed refund of the advance money paid to the plaintiff. This fact constitutes that neither the seller nor the purchaser at the time of hearing of the suit were in a position to conclude the transaction in terms of the agreement, already stood cancelled. In one hand the plaintiff seller dealt the matter not in accordance with the terms and conditions of the agreement and undertaking, on other hand, the purchaser is also was at fault in paying monthly interests to the seller, but they had time to conclude the transaction upto 31-12-2013 and they could have made payment of balance consideration money along with interest accrued on the balance consideration by installment or at a time to the seller, that's why, the seller ought to have waited till expiry of the period but in not doing so made them disentitled to claim arrear interest, and forfeiture of the earnest money alleging fault of the purchaser. The plaintiff in suit took step for terminating the agreement and concluding the transaction before expiry of the period by service of notice giving 15 days time to which ultimately the seller has given a go bye receiving subsequent amount of Taka 50,000 on 23-8-2013 from the purchaser, waiving the right whatever accrued in favour of the seller for non-payment of monthly interest as per terms of the undertaking.
27. From the facts and circumstances and evidences available in record we find that cancellation of the agreement in between the parties was found in order by the trial court, but forfeiture of earnest money, shifting all the liabilities upon the purchaser without putting him on notice is found to be unjust and not supported by law. Therefore, the trial court committed error in decreeing the suit forfeiting the advance paid to the seller, but rightly decreed the suit for cancellation of the agreement. On the other hand, it has committed illegality in not decreeing the Money Suit No. 08 of 2015, finding absence of any forfeiture clause, assertion of loss and injury suffered by the seller, specific pleadings, evidences both oral and documentary, as such, the seller is not entitled to retain or forfeit the earnest money and part payment against the consideration.
28. In view of the above, we find merit in these appeals as well as in the submissions of the learned Advocate for the appellant.
29. In the result, First Appeal No. 315 of 2017 is allowed in part so far it relates to forfeiture of the advance paid to the seller without costs.
30. Judgment and decree in Other Class Suit No. 331 of 2013 is maintained so far it relates to cancellation of agreement for sale and the rest regarding forfeiture of the earnest money is hereby set- aside.
31. First Appeal No. 385 of 2017 is allowed with costs.
32. Judgment and decree of the trial court passed in Money Suit No. 08 of 2015 is hereby set-aside and the suit is decreed with costs.
33. The defendant seller in Money Suit No. 8 of 2015 is hereby directed to refund the earnest money or advance to the plaintiff within 60 days from the date of judgment and decree, failing which the plaintiff shall be entitled to recover the said money through court.
Communicate a copy of this judgment to the court concerned and send down the lower court records at once.
End.
High Court Division (Special Original Jurisdiction)
Present:
Mr. Justice Md. Nazrul Islam Talukder
And
Mr. Justice S.M. Mozibur Rahman
Writ Petition No. 3829 of 2019
Atiqur Rahman (Md.) and Ors.
------------- Petitioners
VS
Bangladesh and Ors.
------- Respondents
Judgement Date : September 28, 2021
Counsels:
Mr. Probir Niogi, Senior Advocate with Mr. Md. Munir-uz-zaman and Ms. Anita Gazi Rahman, Advocates
—For the Petitioners.
Mr. A.K.M. Amin Uddin, DAG with Mrs. Anna Khanom Koli, AAG and Mr. Md. Shaifour Rahman Siddique, AAG
—For the Respondents.
Judgment
Md. Nazrul Islam Talukder, J:
1. On an application under Article 102 of the Constitution of the People's Republic of Bangladesh, the Rule Nisi was issued calling upon the respondents to show cause as to why the impugned notices dated 19-3-2019 under Memo No. 00.01.0000.502.01.007.19/10746 and Memo No. 00.01.0000.502.01.007.19/10745 respectively under sections 19 and 20 of the Anti-Corruption Commission Act, 2004 and Rule 20 of the Anti-Corruption Commission Rules, 2007 read with section 160 of the Code of Criminal Procedure issued by the Respondent No. 3 (Annexure-Q and Q-1) directing the petitioners to appear and make statement regarding evasion of registration fees and taxes at the time of purchase and registration of the land in question, before the Respondent No. 3 following the application dated 11-12-2018 (Annexure-N) filed by the Respondent No. 5, shall not be declared to have been passed/issued without lawful authority and are of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. The facts leading to issuance of the Rule Nisi are as follows:
a) that Bangladesh Shilpa Rin Sangstha (in short BSRS), now Bangladesh Development Bank Limited (in short BDBL) filed Miscellaneous Case No. 15 of 1987 before the Court of learned District Judge, Dhaka under the provision of President Order No. 128 of 1972 against the Respondent No. 5's Company namely the United Trading Corporation Limited for realization of its loan. By an order dated 25-8-1989, the learned trial Judge attached the schedule property before the judgment. Thereafter the said Miscellaneous Case No. 18 of 1987 was transferred to the Court of learned Subordinate Judge and the Artha Rin Adalat, Dhaka, 2nd Court and the same was renumbered as Title Suit No. 01 of 1999. The suit was decreed on 24-5-1999 in favour of the successor of BSRS i.e. Bangladesh Development Bank Limited (herein-after referred to as BDBL). The aforesaid fact is evident from the judgment and decree dated 24-5-1999 passed in Title Suit No. 1 of 1999 which are annexed with the writ petition and marked as Annexure-A and A-1.
b) that on 31-5-1999, BDBL filed Artha Execution Case No. 18 of 1999 for an amount of Taka 3,62,83,864.84 (three crore sixty two lac eighty three thousand eight hundred sixty four taka eighty four paisa) only and the attached scheduled land was sold at a price of Taka 25 crore to the petitioners namely Standard Stitches Limited and Standard Group Limited and one Md. Arifur Rahman and the Respondent No. 4 under section 38 of the Artha Rin Adalat Ain, 2003 and accordingly, the execution Court executed a registered sale certificate dated 27-2-2013 in favour of the purchasers and delivered possession of the suit land to the purchasers on 20-5-2014 pursuant to the Sale Certificate No. 5 dated 27-2-2013 through writ for delivery of possession. The aforesaid fact is evident from the sale certificate being No. 5 dated 27-2-2013 which is annexed with the writ petition and marked as Annexure-B. At the time of registration of sale certificate, the authority concerned realized Taka 75,000,000 as registration fees, stamp fees and other fees from the petitioners.
c) that Rajhani Unnayon Kartipakkha (hereinafter referred to as RAJUK) filed Writ Petition No. 4800 of 2014 before the High Court Division challenging the above mentioned sale and obtained a Rule Nisi and order of stay of all further proceedings of the Artha Execution Case No. 18 of 1999; against the said order of stay, the petitioners filed Civil Petition For Leave To Appeal No. 1225 of 2014 before the Appellate Division of the Supreme Court of Bangladesh and considering the delivery of possession of the suit land to the petitioners, on 20-7-2014, the Appellate Division passed an order of status-quo in respect of possession and position of the land in question till disposal of the Rule. The aforesaid fact is evident from the certified copy of the order dated 20-7-2014 which is annexed with the writ petition and marked as Annexnre-C.
d) that a Division Bench of the High Court Division of the Supreme Court of Bangladesh upon hearing the parties discharged the Rule by the judgment and order dated 4-4-2016 and against the said judgment and order, the RAJUK preferred Civil Petition For Leave To Appeal No. 3269 of 2016 and after hearing, the Appellate Division dismissed the same by the judgment and order dated 3-8-2017. The aforesaid fact is evident from the judgment and order dated 4-4-2016 and 3-8-2017 which are annexed with the writ petition and marked as Annexure-D and D-1.
e) that one Khandaker Nazrul Islam Khokon being third party filed Writ Petition No. 7156 of 2014 before the High Court Division challenging Miscellaneous Case No. 15 of 1987 and the High Court Division issued Rule which reads as under:
"why the entertainment and adjudication of the Miscellaneous Case No. 15 of 1987 of the Subordinate Judge and Artha Rin Adalat No. 2 at Dhaka by the Respondent No. 1 filed by the Respondent No. 2 under Article 33 of the Bangladesh Shilpa Rin Sangstha Order 1972 vide Annexure-F, H and I(1) and why consequently negotiate sale of petitioner property being holding No. 54 Mohakhali Commercial Area within the City of Dhaka through the process of Artha Jari Case No. 18 of 1999 of the 2nd Artha Rin Adalat of Dhaka arising out of Miscellaneous Case No. 15 of 1987 of the Court of Subordinate Judge and Artha Rin Adalat No. 2 at Dhaka vide Annexure-I and J shall not be declared to have been passed without lawful authority and is of no legal effect"; thereafter a Division Bench of the High Court Division upon hearing the parties discharged the said Rule by the judgment and order dated 16-3-2016. The aforesaid fact is evident from the judgment and order dated 16-3-2016 which is annexed with the writ petition and marked as Annexure-E.
f) that another individual named Faisal Morshed Khan as third party also filed Writ Petition No. 5196 of 2013 challenging Order No. 111 dated 7-4-2013 rejecting the application of the petitioner on 31-3-2013 for stay of further proceeding in relation to sale, transfer or handover of the suit land and Order Nos. 102, 103 and 104 passed by the learned Judge of the 2nd Court of Artha Rin Adalat, Dhaka transferring the suit land to the petitioners of this instant case and obtained a Rule Nisi and order of stay of all further proceeding of the Artha Jari Case No. 18 of 1999; against the said order of stay, the petitioners filed a Civil Petition For Leave To Appeal No. 1241 of 2013 before the Appellate Division of the Supreme Court of Bangladesh and the Appellate Division passed an order staying the above mentioned order of the High Court Division till disposal of the Rule by the judgment and order dated 13-11-2013; subsequently a Division Bench of the High Court Division upon hearing the parries discharged the Rule by the judgment and order dated 21-7-2016. The aforesaid fact is evident from the judgment and order dated 13-11-2013 and 21-7-2016 which are annexed with the writ petition and marked as Annexure-F and F-1.
g) that the petitioners and another purchaser i.e. Respondent No. 4 filed an application before the Rajdhani Unnayon Kartipatkho (RAJUK) for mutating their names for the case land pursuant to the above mentioned sale of the Court but without getting any response from RAJUK, the petitioners filed Writ Petition No. 6637 of 2016 before the High Court Division and obtained a Rule Nisi; subsequently on contested hearing, a Division Bench of High Court Division made the Rule absolute by the judgment and order dated 7-9-2016 considering and discussing all the issues and directed the RAJUK to mutate the name of the petitioners is respect of the case land within 60 days. The aforesaid fact is evident from the judgment and order dated 7-9-2016 which is annexed with the writ petition and marked as Annexure-G.
h) that for not complying with the judgment and order as to direction of High Court Division the petitioners filed Contempt Petition No. 82 of 2017 before the High Court Division and the High Court Division directed the RAJUK to comply with its earlier judgment and order dated 7-9-2016 passed in Writ Petition No. 6637 of 2016 within 2(two) months without fail by the order dated 10-10-2017. The aforesaid fact is evident from the order dated 10-10-2017 which is annexed with the writ petition and marked as Annexure-H.
i) that the Rajdhani Unnayan Kartipakkha (RAJUK) preferred a Civil Petition For Leave To Appeal No. 4124 of 2017 before the Appellate Division against the judgment and order dated 7-9-2016 passed in Writ Petition No. 6637 of 2016 regarding direction for mutating the name of the petitioners and after hearing the parties, the Appellate Division dismissed the same by the judgment and order dated 1-4-2018 holding the view that the respondents i.e. the present petitioners legally purchased the property through the Court and their title has become unassailable. The aforesaid fact is evident from the judgment and order dated 1-4-2018 which is annexed with the writ petition and marked as Annexure-I.
j) that in the meantime, the Respondent No. 4 entered with an registered agreement for sale being No. 4186 dated 9-5-2016 for 3662.75 ajutangsha of above mentioned land with the petitioners namely Standard Group Limited and Standard Stitches limited receiving Taka 12,50,00,000 (twelve crore fifty lac) as earnest money out of total consideration of Taka 13,00,00,000 (Thirteen crore).
k) that on repeated request of the petitioners, the Respondent No. 4 failed to execute and register the sale deed as agreed; thus the petitioners were constrained to institute a suit for specific performance of contract before the Court of learned Joint District Judge, 1st Court, Dhaka being Title Suit No. 559 of 2016 against the Respondent No. 4 for execution of sate deed. The aforesaid fact is evident from the plaint which is annexed with the writ petition and marked as Annexure-J.
l) that during pendency of the said suit, on 21-11-2016, the Respondent No. 5 filed an application under Order 1 Rule 10(2) of the Code of Civil Procedure for addition of party stating, inter alia, that there was an earlier unregistered agreement with the Respondent No. 5 and on the basis of the said agreement, the Respondent No. 4 is bound to register the sale deed of the suit land in favour of him; subsequently the application was withdrawn by filing another applicant dated 26-1-2017 and in both the applications, it was stated that the Respondent No. 4 took Taka 35,00,00,000 from the Respondent No. 5 for his business purpose. The aforesaid fact is evident from the application for addition of party dated 22-11-2016 and order dated 26-1-2017 which are annexed with the writ petition and marked as Annexure-K and K-1.
m) that the Respondent No. 5 entered with an registered agreement for compromise being No. 2720 dated 12-4-2018 with the petitioners receiving Taka 1 crore, gave up his all claims and made an undertaking that he has no grievance against the above mentioned transfer between the petitioners and Respondent No. 4 and he will not make any complaint or allegation against the petitioners in connection with the above mentioned transfer. The aforesaid fact is evident from the photocopy of the registered agreement for compromise which is annexed with the writ petition and marked as Annexure-L.
n) that the above mentioned Suit No. 559 of 2016 was decreed on compromise on 28-2-2017 and the petitioners filed Title Execution Case No. 7 of 2017 and the learned executing Court, Joint District Judge, 1st Court, Dhaka executed and registered the sale deed being No. 3578 dated 22-5-2017 and since then the petitioners being the owners have been enjoying the said land within the knowledge of all concerned. The aforesaid fact is evident from the judgment and decree dated 20-2-2017 and 27-2-2017, order dated 16-5-2017 and the registered sale deed being No. 3578 dated 22-5-2017 which are annexed with the writ petition and marked as Annexure-M, M-1 M-2 and M-3.
o) that on 11-12-2018, the Respondent No. 5 with ulterior motive and in order to make unnecessary harassment filed an application along with two paper cuttings before the Respondent No. 2 against the petitioners for penal action alleging evasion of stamp duty and registration fee against the registration of above mentioned deed while executing and registering the same through the Court of law. The aforesaid fact is evident from the application dated 11-12-2018 which is annexed with the writ petition and marked as Annexure-N.
p) that on the basis of the above mentioned application, the Respondent No. 3 issued the impugned notices dated 20-1-2019 (Annexure-O and O-1) under section 19 and 20 of the Anti-Corruption Commission Act, 2004 and Rule 20 of the Anti-Corruption Commission Rules, 2007 read with section 160 of the Code of Criminal Procedure directing the petitioners to appear before the Respondent No. 03 along with documents with respect to the land of Plot No. 54, Mohakhali Commercial Area, Dhaka. The aforesaid fact is evident from the notices dated 20-1-2019 under Memo Nos. 2297 and 2298 which are annexed with the writ petition and marked as Annexure-O and O-1.
q) that on 20-1-2019, the petitioners filed two applications before the Respondent No. 3 seeking for one month time to collect the relevant papers and documents and thereafter the Respondent No. 3 extended the time till 31-1-2019 and issued two notices dated 27-1-2019 under Memo Nos. 3003 and 3005 (Annexure-P and P-1) directing the petitioners to appear before him along with documents with respect to the land of Plot No. 54, Mohakhali Commercial Area, Dhaka. The aforesaid fact is evident from the notices dated 27-1-2019 under Memo Nos. 3003 and 3005 which are annexed with Writ Petition No. 1087 of 2019 and marked therein as Annexure-P and P-1.
r) That on the basis of the above mentioned application (Annexure-N), the Anti-Corruption Commission earlier issued two notices dated 20-1-2019 and 27-1-2019 under sections 19 and 20 of the Anti-Corruption Commission Act, 2004 and Rule 20 of the Anti-Corruption Commission Rules, 2007 in the name of the petitioners two companies namely Standard Group Limited and Standard Stitches Limited respectively regarding the above mentioned purchase of the land.
s) That the petitioners' two companies namely Standard Group Limited and Standard Stitches Limited being petitioners filed a writ petition being No. 1087 of 2019 against the above mentioned notices dated 20-1-2019 and 27-1-2019 and after preliminary hearing in presence of the learned Advocate for the Anti-Corruption Commission, a Division Bench of this Division was pleased to issue Rule Nisi and stay the operation of the above mentioned notices for a period of 03 months by an order dated 11-2-2019. The aforesaid fact is evident from Annexure-P to the writ petition.
t) That during pendency of the above mentioned writ petition, the Anti-Corruption Commission under signature of the Respondent No. 3 issued a further notice dated 19-3-2019 under Memo No. 00.01.0000.502.01.007.19/10746 and Memo No. 00.01.0000.502.01.007.19/10745 respectively under sections 19 and 20 of the Anti-Corruption Commission Act, 2004 and Rule 20 of the Anti-Corruption Commission Rules, 2007 read with section 160 of the Code of Criminal Procedure issued by the Respondent No. 3 directing the petitioners to appear and make statement regarding evasion of registration fees and taxes for purchasing land before the Respondent No. 3 following the application dated 11-12-2018 (Annexure-N) filed by the Respondent No. 5. The aforesaid is evident from Annexure-Q and Q1 to the writ petition.
u) That on 28-3-2019, the petitioners filed two applications before the Respondent No. 3 requesting her to stay all further proceeding of the impugned notices till disposal of the above mentioned writ petition and after receiving of the said application, the Respondent No. 3 orally directed the petitioners to appear before her on 8-4-2019 with the documents. The aforesaid is evident from Annexure-R and R-1 to the writ petition.
3. Being aggrieved by the impugned notices, the petitioners approached this court with an application under Article 102 of the Constitution and obtained this Rule along with an order of stay of operation of the impugned notices.
4. At the very outset, Mr. Probir Niogi, the learned Senior Advocate along with Mr. Md. Munirnzzaman, Advocate and Ms. Anita Gazi Rahman, Advocate for the petitioners, submits that the petitioners and the Respondent No. 4 purchased the case land through the Court of law and the Rajdham Unnayan Kartipakkha (RAJUK) and 2 others filed 3 Writ Petitions being Nos. 4800 of 2014, 7156 of 2014 and 51% of 2013 challenging the legality of the said sale and all the writ petitions were discharged; thereafter the RAJUK preferred Civil Petition For Leave To Appeal No. 3269 of 2016 against of the judgment and order of Writ Petition No. 4800 of 2014 and the same was dismissed on 3-8-2017; thereafter the petitioners and the Respondent No. 4 filed Writ Petition No. 6637 of 2016 for direction upon the RAJUK to mutate their names; subsequently the said Rule was made absolute by the judgment and order dated 7-9-2016 and for non-compliance of the said order, the petitioners filed Contempt Petition being No. 82 of 2017 against the RAJUK and obtained a further order of direction; subsequently against the said judgment and order dated 10-10-2017, the RAJUK preferred Civil Petition For Leave to Appeal being No. 4124 of 2017 and the same was dismissed on 1-4-2018 with a finding that the respondents i.e. the present petitioners and Respondent No. 4 legally purchased the case property through Court and their title has become unassailable and, as such, the impugned notices directing the petitioners to appear and make statement regarding evasion of registration fees and taxes for purchasing land before the Respondent No. 3, are illegal, without jurisdiction and without lawful authority and are of no legal effect.
5. He next submits that the Respondent No. 4 purchased a portion of the case property through the Court and agreed to sell his portion to the petitioners by executing an agreement for sale and receiving earnest money; subsequently he denied to execute the sale deed by receiving the remaining consideration and thereby the petitioners filed a suit for specific performance of contract and obtained a decree and pursuant to the said decree, Title Execution Case being No. 7 of 2017 was filed and then the learned Judge of the executing Court, Joint District Judge, 1st Court, Dhaka executed and registered the sale deed being No. 3578 dated 22-5-2017 and thus there is no scope to re-open the same in the name of inquiry without permission of the Court and therefore the impugned notices are illegal, without jurisdiction and without lawful authority and are of no legal effect.
6. He then submits that the Stamp Act, 1899 and the Registration Act, 1908 have provided certain provisions for realizing unpaid duties or revenues if any, but provided no provision for filing any criminal proceeding under the provision of the Penal Code or under the provision of the Prevention of Corruption Act, 1947 for realizing unpaid duties or revenues and therefore, the impugned notices are liable to be declared illegal and without lawful authority and are of no legal effect.
7. He further submits that under section 63A of the Registration Act, 1908, the unpaid amount of duties for the deed not properly valued shall be realized from the concerned registering officer and under the provision of the Stamp Act, 1899, there are provision for realizing the revenues but without complying with those provisions of law, the Respondent No. 3 most illegally with mala fide intention started the process of inquiry against the petitioners pursuant to the application filed by the Respondent No. 5 and therefore, the impugned notices are liable to be declared without lawful authority and are of no legal effect.
8. He additionally submits that the sale deed was executed and registered by a competent court of law pursuant to a decree of specific performance of contract and, as such, without any order of the concerned court, there is no scope to proceed with the realization of shortage of payment of stamp duty or tax if any and therefore, the impugned notices of the Respondent No. 3 to proceed with the inquiry pursuant to the application (Annexure-N) filed by the Respondent No. 5 are liable to be declared without lawful authority and are of no legal effect.
9. He candidly submits that the Registration Act, 1908 and the Stamp Act, 1899 are not included in the schedule of the Durniti Damon Commission Act, 2004 and therefore the impugned notices of the Respondent No. 3 to proceed with the inquiry pursuant to the application (Annexure-N) filed by the Respondent No. 5 are liable to be declared without lawful authority and are of no legal effect.
10. Mr. Niogi, with reference to Clause 5.73 of the Constitutional law of Bangladesh (3rd edition) by Mahamudul Islam, submits that "a mala fide exercise of discretionary power is bad as it amounts to abuse of discretion"; in support of his submission, Mr. Niogi has referred to a legal decision taken in the case of Nur Mohammad vs. Mainuddin Ahmed, reported in 39 DLR (AD) 1, wherein it was held that "power conferred by or under any law must not be exercised mala fide or for collateral purpose. The mala fide act is an act without jurisdiction," and then Mr. Niogi has also referred to a legal decision taken in the case of Mohammad Ali vs. Burma Eastern reported in 38 DLR (AD) 41 wherein it was decided that "a mala fide act is by its nature an act without jurisdiction. No legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power".
11. Mr. Niogi vigorously submits that as per Rule 3(5) of the Anti-Corruption Commission Rules, 2007, the ACC shall not directly go for conducting inquiry in respect of complaints which have not been found to be prima facie correct and true by the Scrutiny Committee, but in the present case, the impugned notices have been issued upon the petitioners on the basis of a complaint filed by the Respondent No. 5 without satisfying itself as to the prime-facie correctness of the allegation.
12. Mr. Niogi further points out that the allegations made in the petition of complaint do not come within the purview of the scheduled offence of the ACC Act, 2004 and further, the provision of the Registration Act, 1908 and the Stamp Act, 1899 are available for realizing the shortage of payment of duties and taxes if any as alleged in the petition of complaint of the Respondent No. 5.
13. Mr. Niogi lastly submits that it appears from the petition of complaint of the Respondent No. 5 that the Respondent No. 2 has prior knowledge about the sale of the case land through the Court, thus the notices have been issued by exercising the discretion arbitrarily taking mala fide intention.
14. On the other hand, Mr. MA Aziz Khan, the learned Advocate appearing on behalf of the Anti-Corruption Commission (ACC) has contested the Rule and submitted affidavit-in-opposition denying the statements and grounds taken in the writ petition and categorically submits that the impugned notices dated 19-3-2019 under Memo No. 00.01.0000.502.01.007.19/10746 and Memo No. 00.01.0000.502.01.007.19/10745 respectively under sections 19 and 20 of the Anti-Corruption Commission Act, 2004 and Rule 20 of the Anti-Corruption Commission Rules, 2007 read with section 160 of the Code of Criminal Procedure issued by the Respondent No. 3 (Annexure-Q and Q-1) directing the petitioners to appear and make statement regarding evasion of registration fees and taxes for purchasing land before the Respondent No. 3 following the application dated 11-12-2018 (Annexure-N) filed by the Respondent No. 5, were issued for fact finding inquiry for discovering the truth which will go to assist the Commission either to proceed further by lodging an FIR or to keep the complaint with the record if found to be without any basis and, as such, since the impugned notices are the parts of fact finding process under the relevant law, the writ petition is not at all maintainable.
15. He next submits that it is by now a settled law that sub-section (1) and (2) of section 19 of the ACC Act, 2004 have given wide jurisdiction to the Anti-Corruption Commission to inquire into and investigate any allegations whatsoever as covered in its schedule and in doing so, the Commission may direct any authority, public or private, to produce relevant documents and the person concerned shall be bound to comply with the direction.
16. He then submits that the impugned notices dated 19-3-2019 under Memo No. 00.01.0000.502.01.007.19/10746 and Memo No. 00.01.0000.502.01.007.19/10745 respectively under sections 19 and 20 of the Anti-Corruption Commission Act, 2004 and Rule 20 of the Anti-Corruption Commission Rules, 2007 read with section 160 of the Code of Criminal Procedure issued by the Respondent No. 3 (Annexure-Q and Q-1) directing the petitioners to appear and make statement regarding evasion of registration fees and taxes for purchasing land before the Respondent No. 3 following the application dated 11-12-2018 (Annexure-N) filed by the Respondent No. 5, have been issued in respect of an allegation of evading registration fees and taxes at the time of registration of the sale deed through corruption and hence, such allegations clearly fall within the schedule offence of the Anti-Corruption Commission Act, 2004.
17. He candidly submits that the allegation of 'mala fide exercise of power by the Anti-Corruption Commission' as raised by the petitioners is baseless inasmuch as no facts showing the allegation of malice to have a basis have been narrated by the writ petitioners anywhere in the writ petition or in the supplementary affidavits and hence, the allegation of lack of jurisdiction because of malice in fact is not tenable in the facts and circumstances of the case.
18. He additionally submits that the impugned notices were issued bona fide as a fact finding process and to hear the story of the writ petitioners and the writ petitioners had ample opportunity to appear before the Commission and present their cases with documents and the writ petitioners by submitting applications for extension of time had in fact accepted the position that they would appear before the Commission and submit their cases and relevant documents.
19. He vigorously submits that the allegations against the writ petitioners being "যমুনা ব্যাংক লিঃ এর সাবেক চেয়ারম্যান জনাব আরিফুর রহমান, বর্তমান চেয়ারম্যান মোশারফ হোসেন ও পরিচালক জনাব আতিকুর রহমান এর বিরুদ্ধে জমি ক্রয় করে ১ কোটি টাকার দলিল রেজিট্রেশন ফি ও ট্যাক্স ফাঁকি দেয়ার অভিযোগ" are very serious in nature and the same requires a thorough inquiry in order to decipher the veracity of those allegations and, as such, the Rule Nisi issued in the instant writ petition is liable to be discharged for ends of justice so as to allow the Commission to discharge its functions as per law.
20. He then points out that the Anti-Corruption Commission has the authority to questioning any person about the correctness of its documents as a fact finding process and unless and until any legal action is initiated on the basis of the said findings, there is no scope to review the matter in writ jurisdiction and thus the writ petition is a pre-matured one; in support his submission, the learned Advocate has referred to a legal decision taken in the case of Sonali Jute Mills Ltd. vs. ACC reported in 22 BLC (AD) 147 wherein it was held that "sub-section (1) and (2) of the section 19 have given wide jurisdiction to the Commission to enquire into and investigate any allegations whatsoever as covered in its schedule and in doing so, the ACC may direct any authority, public or private to produce relevant documents".
21. He lastly submits that the submission of the learned Advocate for the writ petitioners is that the Commission has already come to know about the relevant facts through the instant writ petition is a dangerous proposition inasmuch as if such proposition is accepted, then every time if mere is a notice issued by the Anti-Corruption Commission under sections 19 and 20 of the Anti-Corruption Commission Act, 2004, the same will trigger filing of a writ petition which will open a floodgate and in the facts and circumstances of the instant case, there is no justification for allowing anyone to trigger that floodgate to open and considering all the aspects of this matter, the Rule may be discharged.
22. The Respondent No. 5 Md. Sekender Ali Moni has also submitted affidavit-in-opposition stating, inter-alia, that the present deponent filed the application dated 11-12-2018 to the Anti-Corruption Commission neither with ulterior motive nor in order to harass the petitioner but out of grudge and resentment derived from non-cooperation of Mr. Atiqur Rahman, the Chairman of Standard Group Limited and Standard Stitches Limited, in recovery of outstanding debts from the sale proceeds of land received by the friend of the present respondent, Mr. Md. Arifur Rahman, the vendor of land who is impleaded in the instant writ petition as Respondent No. 4; that the Respondent No. 5 was unable to conceive that the consequence of the application dated 11-12-2018 would be so harassing to Mr. Md. Atiqur Rahman, who is the Chairman of Standard Group and Standard Stitches and Chairman (former Director) of Jamuna Bank Limited with whom the present deponent has no enmity and for this consequence of the application, the present deponent feels discomfort and feeling so the present deponent on 8-7-2019 filed an application to the Anti-Corruption Commission seeking for withdrawal of the implication of the present deponent dated 11-12-2018 and the present deponent also sworn an affidavit to that effect on the same day. The aforesaid fact is evident from the application and affidavit dated 8-7-2019 which are annexed with the affidavit-in-opposition filed by the Respondent No. 5 and marked as Annexure 1 and 1-A.
23. Mr. AKM Amin Uddin, DAG along with Mrs. Anna Khanom Koli, AAG and Mr. Md. Shaifour Rahman Siddique, AAG appearing on behalf of the Respondent No. 1, has adopted the submissions made by the learned Advocate for the Anti-Corruption Commission.
24. We have gone through the writ petition, the supplementary affidavits and, the affidavit-in-oppositions submitted by the Respondent Nos. 2 and 5 and perused all the materials annexed therewith. We have also heard the learned Advocates for the writ petitioners, the Anti-Corruption Commission, the Respondent No. 5 and the learned Deputy Attorney-General for the respective parties and considered their submissions to the best of our wit and wisdom.
25. On perusal of the record, it appears that admittedly the writ petitioners purchased the case land through the court by way of sale certificate and the learned judge of the Execution Court handed over possession of the land to the petitioners by way of writ for delivery of possession. Challenging the said sale, several writ petitions and leave petitions were filed and ultimately all of them were discharged and dismissed. The writ petitioners as auction purchasers having failed to mutate their names against their purchased property filed Writ Petition No. 6637 of 2016 against RAJUK and the said Rule was made absolute by a Division Bench of this Division. Then RAJUK filed Civil Petition for Leave to Appeal No. 4124 of 2017 before the Appellate Division against the said judgment of the High Court Division and the same was dismissed on 1-4-2018 with a findings that the writ petitioners have legally purchased the case property through Court and their title has become unassailable. Thus the matter at hand is a judicially decided one and subsequent questioning about the said documents of purchase without reviewing the same is violative of the right of property of a citizen as guaranteed under Article 42 of the Constitution. Though during pendency of the instant Rule Nisi, review petition was filed by RAJUK being No. 247 of 2019, but the same was dismissed on 16-1-2020.
26. It may be mentioned that when any legal issue is finally decided by the apex Court of the country, any initiative to re-open the same issue by any authority of the government or statutory authority like ACC in the name of exercise of discretionary power without prior approval of the Court, is absolutely mala fide and abuse of discretionary power. The aforesaid view finds support in Clause 5.73 of the Constitutional law of Bangladesh (3rd edition) by Mahamudul Islam, wherein it is stated that "a mala fide exercise of discretionary power is bad as it amounts to abuse of discretion"; The aforesaid view is also supported by a legal decision taken in the case of Nur Mohammad vs. Mainuddin Ahmed case reported in 39 DLR (AD) 1, wherein it was held that "power conferred by or under any law must not be exercised mala fide or for collateral purpose. The mala fide act is an act without jurisdiction" and similar view has been expressed in the legal decision taken in the case of Mohammad Ali vs. Burma Eastern reported in 38 DLR (AD) 41 wherein it was decided that "a mala fide act is by its nature an act without Jurisdiction. No legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power".
27. It is true that the ACC is empowered by law to inquire into any allegation whatsoever as covered in its schedule and in doing so may direct any authority, public or private to produce relevant documents but the same must be bona fide and lawful in nature. In affidavit-in-opposition, the ACC has stated that the impugned notices were issued on the basis of the complaint made by the Respondent No. 5.
28. Now let us see the said complaint (Annexure-N) annexed to the writ petition. On the 1st page of the complaint, it is stated that "আরিফুর রহমানের নামে ১ বিঘার কিছু বেশি অংশ ও আতিকুর রহমান ও মোশারফ হোসেনের ফার্মের নামে ১ বিষার কিছু বেশি অংশ আদালতে সেটেলমেন্ট সেলের মাধ্যমে ক্রয় করেন" It is further stated on the said page that "আদালত কর্তৃক জমি রেজিষ্ট্রেশন ও দখল বুঝাইয়া দেওয়ার পর আমি চেকগুলি নিয়ে ব্যাংকে গেলে সবগুলি চেকই বাউন্স হয়।" So, from the statements of the complaint, it is evident that the ACC was clearly informed about the purchase and handing over possession of the case land through court and thus the notices upon the purchasers of the said sale bringing an allegation as "বমুনা ব্যাংক লিঃ এর সাবেক চেয়ারম্যান জনাব আরিফুর রহমান, বর্তমান চেয়ারম্যান মোশারফ হোসেন ও পরিচালক জনাব আতিকুর রহমান এর বিরুদ্ধে জমি ক্রয় করে ১ কোটি টাকার সলিল রেজিস্ট্রেশন ফি ও ট্যাক্স ফাঁকি দেয়ার অভিযোগ" are not bona fide rather mala fide and also infringement of the fundamental right of property of the petitioners as guaranteed by the Constitution.
29. Further, as per Rule 3(5) of the Anti-Corruption Commission Rules, 2007, the ACC shall not directly go for conducting inquiry in respect of complaints which have not been found to be prima-facie correct and true by the Scrutiny Committee, but in the present case the impugned notices have been issued upon the petitioners neither without holding any initial scrutiny, nor examining the context of the complaint thoroughly which causes the un-necessary consumption of the valuable time of the court as well as harassing the citizens without any reason.
30. With reference to the legal decision taken in the case of Sonali Jute Mills Ltd. vs. ACC reported in 22 BLC (AD) 147, the submission of the learned Advocate for the ACC is that sub-section (1) and (2) of section 19 have given wide jurisdiction to the Commission to inquire into and investigate any allegations whatsoever as covered in its schedule and in doing so, the ACC may direct any authority, public or private to produce relevant documents. But the allegation under the instant inquiry which is admittedly initiated on the allegation as stated in the application dated 11-12-2018 (Annexure-N) filed by the Respondent No. 5 with regard to taking possession of RAJUK plot unlawfully creating forged documents and evasion of registration fees and other duties for registering a deed of sale does not come within the schedule offences of the Anti-Corruption Commission Act, 2004 rather it may come under the purview of section 63A of the Registration Act, 1908 and under the provision of Stamp Act, 1899 and thus the said case law is not applicable to the case of the petitioners. It appears from the annexures of the writ petition that the subsequent sale between the petitioners and the Respondent No. 4 was also held by a Court of law pursuant to a decree of specific performance of contract and thus there is no scope of taking possession of RAJUK plot unlawfully creating forged documents and evasion of registration fees and stamp fees at all. Apart from these, during pendency of the Rule, the Respondent No. 5 has withdrawn his complaint from the ACC and filed affidavit before this Court in support of the petitioners and thus the complaint itself has become susceptible.
31. It may be noted that on the basis of the application (Annexure-N) filed by the Respondent No. 5, the Anti-Corruption Commission earlier issued two notices dated 20-1-2019 and 27-1-2019 under sections 19 and 20 of the Anti-Corruption Commission Act, 2004 and Rule 20 of the Anti-Corruption Commission Rules, 2007 read with section 160 of the Code of Criminal Procedure directing the petitioners two companies namely Standard Group Limited and Standard Stitches Limited respectively to appear before the Respondent No. 3 along with the documents with respect to Plot No. 54, Mohakhali Commercial Area, Dhaka.
32. Being aggrieved the same, the petitioners' two companies namely Standard Group Limited and Standard Stitches Limited being petitioners filed Writ Petition being No. 1087 of 2019 against the above mentioned notices dated 20-1-2019 and 27-1-2019 and after preliminary hearing in presence of the learned Advocate for the Anti-Corruption Commission, a Division Bench of this Division was pleased to issue Rule Nisi and stay the operation of the above mentioned notices for a period of 03 months by an order dated 11-2-2019. Subsequently, the period of stay was extended by this Court time to time.
33. During pendency of the above mentioned writ petition, the Anti-Corruption Commission under signature of the Respondent No. 3 issued a further notice dated 19-3-2019 under Memo No. 00.01.0000.502.01.007.19/10745 and Memo No. 00.01.0000.502.01.007.19/10745 respectively under sections 19 and 20 of the Anti-Corruption Commission Act, 2004 and Rule 20 of the Anti-Corruption Commission Rules, 2007 read with section 160 of the Code of Criminal Procedure issued by the Respondent No. 3 directing the petitioners to appear and make statement with respect to taking possession of RAJUK plot unlawfully creating forged documents and evasion of registration fees and taxes for purchasing land before the Respondent No. 3 following the application dated 11-12-2018 (Annexure-N) filed by the Respondent No. 5.
34. It appears from the record that the ACC in the name of exercising discretionary power issued the impugned notices hurriedly during pendency of Writ Petition 1087 of 2019 directing the petitioners to appear before the ACC to make statements with respect to taking possession of RAJUK plot unlawfully creating forged documents and evasion of registration fees and other taxes at the time of purchase of the land in question, which is tantamount to interference in the administration of justice that cannot escape characterization of a mala fide act having something in the mind of the Respondent No. 3 and that is why we have no hesitation to say that the impugned notices have been issued abusing of the discretion and thus the same are liable to be interfered with by this Court.
35. Having considered all the facts and circumstances of the case, the submissions advanced by the learned Advocates for the respective parties and the propositions of law cited and discussed above, we find merit in this instant Rule.
36. Accordingly, the Rule is made absolute.
37. In consequence thereof, the impugned notices dated 19-3-2019 under Memo No. 00.01.0000.502.01.007.19/10746 and Memo No. 00.01.0000.502.01.007.19/10745 respectively issued by the Respondent No. 3 (Annexure-Q and Q-1) under sections 19 and 20 of the Anti-Corruption Commission Act, 2004 and Rule 20 of the Anti-Corruption Commission Rules, 2007 read with section 160 of the Code of Criminal Procedure directing the petitioners to appear and make statements with respect to taking possession of RAJUK plot unlawfully creating forged documents and evasion of registration fees and taxes at the time of purchase and registration of the land in question, before the Respondent No. 3, following the application dated 11-12-2018 (Annexure-N) filed by the Respondent No. 5, are declared to have been made/issued without lawful authority and are of no legal effect.
Communicate the judgment and order to the Chairman, Anti-Corruption Commission and other respondents at once.
--- Journal: DLR Volume: 75 Division: HCD Page: 368High Court Division (Special Original Jurisdiction)
Present:
Mr. Justice Md. Ashfaqul Islam
And
Mr. Justice Md. Iqbal Kabir
Writ Petition No. 9765 of 2020
Shahidul Ahsan (Md.)
------------- Petitioner
VS
Bangladesh Bank and Ors.
------- Respondents
Judgement Date : November 10, 2022
Counsels:
Mr. Fida M. Kamal, Senior Advocate with Mr. Sultan-uz-zaman, Advocate
—For the Petitioner.
Mr. A.M. Amin Uddin, Senior Advocate with Ms. Nahid Sultana Jenny and Mr. Ahmed Ishtiaque, Advocates
—For the Respondents.
Judgment
Md. Ashfaqul Islam, J:
1. This Rule under adjudication issued on 14-12-2020, at the instance of the petitioner, was in the following terms:
"Let a Rule Nisi be issued calling upon the respondents to show cause as to why dismissal of appeal of the petitioner preferred under section 48(2) of the Banking companies Act, 1991 by the Board of Directors of respondent No. 1, in its 409th meeting communicated through memo No. BRPD(R-1)651/9(39)Kha/20-9798 dated 17-11-2020 issued under the signature of respondent No. 3 (Annexure-F) and thereby affirming the order contained in Memo No. BRPD(R-1)651/9(39)kha/2020-99/2-1-2020 passed by the respondent No. 2 under section 46 of the Banking Companies Act, 1991 (Annexure-C) removing the petitioner from the post of Director of the respondent No. 4, Bank should not be declared to have been passed without lawful authority and is of no legal effect and/or such other or further order or orders passed as to this court may seem fit and proper."
2. The background leading to the Rule is that the petitioner who is the Sponsor Director of Mercantile Bank Limited while discharging his duties as a Chairman of the said banking company all of a sudden received a letter on 8-9-2019 from the respondent No. 3, General Manager, Bangladesh Bank issued under section 46(2) of the Banking Companies Act, 1991 (hereinafter referred to as Act, 1991). In the said letter it was stated inter-alia, that on 3-4-2017 an application was filed by AG Green Property Development Limited (an establishment owned by the writ petitioner and his wife) for Bai Murabaha (hypo) investment facility of Taka 40 (forty) crore from First Security Islami bank Limited, Banani Branch, and the purpose for availing of the said investment was shown to have been purchasing of construction materials for construction of 10-storied Ahsan City Center, in Choumohini, Noakhali. The said notice contained the following allegations against the petitioner: -
An amount of taka 30 crore was sanctioned which was directly credited through 6 deals and was deposited to the current account of AG Green Property Development Limited. Subsequently, a major portion of amount was transferred to the current account of AG Agro Industries Limited and Begumgongj Feed Mills Limited;
On 11-1-2018 Taka 35.92 crore has been sanctioned through 7 deals. Out of 7 deals for Taka 15 crore, through 3 deals, was diverted by 3 pay order to the current account of AG Green Property Development Limited and remaining 4 deals for taka 20.92 crore was directly credited to the current account of AG Green Property Development Limited in Mercantile Bank Limited, Gulshan branch. The sanctioned amount of taka 20.92 crore which was directly deposited to the account of AG Green Property Development Limited were adjusted for 2 earlier unsettled deals of the petitioner;
Limit of credit facility was enhanced to taka 145 core by letter dated 14-11-2017 issued by Head Office of the First Security Islami Bank Limited but before approval of such credit facility, Taka 30 crore was disbursed through pay order dated 3-10-2017 and 19-10-2017 in the current account of AG Green Property Development Limited of Mercantile Bank Limited Gulshan Branch. Thereafter, a major portion of the deposited amount was withdrawn in cash and rest of the amount was deposited to different bank accounts of the petitioner;
According to terms of the sanction letter, AG Green Property Development Limited was required to adjust all deals (those were disbursed from 3-5-2017 to 11-11-2018) within 180 days but AG green Property Development Limited failed to adjust the same even after 10 months from date of expiry;
On 11-1-2018 Taka 15 crore (disbursed through 3 deals) was deposited to the current account of AG Green Property Development Limited in Mercantile Bank Limited, Gulshan branch. Out of 15 crore, Taka 10 crore was withdrawn in cash by Mr. Kamal Ibn Yousuf (Adnan) and Mr. ASM Tarek and deposited to the account of Mr. Abul Kahsem, Entrepreneur of proposed People's Bank. Mr. Abul Kashem has made averment that he has received the same from AG Agro Industries Limited who is one of the Director of proposed People's Bank Limited.
3. In such a way, as it has been alleged, disbursed fund was diverted to use for other purposes, which is violative of terms of sanction letter, BRPD Circular No. 10 of 2018 and principles of Islamic banking and also constitute an offence under section 2(d)(A)(1) of Money Laundering Prevention Act, 2012 (amended up to 2015) (Annexure-A). Against which the petitioner submitted written reply on 3-10-2019 and 14-10-2019 also against the show cause notice dated 8-9-2019; although he was not provided with the information alleged to have acquired by the Bangladesh Financial Intelligence Unit (in short BFIU) or report procured through special inspection conducted by Bangladesh Bank, but the petitioner denying all the material allegations brought against him contended, inter alia, that part construction payment for the project of Mirpur City Center along with other projects was being maintained by the bank account of AG Group much before approval of investment facility by First Security Islami bank Limited and after approval of the loan by First Security Islami Bank Limited expenses of materials like steel, cement, sand bills of contractor and miscellaneous day to day expenses of the said project were being borne by different bank accounts of AG Green Property Development Limited and the petitioner made different payments or transactions against dues through the bank account.
4. With regard to the allegation of transfer of amount to Mr. Abul Kashem, it was stated that those amounts were transferred as loan to him as a gesture of goodwill but not for purchasing any share of any bank and subsequently, Abul Kashem returned the money that was borrowed from the petitioner. And owing to the allegation as to fund diversion, it was categorically stated that whole sanctioned amount was spent in different projects of AG Group by fully complying with the terms and condition laid down in the sanction letter.
5. In reply to the allegation of failure of loan adjustment within time, it was stated that since the project was incomplete they could not hand over flats to the clients and did not receive any money from the clients as per agreement and since other floor and flats were not sold out, such transactions by the petitioner, does in no way cause harm to the investors/depositors of the petitioner's bank.
6. The respondent No. 2, Governor, Bangladesh Bank having failed to consider the written statement submitted by the petitioner and to appreciate the spirit of law, removed the petitioner from the post of Director of Mercantile Bank Limited by letter dated 2-1-2020 (Annexure-C). On 9-1-2020 the petitioner by submitting an application requested the respondent No. 2 to supply the report of standing committee of Bangladesh Bank formed under section 48(1) of the Banking Companies Act, 1991 and report of the intelligence analysis of Bangladesh Financial Intelligence Unit (in short BFIU) (Annexure-D, D-1).
7. It has been further stated that in spite of such request no report was supplied to the petitioner and, therefore, without being supplied the report of Standing Committee, he had to file an appeal before the Board of Directors of the Bangladesh Bank on 27-10-2020 under section 48(2) of the Act, 1991 taking the same stand as taken in the written reply filed against show cause notice as aforesaid (Annexure-E).
8. It has been further stated that the petitioner while expecting that his case would be considered in a positive way by the Board of Directors, he received a memo dated 17-11-2020 issued under the signature of respondent No. 3 stating that in the 409th Board Meeting of Board of Directors held on 28-10-2020 the appeal was dismissed (Annexure-F).
9. It is at this stage the petitioner filed this writ petition against the appellate order mainly on the interpretation of section 46(1) of Act, 1991 and obtained the present Rule.
10. Mr. Fida M. Kamal, the learned Senior Advocate appearing for the petitioner upon placing the petition, supplementary affidavit and other materials on record, highlighting section 46(1) in particular of the Act, 1991 submits that generally section 46 of the Act, 1991 provides for Bangladesh Bank's power to remove bank company's director etc. Particularly section 46(1), makes provision for removal of Chairman, Director or Chief Executive. If Bangladesh Bank is satisfied that in order to prevent act(s) of Chairman or Director or Chief Executive which is detrimental to the Bank company or its depositors or in the public interest, with a view to ensure proper management, removal of such Chairman, Director of Chief Executive, by whatever name called, is required to be removed, then Bangladesh Bank for reasons to be recorded in writing by order remove such Chairman, Director, Chief Executive from his post.
11. He submits that the provision of section 46(1) contemplates that in the public interest to ensure proper management of the Bank Company, its Chairman/Director/Managing Director/Chief Executives' detrimental acts is relevant; whereas the petitioner is not at all involved as "Client" in the Management of the First Security Islami bank Limited. Therefore, as a client of first Security Islami bank Limited the petitioner's activities cannot in any way impact on the management of the Mercantile Bank Limited of which the petitioner is a Director.
12. The alleged activities of the petitioner does in no way can be interpreted as "detrimental" either to the Mercantile Bank or the depositors of Mercantile Bank. In that view of the matter, the alleged activities of the petitioner does not come within the mischief of section 46 of the Act, 1991.
13. In elaborating his submissions the learned Senior Advocate further submits that section 46 of the Act enjoins that for the commission of any Act detrimental to the interest of another bank company, the legislature would have certainly inserted the words 'উক্ত ব্যাংক কোম্পানী কিংবা অন্য কোন ব্যাংক কোম্পানী" as have been used in sub-section (3) of the said section 46 or section 17 of the Act. By not inserting those words in the statute the legislature has expressed, in clear terms, of its intention to keep High Executive of the Banking Company out of the scope/ambit of section 46 of the act for commission of any act detrimental to the interest of another bank Company. This is precisely the main thrust of argument of Mr. Fida Kamal. In support of his contention he cited several decisions like, Warish Miah vs. Bangladesh 41 DLR 51, Abdur Rahim Chowdhury vs. Bangladesh Bank, 52 DLR AD 71, Shafiuddin vs. Samir Bhuiyan and others 57 DLR 553, Yusuf Ali Chowdhury and others vs. Province of East Pakistan 11 DLR (SC) 316, the Government of Bangladesh vs. Bangladesh Steel and Engineering Corporation 45 DLR (AD) 69, Collector of Central Excise, Ahmedabad vs. Orient Fabrics (P) Limited (2004) 1 Supreme Court Cases 597 and so on.
14. On the other hand Mr. AM Amin Uddin, the learned Senior Advocate by filing affidavit-in-opposition vehemently opposes the Rule. Mr. Amin Uddin in his affidavit-in-opposition by making statements in clear terms formulates his submissions that first of all respondent No. 2 totally in-compliance with the provisions of section 46 of the Act 1991 issued the order removing the petitioner from the post of Director of Mercantile Bank Limited. In doing so the respondent No. 2 has taken into consideration of the reply submitted by the petitioner dated 3-10-2019 and 14-10-2019. The petitioner was given an opportunity of personal hearing. Moreover, this standing committee of Bangladesh bank inquired into the matter and found that the petitioner in flagrant violation of the terms of the sanction letter issued to the petitioner's company diverted loan to his other concerns expressly violating direction given in BRPD circular No. 10 of 2018, Money Laundering Act etc. which adversely affected the interest of the depositors of bank. As a result the standing committee submitted a report recommending to remove the petitioner from the post of Director under section 46 of the said Act. Eventually, on the basis of the recommendations made by the standing committee, the respondent No. 2 issued the order of his removal from the post of Director.
15. He further submits that the report of standing committee and report of the BFIU are all internal/confidential documents of Bangladesh bank and there is no provision of law to supply this documents to public except the same be required by the court or the Court directs so to do.
16. Finally Mr. Amin Uddin, concludes that the petitioner failed to understand the true meaning and the purport of section 46 of the Act, 1991 in that the provision requires that if a director of any bank commits act prejudicial to the interest of the Depositor of any bank then it will fall within the ambit of the said section. Section 46 does not necessarily mean that the director committing the prejudicial act has to be against his own bank rather his liability is co-extensive which extends to the other banks as well. So, the petitioner's act squarely comes within the mischief of section 46 the Banking Companies Act, 1991. In support of his contention Mr. Amin Uddin placed reliance in the decision of Abdur Rahim Chowdhury vs. Bangladesh Bank, 52 DLR (AD) 71.
17. We have heard the learned Senior Advocates representing the parties at length and considered their submissions carefully and meticulously. We have also perused the writ petition, supplementary affidavits, affidavit-in-opposition and other materials on record with precision.
18. The only question that faces this division in this writ petition is whether under the facts and circumstances and upon interpretation of section 46 of the Act, 1991 the removal of the petitioner from the post of director of Mercantile Bank is justified.
19. For appreciation and better understanding of the issue let us now quote and analyses some relevant provisions of the Act, 1991. It provides:
"৪৬। (১) বাংলাদেশ ব্যাংক যদি এই মর্মে সন্তুষ্ট হয় যে, কোন ব্যাংক-কোম্পানীর চেয়ারম্যান বা কোন পরিচালক বা প্রধান নির্বাহী কর্তৃকা, কোন ব্যাংক-কোম্পানী বা উহার আমানতকারীদের জন্য ক্ষতিকর কার্যকলাপ রোধকল্পে বা জনস্বার্থে উক্ত ব্যাংক-কোম্পানীর যথাযথ ব্যবস্থাপনা নিশ্চিত করার লক্ষ্যে, উক্ত চেয়ারম্যান, পরিচালক বা প্রধান নির্বাহীকে, যে নামেই অভিহিত হউক না কেন, অপসারণ করা প্রয়োজন, তাহা হইলে বাংলাদেশ ব্যাংক, কারণ লিপিবদ্ধ করিয়া, আদেশের মাধ্যমে, উক্ত চেয়ারম্যান, প্রধান নির্বাহীকে তাঁহার পদ হইতে অপসারণ করিতে পারিবে।"
Further it states:
"(২) উপ-ধারা (১) এর অধীন ফোন আদেশ প্রদানের পূর্বে যাহার বিরুদ্ধে উক্ত আদেশ প্রদান করা হইবে তাঁহাকে উহার বিরুদ্ধে কারণ প্রদর্শনের জন্য যুক্তিসংগত সুযোগ দিতে হইবে:
তবে শর্ত থাকে যে, উপ-ধারা (২) এ যাহা কিছুই থাকুক না কেন, বাংলাদেশ ব্যাংক যদি এইরূপ অভিমত পোষণ করে যে, অনুরূপ সুযোগ প্রদানজনিত বিলম্ব উক্ত ব্যাংক-কোম্পানী বা উহার আমানতকারী বা জনস্বার্থে ক্ষতিকর হইবে, তাহা হইলে বাংলাদেশ ব্যাংক উপরোক্ত সুযোগ প্রদানের সময়ে বা উহার পরে যে কোন সময় বা উক্ত উপ-ধারার অধীন কোন কারণ প্রদর্শিত হইয়া থাকিলে, তাহা বিবেচনাধীন থাকা অবস্থায়, লিখিত আদেশের মাধ্যমে, নির্দেশ দিতে পারে যে,-
(ক) উক্ত চেয়ারম্যান বা পরিচালক বা প্রধান নির্বাহী উক্ত লিখিত আদেশ কার্যকর হইবার তারিখ হইতে চেয়ারম্যান বা পরিচালক বা প্রধান নির্বাহী হিসাবে কার্য করিবেন না, বা কোম্পানীর ব্যবস্থাপনার, প্রত্যক্ষ বা পরোক্ষভাবে, অংশগ্রহণ করিবেন না;
এবং
(খ) বাংলাদেশ ব্যাংক এতদুদ্দেশ্যে যে ব্যক্তিকে সাময়িকভাবে নিযুক্ত করিবে সেই ব্যক্তি উক্ত কোম্পানীর চেয়ারম্যান বা, ক্ষেত্রমত, পরিচালক বা প্রধান নির্বাহী হিসাবে কার্য করিবেন।"
20. Now the main aspect that has to be addressed in this case is the interpretation of the statute, whether it should be construed in its literal meaning or in the broader perspective and not in isolation. The golden Rule of interpretation requires that a statute should not be interpreted in isolation. In doing so some other related and relevant statutes as well as circumstances should be considered. A strict literal construction can only be done in case of fiscal matter. As it is decided in the case of Director of Taxation and Excise Government of East Pakistan vs. Mehdi Ali Khan Panni 32 DLR (AD) 138 where our apex court in clear terms observed that in fiscal matter the doctrine of laissez faire would not apply. That is to say that the lenient view of magnanimity is not available in interpretation of fiscal law. Strict literal interpretation is required there unlike the other discipline of laws. Banking companies act has an epitome of its own. It has made provisions for removal of director specifically in one section, that is, section 46 of the Act, 1991 which is before us for interpretation. Mr. Fida M. Kamal has tried to impress upon us that the words and phrases উক্ত ব্যাংক invariably relates to whatever activities good or bad have been done in respect of the bank where the petitioner belongs the question of removal under section 46 will apply. We are unable to accept this submissions while interpreting the said statute since we have already stated that a statute has to be interpreted not in isolation but taking into consideration all other aspect as already hinted above. First of all let us see what section 45 of Act, 1991 says. Section 45(1) has given a wider power to Bangladesh bank as the same being the regulatory bank holding a sublime position. It enjoins:
"৪৫। বাংলাদেশ ব্যাংক যদি এই মর্মে সন্তুষ্ট হয়-
(ক) জনস্বার্থে, বা
(খ) মুদ্রানীতি এবং ব্যাংক-নীতির উন্নতি বিধানের জন্য, বা
(গ) কোন ব্যাংক-কোম্পানীর আমানত-কারীদের স্বার্থের পরিপন্থী বা ব্যাংক-কোম্পানীর স্বার্থের পক্ষে ক্ষতিকর কার্যকলাপ প্রতিরোধ করার জন্য; বা
(ঘ) কোন ব্যাংক-কোম্পানীর যথাযথ ব্যবস্থাপনা নিশ্চিত করার জন্য, সাধারণভাবে সকল ব্যাংক-কোম্পানীকে, অথবা বিশেষ কোন ব্যাংক-কোম্পানীকে নির্দেশ প্রদান করা প্রয়োজন, ভাহা হইলে বাংলাদেশ ব্যাংক যথাযথ নির্দেশ জারী করিতে পারিবে; এবং সংশ্লিষ্ট ব্যাংক-কোম্পানী উক্ত নির্দেশ পালন করিতে বাধ্য থাকিবে।"
21. Then comes section 46 which we are interpreting. Section 45 has a positive bearing upon section 46. Section 46 clearly hinges to any director of a bank company, it does not restrict to a particular bank company but all the bank companies. Moreover, any act of wrong doing cannot go unchallenged. Pertinently, let us see what are the findings of Bangladesh Bank and BFIU against the petitioner:
"বাংলাদেশ ফাইন্যান্সিয়াল ইন্টেলিজেন্স ইউনিট (বিএফআইউ) এর ইন্টেলিজেন্স এনালাইসিসে প্রাপ্ত তথ্যের ভিত্তিতে পরিচালিত বাংলাদেশ ব্যাংকের বিশেষ পরিদর্শনে আপনার স্বার্থ সংশ্লিষ্ট প্রতিষ্ঠান এজি শ্রীন প্রপার্টিজ লিঃ কর্তৃক ফার্স্ট সিকিউরিটি ইসলামী ব্যাংক লিঃ হতে গৃহীত ১৪৫ কোটি টাকার বিনিয়োগ/ ঋণসীমার অর্থ Fund Diversion পূর্বক বিনিয়োগ/ ঋণসীমা এর উদ্দেশ্য বহির্ভূত খাতে ব্যবহার, ইসলামী ব্যাংকি রীতিনীতি লঙ্ঘন করে ক্রয়-বিক্রয় ব্যতীত বাই-মুরাবাহা বিনিয়োগ/ঋণের অর্থ সরাসরি গ্রাহক এজি গ্রীন প্রপার্টিজ লিঃ এর হিসাবে গ্রহণ, ফার্স্ট সিকিউরিটি ইসলামী ব্যাংক লিঃ হতে অননুমোদিত বিনিয়োগ/ঋণ সুবিধা গ্রহণ, গৃহীত বিনিয়োগ/ঋণ এর অর্থ পরিশোধ না করা, মিথ্যা তথ্য ও অনিয়মের মাধ্যমে গৃহীত বিনিয়োগ/ঋণের অর্থ প্রস্তাবিত পিপলস ব্যাংক লিঃ এর শেয়ার বেনামে ধারণ করার উদ্দেশ্যে প্রস্তাবিত ব্যাংকটির উদ্যোক্তা জনাব আবুল কাশেম এর ব্যাংক হিসাবে জমাকরণ এবং জনাব আবুল কাশেমের ব্যাংক হিসাবে জমাকৃত অর্থের প্রকৃত সুবিধাভোগী আপনি নিজে তা আড়াল করার উদ্দেশ্যে লেনদেনে লেয়ারিং পূর্বক মানি লন্ডারিং সংশ্লিষ্ট অপরাধের সাথে আপনার সম্পৃক্ততার প্রমাণ পাওয়া যায়। উল্লিখিত অনিয়মসমূহের সাথে আপনার সংশ্লিষ্টতা নিম্নোক্তভাবে প্রতিষ্ঠিত হয়ঃ
১। আপনার এবং আপনার স্ত্রী জনাব ফারাহ আহসান এর স্বার্থ সংশ্লিষ্ট প্রতিষ্ঠান এজি গ্রীন প্রপার্টি ডেভেলপমেন্ট লিঃ কর্তৃক ৩-৪-২০১৭ তারিখে ফার্স্ট সিকিউরিটি ইসলামী ব্যাংক লিঃ, বনানী শাখায় ৪০ কোটি টাকার বাই-মুরাবাহা (হাইপো) বিনিয়োগ সুবিধা (Deal to deal on revolving basis) প্রহণ করার জন্য আবেদন করা হয়, যাতে বিনিয়োগ গ্রহণের উদ্দেশ্য হিসেবে নোয়াখালীর চৌমুহনিতে 'আহসান সিটি সেন্টার' নামীয় ১০ তলার ভবন নির্মাণের লক্ষ্যে নির্মাণ সামগ্রী ক্রয়ের উল্লেখ করা হয়। উক্ত আবেদনের সূত্রে ফার্স্ট সিকিউরিটি ইসলামী ব্যাংক লিঃ, বনানী শাখা কর্তৃক মঞ্জুরী/বিতরণকৃত ৩০ কোটি টাকার বাই-মুরাবাহা (হাইপো) বিনিয়োগ/ঋণ এর অর্থ (পণ্য ক্রয়-বিক্রয় ব্যতিরেকে) সরবরাহকারী প্রতিষ্ঠানের পরিবর্তে ঋণের গ্রাহক আপনার স্বার্থ সংশ্লিষ্ট প্রতিষ্ঠান এজি গ্রীন প্রপার্টি ডেভেলপমেন্ট লিঃ এর হিসাবে ৩-৫-২০১৭, ৪-৫-২০১৭, ৮-৫-২০১৭, ১৫-৫-২০১৭, ১৭-৫-২০১৭ ইং তারিখে ৬টি ডিলের মাধ্যমে সরাসরি গ্রহণ করা হয়। খাখ মঞ্জুরিপত্রের শর্ত লঙ্ঘন করে বিতরণকৃত ঋণের অর্থ মার্কেন্টাইল ব্যাংক লিঃ, মহাখালী শাখায় ক্লিয়ারিং হয়ে একই ব্যাংকের গুলশান শাখায় রক্ষিত এজি গ্রীন প্রপার্টি ডেভেলমেন্ট লিঃ এর চলতি হিসাবে জমা করা হয়। উক্ত জমাকৃত অর্থ গ্রাহকের বিভিন্ন চেকের মাধ্যমে নগদে উত্তোলন করে উত্তোলনকৃত অর্থের অধিকাংশ পরিমান আপনার স্বার্থ সংশ্লিষ্ট অন্য প্রতিষ্ঠান এজি এগ্রো ইন্ডাস্ট্রিজ লিঃ এবং বেগমগঞ্জ ফিভ মিলস লিঃ এর হিসাবে নগদে জমা প্রদান করা হয়। অর্থাৎ, গৃহীত বিনিয়োগের অর্থ যে উদ্দেশ্যে ব্যবহার করার ঘোষণা দিয়ে বিনিয়োগ সুবিধা গ্রহণ করা হয়েছিল সে খাতে ব্যবহার না করে Fund Diversion করা হয়েছে যা ব্যাংকের মঞ্জুরি পত্রের শর্ত, বিআরপিডি সার্কুলার লেটার নং ১০/২০১৮ এর নির্দেশনা এবং ইসলামী ব্যাংকিং রীতিনীতি এর লঙ্ঘন। ব্যাংকের পরিচালক হিসেবে ব্যাংকিং আইন ও নিয়মনীতি জানা থাকা সত্ত্বেও আপনার এরূপ কার্যকলাপ নীতি-নৈতিকতা ও আমানতকারী তথা জনস্বার্থের পরিপন্থী।
২। আপনার এবং আপনার স্ত্রী জনাব ফারাহ আহসান এর স্বার্থ সংশ্লিষ্ট প্রতিষ্ঠান এজি গ্রীন প্রপার্টি ডেভেলপমেন্ট লিঃ কর্তৃক প্রতিষ্ঠানটির নতুন ৩টি প্রকল্পের নির্মাণ ব্যয় মিটানোর উদ্দেশ্যে ১০-৯-২০১৭ তারিখে ফার্স্ট সিকিউরিটি ইসলামী ব্যাংক লিঃ, বনানী শাখায় ইতিপূর্বে গৃহীত ৩০ কোটি টাকার বিপরীতে কোন অর্থ পরিশোধ না করেই ৩০ কোটি টাকার যাই-মুরাবাহা (হাইপো) বিনিয়োগসীমা ১৭৫ কোটি টাকায় উন্নীত করার জন্য আবেদনের সূত্রে তা ১৪৫ কোটি টাকা উন্নীত করা হয়। পরবর্তীতে ১১-১-২০১৮ তারিখে মোট ৭টি ডিলের মাধ্যমে ৩৫.৯২ কোটি টাকা (প্রায়) বিতরণ করা হয়। উক্ত ৭টি ডিলের মধ্যে ৩টি মোট ১৫ কোটি টাকা এজি গ্রীন প্রপার্টি ডেভেলপমেন্ট লিঃ এর অনুকূলে ৩টি পে-অর্ডারের মাধ্যমে এবং অবশিষ্ট ৪টি ডিলে মোট ২০.৯২ কোটি টাকা (প্রায়) সরাসরি গ্রাহক প্রতিষ্ঠানটির আল-ওয়াদিয়া চলতি হিসাবে গ্রহণ করা হয়। পে-অর্ডারের মাধ্যমে গৃহীত ঋণের ১৫ কোটি টাকা মার্কেন্টাইল ব্যাংক লিঃ, মহাখালী শাখায় ক্লিয়ারিং হয়ে একই ব্যাংকের গুলশান শাখায় রক্ষিত এজি গ্রীন প্রপার্টি ডেভেলপমেন্ট লিঃ এর চলতি হিসাবে জমা করা হয়। অপরদিকে, ফার্স্ট সিকিউরিটি ইসলামী ব্যাংক লিঃ, বনানী শাখায় চলতি হিসাবে সরাসরি বিতরণকৃত ২০.৯২ কোটি টাকা (প্রায়) দ্বারা গ্রাহকের ইতোপূর্বে সৃষ্ট ২টি ডিল সমন্বয় করা হয় যা ব্যাংকিং রীতিনীতি বহির্ভূত। অর্থাৎ গৃহীত বিনিয়োগের অর্থ যে উদ্দেশ্যে ব্যবহার করার ঘোষনা দিয়ে বিনিয়োগ সুবিধা গ্রহণ করা হয়েছিল সে খাতে ব্যবহার না করে Fund Diversion পূর্বক পে-অর্ডারের মাধ্যমে এজি গ্রীন প্রপার্টি ডেভেলপমেন্ট লিঃ এর অন্য ব্যাংকে রক্ষিত চলতি হিসাবে জমা করা হয়েছে, যা ব্যাংকের মজুরি পত্রের শর্ত, বিআরপিডি সার্কুলার লেটার নং ১০/২০১৮ এর নির্দেশনা এবং ইসলামী ব্যাংকিং রীতিনীতি এর লঙ্ঘন। ব্যাংকের পরিচালক হিসেবে ব্যাংকি আইন ও নিয়মনীতি জানা থাকা সত্ত্বেও আপনার এরূপ কার্যকলাপ নীতি-নৈতিকতা ও আমানতকারী তথা জনস্বার্থের পরিপন্থী।
৩। এজি গ্রীণ প্রপার্টি ডেভেলপমেন্ট লিঃ কর্তৃক নতুন ৩টি প্রকল্পের নির্মাণ ব্যয় মিটানোর উদ্দেশ্যে বাই-মুরাবাহা বিনিয়োগ সীমা বৃদ্ধির আবেদনের প্রেক্ষিতে ফার্স্ট সিকিউরিটি ইসলামী ব্যাংকের প্রধান কার্যালয়ের ১৪-১১-২০১৭ তারিখের পত্রের মাধ্যমে বাই মুরাবাহা বিনিয়োগ সীমা ১৪৫ কোটি টাকায় উন্নীত করা হয়। কিন্তু উক্ত অনুমোদনের পূর্বেই ৩-১০-২০১৭ এবং ১৯-১০-২০১৭ তারিখে এজি গ্রীন প্রপার্টি ডেভেলপমেন্ট অনুকূলে পে-অর্ডারের মাধ্যমে ১৫ কোটি টাকা করে মোট ৩০ কোটি টাকা বিতরণ করা হয়। উক্ত অর্থ মার্কেন্টাইল ব্যাংকের মহাখালী শাখায় ক্লিয়ারিং হয়ে একই ব্যাংকের গুলশান শাখায় রক্ষিত এজি গ্রীন প্রপার্টি ডেভেলপমেন্ট এর হিসাবে জমা হয় হয়। পরবর্তীতে জমাকৃত অর্থের অধিকাংশ পরিমান মার্কেন্টাইল ব্যাংকের বিভিন্ন শাখা হতে অনলাইনে নগদে উত্তোলন করা এবং অবশিষ্ট অর্থ আপনার স্বার্থ-সংশ্লিষ্ট বিভিন্ন ব্যাংক হিসাবে স্থানান্তর করা হয়। ব্যাংকের একজন পরিচালক হয়েও অন্য একটি ব্যাংক হতে অননুমোদিতভাবে ঋণ/বিনিয়োগ সুবিধা গ্রহণ ব্যাংকিং বিধি বিধান ও নীতি নৈতিকতার পরিপন্থী। অননুমোদিতভাবে গৃহীত বিনিয়োগের অর্থও একইভাবে Fund Diversion পূর্বক ভিন্ন খাতে ব্যবহার করা হয়েছে বা ব্যাংকের মঞ্জুরি পত্রে শর্ত এবং বিআরপিডি সার্কুলার লেটার নং ১০/২০১৮ এ বর্ণিত নির্দেশনায় লঙ্ঘন।
৪। বাংলাদেশ ব্যাংকের পরিদর্শনে প্রাপ্ত তথ্য অনুযায়ী ১৮-৭-২০১৯ তারিখে এজি গ্রীন প্রপার্টি ডেভেলপমেন্ট লিঃ এর ১৩ ডিলে ফার্স্ট সিকিউরিটি ইসলামী ব্যাংক হতে গৃহীত বিনিয়োগের মোট বকেয়া স্থিতি ছিল ৯৯.৩১ কোটি টাকা। বিনিয়োগ সুবিধা গ্রহণের পর হতে পরিদর্শন চলাকালীন সময় পর্যন্ত বিনিয়োগ হিসাবসমূহের বিপরীতে কোন অর্থ জমা করা হয়নি। মঞ্জুরি পত্রের শর্ত অনুযায়ী এজি গ্রীন প্রপার্টি ডেভেলপমেন্ট লিঃ এর অনুকূলে প্রদত্ত ডিলসমূহের সমন্বয়ের মেয়াদ ছিল ১৮০ দিন। সে হিসেবে ৩-৫-২০১৭ তারিখ হতে ১১-১-২০১৮ তারিখ পর্যন্ত গৃহীত ঋণ/বিনিয়োগ সুবিধাসমূহের সমন্বয়ের মেয়াদোত্তীর্ণের পর ১০ মাস অতিক্রম হলেও আপনার স্বার্থ সংশ্লিষ্ট প্রতিষ্ঠান এজি গ্রীন প্রপার্টি ডেভেলপমেন্ট লিঃ কর্তৃক উক্ত ডিলসমূহ সমন্বয় করা হয়নি। ব্যাংকের পরিচালক হিসেবে ব্যাংকিং আইন ও নিয়মনীতি জানা থাকা সত্ত্বেও আপনার স্বার্থ সংশ্লিষ্ট প্রতিষ্ঠানের মাধ্যমে অন্য ব্যাংক হতে গৃহীত ঋণ/বিনিয়োগ সুবিধাসমূহ পরিশোধ করা হয়নি। আপনার এরূপ কার্যকলাপ নীতি-নৈতিকতা ও আমানতকারী তথ্য জনস্বার্থের পরিপন্থী।
৫। ফার্স্ট সিকিউরিটি ইসলামী ব্যাংক এর বনানী শাখা কর্তৃক ১১-১-২০১৮ তারিখে মোট ৭টি ডিলের মাধ্যমে ৩৫.৯২ কোটি টাকা (প্রায়) আপনার স্বার্থ সংশ্লিষ্ট এজি গ্রীন প্রপার্টি ডেভেলপমেন্ট লিঃ এর অনুকূলে বিতরণ করা হয়। উক্ত ৭টি ডিলের মধ্যে ৩টি ডিলে মোট ১৫ কোটি টাকা বিনিয়োগ এজি গ্রীন প্রপার্টি ডেভেলপমেন্ট লিঃ এর অনুকূলে ৩টি পে-অর্ডারের (নং ১৫০৬৩৫৮, ১৫০৬৩৫৯ এবং ১৫০৬০৬০) মাধ্যমে মার্কেন্টাইল ব্যাংক লিঃ, মহাখালী শাখার ক্লিয়ারিং হয়ে একই ব্যাংকের গুলশান শাখায় রক্ষিত এজি গ্রীন প্রপার্টি ডেভেলপমেন্ট এর চলতি হিসাবে জমা করা হয়। জমাকৃত উক্ত ১৫ কোটি টাকার মধ্যে (চেক নং ২১১৯৫৩৬-২১১৯৫৪৫ পর্যন্ত) মোট ১০ টি চেকের মাধ্যমে ১৪-১-২০১৮ তারিখ থেকে ২৮-১-২০১৮ তারিখ পর্যন্ত ১০ কোটি টাকা প্রস্তাবিত পিপলস ব্যাংক লিঃ এর উদ্যোক্তণ/চেয়ারম্যান জনাব আবুল কাশেম এর প্রতিনিধি জনাব কামাল ইবনে ইউসুফ (আদনান) এবং জনাব এ এস এম তারেক কর্তৃক নগদে উত্তোলন করা হয় এবং তা উক্ত তারিখ সমূহের মধ্যেই (১৪-১-২০১৮ তারিখ থেকে ২৮-১-২০১৮ তারিখ পর্যন্ত) জনাব কামাল ইবনে ইউসুফ (আদনান) ও জনাব এ এস এম তারেক কর্তৃক বিভিন্ন ব্যাংকে (মার্কেন্টাইল, ইউসিবি, প্রিমিয়ার, ইন্টার্ন, যমুনা) রক্ষিত জনাব কাশেমের হিসাবে নগদে জমা করা হয়। এক্ষেত্রে চেকসমূহ সরাসরি জনাব কাশেমের ব্যাংক হিসাবে জমা না করে জনাব কাশেমের প্রতিনিধি কর্তৃক প্রথমে সগদ উত্তোলন করে পরবর্তীতে জনাব কাশেমের ব্যাংক হিসাব সমূহে নগদে জমা করা হয়। জনাব আবুল কাশেম উক্ত অর্থ প্রস্তাবিত পিপলস ব্যাংক লিঃ এর পরিচালক এজি এগ্রো ইন্ডাস্ট্রিজ এর নিকট হতে প্রাপ্ত হয়েছেন মর্মে ঘোষণা দিয়েছেন। পরিদর্শনে প্রাপ্ত তথ্য অনুযায়ী এজি এগ্রো ইন্ডাস্ট্রিজ এবং এজি গ্রীন প্রপার্টি ডেভেলপমেন্ট লিঃ নামীয় প্রতিষ্ঠান দুইটির চেয়ারম্যান আপনি নিজে। অর্থাৎ জনাব আবুল কাশেমের হিসাবে জমাকৃত অর্থের প্রকৃত বেনিফিসিয়ারী আপনি। এক্ষেত্রে অর্থের উৎস গোপন করার উদ্দেশ্যেই নগদে উত্তোলন ও নগদে জমা করার মাধ্যমে লেয়ারিং এর কৌশল গ্রহণ করা হয়েছে; যা মানি লন্ডারিং প্রতিরোধ আইন, ২০১২ (২০১৫ সাল পর্যন্ত সংশোধিত) এর 2(ϑ)(ϑ)(ϑ) অনুযায়ী মানি লন্ডারিং। প্রস্তাবিত পিপলস ব্যাংকের শেয়ার বেনামে ধারণ করার উদ্দেশ্যেই আপনি এরূপ পদ্ধতির আশ্রয় নিয়েছেন। উল্লিখিত অনিয়মসমূহ পর্যালোচনার প্রতীয়মান হয় যে, মার্কেন্টাইল ব্যাংক লিঃ এর পরিচালক হিসেবে আপনার এরূপ অনিয়ম ও ব্যাংকিং ব্যবস্থার জন্য ক্ষতিকর কার্যাবলী ব্যাংকের আমানতকারীদের জন্য ক্ষতিকর ও জনস্বার্থ পরিপন্থী। এ প্রেক্ষিতে, মার্কেন্টাইল ব্যাংক লিঃ এর আমানতকারী ও জনস্বার্থ ব্যাংক কোম্পানী আইন, ১৯৯১ রে ৪৬ ধারায় আওতায় পরিচালক পদ হতে আপনাকে কেন অপসারণ করা হবে না-এ বিষয়ে এই পত্র প্রাপ্তির ৭ (সাত) কর্ম দিবসের মধ্যে কারণ দর্শানোর জন্য আপনাকে নির্দেশ দেয়া হলো।"
22. Further drawing our notice to Annexure-2 of the affidavit-in-opposition Mr. Amin Uddin in particular has pinpointed the terms of the BRPD circular No. 10 of 2018 which is as under: -
"ব্যাংকিং প্রবিধি ও নীতি বিভাগ
বাংলাদেশ ব্যাংক
প্রধান কার্যালয়
ঢাকা।
বিআরপিডি সার্কুলার লেটার নং-১০
তারিখ: ৫ জুন, ২০১৮, ২২ জৈষ্ঠ্য, ১৪২৫
ব্যবস্থাপনা পরিচালক/প্রধান নির্বাহী
বাংলাদেশে কার্যরক সব তফসিলী ব্যাংক
প্রিয় মহোদয়,
ঋণের যথাযথ ব্যবহার নিশ্চিতকরণ প্রসঙ্গে।
শিরোনামোক্ত বিষয়ে ১৩ মার্চ, ২০১৭ তারিখে জারিকৃত বিজারপিডি সার্কুলায় লেটার নং-২ এর প্রতি আপনাদের দৃষ্টি আর্কষণ করা যাচ্ছে।
২। উক্ত সার্কুলার লেটার এর মাধ্যমে বাংলাদেশ ব্যাংক কর্তৃক প্রণীত Credit Risk Management Guidelines এ বর্ণিত নির্দেশনা অনুসরণপূর্বক গ্রাহককে যে উদ্দেশ্যে ঋণ প্রদান করা হয়েছে/হবে সে উদ্দেশ্যেই ঋণের যথাযথ ব্যবহার নিশ্চিতকরণের লক্ষে নিয়মিত মনিটরিং করার জন্য ব্যাংকগুলোকে পরামর্শ প্রদান করা হয়েছিলো। Credit Risk Management Guidelines এ ক্ষণ গ্রহীতা নির্বাচন থেকে শুরু করে ঋণ বিতরণ পরবর্তীকালে করণীয় বিষয়ে বিস্তারিত নির্দেশনা দেয়া হয়েছে। উক্ত নির্দেশনাগুলো যথাযথভাবে অনুসরণ করা হলে গ্রাহককে যে উদ্দেশ্যে ঋণ মঞ্জুর করা হয়েছে সে খাতে ব্যবহৃত না হয়ে অন্যত্র ব্যবহৃত হবার সম্ভাবনা থাকে না। Credit Risk Management Guidelines এর আলোকে প্রণীত স্ব স্ব ব্যাংকের ঋণ নীতিমালা (Credit Policy) বাস্তবায়নে পরিচালনা পর্ষদ, ক্রেডিট কমিটি এবং সংশ্লিষ্ট কর্মকর্তাগণ স্বীয় দায়িত্ব সুষ্ঠুভাবে পরিপালন না করলে গৃহীত ঋণ এর সদ্ব্যবহার নিশ্চিত করা যায় না।
৪। এতদপ্রেক্ষিতে, যে উদ্দেশ্যে ঋণ প্রদান করা হয়েছে/হবে সে উদ্দেশ্যেই ঋণের সদ্ব্যবহার নিশ্চিন্তকরণের লক্ষ্যে নিয়মিত মনিটরিং করার জন্য আপনাদেরকে পুনরায় পরামর্শ প্রদান করা যাচ্ছে। বিশেষতঃ কিস্তি ভিত্তিক প্রকল্প ঋণ এর ক্ষেত্রে পূর্ববর্তী কিস্তির সঠিক ব্যবহার নিশ্চিত হয়ে পরবর্তী কিস্তি ছাড়করণের জন্য পরামর্শ প্রদান করা হচ্ছে। এছাড়া, কোন ঋণের অর্থ উদ্দিষ্ট খাতের পরিবর্তে অন্যত্র ব্যবহৃত হলে ব্যাংককে তার কারণ উদঘাটনসহ তা রোধকল্পে তাৎক্ষণিক ব্যবস্থা গ্রহণের জন্যও নির্দেশনা প্রদান করা যাচ্ছে।
৫। বাংলাদেশ ব্যাংকের জনসাইট বা অফসাইট সুপারভিশনে ঋণ মঞ্জুরী, বিতরণ ও তদারকির ক্ষেত্রে যে কোন ধরণের গাফিলতি বা যোগসাজশ পরিলক্ষিত হলে সংশ্লিষ্ট দায়ী ব্যক্তি/ব্যক্তিদের বিরুদ্ধে ব্যাংক-কোম্পানী আইন, ১৯৯১ এর আওতায় পাক্তিমূলক ব্যবস্থা গৃহীত হবে।
আপনার বিশ্বস্ত,
(আবু ফরাহ মোঃ নাছের)
মহাব্যবস্থাপক
ফোন: ৯৫৩-০২৫২"
23. And he submits that whenever any director of a bank company admittedly commits any act which is against the norms, principles and practice of the banking company then certainly he will be taken to be task no matter the wrong done ensued in connection with his own bank or any bank other than his own and that's what Bangladesh Bank has done in this case and in so doing it has formed its opinion under the supervision and the findings of standing committee. In 52 DLR's case as referred to above this question has also been addressed by our apex Court in the manner quoted below:
"It thus appears that there was a recommendation by the standing committee that the petitioner should be placed under suspension under proviso to section 46(2) of the Bank Company Act, 1991. The Bangladesh Bank by its affidavit-in-opposition has taken the position that it formed the opinion that the continuation of the petitioner as Managing Director would be detrimental in the public interest, the banking company and the depositors. In view of the recommendation by the standing committee which was taken into consideration by the Bangladesh Bank we cannot say that the order of suspension was taken without forming any opinion. In this connection the law has made a difference by the word satisfaction used in 46(1) and the word opinion in the proviso to section 46(2). There being material before us in me form of the recommendation of the standing committee to the Bangladesh Bank, it cannot be said that no opinion was formed by the Bangladesh Bank in passing the impugned order although no such opinion was mentioned in the impugned order itself."
24. Be it mentioned that the said reference though relates to the mismanagement in the bank where the incumbent of that case Abdur Rahim was a director but on the same cause had there been an involvement of the said incumbent in respect of some other institutions, in our view that would have been also interpreted in the manner we have tried to interpret above.
25. Any director of a financial institution always stands in a "Fiduciary Position". This position is regarded as sublime and solemn. The petitioner as the director of Mercantile Bank has abused his 'Fiduciary Position' flagrantly and nakedly by doing series of acts which are not permissible under the law. He had flouted terms of BRPD Circular No. 10 of 2018 admittedly and blatantly. He obtained loan from Islamic Bank and diverted the amount in various section which is not permissible in banking laws.
26. A director of financial institution is subject to good faith and loyalty. As he stands in a fiduciary position vis- -vis. the banking company on whose board he sits, he is subject to strict obligations of self-denial. Indeed, ensuring adherence to a absolute Rule in this regard is justified by the need to control, albeit in a necessarily imperfect and arguably ineffective manner, the exercise of discretion by the director who stands in an undoubted position of power with respect to the banking company. A director therefore is obliged to avoid a conflict of interest and is prohibited from illegal gain beyond the norms, Rule and ethical principles of banking company. But we have found a total negation of all these trappings in the case of the incumbent director, the petitioner.
27. Fortified with the observations as made above conjunct with the decisions, we are of the view that this Rule does not merit any substance which should be discharged outright.
28. In the result the Rule is discharged. However, without any order as to cost.
29. Before parting we would like to record that this kind of interference as it has been done by the Bangladesh Bank to our mind is rare of a kind. The Bangladesh Bank being the regulatory bank should not exercise this power sparingly but should come up strongly in case of other banking companies often against those we receive several obnoxious and detestable allegations.
Communicate at once.
--- Journal: ALR Volume: 21 Division: HCD Page: 73 Journal: DLR Volume: 75 Division: HCD Page: 379High Court Division (Civil Revisional Jurisdiction)
Present:
Ms. Justice Kashefa Hussain
Civil Revision No. 800 of 2019
Meera Nondi
------------- Petitioner
VS
Habiba Akhter Khanam and Ors.
------- Opposite Parties
Judgement Date : October 17, 2019
Counsels:
Mr. Md. Zakir Hossain, Advocate
—For the Petitioner.
Mr. Md. Fakhar Uddin with Mrs. Jobeda Begum and Mr. Md. Asif Akter, Advocates
—For the Opposite Parties.
Judgment
Kashefa Hussain, J:
1. Leave was granted and Rule was issued in the instant Civil Revisional application calling upon the opposite party No. 1 to show cause as to why the judgment and order dated 13.11.2018 passed by the learned Additional District Judge, 6th court, Dhaka in Civil Revision No. 159 of 2018 rejecting the case by affirming the order dated 10.09.2018 passed by the learned Assistant Judge, 3rd Court, Dhaka in Title Suit No. 04 of 2017 rejecting an application for cancelling the deposition of PW-9 should not be set aside and or pass such other order or further order or orders as to this court may seem fit and proper.
2. The present opposite party No. 1 as plaintiff filed the original suit being Title Suit No. 04 of 2017 inter alia for declaration to the effect that a deceased person Khokan Chowdhury as Muslim and for mandatory injunction upon the defendant No. 2 to handover the dead body to the plaintiff impleading the present petitioner as defendant.
3. The defendant No. 1 contested the suit upon filing written statement denying the material allegations. During pendency of the trial the defendant petitioner here on 16.7.2018 filed an application to the concerned trial court to expunge the evidence of the witness by PW-9 inter alia stating that production of volume, evidence and deposition by giving PW-9 is not in accordance with law.
4. The Trial Court after hearing both parties rejected the application of the defendant petitioner by its order dated 10.09.2018 rejecting the application of the defendant petitioner here. The defendant petitioner filed Civil Revision No. 159 of 2018 before the concerned Revisional Court. After hearing both parties the revisional court dismissed the civil revision by its judgment and order dated 13.11.2018 and thereby affirmed the order passed earlier by the trial court. Being aggrieved and dissatisfied by the orders of the courts below the defendant in the suit, petitioner in the civil revision as petitioner filed the instant civil revisional application which is presently before this court for disposal.
5. Short facts relating to the suit inter alia is that earlier deceased Khokon Choudhury a Hindu was married to the defendant No. 1 and at one stage while she became disobedient he (deceased Khokon Choudhury) dissolved the marital ties and then she (defendant No. 1) was married to Zahur Lal Choudury the younger brother of Khokon Choudhury, that thereafter Khokon Choudhury voluntarily adopted Islam religion and he swore an affidavit before the Magistrate on 02.04.1980 and had been living as a pure Muslim and then he married the plaintiff as per the provision of Islamic Shariah, that Khokon Choudhury alias Rajib Choudhury was suffering from different ailment including diabetes and he underwent treatment in Bhelore Hospital in India and returned to the country on 15.05.2009 with the plaintiff; that deceased Khokon Choudhury established a mosque on the 2nd floor of his market; that the deceased Khokon Choudhury became seriously ill on 15.06.2014 and died on 26.06.2014 in BIR-DEM Hospital; that the defendant No. 1 after receiving the news came to hospital and claimed the dead body as Hindu and a chaotic situation was created which was controlled by the police and Hospital authority lodged a G.D entry and thereafter the matter was referred to the learned Magistrate who also then disposed the matter by giving advice to the parties to go to a Civil Court and the plaintiff filed the suit.
6. The defendant No. 1 contested the suit by filing written statement denying all the material allegations contending inter alia that the suit is not maintainable, is bad for defect of parties as Bablu Nandi son of deceased was not made a party and the suit is liable to be dismissed. That facts as stated in the written statement in short are that deceased Ranjit Nandi alias Khokon Nandi is a Hindu by birth and his marriage was held by observing the ceremony of Hindu religion and rites, that two children named Chandana Nandi and Bablu Nondi were born on 15.01.1973 and 18.01.1974 respectively. That Chandana Nandi and Bablu Nandi got married and they have children; that the deceased Ranjit Nandi purchased 62.50 decimals of land at Tejgaon area and constructed a Super Market named Capital Super Market consisting of 50 shop rooms. That at the death of the mother of Ranjit Nandi he observed all the hindu religion ceremony with his other 5 brothers. That the deceased entered into a contract with Tropical Home a Developer Company and he transferred his shop room to different persons and in all documents his religion has been mentioned as Hindu and in all relevant up to dated documents relating to the property in the name of the deceased has been written as Ranjit Nandi alias Khokon Nandi. That the deceased had to conduct a civil suit up to the Supreme Court and in all the papers relating to the suit his name was mentioned as Ranjit Nandi alias Khokon Nandi; that the defendant No. 1 and then-son Babul Nandi arranged everything for admitting the deceased in hospital and they paid bill of the hospital and after death of the disputed deceased obtained clearance certificate and when they were taking all preparations to start for their village residence to complete the funeral ceremony, suddenly some unknown lady appeared and claimed herself as the wife of the deceased and a chaotic situation was created and the hospital authority lodged a general diary with Ramna Police Station; that Ranjit Nandi alias Khokon Nandi never adopted Islam and he did not marry that lady and it is found that the said lady bears a National ID card wherein her father's name has been mentioned and in all relevant documents the name of the deceased person has been written as Ranjit Nandi alias Khokon Nandi who is a Hindu by birth and the suit is false and liable to be dismissed.
7. Learned Advocate Mr. Md. Zakir Hossain appeared on behalf of the petitioner while Mr. Md. Fakhar Uddin with Mrs. Jobeda Begum with Mr. Md. Asif Akter learned Advocates represented the opposite parties.
8. Learned Advocate Mr. Zakir Hossain for the petitioner submits that the courts below upon misappraisal of facts and non consideration of the relevant laws including non consideration of section 65 and 66 of the Evidence Act, 1872 wrongly rejected the application and therefore the orders of the appellate court below is not sustainable and requires interference in Civil Revision here. He continues that the revisional court wrongly affirmed the order of the appellate court without application of judicious mind. He submits that in the absence of notice to the concerned Kazi and in the absence of non compliance with the proper procedures to be followed in calling upon the volume book and the Nikha nama, the deposition of the PW-9 and the calling of the volume book is unlawful and the deposition of the PW-9 therefore requires to be expunged. He submits that when a documents register is called for from a concerned office the custodian of such document of register must be issued a notice in accordance with law. He submits that in this case there is no evidence of any notice being served to the concerned person and therefore taking of evidence and deposition of the PW-9 is not in accordance with law. He concluded his submissions upon assertion that the courts below overlooked this significant factor and therefore the orders may be set aside and the Rule bears merit and be made absolute for ends of justice.
9. By way of filing a counter affidavit the learned advocate for the opposite parties submits that both the trial court and the revisional court gave their concurrent orders upon proper appraisal of facts and consideration of the relevant laws and therefore those orders require no interference from this court in revision here. He submits that both the courts below correctly found that since the PW-9 was already cross examined by the defendants and since they did not raise any objection at the time of cross examination or ever afterwards, therefore their application to expunge the deposition of the PW-9 as a witness is not acceptable in the eye of law since the defendant is barred by the doctrine of estoppel and waiver under the provisions of section 115 of the Evidence Act, 1872. He contends that it can be clearly seen that the petitioner made this application after quite a lapse of time and hence it is clear that that such an application at this stage is only to cause delay in the proceedings and trial. He takes me to the counter affidavit filed by him and from the counter affidavit he emphasises that after 20.02.2018 on which date the PW-9 Mr. Shofiqul Islam was partly cross examined and on that same day the volume was also produced and examined and marked as an exhibit in court. He next points out that several dates elapsed after 20.02.2018 but yet the defendant did not make any application or any objection during those dates. He agitates that it is only on a much later date on 16.07.2018 that they made the application to expunge the deposition of Mr. Shfiqul Islam PW-9. He submits that such conduct of the petitioner is enough to prove that the application was made only to cause delay in the proceedings. He now draws attention to the deposition of the PW-9 and shows that it is clear from the deposition that the "ক্ষমতা পত্র" to the PW- 9 authorized by the concerned Kazi was produced as an exhibit before court. He submits that this is clear enough to prove that PW-9 Mr. Shofiqul Islam is not an imposter but rather a duly authorized person representing the concerned Kazi. He next contends that although the trial court did not specifically mention the service of summons upon the Kazi but the revisional court clearly referred to the service of summons upon the concerned Kazi. As to the issue of non service of notice raised by the petitioner the learned Advocate for the opposite party submits and draws my attention to section 66 of sub-section (1) of the Evidence Act, 1872 and argues that the instant case falls within the category for exemption under the proviso of section 66 of sub section (1) of the Evidence Act, 1872. To this effect he contends that it is clear that the document to be proved, that is in the instant case the volume book in itself amounts to a notice- and therefore no formal notice is required to be issued under the circumstances. He next submits that the deposition made by the PW-9 is an admissible evidence under the provisions of sections 118, 135, 136 and 162 of the Evidence Act, 1872. He contends that it is the discretion of the court under the provisions of the Evidence Act, 1872. He next assails that the courts below correctly observed that the defendants have scope to reexamine and cross examine the PW-9 and any doubts which may be raised and questions they may have about the genuineness of the PW-9 as a witness, they can settle such doubts upon cross examining him further. He concludes his submissions upon assertion that the courts below correctly gave their orders and those require no interference and therefore the suit is not maintainable and the Rule bears no merit and ought to be discharged for ends of justice.
10. I have heard the learned Advocates, perused the application and all materials on record including the judgments of the courts below. It also appears from the counter affidavit that the defendant petitioner was already cross examined by the PW-9 and that it was only at a later stage of the proceeding that they made an application for expunging the deposition of the PW-9. I am of the considered view that the courts below correctly found that the defendant while making the application at the later stage pursuant to partial cross examination of PW-9 and pursuant to passing of several dates after the partial cross examination are therefore barred from making such application by the doctrine of waiver and acquiescence under the provisions of section 115 of the Evidence Act, 1872.
11. It also appears that the revisional court in particular quite elaborately discussed the facts and circumstances including the relevant law. The Revisional court correctly found that
"সাক্ষ্য আইন ১৮৭২ এবং দেওয়ানী কার্যবিধি ১৯০৮ এর বিধান অনুযায়ী আদালত কর্তৃক শপথ গ্রহন পূর্বক গৃহীত কোন সাক্ষ্য বাতিল করার আইনগত কোন সুযোগ নেই। বিবাদী/রিভিশনকারী পক্ষের নিম্ন আদালতে পি.ডব্লিউ-১ কে জেরা করার সুযোগ রয়েছে। ফলে উক্ত সাক্ষীর জবানবন্দি গ্রহনের মাধ্যমে বিবাদী/ রিভিশনকারী পক্ষ ক্ষতিগ্রস্ত হয়েছেন মর্মে দাবীর কোন ৗেক্তিকতা নেই।"
12. The revisional court further found that
"পি ডব্লিউ-১ এর সাক্ষ্যের সাক্ষ্যগত মূল্য শুধুমাত্র রায় প্রদানকালে আদালত বিবেচনা করবেন। যেহেতু আদালত হতে সংশ্লিষ্ট নিকাহ রেজিষ্টার বরাবরে সাক্ষীর সমন ইস্যু করা হয়েছিল এবং সংশ্লিষ্ট নিকাহ রেজিস্ট্রার তার প্রতিনিধির মধ্যেমে বালাম প্রেরণ করেছেন এবং নিম্ন আদালত উক্ত প্রতিনিধির সাক্ষ্য পিডব্লিউ-১ হিসেবে গ্রহন করেছেন তাই সাক্ষ্য আইন ১৮৭২ এর ১১৮, ১৩৫, ১৩৬ ও ১৬২ ধারার বিধান অনুযায়ী নিম্ন আদালত আইনতঃ কোন ভুল করেননি মর্মে প্রতীয়মান হয়।"
13. I am of the considered view that since the volume book (বালাম বই) was produced by the PW-9 and the Kazi issued an authorization certificate therefore the provisions of section 118, 135, 136 and 162 of the Evidence Act, 1872 was duly complied with. Pertaining to the deposition of the PW-9 and the merits or demerits thereof whatsoever can only be considered by the court while giving its judgment but apart from that it is an admissible evidence within the meaning of the Evidence Act, 1872.
14. I have gone through the facts of the case and truly enough this is an exceptional case under the circumstances and it is desirable that the matter needs to be disposed of as early as possible since the dead body of the deceased is lying in the morgue of the hospital since several years.
15. Be that as it may, under the foregoing facts and circumstances and in the light of the submissions made by the learned Advocates for both parties, I am of the considered view that the Judgments of the Courts below were correctly given and correctly rejected the application of the defendant petitioner and those need not be interfered with. I find no merit in this Rule.
16. In the result, the Rule is discharged without any order as to costs. Since the facts arising out of this case is an exceptional one the court below are directed to dispose of the matter expeditiously as possible since this is a long pending matter.
Communicate the judgment at once.
--- Journal: DLR Volume: 75 Division: HCD Page: 383High Court Division (Civil Appellate Jurisdiction)
Present:
Mr. Justice Bhishmadev Chakrabortty
And
Mr. Justice Md. Ali Reza
First Appeal Nos. 299 and 309 of 2007
Bilquis Jahan and Ors.
------------- Appellants in F.A. No. 299 of 2007
Syed Abdul Hafiz and Mijanur Rahman
------------- Appellants in F.A. No. 309 of 2007
VS
Syed Abdul Hafiz and Ors.
------- Respondents in F.A. No. 299 of 2007
Bilquis Jahan and Ors.
------- Respondents in F.A. No. 309 of 2007
Judgement Date : November 29, 2022
Counsels:
Mr. Mrinal Kanti Biswas, Mr. Md. Aktaruzzaman, Mr. Binoy Krishna Poddar, Mr. Abdullah-Al-All-Afzal and Ms. Biroza Mala, Advocates
—For the Appellants in F.A. No. 299 of 2007.
Mr. Mansur Habib and Ms. Shimul Sultana, Advocates
—For the Respondents in F.A. No. 299 of 2007 / Appellants in F.A. No. 309 of 2007.
Judgment
Md. Ali Reza, J:
1. These two appeals are taken up together for analogous hearing pursuant to order dated 25.11.2008 and accordingly are disposed of by this common judgment.
2. Sole defendant Bilquis Jahan has preferred First Appeal No. 299 of 2007. On the other hand plaintiffs Syed Abdul Hafiz and Mijanur Rahman have preferred First Appeal No. 309 of 2007. Those two appeals arose out of the judgment and decree dated 18.06.2007 passed by the Joint District Judge, Additional Court, Dhaka in Title Suit No. 34 of 2005. Initially Title Suit No. 44 of 2002 was filed in the Court of Joint District Judge, 5th Court, Dhaka on 17.03.2002 and subsequently on transfer on 09.06.2005 it was registered as Title Suit No. 34 of 2005.
3. The suit was filed for declaration of title on the basis of purchase and adverse possession, confirmation of possession, alternatively for recovery of khas possession and also for permanent injunction. The case of the plaintiffs, in short, is that the suit land measuring 0.1093 acres appertaining to RS plot 8187 of RS Khatian 926 corresponding to SA plot 5329 of SA khatian 2132 originated from CS plot 143 of CS khatian 13021 of mouja Lalbag belonged to Sheikh Nanna. CS plot 143 contains 0.2256 acres of land from which Sheikh Nanna transferred 0.1163 acres of land to the father of plaintiff 1 before SA operation. While Nanna was owner in possession in remaining 0.1093 acres died leaving behind 05(five) sons named Chand Miah, Chunnu Miah, Sona Miah, Bachchu Miah and Suruj Miah. Chand Miah died leaving behind 02(two) sons named Tara Miah, Pier Ali and 02(two) daughters named Dulari Begum and Kosturi Begum. Tara Miah died leaving behind 03(three) sons named Rahman Miah, Badal Miah and Iqbal Miah. Chunnu Miah died leaving behind 01(one) daughter Anarzadi Begum. Sona Miah died leaving behind 01(one) son Babul Miah and 01(one) daughter Piyari Begum. Bachchu Miah died leaving behind 01(one) son Solaiman Miah and 01(one) daughter Nurjahan Begum. Suruj Miah died leaving behind wife Irani Begum, 03(three) sons named Tara Miah, Kalu Miah and Abdul Kader and 05(five) daughters named Jabeda Begum, Meherun Begum, Hasna Begum, Rashida Begum and Rehana Begum. All the descendants of late Nanna Miah executed an unregistered agreement for sale of the suit land on 25.06.1991 to the plaintiffs at a consideration of tk. 5,00,000/- (five lac) from which tk. 1,00,000/- (one lac) was paid as earnest money. Subsequently, the rest tk. 4,00,000/- (four lac) was paid on 19.06.1993, 15.06.1995, 10.06.1997, 13.01.2000 and ultimately document in favour of the plaintiffs was executed and registered on 13.01.2000. On 15.01.2001 plaintiffs came to know from the settlement office that defendant mutated and separated her name in respect of the suit land. The vendors of the plaintiffs gave the photo copy of the SA record prepared in the name of Sheikh Nanna. Meanwhile, the city survey record was prepared in the name of Jahanara against which plaintiffs filed Miscellaneous Case No. 651 of 2000 under Rule 30 of the State Acquisition Rules but plaintiffs failed in the case on 07.06.2000. Then they preferred Miscellaneous Appeal No. 13149 of 2000 which was also disallowed. Defendant threatened the plaintiffs with dispossession on 25.01.2001. Then plaintiffs filed Title Suit No. 103 of 2001 for permanent injunction in the 3rd Court of Assistant Judge, Dhaka. The suit was withdrawn on 07.03.2002 with liberty to sue afresh. Now the present Title Suit No. 44 of 2002 was filed on 17.03.2002 and the same was renumbered as Title Suit No. 34 of 2005 showing cause of action arose in the suit on 07.06.2000, 15.01.2001, 25.01.2001 and 07.03.2002.
4. Sole defendant appeared and contested the suit by filing a written statement denying all material statements made in the plaint contending, inter alia, that Devendra and Surendra filed Mortgage Suit No. 09 of 1919 against Satyendra and Monosha in the Court of 4th Subordinate Judge, Dhaka and got decree. Decree- holders filed Decree Execution Case No. 154 of 1919 and auction was held on 03.06.1920 and Birendra alias Dhirendra purchased the same in the benami of Jogendra which was confirmed by the Court on 10.07.1920. Thereafter, Jogendra executed a deed of relinquishment on 20.03.1922 to Birendra who sold 06(six) kathas from the west side of CS plot No. 143 to Ram Gopal by kabala dated 29.08.1923 and delivered possession. Ram Gopal sold the suit land to Jahanara by kabala dated 29.09.1942 and delivered possession. SA khatian 2132 was correctly prepared in the name of Jahanara in respect of suit land measuring 0.1090 acres in SA plot 5329 with reference to holding number 4 Hosseni Dalan Road, Dhaka. Then Jahanara died on 10.02.1965 leaving behind husband Abdul Majid, 03(three) sons named Tariqul, Reazul, Enamul and 03 (three) daughters named Khurshid Jahan, Kamar Jahan and defendant Bilquis Jahan. Majid then died on 10.12.1976. Khurshid Jahan also died in 1987. Thereafter, defendant and Enamul filed Title Suit No. 235 of 1989 for partition in the 2nd Subordinate Judge Court, Dhaka against Tariqul, Reazul, Kamar Jahan which ended in compromise on 24.03.1991 and the suit land exclusively fell into the saham of the defendant. Subsequently, she mutated her name in separate khatian No. 2132 on 19.11.1991 by Separation Case No. 1992 of 1991-92 and has been maintaining title and possession upon payment of rent and other taxes. Subsequently in Certificate Case No. 17 of 1997-98 defendant paid tk. 10,222.45/- on 13.06.1999 by rent receipt 496817. It is further stated that enhanced rate was realised from the defendant considering the suit land as commercial for which defendant filed Land Development Case No. 30 of 1999 to reduce the rent treating the suit land as residential and the case was allowed. During liberation war the original documents of Mortgage Suit, sale certificate, writ of delivery of possession, nadabi document, 1923 document, 1942 document, rent receipt, holding taxes were lost. The city survey DP khatian 5140 was prepared in the name of the defendant against which plaintiff filed Objection Case No. 651 of 2000 under Rule 30 which was rejected on 07.06.2000. Then plaintiffs filed Appeal Case No. 13149 of 2000 under Rule 31 which was also rejected on 24.01.2001. Plaintiffs admitted the address of defendant in 4 Hosseni Dalan Road, Lalbag in the memorandum of Miscellaneous Appeal. The second schedule of plaint and decree of Mortgage Suit No. 9 of 1919 attracts the land covered by CS plot 143. Defendant and her predecessors have been maintaining title and possession in the suit land upon payment of taxes and all utility bills for more than 80(eighty) years within the knowledge of others. Plaintiffs have no title and possession in the suit land and the suit being false is liable to be dismissed with cost.
5. The trial Court framed as many as 06(six) issues as to maintainability, whether the suit is barred under Article 144 of the Limitation Act, whether the plaintiffs have title in the suit land, whether the plaintiffs have possession until dispossession, whether the plaintiffs are entitled to get the relief as prayed for.
6. During trial plaintiff examined 03(three) witnesses and defendant examined 06(six) witnesses and both the parties adduced documentary evidence in order to prove their respective cases.
7. The trial Court dismissed the suit by judgment and decree dated 18.06.2007 on the finding that the certified copy of the SA khatian (exhibit-2) was not issued by the proper authority but the certified copy of the SA khatian (exhibit-C) prepared in the name of Jahanara was duly issued and it supports possession of Jahanara and further found that admittedly the suit land is situated at 4 Hosseni Dalan Road, Dhaka for which rent and taxes are paid by the defendant through series of exhibits and those are evidence of possession and collateral evidence of title which prevail over RS khatian (exhibit-3). The Court found that plaintiffs failed to prove their or their predecessors' possession and RS record has no basis. The Court further found that the plaintiffs also failed to prove their dispossession from the suit land and the suit is not maintainable and also found that exhibit-2 does not correspond to CS khatian 13021 (exhibit-1) and again found that exhibit-6 shows that execution was done on 16.01.2000 but the document was presented for registration on 13.01.2000 which is absurd and also found that defendant did not file the sale certificate and writ of delivery of possession and the nadabi document does not confer title and since plaintiffs or their predecessors were not parties to Title Suit No. 235 of 1989, Jahanara Begum did not acquire any title and accordingly both the parties have failed to prove their title over the suit land.
8. As against the same defendant Bilquis Jahan preferred First Appeal No. 299 of 2007 and plaintiffs Syed Abdul Hafiz and Mijanur Rahman preferred First Appeal No. 309 of 2007.
9. Mr. Mrinal Kanti Biswas, learned Advocate appearing with Advocates Mr. Md. Aktaruzzaman and Ms. Biroza Mala for the appellant (hereinafter be called as defendant) of First Appeal No. 299 of 2007 submits that the trial Court was wrong in finding that the defendant failed to prove her title to the suit land and such finding is apparently illegal and uncalled for and required to be reversed. The finding on the deed of relinquishment dated 10.12.1921 is a blunder and the Court misjudged the document which is not tenable in the eye of law. He further submits that the trial Court failed to appreciate that many documents including the sale certificate and writ of delivery of possession were lost during liberation war and adverse finding upon such documents are misconceived when long possession of the defendant in the suit land is evidently found. He also submits that the observation along with the finding arrived at by the Joint District Judge in respect of title of defendant is against the evidence on record and the same being misconceived and illegal is liable to be reversed and set aside. He lastly submits that there are good grounds in the appeal and the same might be allowed. In support of his submission he referred the cases of Golzar Ali Pramanik Vs. Saburjan Bewa, reported in 6 BLC(AD) 41; Moksed Ali Mondal Vs. Abdus Samad Mondal, reported in 9 BLC(AD) 220; Government of Bangladesh and others Vs. Md. Sharif Uddin and others, reported in 22 BLC(AD) 204; Shishir Kanti Pal and others Vs. Nur Muhammad and others, reported in 55 DLR(AD) 39.
10. Learned Advocate Mr. Mansur Habib, appearing on behalf of the appellants (hereinafter called as plaintiff) of First Appeal No. 309 of 2007 submits that the trial Court erred in law in dismissing the suit beyond the evidence and law. He submits that the trial Court ought to have decided that plaintiffs being purchaser from the successive heirs of CS tenant Sheikh Nanna hold good title and the finding on possession of the plaintiffs is wrong and beyond the evidence on record. The witnesses of plaintiffs prove the possession in accordance with the law and the finding that the suit is not maintainable for want of possession is wrong. He submits that the SA record submitted by the defendant has got no basis and defendant has no title and possession in the suit land. He finally submits that since there is merit in the appeal the same would be allowed.
11. We have heard the learned Advocates and perused the pleadings of the parties and the evidence on record and also gone through the grounds taken in the appeals as well as the judgment passed by the Court below.
12. Defendant's case starts with a suit for recovery of money of a mortgage of the year of 1917 filed by Devendra against Satyendra and others. That was Title Suit No. 180 of 1917 filed on 23.04.1917 before the CS record was finally published in the Calcutta Gazette for the concerned area on 26.06.1917. The suit was renumbered as Title Suit No. 240 of 1917 and finally as Title Suit No. 09 of 1919 by Order No. 27 dated 09.01.1919. The identity of the present suit land with boundary is found in schedule 2 of the plaint and decree of that suit which are exhibit-B series wherein it is mentioned that the land within the boundary is "mudafate Gobinda Moisal" which in other words means "in the name of Gobinda Moisal". Title Suit No. 09 of 1919 was decreed on 15.01.1919 and final decree was passed on 21.08.1919 exhibit-B(iii). Decree-holder filed Execution Case No. 154 of 1919 and auction was held on 03.06.1920 and Birendra purchased the same in the benami of his cousin's son Jagendra which was confirmed by the Court on 17.07.1920. Jagendra acknowledging ownership of Birendra executed and registered a deed of relinquishment on 20.03.1922 (exhibit-T) in respect of all lands including the suit land covered by exhibit-B(iii). Jagendra then sold the suit land situated at the west side of CS plot 143 to Ram Gopal Roy by kabala dated 29.08.1923 (exhibit-U) and delivered possession. Ram Gopal subsequently transferred the same in favour of defendant's mother Jahanara by kabala dated 22.09.1942 (exhibit-V) and delivered possession. Accordingly SA record 2132 (exhibit-C) comprising plot No. 5329 was prepared in her name with reference to holding number 4 Hosseni Dalan Road, Dhaka. Jahanara died in 1965 leaving behind husband Majid and 03(three) sons namely Tariqul, Reazul, Enamul and 03(three) daughters Khurshid Jahan, Kamar Jahan and defendant Bilkis Jahan. Majid and Khurshid Jahan died later on. For the convenience of possession in the joint property defendant and brother Enamul filed Title Suit No. 235 of 1989 for partition against brothers Tariqul, Reazul and sister Kamar Jahan and according to item 4 of the decree (exhibit-D series) the suit land fell in the saham of this defendant. There was arrear of rent for the year 1398 BS to 1405 BS for which Certificate Case No. 70 of 1997-98 started and accordingly notice (exhibit-F) was served and arrear of tk. 10222.45/- was paid on 12.03.1998 by receipt number 896902 and the case was disposed of as evident from exhibit-H. Subsequently defendant filed Land Development Tax Case No. 30 of 1999 for decrease the rent of the suit land and the Assistant Commissioner reassessed the rent which is exhibit-I. City Survey DP khatian 5140 with plot No. 2065 (exhibit-J) was also prepared in the name of the defendant. Plaintiffs filed Objection Case No. 651 of 2000 against exhibit-J but failed (exhibit-L). Plaintiff also failed in the following Appeal Case No. 13149 of 2000 (exhibit-N). Defendant filed rent, tax, utility bills (exhibit-G, O series, P series, Q series).
13. Plaintiffs claimed that they have entered into an agreement with the descendants of CS tenant Sheikh Nanna on 25.06.1991 wherein consideration was fixed at tk. 5,00,000/- (five lac) and 1,00,000/- (one lac) as earnest money was given on that day. Subsequently, on 19.06.1993, 15.06.1995, 10.06.1997 they paid tk. 3,00,000/- (three lac) and on 13.01.2000 the rest tk. 1,00,000/- (one lac) was paid and the kabala in respect of the suit land was executed and registered on that day.
14. On 15.01.2001 plaintiff went to the local settlement office and came to know that the suit land was mutated and separated in the name of the defendant. Later on when the city survey khatian was prepared in the name of the defendant they filed Objection Case No. 651 of 2000 in the settlement office but plaintiffs lost in the said case on 07.06.2000. As against the same plaintiffs filed Miscellaneous Appeal No. 13149 of 2000 and the appeal was also disallowed. On 25.01.2001 defendant threatened the plaintiffs with dispossession for which Title Suit No. 103 of 2001 was filed for permanent injunction and due to formal defect the suit was withdrawn on 07.03.2002 with liberty to sue afresh and the present suit for declaration of title by purchase and adverse possession and for further declaration that the documents, judgment and decree of the defendant are illegal, fraudulent, collusive, inoperative, mere paper transaction and not binding upon the plaintiffs along with confirmation of possession and alternatively for recovery of khas possession and also for permanent injunction was filed on 17.03.2002.
15. The title document of the plaintiffs dated 13.01.2000 is filed in original and the same is exhibit-6. There are as many as 20(twenty) executants in the kabala who are the successive heirs of CS tenant Sheikh Nanna. There is a reference of an agreement dated 25.06.1991 in the kabala. Plaintiff did not offer any explanation for not filing the agreement in order to prove the passing of consideration money. From perusal of the kabala it comes into view that all the executants reside in different addresses other than the address of the suit land. Exhibit-6 was executed and presented for registration on 13.01.2000 and the document itself shows that the same was registered on 13.01.2000. But it appears that Pear Ali, Soleman Miah and Nurjahan Begum being executants 1, 10 and 11 respectively executed the document on 16.01.2000. The document is shown to be registered without some of the vendors. It is incredible that how the sub-registrar proceeded with the registration process with the endorsement seals and sign violating the registration rules. It is a fraud upon registration. This is not a document registered in accordance with the law and the same is a forged, fraudulent, collusive and void document.
16. The prayer portion of the plaint shows that the plaintiff made a simultaneous claim of declaration of title on the basis of purchase and adverse possession. It is the settled principle of law that declaration of title on the basis of a document and adverse possession cannot go together because such claim conflicts with each other. In paragraph 4 of the plaint it has been stated that all the heirs of Sheikh Nanna have been in possession in the suit land. In paragraph 7 it has been stated that defendant might dispossess the plaintiff from the suit land at any time. The last dates of cause of action are 25.01.2001 and 07.03.2002 and the suit was filed on 17.03.2002. PW 1 stated in examination-in-chief that the holding number of the suit land is 4 Hosseni Dalan Road. He further stated that after withdrawal of Title Suit No. 103 of 2001 defendant dispossessed him. He admitted in cross-examination that dispossession was done before filing of the suit. In order to get a decree for recovery of possession a definite case of possession followed by dispossession has got to be made out in the plaint and accordingly evidence has to be led. Plaintiff did not even amend the plaint to the effect that they had been dispossessed on such date and time by such person or persons in such manner. Plaintiffs have no case on possession followed by dispossession and question of decree on recovery of possession does not arise at all under Article 142 of the Limitation Act and their factum of actual position on possession is beyond pleading. From reading of the deposition of PW 2 and PW 3 it does not appear that plaintiffs or their predecessors had possession in the suit land. PW 2 expressed his ignorance about the possession of DW 6 in the suit land. From the oral evidence of both the parties along with the series of documentary evidence filed by the defendant it transpires that defendant's mother Jahanara had been maintaining title and possession in the suit land till her purchase in 1942 by exhibit-V and after her death defendant Bilkis maintains the same.
17. Defendant has stated in paragraph 23 (Jha) of the written statement that the original documents of foreclosure suit, sale certificate, writ of delivery of possession, deed of relinquishment, title documents, rent-receipts, khatian, receipts of holding taxes were lost during the war of independence. The trial Court found since no sale certificate, writ of delivery of possession were produced, the predecessor of defendant acquired no title. But the trial Court failed to appreciate that sale certificate is not a document of title and auction can be proved by other evidence independent of sale certificate and writ of delivery of possession. This proposition finds support from the case of Thanda Nessa Bibi and others Vs. Monowar Joarder and others reported in 5 BLC(AD) 189, Bazlur Rahman and others Vs. Sadu Mia and others reported in 45 DLR 391. In the present case the certified copies of most of the lost documents were produced and marked in evidence. The reason for not filing the previous original documents has been explained away by the defendant. From reading of all those documents it appears that the details of the fact are chronologically and very clearly presented in the recital of those documents in consonance with the statements made in the written statement. Trial court also found that Birendra did not acquire any title by the deed of relinquishment (exhibit-T) executed by Jogendra. Trial Court did not appreciate that this deed of relinquishment although is not a document of title but of admission and declaration about the benami nature and transaction. In the instant case Birendra is the real owner and Jogendra is the ostensible owner. The admission made by the ostensible owner is sufficient to prove that Birendra was the real owner and from reading of exhibit-T, it appears that Jogendra admitted that the auction was purchased by Birendra by his own money and for his own interest. This aspect of the case has been discussed in the case of Mst. Khaleda Razia and others Vs. Mahatub Uddin Chowdhury reported in 30 DLR(SC) 27. Recently in a judgment passed on 26.02.2019 in Civil Appeal No. 535 of 2009 in the case of Lalmon Bibi and another Vs. Mohammad Delwar Hossain and others our Appellate Division only relying upon a nadabi document dismissed the appeal. Exhibit-T is proved by calling the volume book from the concerned office. The trial Court failed to appreciate the preponderance of evidence and being driven by whim made adverse observations and findings against the title of the defendant which is absolutely unwanted because in the instant case plaintiffs failed at possession but even then if they could prove title to the suit land in that case title of defendant might be investigated but it is not wise to disbelieve defendant's title when plaintiffs holding a void document without possession summoned defendant to take a chance on her. Considering the facts and circumstances of the present case even if had the defendant failed to prove her title, her and her predecessor's possession for more than 12 (twelve) years would have given birth to her title although she did not specifically claim title by adverse possession and this aspect of the case has been decided in the case of Nurjahan Begum Vs. Nur Rahaman, reported in 6 ADC 469. Exhibits-C, E series, F, G, H, I, J, K, L, M, N, O series, P series, Q series are good evidence in support of the case of the defendant and those documentary evidence also terminate the case of the plaintiff.
18. The son of defendant holding a power of attorney Exhibit-A examined himself as DW 1 in support of defence case. DW 2 came from land office and proved SA khatian 2132 exhibit-C prepared in the name of defendant. DW 3 came from the record room with volume book and proved the deed of relinquishment (exhibit-T) dated 20.03.1922. He also proved the kabala dated 29.08.1923 executed by Birendra to Ram Gopal (exhibit-U). DW 3 also proved the kabala dated 22.09.1942 (exhibit-V) executed by Ram Gopal in favour of the mother of the defendant named Jahanara Begum and this document is described in Volume 46 of the year of 1942 at page numbers 27-31. The deposition of DW 3 remained undisturbed in cross. Defendant has successfully proved her title to the suit land. There are series of documents in support of her title and possession in the suit land. DW 4 deposed on possession. DW 5 is the full brother of defendant and he upheld the relevance of exhibit-D series and stated that defendant acquired the suit land. It is stated in paragraph (Kha) of written statement that Lal Miah and his family have been living in the suit land as care taker. Lal Miah as DW 6 deposed in the suit and in cross examination his position got stronger.
19. It is an age-old principle of law that plaintiff has got to prove his own case independent of defence weakness. In the instant case plaintiffs have utterly failed to prove their title and possession in the suit land. Exhibit-6 dated 13.01.2000 is a forged, fraudulent, collusive, void document. They did not even make out any case on possession followed by dispossession. Their prayer is vague and their simultaneous claim on title by purchase and adverse possession is not permitted under the law. Plaintiff with a view to grab the suit land filed this false suit.
20. The title and possession of the defendant in the suit land is evidently proved. The adverse observations and findings arrived at by the trial Court with regard to the title of the defendant being apparently unwanted and misconceived are hereby set aside and expunged. Accordingly, First Appeal 299 of 2007 is allowed. Since plaintiffs have miserably failed to prove their case First Appeal No. 309 of 2007 is dismissed. The judgment and decree of the trial Court is affirmed in the modified form by expunging the findings of title and possession against the defendant.
21. There will be no order as to costs.
22. Communicate this judgment to the concerned Court.
23. Send down the lower Court's record.
Bhishmadev Chakrabortty, J: I agree.
--- Journal: DLR Volume: 75 Division: HCD Page: 391High Court Division (Special Original Jurisdiction)
Present:
Mr. Justice Md. Khasruzzaman
And
Mr. Justice Md. Iqbal Kabir
Writ Petition Nos. 3144 and 3185 of 2023
M.A. Aziz Khan and Ors.
------------- Petitioners
VS
Election Commission of Bangladesh and Ors.
------- Respondents
Judgement Date : March 15, 2023
Counsels:
Mr. Abdul Momen Chowdhury, Advocate
—For the Petitioner.
Mr. A.M. Amin Uddin, Attorney General, Mr. Mohammad Mehedi Hasan Chowdhury, Additional Attorney General and Mr. Bepul Bagmar, Deputy Attorney General
—For the Respondents.
Judgment
Md. Khasruzzaman, J:
1. Mr. MA Aziz Khan, the learned Advocate as petitioner, filed Writ Petition No. 3185 of 2023 under Article 102(2)(a)(ii) of the Constitution of the People's Republic of Bangladesh, hereinafter referred to as "the Constitution", praying for a declaration with a Rule Nisi that the scrutiny of nomination paper of the dole presidential candidate Mr. Md. Shahabuddin under section 7 of the Presidential Election Act, (Act No. 27 of 1991) 1991 declaring him eligible and elected as single candidate and the Notification No. 17.00.0000.034.34.025.22-119 dated 13-2-2023 (Annexure-A) without any lawful authority and is of no legal effect.
1.1. Mr. Abdul Momen Chowdhury and others, the learned Advocates as petitioners, filed another Writ Petition being No. 3144 of 2023 under Article 102(2)(a)(ii) of the Constitution praying for a declaration with a Rule Nisi that the impugned Gazette Notification dated 13-2-2023 made by the respondent No. 1 (Annexure-B) and also to declare section 7 of the Presidential Election Act, (Act No. 27 of 1991) 1991 is illegal, void and ultravires to the constitution (Annexure-C).
1.2. On 12-3-2023 the Hon'ble Chief Justice of Bangladesh sent Writ Petition No. 3185 of 2023 to this Bench for hearing and disposal the same. As the subject matter, relevant laws, and prayers in the aforementioned two writ petitions are similar, we are disposing the same by this single order.
2. The facts of Writ Petition No. 3185 of 2023, in short, are that the present incumbent, the Hon'ble President of Bangladesh, is scheduled to end his term of office on April 2023 put upon the Election Commission of Bangladesh a duty to arrange the election of a new President for the country who will assume the office of President immediate next. The Election Commission, hereinafter referred to as "the EC, represented by the Chief Election Commissioner, hereinafter referred to as "the CEC", as per the Presidential Election Act, 1991 read with Article 119(1)(a) of the Constitution, declared the schedule and got the sole candidate for the office of President. The Election Commission, represented by the Chief Election Commissioner, is responsible to scrutinize the nomination paper of the sole candidate under section 7 of the Presidential Election Act, 1991 and declaring if correct and qualified, having taken into consideration of section 9 of the Anti-Corruption Commission Act, 2004, hereinafter referred to as "the ACC Act" read with Article 66(2)(g) of the Constitution that hit the eligibility and qualification for holding the post. The CEC declared Mr. Md. Shahabuddin President-elect under section 7 of the Presidential Election Act, 1991 and accordingly under rule 12(6) of the Presidential Election Rules, 1991, Gazette Notification being No. 17.00.0000.034.34.025.22-119 dated 13-2-2023 was published.
2.1. On 15 February 2023, the CEC, in his press briefing, termed the controversy over the election of the Supreme Post of the State as unexpected and declared that mere is no legal bar for Mr. Md. Shahabuddin to become the President of the Country pointing the difference between election and appointment, indicating none has the authority to appoint the President as the Head of the State can only be elected, and Mr. Md. Shahabuddin has been elected in line with the existing laws referring to former Chief Justice Shahabuddin Ahmed's presidential election. Referring to section 9 of the ACC Act, the CEC also said although the post of President is an 'office of profit', that is not an office of profit in the service of the Republic and requested all not to create any confusion in this regard. The CEC asserted that as personal responsibility under section 7 of the Presidential Election Act, 1991, he scrutinized the nomination paper received from Mr. Md. Shahabuddin as the sole candidate against disqualification under section 9 of the ACC Act, 2004 and found him eligible for the post of President. He also explained, reasons by equating with the erstwhile election of Chief Justice Shahabuddin Ahmed as President like the ACC Commissioner relying on a final Judgment of the High Court Division of the Supreme Court of Bangladesh.
2.2. The CEC has misinterpreted the law by not considering the bar imposed by the ACC Act, 2004 read with Article 66(2)(g) of the Constitution. Without referring the matter involving the interpretation of the Constitution to the Supreme Court of Bangladesh for having legal interpretation, the CEC misconstrued the laws regarding eligibility and passed the scrutiny teat of the nomination paper of the President, Mr. Md. Shahabuddin, to hold an office of profit through the election. However, section 9 of the ACC Act, 2004 is a bar for being appointed in the service of the Republic. Had the President been appointed to the post instead of elected, he would have been hit by said law as a disqualification for the office of President of the Republic. The interpretation of the ACC Act, 2004 and the Constitution pivoted on the words "elected" to the post or "appointed" or "nominated" to the post solely lies to the Supreme Court of Bangladesh, not to the CEC as he has no authority to interpret his own choice when the matter is already embroiled in serious debate all around. The action of the CEC has suffered from the vice of gross impropriety leading to an illegal decision while carrying out his constitutional and legal duty resulting in the erroneous scrutiny of the nomination paper that leads to a void and illegal Notification.
3. The facts of Writ Petition No. 3144 of 2023, in short, are that the term of the incumbent President, Mr. Md. Abdul Hamid is going to expire in the latter part of April 2023, respond No. 1, the Election Commission, was needed to announce the schedule for holding the election of the President of the Republic. Accordingly, the Election Commission announced an election schedule notification dated 25th January of the year 2023. Respondent No. 3, Mr. Md. Shahabuddin, is barred from being President of the Republic due to his prior appointment as Commissioner of the Anti-Corruption Commission, which is an office of profit under the Republic but largely ignoring his disqualification and giving an untrue statement that he is not disqualified from being a President of Bangladesh and accordingly filed nomination paper for the post of President of the People's Republic of Bangladesh. Respondent No. 1, the Election Commission, upon erroneous scrutiny and evading responsibility of proper scrutiny, has declared the nomination paper valid though respondent No. 3, Mr. Md. Shahabuddin lacks the qualification to be the President of the Republic. On 13th February 2023, the date of scrutiny of the nomination paper, the Election Commission, as respondent No. 1, declared respondent No. 3, Mr. Md. Shahabuddin, as the President elect of the Republic by largely ignoring and making the election schedule infructuous, which is also illegal and violative of Article 48(1) of the Constitution. Respondent No. 1, the Election Commission has negatived its schedule. It has made its own schedule infructuous and inoperative. By impugned gazette notification declaring respondent No. 3, Mr. Md. Shahabuddin as President of the Republic is illegal, ultra-vires, and of no legal effect. The departure from the schedule made by the Election Commission has rendered the election of the President illegal, inoperative, and of no legal effect As Mr. Md. Shahabuddin is barred from being the member of the Parliament since he admittedly served as Commissioner of the ACC, his candidacy for the President of Bangladesh is clearly barred by Article 48(4)(b) of the Constitution for he is not eligible to be the member of the parliament due to his holding office of profit as commissioner of the Anti-Corruption Commission under the Government of Bangladesh and the election of Mr. Md. Shahabuddin is violative Article 48(4)(b) of the Constitution. Moreover, it is submitted that this case is quite distinguishable from the case reported in 49 DLR 1 for in that case the issue was whether Mr. Justice Shahabuddin Ahmed held a post of profit under the government of Bangladesh and it was held that Mr. Justice Shahabuddin Ahmed held the Constitutional post of the Chief Justice of Bangladesh but the respondent No. 3 held office of profit under the Government of Bangladesh which has disqualified him from being member of the Parliament which is made applicable for becoming the President of Bangladesh by Article 48(4)(b) of the Constitution. As section 7 of Act No. 27 of 1991 is illegal and ultra-vires to the Constitution, the such declaration has made the provision of Article 48(1) of the Constitution nugatory and inoperative, and hence the petitioners prayed for declaring the impugned gazette notification and section 7 of Act No. 27 of 1991 illegal, void and ultra-vires to the Constitution of the People's Republic of Bangladesh.
4. The constitutional and legal questions those are mainly involved with these writ petitions are:
i. Whether the CEC acted in accordance with the Constitution and law in conducting the election of the President of Bangladesh by correctly interpreting the statutory provision of section 9 of the ACC Act, 2004 read with the provisions of Article 66(2)(g) and 48(4)(b) of the Constitution; and
ii. Whether section 7 of the Presidential Election Act, 1991 is ultra-vires to the Constitution, and if so, whether the gazette notification declaring the President-elect is liable to be declared as void, unlawful and without any legal effect.
5. In Writ Petition No. 3185 of 2023, the learned Advocate for the petitioner, Mr. MA Aziz Khan submits that the President of the Republic is indirectly elected by the members of parliament under Article 48(1) of the Constitution and in line with the existing law of the land. The EC represented by the CEC conducts the election for the office of President in accordance with the Presidential Election Act, 1991 read with Article 119(1)(a) of the Constitution, where the CEC is personally responsible for reviewing the nomination papers and determining whether the candidates are eligible or not for the said office in accordance with Article 66(2)(g) of the Constitution and section 9 of the ACC Act, 2004, to be elected as the President of Bangladesh, one must meet that he/she is qualified to be elected as an MP. Unless the disqualification is lifted by legislation passed by the parliament, or despite holding posts or profitable positions listed in the Constitution, including the office of President, the disqualification is still in effect. According to Article 147 of the Constitution, the positions of President and members of Parliament (MPs) are public offices of the Republic With responsibilities and remuneration for performing public activities within the framework of the Constitution. Although the CEC held the correct legal position that the position of President is an office of profit when examining the eligibility test to overcome the disqualifications outlined in section 9 of the ACC Act, 2004 read with Article 66(2)(g) of the Constitution, the CEC incorrectly construed or interpreted the words "appoint" and "elect" on his own without any support from law and removed the disqualification and declared the sole nomination paper of Mr. Md. Shahabuddin as President-elect culminating into a void Notification. Differentiating the words "elect" and "appoint," and at his own construction, the CEC committed a grave error by giving an interpretation contrary to law vide decision in the case of ACC vs. Mr. Shahidul Islam. 68 DLR (AD) 242 paras. 16, 20, 22, 29, and thus did not act according to the Constitution and laws rendering said Notification No. 17.00.0000.034.34.025.22-119 dated 13 February 2023 without lawful authority and is of no legal effect and thus it is void and liable to be cancelled.
6. In Writ Petition No. 3144 of 2023, the learned Advocate for the petitioner, Abdul Momen Chowdhury submits that respondent No. 3, Mr. Md. Shahabuddin, is barred from being the member of Parliament since he admittedly was a commissioner of the Anti-Corruption Commission of Bangladesh which is an office of profit under the Government of the People's Republic of Bangladesh. Holding of office of profit in any service of the Republic will stand as an impediment and be considered disqualification by Article 48(4)(b) of the Constitution to be the President of Bangladesh. He also submits that section 7 of the Presidential Election Act, 1991 has given absolute power to the CEC to declare the President as elect, which has buried and abridged the rights of the members of Parliament for such declaration, which is also illegal and ultra-vires to the Constitution as it has also made the provision of Article 48(1) of the Constitution useless and inoperative.
7. The submissions of the learned Attorney General in both the writ petitions are the same except the Writ Petition No. 3144 of 2023 wherein he replied why section 7 of Act No. 27 of 1991 shall not be declared ultra-vires to the constitution. Mr. AM Aminuddin, the learned Attorney General submits that all we know that the President of Bangladesh is the symbol of unity of the entire country. Although the office of President is an office of profit, it is not the post, position, or office in the service of the Republic. According to Article 134 of the Constitution, in the service of the Republic, all employees hold their post, position, or office during the President's pleasure. Here the President himself is the supreme employer and frames rules to regulate the appointment and the conditions of service of such persons employed in the service of the Republic until provision on that behalf is made by or under any law and rules made by the Parliament. President does not Work under any authority of the State. Instead, he is the Head of the Stan; who exercises supreme powers and performs the duties conferred and imposed on him by the Constitution as per Article 48(2) of the Constitution and any relevant laws of the land. Nobody in the Republic appoints him; instead, he is elected by the members of Parliament. Elected and appointed are not the same things. As Head of the State, the President holds the supreme power to regulate the persons employed in the service of the Republic. In no way, his position can be termed as the service of the Republic. Rather the functions or services of the President can be termed the functions of the State.
7.1. It may seem that the office of President is an office of profit, so no one can hold any new office of profit in the service of the Republic after cessation of their service from another office of profit in the service of the Republic. Although the office of President is an office of Profit, it is not in the service of the Republic as mentioned in Part IX of the Constitution. The Anti-Corruption Commission Act, 2004, section 9 creates a barrier to assuming that offices of profit are in the service of the Republic, not the office of President, as the office of President is not under the service of the Republic according to language and spirit of the meaning enshrined in the Articles 135-136 in Part IX of the constitution. Those articles deal with the terms, conditions, appointment, and reorganization procedures of the employee employed in the service of the Republic, which does not indicate anything regarding the office and service of the Honourable President
7.2. The Election Commission, as per the Presidential Election Act, 1991 read with Article 119(1)(a) of the Constitution, declared the schedule and got the sole candidate for the office of President. The Chief Election Commissioner is responsible for scrutinizing the sole candidate's nomination paper under section of the Presidential Election Act, 1991 and declared correct and qualified, considering section 9 of the ACC Act, 2004 read with Article 66(2)(g) of the Constitution. In this case, the CEC did everything correctly. If there is no misconstruction of the law of the land where there is a sole candidate how the CEC will arrange the election. This is an absurd idea, and nowhere in the world to hold election when there a single candidate for a post, position, or office. The EC represented by the CEC did not make any irregularities or misinterpretations under section 7 of the Presidential Election Act and the Constitutional provisions under Article 48(1).
7.3. The learned Attorney General also submits that according to Article 66(2)(f) of the Constitution, a person shall be disqualified for election as, or for being, a member of Parliament who holds any office of profit in the service of the Republic, that is, the President-elect Mr. Md. Shahabuddin is currently not holding any office of profit. He was a Commissioner of the ACC from 2011 to 2016 for a fixed term. Like the Article 96 regarding the tenure of the office of Judges, Article 66(2)(f) of the Constitution also indicates the present status, not the past or the future status. That is, it tells the status during the submission period of the nomination paper for election. Mr. Md. Shahabuddin, the President-elect, did not hold any office of profit in the service of the Republic at the time of submission of the nomination paper. So, this article does not create any barrier for him to be elected as the President of Bangladesh.
8. Mr. Mohammad Mehedi Hasan Chowdhury, the learned Additional Attorney General, submits that Article 26(1) under Part III of the Constitution specifically mentions that any law inconsistent with fundamental rights is void and any existing law inconsistent with the provisions of this Part shall, to the extent of such inconsistency, becomes void on the commencement of this Constitution. However, the petitioners in both the writ petitions did not specifically mention which rights have been infringed and under which article of this very Part III of the Constitution was infringed. So, both the writ petitions should be summarily rejected. Moreover, he submits that Article 66(3) of the Constitution provides special provisions to the President, the Prime Minister, the Speaker, the Deputy Speaker, a Minister, Minister of State, or Deputy Minister regarding election to the member of Parliament. They shall not be disqualified to be a member of Parliament as they are holding an office of profit. So, the Chief Election Commissioner did correctly by declaring the sole candidate for the office of President under section 7 of the Presidential Election Act, 1991.
9. In Writ Petition Nos. 3185 of 2023 and 3144 of 2023 some constitutional issues have been raised those need explanation and clarification. The raised issues can be summarized as:
i. Whether the office of President is an office of profit?
ii. If so, then whether the procedures for assuming the office of President and the functions done by the President come under the definition and meaning of the service of the Republic?
iii. Whether the election and appointment carries the same meaning as per Constitution?
iv. Whether the rules and regulations, like the other service holders/employees in the service of the Republic, regulate the functions of the President?
v. Whether the declaration made by the CEC at the Nirbachan Bhaban, Agargaon, Dhaka, under section 7 of the Presidential Election Act, 1991 is illegal and ultra-vires to the Constitution which made the provision of Article 48(1) of the Constitution nugatory and inoperative and abridges the power of the members of the Parliament?
vi. Whether section 9 of the Anti-Corruption Commission Act, 2004 creates a bar to be elected as the President of the People's Republic of Bangladesh and assumes the office of President as a profitable one?
vii. Is there any bar to assuming the office of President as an office of profit after the cessation of a profitable position as a Commissioner of the ACC?
10. Although the aforementioned writ petitions did not address the questions of whether the petitioners are the aggrieved persons and have locus-standi to file these present writ petitions or whether the petitioners have any other efficacious alternative remedies for challenging the election of the President-elect, Mr. Md. Shahabuddin, it is still necessary for the sake of justice to first determine whether the applicants have these kinds of rights or not.
11. It is not necessary that a person should be personally aggrieved to file a writ petition under Article 102(2) of the Constitution. Anyone can file this writ petition who is affected by even psychologically as a conscious citizen of Bangladesh. The same view was taken in Abu Bakar Siddique vs. Justice Shahabuddin Ahmed and others, 49 DLR 1 para 18: "Article 102 of the Constitutior provides that an aggrieved person may file an application under Article 102(2) of the Constitution. But it does not provide that a person should be personally aggrieved. If the Constitution provides personal aggrievement, then the scope of Article 102 would be narrower. But in both the writ petitions, the scope of interpretation of this provision of Article 102(2)(a)(ii) of the Constitution should be wider. A person may be personally aggrieved or mentally aggrieved or constitutionally or economically or politically or socially aggrieved and this agreement of any kind for a citizen has given him the right to take shelter under Article 102 of the Constitution." In the present cases, the petitioners are the Advocates of the Supreme Court of Bangladesh. Since the petitioners are conscious people and have not received any response for their inquiries included in the legal notice from the Election Commission represented by the Chief Election Commissioner, they have the locus-standi to file these writ petitions as aggrieved persons.
12. The learned Advocate Mr. Abdul Momen Chowdhury in the Writ Petition No. 3144 of 2023 submits that the President-elect Mr. Md. Shahabuddin is barred to be the President of the Republic due to his prior appointment as a Commissioner of the Anti- Corruption Commission, which is an office of profit in the service of the Republic but largely ignoring his disqualification and giving untrue statement that বাংলাদেশের রাষ্ট্রপতি হওয়ার জন্য আমি অযোগ্য নহি he filed nomination paper for the post of President of Bangladesh. He also submits that the Constitution of Bangladesh itself creates barrier to hold any office of profit in the service of the Republic even after having held another office of profit in the service of the Republic.
12.1. On the other hand, the learned Attorney General submits before the Court that although the office of President is an office of profit, but it is not an office of profit in the service of the Republic as the Honourable President is not an employee in the service of the Republic as per Part IX of the Constitution. The President makes rules to regulate the appointment and the conditions of service of such persons who are employed in the service of Republic. The Anti-Corruption Commission and its Commissioners are regulated and appointed by the President according to the Anti- Corruption Commission Act, 2004. Section 9 of the Anti-Corruption Commission Act, 2004 shall create a barrier to assume those offices of profit which are in the service of the Republic, not the office of President, as the office of President is not an office of profit in the service of the Republic according to language and spirit of the meaning enshrined in Articles 133-136 in Part DC of the Constitution. Like the other service holders in the Republic, the Commissioners of the ACC are doing their service during the pleasure of the President. The President-elect Mr. Md. Shahabuddin did not commit any irregularities by declaring "বাংলাদেশের রাষ্ট্রপতি হওয়ার জন্য আমি অযোগ্য নহি" and by submitting nomination paper for the post of President of Bangladesh.
12.2. The main contentious issue that we find from the submissions of both parties is that whether there is any bar to assuming the office of President as an office of profit after the cessation of a office of profit in the service of the Republic as Commissioner of the ACC? So, for arriving at a just decision, we should firstly identify the meaning of office of profit.
13. The term "office of profit" is not defined in the constitution of Bangladesh. Generically, the term "office of profit," refers to all posts, positions and offices within the Republic. This is so that we can abide by Article 152(1), which specifies that we must take generic sense into account when the subject or context otherwise requires us to interpret a constitutional term or phrase.
14. Bangladesh does not have a great number of decisions passed by the Supreme Court of Bangladesh that define the term "office of profit," but we do have a subsidiary legislation called "The Representation of People Order, 1972" that lists all relevant disqualifications, including a definition of "office of profit" Holding an "office of profit" is defined as holding any office, post, or position in the Republic's full-time service as well as any statutory public authority or company in which the government holds more than 50% (fifty percent) of the shares, according to the Explanation I, Article 12 of the RPO.
14.1. The similar view was taken by this Court in Shamsul Hug Chowdhury vs. Mr. Justice Mohammad Abdur Rouf (Writ Petition No. 1269 of 1995), and their lordships held that anyone who performs services for the Republic and receives pay or other benefits train the Public Exchequer is regarded as holding an office of profit in the service of the Republic. The service of the Republic will be regulated and guided by the provisions of the Constitution under Part IX Chapter 1 of the Constitution.
14.2. In this context, the Supreme Court of India in Jaya Bachchan vs. Union of India & others. AIR 2006 SC 2119: (2006) 5 SCC 266, has defined the term of "office of profit" as a position that offers the holder a financial advantage, benefit, or gain. If it offers remuneration, a financial advantage, a benefit, etc. it can be an office or a place of profit.
15. Office of profit also implies to a position with the central or state governments that comes with salary, perks, and other benefits. The Supreme Court invalidated her membership in the aforementioned case because she received government perks and allowances in addition to a monthly stipend of Rs. 5,000, entertainment costs of Rs. 10,000, and other privileges. In Shibu Soren vs. Dayanand Sahaya and others, (2001) 7 SCC 425, the Supreme Court of India underlinec that "If mere is really some gain, its label- 'honorarium'-'remuneration'-'salary' is not material- it is the substance and not the form which matters and even the quantum or amount of "pecuniary gam" is not relevant what needs to be found out is whether the amount of money receivable by the concerned person in connection with the office he holds, gives to him some pecuniary gain".
16. The Supreme Court of India, in Guru Gobindo Basu vs. Sankari Proshad Ghosal, AIR 1964 (SC) 254, ruled in 1964 that several factors, including: "i) whether the government is the appointing authority, (ii) whether the government has the power to terminate the appointment, (iii) whether the government determines the remuneration, (iv) what is the source of remuneration, and (v) the power that comes with the position, are considered for determining whether a person holds an office of profit or not." UP MLAs Bajrang Bahadur (BJP) and Uma Shankar Singh (BSP) wer disqualified from the parliament in 2015 when it was discovered that they had abused their positions to get government construction contracts. The similar view was also taken in the Writ Petition No. 3067 of 1996 in Abu Bakar Siddique vs. Justice Shahabuddin Ahmed and others, 49 DLR 1.
17. It is clear from the submissions of the learned Advocate for the petitioners and the learned Attorney General for Bangladesh as well as the decisions of the highest Court of Bangladesh and India that the office of President is an office of profit The same view was taken earlier in Writ Petition No. 3067 of 1996 in Abu Bakar Siddique vs. Justice Shahabuddin Ahmed and others, 49 DLR 1, wherein their lordships held that the office of President of Bangladesh is an office of profit but it is not an office of profit in the service of the Republic as contemplated under the provisions of the Constitution.
18. As the learned Attorney General submitted in agreeing with the fact that the office of President is an office of profit as well as the consonant views have also been exposed in the aforementioned decisions and discussions, so after going through the Part IX of the Constitution regarding Services of Bangladesh, we hold that the office of President is an office of profit In the same way, as the Commissioner of the ACC is appointed by the President for a fixed term and receives pay or other benefits from the Public Exchequer, that office can also be regarded as an office of profit in the service of the Republic. The Commissioner of the ACC is appointed by the Government, terms and conditions of his services are regulated by the incumbent laws, and receives financial advantage, benefit, or gain from his service, his office can be termed as an office of profit in the service of the Republic.
19. It has already been held in Writ Petition No. 3067 of 1996 in Abu Bakar Siddique vs. Justice Shahabuddin Ahmed and others, 49 DLR 1, thai the office of President of Bangladesh is an office of profit but it is not an office of profit in the service of the Republic as contemplated under the provisions of the Constitution. Those who hold constitutional offices and posts, either being elected or being appointed including the President, cannot be called to hold office of profit in the service of the Republic. Now the question arises as to who hold the offices of profit in the service of the Republic and whether the functions and the office of Commissioner of ACC comes within the purview of the definition of the service of the Republic or not.
20. According to Part IX, Chapter I of the Constitution, which runs from Articles 133 to 140, the President will determine the rules until Parliament makes law governing the appointment and terms of employment of those working for the Republic. Every employee of the Republic is required to serve during the President's pleasure, and the Public Service Commission is designated to be the method of appointment for all employees. Some government employees are appointed directly by various government authorities, while others are hired through the Public Service Commission. Who are those employees classified as either servants or employees of the Republic? Generally, they include from the Secretaries of the different ministries of the Government of Bangladesh to the peons who work in service of the Republic.
21. In Writ Petition No. 3067 of 1996 in Abu Bakar Siddique vs. Justice Shahabuddin Ahmed and others, 49 DLR 1, para 51, their lordships have given a clear-cut definition regarding "public servant", "service of the Republic" and "the office of profit". In para 51, their lordships have discussed, "Secretaries, other gazetted officers, non-gazetted officers and other classes of employees of different Ministries serving in the Secretariat, different departments, Directorates, etc. officers and staff of all other Government offices like President's office, the Supreme Court's office, Speaker's and Parliament's office, Election Commission office, Public Service Commission's office, Attorney-General's office and all other offices of the constitutional post-holders, Commissioner's office, Deputy Commissioner's office, and all other offices of the Government in different parts of the country running under different Ministries are collectively known to us as Government servants. They are holders of posts in the permanent structure of administration and thereby they are rendering their services to the State. For their appointments, retirement, disciplinary actions for misconduct and other offences and for other terms and conditions of service for smooth running of the administration of the Government separate Rules and Regulations including Public Servant Conduct Rules, Government Servants (Appeal and Discipline) Rules, etc. have been made. Those officers and employee of the Government are directly controlled and guided under the supervision of the different Ministries of the Government They enter into the service at certain age and retire from service at certain later stage of life. They all get their remunerations, salaries, retirement benefit and other benefits directly from the public exchequer during their life time and even after their death, their wives and children also get some benefits from the Government. Government officers and employees as described above, in our opinion, ate collectively called and known as Government servants, who hold actually the office of profit in the service of the Republic."
22. Although the office of President is an office of profit, it is not the post, position, or office in the service of the Republic. As per Article 134, in the service of the Republic, each service holder holds their post, position, or office during the President's pleasure. Here President himself is the employer and frames rules to regulate the appointment and the conditions of service of such persons employed in the service of the Republic until provision on that behalf is made by or under any law and rules made by the Parliament. The President does not work under any authority of the State. Instead, he is the Head of the State who exercises supreme powers and performs the duties conferred and imposed on him by the Constitution and any other laws. Nobody in the Republic appoints him; instead, he is elected by the members of Parliament.
23. In the appointment process, someone has to be above as an employer, and the employer regulates everything according to the rules framed therein. As Head of the State, the President holds the supreme power to frame rules and regulate the persons employed in the service of the Republic, in no way his position can be termed under and within the service of the Republic. Rather the functions or services of the President can be termed the functions of the State.
24. It may appear that since the office of President is an office of profit, no one can hold an office of profit after leaving a position of profit in the service of the republic Even while serving as President is a profitable position, it is not like the office of the profit of the Commissioner of the ACC. The Anti-Corruption Commission Act, 2004, section 9 shall establish a barrier to assuming that offices of profit are in the service of the Republic, as opposed to the office of President, as the office of President is not within the meaning of the language and spirit of the Articles 133-136 in Part IX. These articles discuss the terms, conditions, appointment, and reorganization processes for employees working for the Republic; they make no mention of the terms, conditions, appointment processes, etc. for the President.
25. The President-elect Mr. Md. Shahabuddin was the commissioner of Anti- Corruption Commission for the period of 2011-2016 after his retirement as a District and Sessions Judge from the Bangladesh Judicial Service. The Representation of People Order, 1972, section 12(f) says that in order to be eligible for election in parliament, 3 years need to pass after resigning or retiring from the service of the Republic or of any statutory public authority or of the defence service. As the President-elect Mr. Md. Shahabuddin was the commissioner of Anti-Corruption Commission for the period of 2011-2016, which was almost 7 years earlier, it will not create any barrier to him or disqualify him to be elected as the President of the Republic although both the positions are profitable.
26. The Anti-Corruption Commission is an independent statutory public body regulated by the ACC Act, 2004. It has already been discussed in Writ Petition No. 3067 of 1996 in Abu Bakar Siddique vs. Justice Shahabuddin Ahmed and others, 49 DLR 1, para 51 that "the officers and employees of the Statutory Public Authorities may be treated to hold office of profit in the service of the Republic if their services are declared by law to be the service of the Republic under Article 152 of the Constitution in its definition clause "the service of the Republic". As the Commissioner of ACC render his service for the Republic and receives financial advantage, benefit, or gain from his service, his service can be termed as the service of the Republic and office can be regarded as an office of profit. So, now it can be held that his declaration for "বাংলাদেশের রাষ্ট্রপতি হওয়ায় জন্য আমি অযোগ্য শথি" while submitting his nomination paper does not touch any irregularities for the post of President of the People's Republic of Bangladesh.
27. There is no definition of 'office of profit' in the constitution of Bangladesh, but there is a definition of the term 'the service of the Republic. According to Article 152 of the Constitution, 'the service of the Republic' means any function, employment or position in relation to the Government of Bangladesh in a civil or military capacity and any service which may be declared by law to be a service of the Republic. Articles 133-135 of Part IX of the Constitution have to be taken for a clear understanding of the meaning of the definition of the service of the Republic in Article 152. The title of the part IX of the constitution is the Services of Bangladesh. According to Article 133, the appointment and conditions of service of persons employed in the Republic shall be regulated by an Act made by the Parliament or in the absence thereof by a rule made by the President subject to the provisions of the Constitution. Article 134 of the Constitution, every person employed in the functions of the Republic for such period as may be at the pleasure of the President.
28. Again according to Article 135, no person employed in the service of the Republic shall be dismissed or removed or demoted without giving reasonable opportunity to show cause. It is apparent from the above provisions that the service of the Republic shall mean all offices, services, duties etc. to which Part IX of the Constitution applies. Accordingly, "office of profit" in the service of the Republic shall mean any office of profit to which Part IX of the Constitution applies. Part IX of the Constitution does not apply to the President or the members of Parliament. As a result, there is no opportunity to interpret the office of member of Parliament or President as an office of profit in the service of the Republic. As described in section 9 of the Anti-Corruption Commission Act, 2004, that is, serving as an ACC Commissioner in the past cannot be considered as a direct or indirect disqualification for being elected to the post of President as per the Constitution.
29. In Justice Shahabuddin Ahmed case, it was already decided that individuals serving for the Republic have the right to file a claim with the Administrative Tribunal established by Article 117 of the Constitution for the enforcement of their employment contracts and other issues related to their employment. Nevertheless, individual holding a constitutional post or office, including the President of Bangladesh, is not required to seek remedy from the Administrative Tribunal. Instead, the Constitution itself and Parliament have created distinct laws, rules, and regulations for them. As a result, we hold that while the office of President of Bangladesh is an office of profit, it is not a profitable office in the service of the Republic in respect to the Government of Bangladesh as contemplated by the Constitution's provisions. As a result, Mr. Md. Shahabuddin a former ACC Commissioner is not barred from being elected to and holding the office of the President of Bangladesh under Article 48(1) of the Constitution. We do not find any infraction of the Constitution or any other legislation pertaining to holding the election of the President in the election of Mr. Md. Shahabuddin and the declaration of him as President of the People's Republic of Bangladesh. We thus hold that the election of Mr. Md. Shahabuddin to the office of the President and qualifications to hold the office of the President of Bangladesh by him cannot be called in question in the instant writ petition.
30. The procedure of election of the President is discussed in Part IV, Chapter I, in the Article 48 of the Constitution. According to Article 48(1), "there shall be a President of Bangladesh who shall be elected by members of Parliament in accordance with law." As the Head of the State, the President is elected by the members of Parliament, and be should not be disqualified for election as a member of Parliament, and to be a member of Parliament an eligible citizen of Bangladesh must not hold any office of profit in the service of the Republic other than an office which is declared by law not to be disqualified its holder, and must not be disqualified for such election by or under any law. Now, the questions arise whether the President-elect was elected following the Article 48(1) read with Article 66(2)(f) and (g) of the Constitution, and whether the President-elect possess any disqualification in any law of the land to be elected as a member of the Parliament The learned Attorney General submits that the Election Commission represented by the Chief Election Commissioner after having found the sole candidate for the post eligible, declared Mr. Md. Shahabuddin as elected under rule 12(6) of Presidential Election Rules, 1991 and accordingly Gazette Notification No. 17.00.0000.034.34.025.22-119 dated 13 February 2023 was published. On the other hand, the learned Advocate for the petitioner submits that the CEC by misinterpretation of section 9 of the ACC Act, 2004 and the Constitution pivoted on the words "elected" to the post or "appointed" to the post declared Mr. Md. Shahabuddin as President-elect. He further submits that the CEC ought to have referred the same for having legal interpretation of the Constitution and the statute to the Supreme Court of Bangladesh under Article 106 of the Constitution instead of misconstruing the laws. His action has suffered from the vice of gross impropriety leading to an illegal decision that itself is void while carrying out his constitutional and legal duty.
31. As we already held that Mr. Md. Shahabuddin worked for the ACC as a Commissioner from 2011-2016, which is no doubt a profitable post in the service of the Republic. Section 9 of the ACC Act, 2004, stipulates as "কর্মাবসানের পর কোন কমিশনার প্রজাতন্ত্রের কার্যে কোন লাভজনক পদে নিয়োগ লাভের যোগ্য ইহবেন না।" The English translation of the said section can be labeled as "At the end of the tenure, a commissioner shall not be eligible to be appointed in any profitable office in the service of the Republic". As the office of the President is not regarded as in the service of the Republic, it does not create any barrier to the former Commissioner of ACC being elected as the President of the Republic. Moreover, as the members of Parliament are the elected representatives of the Republic and are not appointed employees like the other employees in the service of the Republic, working as a Commissioner of ACC will not create any barrier to be elected as members of the Parliament. It will only create a bar to be appointed in the service of the Republic according to the Part DC of the Constitution. The members of Parliament and the President of the Republic are elected representative in the Republic, whereas the employees or service holders who are employed in service of the Republic are generally appointed. So, the election and the appointment are two different ways and procedures of resuming the office in the Republic.
32. The President-elect Mr. Md. Shahabuddin was the sole candidate for the election of the President. The Election Commission represented by the CEC on 13th February, 2023, after scrutinizing the nomination paper declared the sole candidate Mr. Md. Shahabuddin as President elect. Now the question is whether such declaration is contradictory to the Article 48(1) of the Constitution. In the Article 48(1), "there shall be a President of Bangladesh who shall be elected by members of Parliament in accordance with law." It has already been admitted by the learned Advocate Mr. MA Aziz Khan that the President is indirectly elected by the members of the Parliament and the members of the Parliament are elected directly through voting of the eligible citizens of the People's Republic of Bangladesh. How can a voting process be set up when there will only be one candidate for the position? Doing election for the single candidate is absurd idea and nowhere in the world, the learned Attorney General emphasized. We find the basis of the submission of the learned Attorney General. According to section 7 of the Presidential Election Act, 1991, "the Election Officer shall examine the nomination papers on the day, within the time and at the place specified by the notification under sub-section (1) of section 5, and the Election Commissioner shall, if after scrutiny only one person remains as validly nominated, declare such person to be elected; but he shall, if more than one person remains validly nominated, proclaim on the day of the scrutiny of the nomination papers the names of the validly nominated persons (hereinafter called candidates). The plain reading of the aforementioned section, it is clear that where there is single valid candidate for the office of President, the Election Commissioner declare him/her as the President-elect But, where mere will be more valid candidates for the same position then the Election Commission will only declare the names of validly nominated persons for the office of President, and then the election can be held by the members of the Parliament at the House of Parliament Article 48(1) of the Constitution does not indicate the manner of declaration for the office of President, rather it says, "...who shall be elected by members of Parliament in accordance with law". Here, according to law means the Presidential Election Act, 1991 and the relevant procedures for doing election. The section 7 of the Presidential Election Act, 1991, states the process of declaration when there will be sole candidate for the office of President So, only declaration by the EC represented by CEC does not violate or ultra-vires the spirit of the meaning of Article 48(1) of the Constitution.
33. According to the submissions of the petitioners that the post of President is a 'profitable post' and Mr. Md. Shahabuddin should be considered ineligible to be elected to the post of President because of his past service as an ACC Commissioner. While the controversy surrounding the office of President revolves around the definition of the term of office of profit, it is primarily related to the qualifications applicable to be elected to the office. And in this regard, we are of the view that section 9 of the Anti-Corruption Commission Act does not create any disqualification for being elected to the post of President because, the said section is not applicable for the post of President. Besides, any inconsistency or conflict with the Constitution will render section 9 of the Anti-Corruption Commission Act unconstitutional.
34. Article 48(4) of the Constitution mentions the qualifications and disqualifications of presidential candidates. A person shall not be qualified for election as President if he-
(a) is less than thirty five years of age; or
(b) is not qualified for election as a member of Parliament; or
(c) has been removed from the office of President by impeachment under this Constitution.
34.1. That is, the election of a person to the office of President in violation of the above conditions will be treated as disqualification by the Constitution. Now the question is, whether section 9 of the Anti-Corruption Commission Act, 2004, which is an Act of Parliament, can impose any condition in addition to the disqualifications prescribed by the Constitution for the office of President? The answer is No. Condition beyond the qualifications or disqualifications prescribed by the Constitution for any post specified in the Constitution cannot be imposed by an Act of Parliament, unless the Constitution itself authorizes it. Because, the Constitution is the supreme law of the land and if any law is inconsistent with this constitution, then that law shall be null and void as for as it is inconsistent. However, it is to be mentioned that the conditions mentioned in Article 48(4) of the Constitution cannot be changed directly by an Act of Parliament, but the conditions for the office of President can be imposed indirectly by an Act of Parliament through its sub-clause 'b'. The provisions relating to disqualification for election as member of Parliament as per Article 48(4xb) of the Constitution shall apply to the office of President. Again, according to Article 66(2)(g), disqualification for parliamentary elections can be determined by law. That is, if any disqualification for election to Parliament is prescribed by a law made by Parliament, the same shall apply equally to presidential candidates. Now the question is whether section 9 of the Anti-Corruption Commission Act, 2004 will be considered as a disqualification for the candidate for the post of member of Parliament? If so, it will also apply to presidential candidates. For this reason, we have to see whether the term "office of profit in the service of the Republic" as described in section 9 of the Anti-Corruption Commission Act, refers to the position of member of Parliament? Arguably, the post of member of Parliament is not a 'post of profit in the affairs of the Republic', therefore section 9 of the Anti-Corruption Commission Act is not an Act enacted to serve the purpose of Article 66(2)(g) of the Constitution and therefore the aforesaid section 9 of the Anti-Corruption Commission Act does not apply to the election of the President.
35. In Writ Petition No. 3144 of 2023 Mr. Abdul Momen Chowdhury, the learned Advocate submits that the declaration of the respondent No. 3 Mr. Md. Shahabuddin as President of the Republic on 13th February is illegal and violative of Article 48(1) of the Constitution. He further submits that the respondent No. 1, the Election Commission has negatived its own schedule and has made its own schedule infructuous and inoperative and under the circumstances the impugned gazette notification declaring Mr. Md. Shahabuddin as President of the Republic is illegal, ultravires and is of no legal effect. He also submits that the departure from the schedule by the Election Commission has rendered the election of the President illegal, inoperative, and is of no legal effect. On the contrary, the learned Attorney General submits that it is absurd to think of holding an election where there is a sole candidate for a post or position. Mr. Md. Shahabuddin was the sole candidate for the election to the office of President of the Republic. So, the learned Attorney general further submits that there is no contradiction between section 7 of the Presidential Election Act, 1991 and Article 48(1) of the Constitution. He emphasizes that as per the mentioned Act, the EC represented by the CEC did not commit any irregularities by declaring Mr. Md. Shahabuddin as the sole candidate for the office of President.
36. We have considered the submissions of the learned Attorney General and the learned Advocate Mr. Abdul Momen Chowdhury and noticed that Mr. Md. Shahabuddin was the sole Presidential candidate. We do not see any abridgement or cut of power of the members of Parliament. If there were more than one valid candidates for the same office, then the issue could be raised that this election could be held in the House of Parliament and the declaration should come thereafter. In case of sole candidate, then holding election for the same would be the abuse of process. So, we do not find any substance of the submissions of the petitioners.
37. We find the substance of the submissions of the learned Additional Attorney- General Mohammad Mehedi Hasan Chowdhury, as this very provision provides special provision for the positions mentioned above by mentioning that to determine qualifications and disqualifications to be elected as a member of Parliament, they shall not be deemed to hold an office of profit in the service of the Republic, so as the Act of Parliament, section 9 of the Anti-Corruption Commission Act, 2004 cannot create any barrier in terms of holding the office of President declared by the Constitution as because, as the supreme law of the Republic, Constitution shall get priority over the Act of Parliament.
38. This is not the first time that the election of the President of Bangladesh has been contested in writ petitions. The presidential election of Justice Shahabuddin Ahmed was also contested earlier in Writ Petition No. 3067 of 1996 in Abu Bakar Siddique vs. Justice Shahabuddin Ahmed and others, 49 DLR I. In India, 18 members of the Indian parliament challenged the election of President Dr. Zakir Hossain on the grounds of a constitutional disability in the case of Baburao Patel vs. Dr. Jakir Hosain, AIR 1968 SC 904. But in the end, the case was rejected by the Indian Supreme Court.
38.1. However, finally, we may sum up our findings in the following manner:
(a) We hold that as the Head of the State, the President of the People's Republic of Bangladesh holds 'the office of profit', but 'it is not an office of profit in the service of the Republic' and the procedures of assuming his office of the President is not like the same who serves in the service of the Republic. Moreover, the rules and regulations like the other service holders/employees in the service of the Republic regarding regulating the functions are not similar to those of the President.
(b) We hold that the 'election' and 'appointment' do not carry the same meaning as per the Constitution. The President of the People's Republic of Bangladesh is the elected representative and the 'symbol of the unity' of Bangladesh, and the individuals who serves in the Republic according to the Part IX of the Constitution are the appointed employees in the service of the Republic.
(c) We hold that the declaration made by the Election Commission represented by the Chief Election Commissioner at the Nirbachan Bhaban, Agargaon, Dhaka, under section 7 of the Presidential Election Act, 1991 is not illegal and ultra-vires to the Constitution for such declaration has not made the provision of Article 48(1) of the Constitution nugatory and inoperative, and abridges the power of the members of Parliament.
(d) We hold that section 9 of the Anti-Corruption Commission Act, 2004 does not create any bar to the former Commissioner of ACC, Mr. Md. Shahabuddin, to be elected as the President of the People's Republic of Bangladesh and assumes the office of President as a Profitable one.
(e) We hold that though as a former Commissioner of ACC, the President elect, Mr. Md. Shahabuddin, also held an office of profit in the service of the Republic, this in no way disqualifying him from being elected to or holding the office of President, which is not an office of profit in the service of the Republic.
39. Accordingly, we do not find any merit in Writ Petition No. 3185 of 2023 and Writ Petition No. 3144 of 2023, and thus both the writ petitions are hereby rejected summarily. The petitioners have prayed for granting a certificate as per Article 103(2) (a) of the Constitution for preferring appeal before the Appellate Division against this order. Since the aforementioned writ petitions have been rejected summarily, the prayer for granting certificate to prefer appeal before the Appellate Division is hereby also rejected. There will be no order as to cost.
--- Journal: DLR Volume: 75 Division: HCD Page: 407High Court Division (Civil Revisional Jurisdiction)
Present:
Mr. Justice Md. Emdadul Haque Azad
Civil Revision No. 2635 of 2007
Abdul Khalek (Md.)
------------- Petitioner
VS
Abdul Zalil and Ors.
------- Opposite Parties
Judgement Date : September 15, 2021
Counsels:
Mr. Md. Sharafatullah, Advocate
—For the Petitioner.
Mr. Md. Hamidur Rahman, Advocate
—For the Opposite Parties.
Judgment
Md. Emdadul Haque Azad, J:
1. The Rule was issued calling upon the opposite party Nos. 1 (Ka)-1 (Jha) to show cause as to why the impugned judgment and order dated 25-4-2007 passed by the learned Joint District Judge, 2nd Court, Jhenidah in Miscellaneous Appeal No. 15 of 2004 affirming that of dated 25-8-2004 passed by the learned Senior Assistant Judge, Sadar, Jhenidah in Miscellaneous Case No. 49 of 2002 should not be set- aside.
2. The predecessor of the opposite-parties as pre-emptor filed the instant case under section 96 of the State Acquisition and Tenancy Act alleging, inter alia, that the land in question has been of the applicant, Mohiuddin and Samiran Bewa in RS Khatian No. 145. Mohiuddin died leaving behind son Sohag, two daughters opposite-party Nos. 2 and 4. opposite-party No. 2 is the niece of the applicant The Kabala purchaser Abdul Khalek is a stranger purchaser. Opposite-party No. 2 has secretly sold out the land in dispute to opposite-party No. 1 vide kabala dated 15-1-2002. On 10-4-2002 the applicant having come to know of the said sale and by obtaining a certified copy of the impugned kabala on 21-4-2002 filed the case for pre-emption on 22-5-2002. The applicant is a farmer. Hence the applicant has been constrained to set-up the instant case.
3. The petitioner as pre-emptee contested the case by tiling written objection deriving the allegation made in the application contending, inter alia, that the case is without cause of action, bad for defect of parties, barred by limitation and also barred by the principles of estoppel, waiver and acquiescence etc. His further case is that 9.63 acres of land of SA Khatian No. 56 of Mouza No. 38 Gaganna within PS Jhenidah belonged to Iman Ali Mondal and Sayed Ali Mondal and Sayed Ali Mondal in equal share. For convenience of possession, they used to process some plots in ejmali. Thereafter, Sayed Ali died leaving behind two sons namely Mohiuddin, Abdul Jalil and Samiran Nessa. Mohiuddin died leaving behind 2 daughters namely Rupali, Shefali and son Sohag, Iman Ali died leaving behind wife Khatezan, sons Wazed, Toaz, Khalek, Yousuf, Malik, daughters Hayatan, Malida and Mizaran. Thereafter, Wazed Ali died leaving behind wife Sundari, daughters Shaheda, Monia, Janu, Hasina, Johra, sons Idris and Ifaz. All of the aforesaid persons are necessary party in the case. Opposite-party No. 2 had no practical possession in the land of the impugned kabala and she continued her possession with her uncle Abdul Jalil, At first, opposite-party No. 2 approached the applicant for selling the land but he refused to purchase the same, in consequence of which opposite-party No. 2 sold the land to opposite-party No. 1 in which the applicant had active participation in negotiating the price of the case land opposite-party No. 1 was made over possession in presence of the applicant the opposite-party No. 1 is co-sharer by inheritance to the case land. The applicant has set up a false case which is liable to be dismissed.
4. During trial, the pre-emptors examined 3 witnesses and the pre-emptee examined two witnesses and both the parties produced some documents to prove their respective claims.
5. The trial Court on considering the evidences of the witnesses, exhibits and submissions of the learned Advocates of both sides allowed the pre-emption case vide judgment and order dated 25-8-2004 against which the pre-emptor as appellant preferred Miscellaneous Appeal No. 15 of 2004 before the learned District Judge, Jhenidah and on transfer the said appeal was heard and disposed of by the learned Joint District Judge, 2nd Court, Jhenidah who vide judgment and order dated 25-8- 2004 dismissed the appeal and affirmed the judgment and order passed by the trial Court.
6. Being aggrieved by and dissatisfied with the impugned judgment and order dated 25-8-2004 the pre-emptee-appellant as petitioner preferred this revisional application before this Court and obtained the instant Rule.
7. Mr. Md. Sharafatullah, the learned Advocate appearing on behalf of the petitioner submitted that the pre-emptors-opposite-parties have failed to prove their case by adducing oral and documentary evidences and, as such, both the Courts below committed, illegality in allowing the pre-emption case. He also submitted that before selling the case land to the pre-emptee the vendor offered to purchase the case land to the pre-emptor but he refused to purchase and thereafter, the pre-emptee- petitioner purchased the said land with full knowledge of the pre-emptor which is evident from deposition of OPW 2. He also submitted that the pre-emptor and pre- emptee were the co-sharers by inheritance from SA recorded tenants and as per section 96(10)(a) of the State Acquisition and Tenancy Act no preemption would be lie against a co-sharer by inheritance. The learned Advocate for the petitioner referred the decision reported in 1983 BLD (AD) 105 and 35 DLR (AD) 338.
8. Mr. Md. Hamidur Rahman, the learned Advocate on behalf of the pre-emptors- opposite-parties submitted that the pre-emptor has successfully proved their case by adducing oral and documentary evidences and, as such, both the Courts below rightly allowed the pre-emption case. He also submitted that the pre-emptor is a co-sharer in the case holding and the pre-emptee is a stranger. He further submitted that both the Courts below in their judgment elaborately discussed the evidence adduced by the witnesses of both the parties and correctly considered the documentary and oral evidence and they rightly, legally and in accordance with law passed the impugned judgment and order which is not liable to be disturbed by this Court.
9. I have carefully examined the revisional application, the papers and documents annexed thereto, heard the learned Advocates for both the sides and perused the decisions and the relevant provisions of law.
10. It appears from the record that the predecessor of the opposite-parties as pre- emptor filed the instant case to pre-empt the case holding and the pro-emptee- petitioner contested the same by filing written statement. After completion of all formalities, the trial Court allowed the case which was affirmed by the lower Appellate Court. It further appears that both the Courts below concurrently found that the pre-emptor is the co-sharer in the case holding and the pre-emptee (Kabala Purchaser) is a stranger in the case holding. The trial Court found that the pre-emptor did not waive his right to pre-empt the case land and the lower Appellate Court rightly observed that the plea of waiver and acquiescence as raised by the pre- emptee is not acceptable. Moreover, the trial Court found that the instant pre-emption case was filed within time from the date of accrual of the cause of action and being the last Court of fact, the lower Appellate Court correctly found that the pre-emptor filed the pre-emption case within stipulated period of time and thus the same is not barred by limitation.
11. On a careful reading of the judgment and decree passed by the Courts below it appears that both the Courts below concurrently found that the pre-emptor-opposite- party proved their case as per law. It is a settled principles of law that concurrent finding of facts arrived at by the Courts below should not be disturbed by the High Court Division in its revisional jurisdiction under section 115(1) of the Code of Civil Procedure unless it can be shown that the finding is based on gross misreading or non-consideration of evidence or founded on misconception or misapplication of law or misinterpretation of any document or otherwise it is perverse.
12. In the result, the Rule is discharged without any order as to cost.
13. The impugned judgment and order passed by the Courts below are hereby affirmed. The order of stay granted earlier by this Court is hereby vacated.
Send down the Lower Courts records, at once.
--- Journal: DLR Volume: 75 Division: HCD Page: 409High Court Division (Special Original Jurisdiction)
Present:
Mr. Justice Md. Mozibur Rahman Miah
And
Mr. Justice Kazi Md. Ejarul Haque Akondo
Writ Petition No. 11030 of 2022
Ershad Hossain Rashed (Md.)
------------- Petitioner
VS
A.K. Abdul Momen and Ors.
------- Respondents
Order Date : November 21, 2022
Counsels:
Mr. Kazi Md. Mostafizur Rahman Ahad, Advocate
—For the Petitioner.
Mr. A.M. Amin Uddin, Attorney General with Mr. Arobinda Kumar Roy, DAG, Mr. A.K.M. Alamgir Parvez Bhuiyan, AAG, Mr. Mohammad Abbas Uddin, AAG and Ms. Shamsun Nahar (Laizu), AAG
—For the Respondents.
Order
1. In this writ petition, the petitioner, who is a lawyer of Bangladesh Supreme Court has filed this writ petition challenging the propriety of holding office by Mr. AK Abdul Momen as Minister, Ministry of Foreign Affairs of the People's Republic of Bangladesh in the form of writ of quo warranto contending inter alia mat, the Minister (respondent No. 1) on 18-8-2022 in a religious public gather in Chattogram stated that, he requested the Indian government to retain the government of the prime Minister Sheikh Hasina and to do whatever is needed to hold the said government on power and the said speech were carried by several national leading dailies of this country on 19-8-2022. By such utterance, the said respondent has undermined the powers of the people of this country and right of franchise to elect the MP of their choice to run the government.
2. Mr. Kazi Md. Mostafizur Rahman Ahad, the learned counsel appearing for the petitioner by referring to different provision of our Constitution in particular, Article 7 thereof mainly contends that, by that public speaking, the supremacy of our Constitution where it has been postulated that "all powers in the Republic belonged to the people" has been trampled.
3. The learned counsel goes on to submit that the respondent No. 1 has also subverted the provision laid down in Article 7A of our Constitution by making the said statement in public through which the confidence, belief and reliance of the citizens in the Constitution has also been degraded.
4. The learned counsel also contends mat, since the respondent No. 1 is oath bound to defend the Constitution so by delivering such speech in public sphere, he also ruined the faith and aspiration on the neutrality of election commission vis- -vis. the government and thereby violated the "oath of office" he affirmed as a cabinet Minister of the Republic.
5. The learned counsel finally contends that, since the said statement has not been specifically denied by the respondent No. 1 and no rejoinder has yet been appeared in any leading national dailies afterwards so it construe that, he owns the said statement made before the public and appeared in all the leading national dailies meaning he has lost, his authority to hold on as Minister and prays for issuance of a Rule Nisi.
6. On the contrary, Mr. AM Amin Uddin, the learned Attorney-General by supplying us press release as well as other documents submits mat, soon after publishing the alleged statements the respondent No. 1 also made it clear that, his statement has been "misquoted" and misreported by some national dailies.
7. The learned Attorney-General in this connection also contends that, the news report so published in different national dailies cannot be any basis to challenge the authority of holding the office by the respondent No. 1.
8. The learned Attorney-General further contends that, in order to invoke the writ of quo warranto, proven disqualification of a person or persons holding any position in the Republic or any statutory authority has to be established which is totally absent in the instant writ petition.
9. The learned Attorney-General next contends that, for alleged statement of the Minister public opinion on the holding of parliamentary election will not be influenced.
10. In reference to the application of the Constitutional provision, the learned Attorney-General further submits mat, mere reporting any news in the newspapers cannot be taken as true and basing on such news provision of Article 7(1) and 7A of the Constitution cannot be invoked in challenging holding of office of a Minister in the Republic in the form of writ of quo warranto and finally prays for rejecting the application in limine.
11. We have considered the submission so advanced by the learned counsel for me petitioner and that of the learned Attorney-General at length.
12. In dealing with this matter, we are at the very outset travel to the respective provision of disqualification of a Minister/State Minister/Deputy Minister which has been enshrined in Article 58 of our Constitution. In clause (b) of Article 58 of our Constitution, amongst others, it has been provided how the tenure of office of a Minister will be dealt with where it has been set out that "if the Minister ceases to be Member of Parliament [only exception for technocrat Minister under the proviso of Article 56(2)) and Article 66(2) of our Constitution spelt out the disqualification of a Member of Parliament. However, on going through the seven clauses contained in Article 66(2) of the Constitution, we find nothing that can attract to disqualify the respondent No. 1 to hold the position of MP. So, under no circumstances, can the holding of office by the present respondent No. 1 be called in question.
13. Further, basing on the news report, the authority of holding office by the respondent No. 1 cannot be entertained though the said news is found to have controverted by subsequent news report leaving the issue a disputed question of fact. However, we find substance in the submission so placed by the learned Attorney- General because no proven disqualification as we discussed above from the constitutional point of view has been found.
14. Regard being had to the above facts and circumstances, we don't find any shred of substance in this application.
15. Accordingly, the same is rejected summarily.
Let a copy of this order be communicated to the respondents forthwith.
--- Journal: DLR Volume: 75 Division: HCD Page: 411High Court Division (Criminal Miscellaneous Jurisdiction)
Present:
Mr. Justice S.M. Kuddus Zaman
And
Mr. Justice Shahed Nuruddin
Criminal Miscellaneous No. 24448 of 2023
Mizanur Rashid (Md.)
------------- Accused-Petitioner
VS
State and Ors.
------- Respondents
Order Date : May 02, 2023
Counsels:
Mr. A.M. Jamiul Hoque, Advocate
—For the Petitioner.
Mr. S.M. Fazlul Haque and Mr. Sujit Chatterjee, DAGs
—For the Respondents.
Order
1. [cite_start]This is an application under section 561A of the Code of Criminal Procedure at the instance of accused-petitioner is directed against an order passed by the learned Joint Sessions Judge (Artha Rin Adalat), Mymensingh in Sessions Case No. 496 of 2021 arising out of CR Case No. 318 of 2020 refusing to grant him bail for a limited period for filing an appeal from the judgment and order of conviction and sentence passed by above Court under section 138 of the Negotiable Instruments Act, 1881 and sentencing there under to suffer simple for 1(one) year and also to pay a fine of Taka 15,00,000 (fifteen lac) only. [cite: 1213, 1214]
2. [cite_start]The learned Advocate for the petitioner submits that the petitioner was the sole accused in above Case under section 138 of the Negotiable Instruments Act, 1881 and on conclusion of trial he was convicted and sentenced as mentioned above. [cite: 1215] [cite_start]The petitioner was arrested pursuant to a committal warrant on 24-3-2023 and the petitioner submitted an application for bail under section 426(2A) of the Code of Criminal Procedure for preferring an appeal. [cite: 1216] [cite_start]But the learned Judge of the Trial Court has most illegally rejected above petition. [cite: 1217]
3. [cite_start]The learned Advocate further submits that since the petitioner is required to deposit, a huge amount of money to prefer an appeal, as such, he may be granted bail for 2(two) months to enable him to prefer an appeal. [cite: 1218]
4. [cite_start]Mr. SM Fazlul Haque learned Deputy Attorney General concedes that section 426(2A) of the Code of Criminal Procedure provides for granting of bail to a convict who has been sentenced for a term not exceeding 1 (one) year for preferring an appeal. [cite: 1219]
5. [cite_start]We have considered the submissions of the learned Advocates for respective parties and examined all materials on record. [cite: 1220]
6. [cite_start]As mentioned above, the petitioner was on conclusion of trial convicted in above case under section 138 of the Negotiable Instruments Act, 1881 and sentenced to suffer simple imprisonment for I (one) year. [cite: 1221] As such the learned Joint Sessions Judge (Artha Rin Adalat), Mymensingh should have keeping in mind the provision of section 426(2A) of the Code of Criminal Procedure granted the petitioner bail for a limited period to enable him to prefer an appeal against above judgment and order of conviction and sentence. [cite_start]But the learned Judge has committed an error in rejecting above petition. [cite: 1222, 1227]
7. [cite_start]On consideration of above facts and circumstances of the case and materials on record, we are granting bail to the petitioner for a period of two months so that can prefer an appeal subject to furnishing bail bond to the satisfaction of the learned Joint Sessions Judge (Artha Rin Adalat), Mymensingh. [cite: 1228]
8. [cite_start]Above period of two months shall start run from the date of acceptance of bail bond by the learned Joint Sessions Judge (Artha Rin Adalat), Mymensingh. [cite: 1229]
9. [cite_start]But if petitioner foils to prefer an appeal within above period the Trial Court shall issue a fresh committal warrant against the petitioner in accordance with law. [cite: 1230]
10. [cite_start]With above direction this application is disposed of. [cite: 1231]
[cite_start]Let a copy of this order be sent to the trial Court at once. [cite: 1232]
--- Journal: DLR Volume: 75 Division: HCD Page: 413High Court Division (Civil Revisional Jurisdiction)
Present:
Mr. Justice Md. Mozibur Rahman Miah
And
Mr. Justice Mohi Uddin Shamim
Civil Revision No. 218 of 2020
Aslam Hossain (Md.)
------------- Petitioner
VS
Fatema Bewa
------- Respondent
Judgement Date : February 14, 2023
Counsels:
Mr. Mohammad Mizanur Rahman, Advocate
—For the Petitioner.
Mr. Md. Harun Patwary, Advocate
—For the Respondent.
Judgment
Mohi Uddin Shamim, J:
1. At the instance of the defendant-petitioner, this Rule was issued calling upon the opposite parties to show cause as to why the order dated 30-6-2019 passed by the learned Joint District Judge, 2nd Court, Natore in Other Class Suit No. 71 of 2016 allowing the plaintiff-opposite party's application by setting aside the examination-in- chief and cross-examination of the plaintiff taken through the Advocate Commissioner as per prayer of the plaintiff-opposite party, should not be set-aside and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. Subsequently, on an application filed by the petitioner, on 17-8-2020, this Court stayed the impugned order so far it relates to fixing the date of recording evidence of the plaintiff in Court ignoring the Advocate-Commissioner's Report recorded on Commission for a period of 3 (three) months, which was extended from time to time.
3. The short facts leading to disposal of the instant Rule are that, the opposite party No. 1, as plaintiff, filed Other Class Suit No. 71 of 2016 against the defendants before the Court of Joint District Judge, 2nd Court, Natore praying for correction of 'Heba-deed' which was executed and registered between the plaintiff opposite party and the proforma defendants opposite parties No. 2 and 3 with the prayers which are quoted below;
( ) আরজীর বর্ণিত যাবতীয় কারণ ও ঘটনাধীনে বিরোধীয় "গ" তপশীল দলিলে তপশীল হইতে নাঃ "খ" তপশীল ভূমি কাটা গিয়া উক্ত দলিলে ০.২৩/২ একর এর পরিবর্তে ০.১৯৫০ একর লিখিত হইবে মর্মে " " তপশীল দলিল সংশোধনের ডিক্রী বাদীনিকে বিবাদীগণের বিরুদ্ধে দিতে মর্জি হয়। রায় ও ডিক্রী অনুলিপি সংশ্লিষ্ট সাব-রেজিস্ট্রি অফিসে প্রেরণের আদেশ দিতে মর্জি হয়।
(খ)
( )
আইন ও ইকুইটি মূলে বাদিনী আর কোন প্রতিকার পাইতে হকদার হইলে তাহারও ডিক্রী বাদীনিকে বিবাদীগণের বিরুদ্ধে দিতে মর্জি হয়।
(ঘ)
যাবতীয় আদালত বিচার ডিক্রী বাদীনিকে বিবাদীগণের বিরুদ্ধে দিতে মর্জি হয়।
4. The petitioner, as defendant No. 3, contested the said suit by filing written statements denying the material allegations as made out in the plaint mainly, stating, inter-alia, that no cause of action of the suit arose and the disputed land was duly transferred by the plaintiff-opposite party to the defendants No. 1 and 2 through the 'Heba-deed' dated 14-2-2006. After that, the recipients of Heba-deed took over the possession of the property in question and mutated their names. While they had been possessing the property, transferred the same through a duly registered sale deed being No. 2410 dated 18-7-2016 to him (defendant No. 3).
5. During trial, the plaintiff-opposite party filed an application before the Trial Court under 16 of the Code of Civil Procedure to get the plaintiff examined through an Advocate-Commissioner on the ground of her old age sickness.
6. After hearing, the learned Judge of the Trial Court allowed the application and ordered for appointment of an Advocate-Commissioner to examine the plaintiff on commission on 20-11-2017 and also ordered to submit the deposition of the plaintiff by 18-1-2018. Accordingly, one learned Member of Natore Bar was appointed as an Advocate-Commissioner who after observing all the legal formalities with the learned Advocates of both the parties went to the residence of the plaintiff and recorded the statements of the plaintiff made in examination-in-chief as well as in cross- examination. Subsequently, by observing all legal formalities, the Advocate- Commissioner submitted the plaintiffs evidence recorded on commission on 28-1- 2018, which was accepted by the learned Judge of the Trial Court.
7. Subsequently, long after one year, that is on 18-2-2019 the plaintiff-opposite party filed an application before the trial court praying for setting aside her deposition taken on commission by the Advocate-Commissioner asking her to depose before the trial court.
8. After hearing of the learned Advocates of both the sides and perusing the application, the learned Judge allowed the application by his order dated 30-6-2019 by setting aside the deposition of the plaintiff recorded on commission asking the plaintiff to depose in the Court.
9. Being aggrieved by and dissatisfied with the said order dated 30-6-2019, the defendant-petitioner filed this revisional application and obtained the present Rule and order of stay.
10. Mr. Mohammad Mizanur Rahman @ Sihab, the learned Advocate appearing on behalf of the petitioner, upon taking us to the revisional application, the impugned order and all other connected materials available on record submits that, the impugned order is palpably suffers from legal infirmity, which caused failure of justice. He further submits that, the plaintiff-opposite party by her own initiative sought for Advocate-Commission to get her examined showing some cogent reason and the learned Judge was pleased to accept her prayer and appointed an Advocate- Commissioner observing all the legal formalities and the Advocate-Commissioner with a prior intimation of the lawyers of bom the parties went to the house of the plaintiff-opposite party and recorded her examination-in-chief following cross- examination having no illegality in it. The learned Advocate also contends that following all the legal formalities, the Advocate-Commissioner submitted the recorded deposition before the Court and the learned Judge of the Trial Court duly accepted the same, righty finding that she is now capable to depose before the Court and, as such, asking the petitioner to depose again in the Court is illegal, unlawful and not sustainable in law. He next submits that, law only permits to recall the witnesses if it is necessary, by making a reasonable explanation for setting aside deposition, but here in the instant case there is no such explanation for setting aside the deposition recorded through an Advocate-Commissioner and since the Advocate- Commissioner acts as a representative of the Court. There has been no reason to disbelieve to what he recorded on commission asking to take evidence on dock by setting aside the deposition taken on commission. However, in support of his arguments, the learned Advocate referred to the following decisions in the case of Sharifulla vs. Md. Tafazzal Hossain, reported in 69 DLR (AD) 61, wherein their Lordships of the Appellate Division held to the effect mat;
"A witness is not entitled to correct his deposition after putting his signature in the deposition sheet and if such a recourse is allowed to be practised by a witness, then the whole purpose of cross-examination shall be frustrated and in the process the cross-examination shall become a mockery."
11. And in the case of Ferid Hossain vs. Jahanara Begum and eight others, reported in 69 DLR 131, wherein their Lordships of this Division helc to the effect that;
"After administering oath in the open court when the evidence of a witness is recorded by a trial Court cannot be discarded or changed or corrected in the form of modification except recalling the witness following the prescribed provision of law enunciated in the Evidence Act, 1872."
12. Since the Advocate-Commissioner acts as a representative of the Court and if the report of the commission is duly accepted by the Court, then it will be treated as the evidence of witness recorded by the Court Accordingly, he submits that, pursuant to the decisions given in the cases referred to above, the present Rule is liable to be made absolute.
13. No one appears on behalf of the opposite parties to oppose the Rule.
14. We have heard the learned Advocate for the petitioner and carefully, perused the revisional application, the grounds taken thereto, the impugned order and the decisions so referred to by the learned Advocate for the petitioner.
15. The point raised in this Rule has already been dealt with and considered by this Division as well as by our Apex Court in the cases so referred to above by the learned Advocate for the petitioner. Upon going through the aforesaid decisions, we have no other alternative but to subscribe the views taken in the aforesaid decisions.
16. In the light of the decisions so referred to by the learned Advocate for the petitioner, we are inclined to make the Rule absolute finding that the impugned order passed by the learned Joint District Judge, 2nd Court, Natore is beyond his jurisdiction and without lawful authority.
17. In such view of the matter, we find merit in the Rule.
18. In the result, the Rule is made absolute without any order as to costs.
19. The order dated 30-6-2019 passed by the learned Joint District Judge, 2nd Court, Natore in Other Class Suit No. 71 of 2016 is thus set-aside.
20. The order of stay granted by this court on 17-8-2020 is, hereby, recalled and vacated.
21. The learned Judge of the Trial Court is, hereby, directed to dispose of the Other Class Suit No. 71 of 2016 now pending before the 2nd Court of Joint District Judge, Natore as expeditiously as possible, preferably, within 02 (two) months from the date of receipt of the copy of this judgment.
Let a copy of this judgment be communicated to the learned Joint District Judge, 2nd Court, Nature forthwith.
--- Journal: DLR Volume: 75 Division: HCD Page: 416High Court Division (Civil Revisional Jurisdiction)
Present:
Mr. Justice Sheikh Hassan Arif
And
Mr. Justice S.M. Kuddus Zaman
Civil Miscellaneous No. 11 of 2022 (Reference)
In Re: A Reference Under Section 113 Read With Order XLVI Rule 1 of the Code of Civil Procedure, 1908
------------- Petitioner
VS
Judgement Date : November 21, 2022
Counsels:
Mr. A.M. Amin Uddin, Attorney General, Mr. A.F. Hassan Ariff, Mr. Probir Neogi, Senior Advocates and Mr. Devasish Roy, Advocate
—As Amicus Curiae.
Mr. Pratikar Chakma, DAG with Mr. Zahid Ahammad (Hero) and Mr. Mohammad Shafayet Zamil, AAGs, Mr. Md. Sultan Uddin and Mr. Md. Jamal Uddin, Advocates
—As Interveners.
Judgment
Sheikh Hassan Arif, J:
1. This reference has been sent to us by the Court of Additional District Judge, Bandarban Hill District in view of the provisions under section 113 read with Order XLVI, rule 1 of the Code of Civil Procedure, 1908 seeking opinion of the High Court Division of the Supreme Court of Bangladesh on two legal questions.
2. Background facts:
2.1. Short background facts, as stated by the said Court, leading to such reference are that before amendment of some provisions in the Chittagong Hill Tracts Regulation, 1900 (Regulation No. I of 1900) ("the said Regulation") vide "The Chittagong Hill-Tracts Regulation (Amendment) Act, 2003 (Act No. 38 of 2003)", the disputes in civil nature in Chittagong Hill Tracts area were adjudicated by the Deputy Commissioners of Hill District concerned and the appeals therefrom were being disposed of by the Divisional Commissioner or Additional Divisional Commissioner, Chattogram Division as per the relevant provisions of the said Regulation and Rules made pursuant to the same. Accordingly, one eviction case, namely Eviction Case No. 56(D) of 2003, was disposed of by the then Deputy Commissioner of Bandarban Hill District and, thereby, the defendants therein were directed to vacate the disputed land. The defendants, being aggrieved, then preferred appeal against the said order of eviction before the Divisional Commissioner, Chattogram vide Eviction Appeal No. 68 of 2008 in view of Rule 10 of the 'Rules for the Administration of Chittagong Hill Tracts' ("the said Rules") made under section 18 of the said Regulation. While the said appeal was pending before the Divisional Commissioner for disposal, the aforesaid amending Act of 2003, namely Act No. 38 of 2003, came into force vide gazette dated 04th June, 2008. Pursuant to the said amending Act of 2003 ('the said amending Act"), the Deputy Commissioner of Bandarban Hill District and Divisional Commissioner of Chattogram Division sent all the civil and criminal cases pending before them to the respective Joint District Judge (or Assistant Sessions Judge) and District Judge concerned purportedly in view of the 'special provisions' as provided by section 6 of the said amending Act. In sending those cases, the Divisional Commissioner, Chattogram also sent the civil appeal cases to the District Judges of the respective Hill District including the aforesaid Eviction Appeal No. 68 of 2008 to the District Judge, Bandarban. The District Judge, Bandarban then sent the said appeal to the Court of Additional District Judge, Bandarban for disposal.
2.2. Thereupon, the Court of Additional District Judge, Bandarban heard the parties in the said appeal and fixed the same for delivery of judgment However, two legal questions then came up before the said Court as regards interpretation of section 6 of the said amending Act, in particular whether the civil appeal cases pending before the Divisional Commissioner, prior to the said amending Act coming into force, should be transferred to the Court of District Judge of the respective Hill Districts, and, if the same are so transferred, whether the District Judge or the Additional District Judge of the respective districts, as the case may be, should dispose of the same. The Court of Additional District Judge, Bandarban then heard one of the learned advocates of Bandarban Court as Amicus Curiae, who opined that after the establishment of civil Courts in Bandarban, the Divisional Commissioner was not in a position to dispose of such civil appeals or other proceedings of civil nature. However, the said Court prima-facie opined that such pending civil appeals and proceedings of civil nature should be disposed of by the Divisional Commissioner, Chattogram. The said Court then referred the matter to the Supreme Court of Bangladesh seeking opinion of the High Court Division in view of the aforesaid provisions of the Code of Civil Procedure. The Hon'ble Chief Justice of Bangladesh then constituted this Special Division Bench of the High Court Division and sent the said reference to this bench for disposal of the same.
2.3. The legal questions under reference, as sent by the said Court of Additional District Judge, Bandarban seeking opinion of this Court, are reproduced herein below for our ready reference:
প্রশ্ন সমূহ
প্রশ্নঃ ১
The Chittagong Hill Tracts Regulation (Amendment) Act, 2003 [Act XXXVIII of 2003] এর ৬ নং ধারার বিধান মতে চট্টগ্রাম বিভাগের ডিভিশনাল কমিশনার এবং এডিশনাল কমিশনারের নিকট নিষ্পনাধীন সকল ফৌজদারী আপীলসহ অন্যান্য ফৌজদারী প্রকৃতির মামলাসমূহ সংশ্লিষ্ট জেলার দায়রা আদালতে স্থানান্তরিত হওয়ার বিধান থাকলেও উক্ত ডিভিশনাল কমিশনার এবং এডিশনাল ডিভিশনাল কমিশনারের নিকট নিষ্পনাধীন (pending) দেওয়ানী প্রকৃতির আপীল, রিভিশন ও অন্যান্য আইনগত কার্যধারা জেলা জজ আদালতে স্থানান্তরিত হওয়ার কোন বিধান না থাকায় অত্র জেলায় সরকারী গেজেট বিজ্ঞপ্তির মাধ্যমে বিগত ১-৭-২০০৮ খ্রিঃ তারিখে জেলা জজ আদালত প্রতিষ্ঠার পূর্বে তৎকালীন জেলা প্রশাসকের দেওয়ানী এখতিয়ার বলে প্রদত্ত দেওয়ানী প্রকৃতির মামলার রায় বা আদেশের বিরুদ্ধে চট্টগ্রাম বিভাগের ভিতিশনাল কমিশনার অথবা ক্ষেত্র বিশেষে এডিশনাল ডিভিশনাল কমিশনারের নিকট দায়েরকৃত নিস্পন্নধীন (pending) আপীল কিংবা রিভিশন বা অন্যকোন আইনগত কার্যধারা অত্র আদালতে তথা অত্র জেলার জেলা জজ আদালতে আইনগতভাবে স্থানান্তরিত হতে পারে কিনা?
অত্র জেলায় জেলা জজ আদালত স্থাপনের পূর্বে জেলা প্রশাসকের দেওয়ানী এখতিয়ারে প্রদত্ত কোন রায় বা আদেশের বিরুদ্ধে দায়েরকৃত এবং নিষ্পন্নাধীন দেওয়ানী প্রকৃতিয় কোন আপীল বা রিভিশন চট্টগ্রাম বিভাগের বিভাগীয় কমিশনার কিংবা অতিরিক্ত বিভাগীয় কমিশনার অত্র আদালত তথা জেলা জজ আদালতে বিচার ও নিষ্পত্তির জন্য প্রেরণ করলে তা অত্র আদালতে (শুনানী ও নিষ্পত্তির জন্য) আইনগতভাবে রক্ষণীয় হবে কিনা?
2.4. This Special Bench of the High Court Division then heard the matter primarily on 31-10-2022, wherein Mr. Pratikar Chakma, learned Deputy Attorney-General, Mr. Zahid Ahammad (Hero), learned Assistant Attorney-General, Mr. Mohammad Shafayet Zamil, learned Assistant Attorney-General along with Mr. Md. Sultan Uddin and Mr. Md. Jamal Uddin, learned Advocates, present in Court, made submissions covering relevant issues, particularly by making reference to different decisions of this Court on different issues arose from disputes in Chittagong Hill Tract area. Considering the delicacy of the matter as well as the questions of interpretation of law and Constitution being involved therein, we have requested Mr. AM Amin Uddin, learned Attorney-General for Bangladesh, Mr. AF Hassan Ariff, senior advocate, Mr. Rokanuddin Mahmud, senior advocate, Mr. Probir Neogi, senior advocate and Mr. Devasish Roy (Raja Devasish Roy), learned advocate, to assist this Court as Amici Curiae. Accordingly, Mr. AM Amin Uddin, Mr. AF Hassan Ariff, Mr. Probir Neogi and Mr. Raja Debashis Roy have made extensive submissions on the issues involved therein. We have also heard the aforementioned learned advocates, namely Mr. Pratikar Chakma, Mr. Zahid Ahammad (Hero), Mr. Mohammad Shafayet Zarail, Mr. Md. Sultan Uddin and Mr. Md. Jamal Uddin, who have assisted this Court as interveners.
3. Submissions:
3.1. All the learned amici curiae, (except Mr. AF Hassan Ariff, learned senior counsel), have made submissions almost in same line in that the said civil appeal cases and the proceedings of civil nature should be disposed of by the Divisional Commissioner or the Additional Divisional Commissioner, Chattogram, as they may be, on the ground that the said special provision under section 6 of the said amending Act did not mandate or contemplate the transfer of those appeals and proceedings to the Court of District Judge of the respective hill districts.
3.2. AM Amin Uddin, learned Attorney-General, has specifically pointed out the absence of the specific words in section 6 of the said amending Act as regards transfer of such civil appeals and proceedings of civil nature. According to him, when the Legislature has deliberately remained silent in the amending Act as regards a particular matter, the Court cannot become vocal on that matter as the Court does not act as legislating body. Rather, according to him, the duty of the Court is limited to interpreting the words used by the Legislature. In this regard, he has referred to a decision of Privy Council in Magor and St. Mellons Rural District Council and Newport Corporation, 1952 AC 189.
3.3. Mr. Probir Neogi, learned senior counsel, has, at the outset, referred to section 4 of the Code of Civil Procedure. According to him, the Code itself has provided that nothing of the Code shall be deemed to limit or otherwise affect any special law in force or any special jurisdiction, unless such provision is specifically provided in the Code itself. He submits that since the CHT Regulation of 1900 is a special law, thereby, providing special procedure for adjudication of civil disputes as well as civil appeals by special forum, namely Deputy Commissioner of the hill district concerned and Divisional Commissioner of Chattogram in view of the Rules made under section 18 of the said Regulation, such special procedure and forum should be allowed to continue unless it is specifically amended by the Legislature by any amending Act By referring to the special provisions as provided by section 6 of the said amending Act, Mr. Neogi submits that since section 6 has made provision for transfer of criminal appeals only and the said provision is completely silent about transfer of pending civil appeals and the proceedings of civil nature, the said pending appeals and/or proceedings of civil nature cannot be transferred to the Court of District Judge of the respective hill districts, as that would be beyond the scope of the amending Act itself. By referring to different Chapters of the book authored by late lamented Mr. Mahmudul Islam, namely the book titled "Interpretation of Statutes and Documents," Mullick Brothers, Mr. Neogi argues that the established Rule of interpretation of statutes is that the Legislature does not intend alteration in the existing law except what is expressly provided, as, according to him, Legislature is presumed to have been aware of the existing law.
3.4. By referring to the same Chapter-3 of the said book, Mr. Neogi submits that the other cardinal principle of interpretation of statute is that the Legislature does not make any mistake and that it cannot be presumed by the Court that the Legislature has committed mistake in amending a particular law by not mentioning some matters therein. In support of his such submissions, he has referred to various decisions of the superior Courts of this subcontinent and some English cases, namely the decisions in Shafiqur Rahman vs. Idris Ali, 37 DLR (AD) 71 [Para 26], Ramphal vs. Kamal Sharma, AIR 2004 SC 1647, Shamsuddin Ahmed vs. Registrar, 19 DLR (SC) 483, Dinesh Chandra vs. Assam, AIR 1978 SC 17, Md. Abdu: Sattar vs. Sub-Registrar, 29 DLR 320, Riverwear Commissioner vs. Adamson, (1877) 1 QBD 546, Leach vs. R (1912) AC 305, National Assistants Board vs. Wilkinson, (1952) 2 QB 648, Rabnewaz vs. Jahana, PLD 1947 SC 210, Bristol Guardians vs. Bristol Waterworks, (1914) AC 379 and Commissioner of Income Tax vs. Pemsel, (1891) AC 531. Accordingly, he submits that the answers to the legal questions sent by the Court of Additional District Judge, Bandarban should be "IN THE NEGATIVE".
3.5. Mr. Debashis Roy (Raja Debashis Roy) learned advocate, has also made elaborate submissions particularly covering the legislative and administrative history of the Chittagong Hill Tracts area. According to him, even before the Regulation of 1900, the Chittagong Hill Tracts area did always have a separate status in respect of its administration and judicial matters and that the Regulations of 1900 maintained that separate and distinctive administrative and judicial nature in clear way. By referring to different provisions of the said Regulations of 1900 and the Rules made thereunder, he submits that in adjudicating the civil disputes, the application of the Code of Civil Procedure has been ousted and that some provisions of Code may only be applicable by the Deputy Commissioners of the respective hill districts while executing the process of the Court and decrees in that area. He then referred to some provisions of the Public Gambling Act, 1867, Public Demands Recovery Act, 1913 and some other laws in order to establish his point. In this regard, he has also referred to section 4 of the Code of Civil Procedure and submits that this provision itself has provided non-application of the Code in case of existence of special procedure by any special law or special jurisdiction conferred by law, unless such provision is specifically provided by the said law.
3.6. Opposing the above contention, Mr. AF Hassan Ariff, learned senior counsel, submits that after the separation of judiciary from the executive organ and after the changing scenario in 2003 with the amending Act of 2003, which came into effect in 2008, there cannot be any parallel forum run by the executives in Chittagong Hill districts in order to exercise parallel power of District Judge for adjudicating civil appeals or any proceedings of civil nature. According to him, such existence of parallel forum run by the executives, namely the Divisional Commissioner or Additional Divisional Commissioner is unconstitutional and the same directly hit the constitutional provision providing for separation of judiciary.
4. Deliberations of the Court:
Historic perspective:
4.1. It appears from the above submissions of the learned amici curiae and learned advocates that the main issue involved in this matter is basically with regard to the interpretation of the special provision as provided by section 6 of the amending Act of 2003 (Act No. XXXVIII of 2003), as came into force in 2008. However, before giving such interpretation, we need to keep in mind the historic perspective of the area concerned as against the applicable laws therein. The admitted position is that historically Chittagong hill tract area was governed by separate legislative instruments and Rules made thereunder. According to the 'introduction' to a book written by the then Deputy Commissioner of Khagrachori Hill District, three hill districts in Chittagong hill tracts area, namely Rangamati, Bandarban and Khagrachori, were administrative part of Chittagong District and they directly became under British administration on 20th June, 1860. Thereafter, the said area was distinctively governed by the British by virtue of Act No. XXII of 1860, Act No. IV of 1863, Rule 3 of 1873 and Rule 3 of 1881. Subsequently, the said area was governed by British by virtue of the Chittagong Hill Tracts Regulation, 1900 (Regulation No. 1 of 1900). A book published by the Association for Land Reform and Development (ALRD) under the title "The Chittagong Hill Tracts Regulation, 1900" (Second Edition), as edited by Raja Debasish Roy and Pratikar Chakma (both advocates of the Bangladesh Supreme Court), also mentions that before 1860 neither Mughols nor the British are known to have had any direct influence or rule over CHT and that the status of the CHT peoples as tributaries was retained at least as late as 1829. The said book has referred to different authorities supporting such history. The book also mentions that as a small number of Chittagonean-speaking Bengali wet-rice farmers are known to have immigrated into CHT sometime during the 19th century and that, subsequently, me number of settlers increased to such extent that the same has made huge demographical change and the percentage of Bengali population in the region rose from about 2% in 1872 to about 47% in 2011 (according Bangladesh Government official census).
4.2. However, it appears, Regulation 1 of 1900 remained one of the colonial Special Regulations which provided restricted operation of other laws of the main land in the area and the Rules made thereunder have provided procedures and forum to be used for administration of such area by the government officials, traditional Chiefs and Headmen, particularly on matters related to land disputes as well as disputes regarding the customary law of the hilly people. Some provisions of the said Regulation No. 1 of 1900 and Rules made thereunder regarding administration of civil and criminal justice system will make the scenario much clearer. In this regard, we may examine some of the provisions of the said Regulation as existed immediately before its amendment in 2003.
4.3. Apart from providing in the preamble to the said Regulation that the said Regulation was made to declare the law applicable and provide for the administration of Chittagong Hill Tracts in Bangladesh, section 3 of the same provides that subject to the provisions of the Regulation, the administration of Chittagong Hill Tracts shall be carried on in accordance with the Rules for the time being in force under section 18. Section 4, on the other hand, specifically provides that the enactments specified in the Schedule, to the extent that they are not inconsistent with the Regulation, are declared to be in force in Chittagong Hill Tracts and that no other enactment shall be deemed to be applied in Chittagong Hill Tracts. However, the said section 4 has conferred power on the government to declare, by gazette, as to the application of any other enactments. Section 7 has provided, amongst others, that the Chittagong Hill Tracts shall constitute a district for the purpose of criminal and civil jurisdiction, and the Deputy Commissioner shall be District Magistrate and that the general administration of the said Tracts in criminal, civil and revenue and all other matters shall be vested in the Deputy Commissioner.
4.4. Section 8 has further provided that Chittagong Hill Tracts shall constitute a Sessions Division and the Divisional Commissioner and the Additional Commissioner of Chattogram shall be the Sessions Judge and Additional Sessions Judge respectively. Section 8 has also conferred power on the Divisional Commissioner as Sessions Judge to take cognizance of any offence as a Court of original jurisdiction and, while taking cognizance, he shall follow the procedure prescribed by the Code of Criminal Procedure, 1898 as applicable for the trial of warrant cases by the Magistrates. Finally, section 9 has provided that the High Court Division of Bangladesh shall exercise the powers of the High Court Division for all purposes of the Code of Criminal Procedure, 1898. In addition to above provisions, on examination of section 18 of the said Regulation, it appears that it has empowered the government to frame Rules for carrying into effect the objects and purposes of the said Regulation including the power to make Rules for providing for the administration of civil justice in Chittagong Hill Tracts. Sub-rule (3) of section 18 has provided that all Rules made by the government under the said section shall have effect as if enacted by the said Regulation.
4.5. Therefore, it appears from the above provisions of the said Regulation that although the said provisions have provided specific forum and procedure for criminal justice system in Chittagong Hill Tracts, it has not made specific provision for civil justice system except the provisions under section 7 to the extent that the Chittagong Hill Tracts shall constitute a district for the purpose of civil jurisdiction and that the general administration of civil matters shall be vested in the Deputy Commissioner. However, the admitted position is that the then government framed various "Rules under section 18 of the said Regulation including the "Rules for the Administration of the Chittagong Hill Tracts", as published by notification No. 123 P-D dt. the 1st May, 1900 at page 429 Part 1 of the Calcutta Gazette Dated the 2nd May, 1900 ("the said Rules").
4.6. Rule 1 of the said Rules provides that the administration of civil justice shall be conducted in the most simple and expeditious manner compatible with the equal disposal of the matters or suits. Rule 2 even provides that the officer dealing with the matter or suit will first endeavour to resolve such matter or suit through viva voce examination of the parties, and the witnesses should not be called except when the officer is unable without them to come to a decision upon facts of the case. The said Rules have, amongst others, given some benefits to the tribal people, or hill men, in respect of Court fees etc. Rule 10 has made specific provisions creating appeal forum. According to this provision, all orders passed in civil suits shall be appealable to the Divisional Commissioner, who may decide by whom the costs in any such appeal shall be paid. Rule 11 even debarred the presence of legal practitioners except in certain cases. Thus, it appears from the above provisions that in respect of civil matters, the provisions under the Code of Civil Procedure have a very minimum application only in respect of service of process and execution of decrees as provided by Rule 6 of the said Rules.
4.7. Therefore, it cannot be denied that the governments from the British era, time to time, recognized this simplest procedure for disposal of civil disputes in the CHT area and such disputes were adjudicated by the Deputy Commissioner, at the first instance, and the Divisional Commissioner, on appeal, again without application of the provisions of the Code of Civil Procedure. Such separate special provision for disposal of civil disputes has also been recognized by the Code of Civil Procedure itself under section 4 of the same. This being so, it cannot be said that after separation of judiciary in 2007, the Chittagong Hill Tracts had parallel judicial authority run by executives, particularly when such special procedure and forum created by special law has always been recognized by the Code of Civil Procedure itself. Our Constitution has also recognized special law for the backward section of people of this country. From that point of view as well, this separate judicial system cannot be termed as contrary to the provisions of the Constitution. We find recognition of such distinctive status of the Chittagong hill tract area and the hill men residing therein indifferent judicial pronouncements of our superior Court. As for example, see the decisions in Bangladesh vs. Rangamati Food Products, 69 DLR (AD) 432, Wagackara Tea Estate vs. Md. Abu Taker, 69 DLR (AD) 381, Bikram Kishore Chakma vs. Land Appeal Board, 6 BLC 436 (to some extent), Abu Taker vs. Land Appeal Board, 8 BLC 453 and Shefalika Khisa vs. Land Appeal Board, 25 BLC 428.
4.8. It may also be noted that with the passage of time, the Government of Bangladesh has repeatedly recognized such distinctive administrative and judicial system in Chittagong Hill Tracts Area and that the laws of the main land may only be applicable if they are not inconsistent with the provisions of the Regulation No. 1 of 1900. Such recognition of the Government has become more entrenched after the Peace Accord signed between CHT National Committee constituted by the Government of Bangladesh and Janosonghoti Samity. Terms of such agreement are reflected in various subsequent legislations enacted by our Parliament, namely CHT Regional Council Act, 1998 (Act No. XII of 1998), CHT Land Dispute Resolution Commissior Act, 2001 (Act No. 53 of 2001), Small Ethnic Groups Cultural Organization Act, 2010 and so on.
4.9. Therefore, after so many such developments having taken place subsequent to the signing of aforesaid Peace Accord, thereby, repeatedly recognizing the customary law of the hill men in Chittagong Hill Tracts as well as the distinctive legislative status of Regulation No. 1 of 1900, the separate procedure in the CHT area with regard to the resolution of their civil disputes is nothing new or foreign in our jurisprudence. This being so, any subsequent legislative change by way of amendment through the Acts of Parliament has to be examined from that point in view.
Amending Act of 2003;
4.10. Let us now examine the amending Act of 2003 (Act No. 38 of 2003) (came into effect on 04th June, 2008). It appears from the said amending Act that by amending section 2 of the said Regulation, the terms "District Judge" and "Joint District Judge" have been defined to the effect that the said Judges are appointed by the Government in consultation with the Supreme Court of Bangladesh. By amending section 7 of the said Regulation, the Legislature created three separate districts in place of one district for the purpose of criminal jurisdiction. By amending section 8 of the Regulation, the Legislature has created three separate Sessions Divisions for the Chittagong Hill Tract Area, namely Rangamati, Khagrachori and Bandarban Sessions Divisions, and also provided that the District Judges concerned shall be the Sessions Judges of the respective Sessions Division and that the Joint District Judges of the respective districts shall be the Assistant Sessions Judges in the respective Sessions Division. By the same amendment, three sub-sections, namely sub-sections (3), (4) and (5), have been added to section 8 of the said Regulation. By such sub-sections, civil jurisdictions as well as appellate forum have been created in the following terms:
"(3) The Rangamati, Khagrachory and Bandarban districts of the Chittagong Hill-Tracts shall constitute three separate civil jurisdictions under three District Judges.
(4) The Joint District Judge, as a court of original jurisdiction, shall try all civil cases in accordance with the existing laws, customs and usages of the districts concerned, except the cases arising out of the family laws and other customary laws of the tribes of the districts of Rangamati, Khagrachory and Bandarban respectively which shall be triable by the Mauza Headmen and Circle Chiefs.
(5) An appeal against the order, judgment and decree of the joint District Judge shall lie to the District Judge."
4.11. It appears from the above added sub-sections that by such provisions, three separate civil jurisdictions for three hill districts, namely Rangamati, Khagrachori and Bandarban, have been created. The Joint District Judge of each district shall be the Court of original jurisdiction. However, such Joint District Judges shall try all civil cases in accordance with the existing laws, customs and usages of the district concerned and that the said Joint District Judges shall not dispose of cases arising out of family laws and other customary laws of the tribes of the said districts and that such mattes shall be triable by the Mouza Headmen and Circle Chiefs concerned. By adding sub-section (5), appellate jurisdiction has been created and the District Judges of the respective districts have been given the appellate power as against orders, judgment and decrees of the respective Joint District Judges. Therefore, it is evident from this very added provisions under sub-sections (3), (4) and (5) that although three separate civil jurisdictions have been created and Joint District Judges of the said districts have been given the jurisdiction to try civil cases, such civil cases shall have to be tried or disposed of in accordance with the existing laws, customs and usages of the district concerned and not in accordance with the Code of Civil Procedure. On the other hand, the said Joint District Judges, exercising original jurisdiction, shall not have jurisdiction in trying or disposing of cases arising out of family laws or other customary laws of the tribes of the district concerned and such matters shall be triable by the respective Mouza Headmen and Circle Chiefs. Finally, the District Judges have been given appellate jurisdiction only against the orders, judgments and decrees of the Joint District Judges of the respective districts and not against any order of the Deputy Commissioner of the district concerned or any other officer. It has long been settled by long line of decisions of this Court that the jurisdiction as well as the appellate jurisdiction of a Court is the creature of Legislation and such jurisdiction can be exercised by such appellate forum only to the extent of such power given by the Legislature by the said legislation conferring such jurisdictions. This being so, in the instant matter, it appears that the District Judges of the respective districts shall only have jurisdiction to entertain appeals from the orders, judgments and decrees of the respective Joint District Judges of the said districts.
4.12. Besides, unlike the civil courts in rest of the country, the civil courts in CHT area have not been established under the Civil Courts Act, 1887 (Act No. XII of 1887). Rather, they have been established under the amended provision of the said Regulation. Therefore, they are the special types of civil courts established under the said special law.
4.13. Given the above position, let us now examine the 'special provision' as provided by section 6 of the said amending Act of 2003. The said 'special provision' under section 6 is quoted below:
৬। বিশেষ বিধান। এই আইন কার্যকর হইবার অব্যবহিত পূর্বে
(ক) রাঙ্গামাটি, খাগড়াছড়ি ও বান্দরবান জেলায় Deputy Commissioner এর নিকট নিষ্পনাধীন (pending) সকল দেওয়ানী মামলা এবং দেওয়ানী প্রকৃতির অন্যান্য আইনগত কার্যধারা তাৎক্ষণিক-ভাবে সংশ্লিষ্ট জেলার যুগ্ম-জেলাজজের (Joint District Judge) নিকট স্থানান্তরিত হইয়াছে বলিয়া গণ্য হইবে;
(খ) চট্টগ্রাম বিভাগের Divisional Com-missioner এবং Additional Divi-sional Commissioner এর নিকট নিষ্পন্নাধান (pending) সকল ফৌজদারী মামলা, আপীল এবং ফৌজদারী প্রকৃতির অন্যান্য কার্যধারা তাৎক্ষণিকভাবে সংশ্লিষ্ট জেলার দায়য়া আসালতে (Sessions Court) স্থানান্তরিত হইয়াছে বলিয়া গণ্য হইবে।
(Underlines supplied)
4.14. It appears from the above 'special provision', particularly from Clause-'Ka' of the same that with the amending Act coming into force, all the civil cases or the proceedings of civil nature pending before the Deputy Commissioner of the said three districts shall be deemed to have been transferred to the Joint District Judges of the respective districts. According to Clause-'Kha' of the said 'special provision', all pending criminal cases, appeals and proceedings of criminal nature, pending before the Divisional Commissioner and the Additional Divisional Commissioner of Chattogram, shall be deemed to have been transferred to the Sessions Court concerned of the respective districts. However, this 'special provision' under section 6 is completely silent about pending civil appeals or proceedings of civil nature, as was pending before the Divisional Commissioner or Additional Divisional Commissioner of Chattogram, before the said amending Act came into force.
4.15. In this regard, a submission has been put-forward by Mr. AF Hassan Ariff that there cannot be any parallel civil appellate jurisdiction run by the Divisional Commissioner, Chattogram after separation of judiciary. Similar submission has been made before the Additional District Judge, Bandarban. We have already observed hereinbefore that historically Chittagong Hill Tracts area was governed by distinctive law and administrative procedure. Particularly, in matters of civil disputes, the customary law of the land in Chittagong Hill Tracts area has always been made applicable. Such historic recognition of customary law and non-application of Code of Civil Procedure has again been recognized by the Legislature by inserting sub-section (4) in section 8 of the said Regulation providing, thereby, that the Joint District Judge, as Court of original jurisdiction, shall try all civil cases in accordance with the existing laws, customs and usages of the district concerned. Not only that, the Legislature, by this amending Act, has also kept the cases arising out of family laws and other customary laws of the tribes out of the jurisdiction of the Joint District Judges and, in respect of those matters, the jurisdiction of the Mouza Headmen and Chief Circles concerned of the tribal people have been recognized.
4.16. Therefore, we fully endorse the submission of Mr. AM Amin Uddin, learned Attorney-General, and Mr. Probir Neogi, learned senior counsel, to the affect that this Court can only interpret a law and cannot fill up the gap, if any, in the law as because such act of the Court will amount to legislation by the Court. In this regard, the Rule of interpretation as described by late lamented Mr. Mahmudul Islam in his famous book "Interpretation of Statutes and Documents" Mullick Brothers, page-51 may be reproduced below:
"The legislature is presumed to have been aware of the existing law and there is a presumption that the legislature does not intend to make a change in the existing law beyond what is expressly provided or which follows by necessary implication from the language of the statute in question. A statute is prima facie to be construed as changing the law to no greater extent that its words or necessary intendment requires."
4.17. It may be noted that the said author has described such Rule by referring to several authorities including Maxwell's-Interpretation of Statutes, 12th Edition, page- 214. Again, while interpreting an amending law enacted by parliament, it cannot be presumed that the Legislature was unaware of the existing law or that the Legislature has committed any mistake by not mentioning a particular matter in the amending law. In this regard, Mr. Mahmudul Islam observed in his book at page-53 in the following terms:
"It is not competent for any court to proceed upon the assumption that the legislature has made a mistake; whatever the real fact may be, a court of law is bound to proceed on the assumption that the legislature is an ideal person that does not make mistakes."
4.18. The cases cited by Mr. AM Amin Uddin, learned Attorney-General and Mr. Probir Neogi, learned senior counsel, have also elaborately established the said Rules of interpretation.
4.19. Be that as it may, it is clear from the said 'special provision' under section 6 of the amending Act of 2003 that the Legislature in fact has not committed any mistake. It is apparent that the Legislature deliberately did not mention anything about the pending civil appeals and the proceedings of civil nature as was pending before the Divisional Commissioner of Chattogram before the said amending Act came into force. There may be various reasons within the wisdom of the Legislature for not mentioning the same. One of such reasons, as suggested by learned advocates, may be that the civil disputes from which the said appeals arose were originally disposed of by an executive, namely the Deputy Commissioner of the respective district. Therefore, it was thought within the wisdom of the Legislature that those should be disposed of by the Divisional Commissioner of Chattogram, another executive in the same hierarchy, as before. On the other hand, since added sub-section (5) of section 8 of the Regulation does not confer any appellate jurisdiction on the District Judge of the hill districts to hear appeals arising out of an order or judgment of the Deputy Commissioners, no question arises as to the transfer of the said pending civil appeals and proceedings. Therefore, if we read this added sub-section (5) of section 8 along with the said special provision under section 6 of the amending Act, we have no option but to hold that it is the Legislature, which does not want those pending civil appeals and proceedings of civil nature to be transferred to the District Judge of the respective districts and, because of that, the Legislature has remained silent in respect of the said pending civil appeals and proceedings.
4.20. Opinion and Orders of the Court:
(1) In view of above discussions of law and facts, the answers to both the aforesaid legal questions are "IN THE NEGETIVE", meaning, thereby, that the civil appeals and the proceedings of civil nature, as was pending before the Divisional Commissioner and Additional Commissioner of Chattogram before coming into force of the amending Act of 2003, shall not be transferred to the District Judges of the respective hill districts and, if the same have in the mean time been transferred to the District Judges concerned, the same shall be returned back immediately if the same have not been disposed of vet. However, if any such appeals or proceedings have already been disposed of by the District Judges and Additional District Judges of the respective districts, the same shall not be disturbed on the ground that the said District Judges, or the Additional District Judges, did not have jurisdiction to hear and dispose of the same. Accordingly, the same shall be treated as "past and closed matters", However, the said judgments of the District Judges and Additional District Judges may be called in question, in accordance with law, on other grounds.
(2) Accordingly, the learned District Judges in all three hill districts, namely Rangamati, Khagrachori and Bandarban hill districts, are directed to return immediately all the civil anneals and/or other proceedings of civil nature, as received by them from the Office of the Divisional Commissioner, Chattogram, back to the said Commissioner if they are not disposed of vet. The said Divisional Commissioner shall then take steps for disposal of the said appeals and proceedings, as before, within the shortest possible time.
(3) The Registrar-General of the Supreme Court of Bangladesh is directed to send copies of this judgment, containing above opinion and directions of this Court, to all the learned District Judges of the said three hill districts, namely Rangamati, Khagrachori and Bandarban, the Court of Additional District Judge of Bandarban Hill District and the Divisional Commissioner of Chattogram for compliance.
4.21. Let an advance order be issued containing the above opinion and directions of this Court.
4.22. We express our gratitudes to the learned Amici Curiae and the learned advocates who spent their valuable time to assist this Court.
--- Journal: DLR Volume: 75 Division: HCD Page: 427High Court Division (Special Original Jurisdiction)
Present:
Mr. Justice J.B.M. Hassan
And
Mr. Justice Razik-al Jalil
Writ Petition Nos. 8303, 8304, 8305, 8306, 8307, 8308, 8509 and 8310 of 2017
Nazrul Islam
------------- Petitioner
VS
Government of the People's Republic of Bangladesh and Ors.
------- Respondents
Judgement Date : January 23, 2023
Counsels:
Mr. Gazi Md. Mohsin, Advocate
—For the Petitioner.
Mr. Tushar Kanti Roy, DAG
—For the Respondents.
Judgment
J.B.M. Hassan, J:
1. The above mentioned 8 (eight) writ petitions were filed by the sole petitioner, namely, Nazrul Islam under Article 102(2)(b)(i) of the Constitution in the form of habeas carpus writ as full brother of the detenu, namely, Md. Zahirul Haque Momin. In all the writ petitions he obtained Rules Nisi challenging detention of the detenu, Md. Zahirul Haque Momin in connection with 8 (eight) judgment and order of conviction and sentence separately passed in 8 (eight) sessions cases under section 138 of the Negotiable Instrument Act, 1881 (shortly, the NI Act). Writ Petition Nos. 8307 of 2017 and 8308 of 2017 having similar facts and law were heard earlier and both are fixed today for pronouncement of judgment. Similar law and facts being involved in Writ Petition Nos. 8303 of 2017, 8304 of 2017, 8305 of 2017, 8306 of 2017, 8309 of 2017 and 8310 of 2017, they have also been heard together today. Now all the above mentioned 8(eight) writ petitions have been disposed of by this common judgment.
2. The detenu, Md. Zahirul Haque Momin was entangled in 8(eight) criminal proceedings under section 138 of the Negotiable Instrument Act, 1881 (the NI Act) on the allegation of dishonour of 8 (eight) cheques for different amount on different dates. Eventually, after conclusion of trial of those proceedings, the judgments and orders were passed by the learned Sessions Judge, Bogura on 26-5-2011, 26-5- 2011, 30-3-2010, 31-3-2010, 4-7-2010, 26-6-2010, 26-5-2011 and 26-5-2011 in Sessions Case Nos. 88 of 2009, 121 of 2009, 416 of 2009, 415 of 2009, 236 of 2009, 518 of 2009, 89 of 2009 and 122 of 2009 respectively. In each case, the detenu was convicted under section 138 of the Act, 1881 and sentenced to suffer imprisonment for 1(one) year with fine.
3. Subsequently, the detenu was arrested on 17-7-2013 in connection with ST (Session Trial) Case No. 88 of 2009. In the above mentioned 8 (eight) cases the petitioner was sentenced to suffer imprisonment for one year from the date of arrest and the said period expired on 16-7-2014. Thereby, he was un-authorisedly detained from 17-7-2014. In this backdrop, the petitioner as full brother of the detenu, filed these writ petitions and obtained the present Rules Nisi.
4. Mr. Gazi Md. Mohsin, learned Advocate appearing for the petitioner in all the writ petitions submits that the detenu has been convicted under section 138 of the NI Act and sentenced in 8(eight) separate criminal proceedings and that in all the cases he was sentenced for one year each. The judgments were passed with a direction to the effect that the period of sentence shall be effective from the date of his surrender or arrest by the police, whichever is earlier. He further submits that the detenu was arrested on 17-7-2013 for serving out the sentence in connection with Sessions Case No. 88 of 2009 and then conviction warrants were issued on 5-8-2013 in 7 (seven) other Sessions Cases to serve out the sentences. Thus, in all the judgments the sentences being from the date of arrest, he was required to serve until 16-7-2014 or 4-8-2014 (from conviction warrant) i.e. for one year. He also submits that although section 397 of the Code of Criminal Procedure (Cr.P.C.) requires to serve consecutively in respect of sentences of different proceedings but here the detenu has to serve as per direction given in the judgments effecting serving out of sentence from the date of arrest inasmuch as the direction of the judgment cannot be altered or changed. In support of his submission, learned Advocate refers to the case of MA Motaleb Bhuiyan vs. State reported in 18 BLC 451.
5. Mr. Tushar Kami Roy, learned Deputy Attorney-General (DAG) appearing for the Respondent No. 1 submits that the sentences passed in different criminal proceedings shall run consecutively in accordance with section 397 of the Code of Criminal Procedure unless the Court directs that subsequent sentences shall run concurrently with such previous sentence. Since there is no direction in the judgments in question, the detenu has to serve sentences of all the judgments consecutively i.e. for 8 (eight) years. In support of his submission learned DAG refers to the case of Salim Raza vs. The State and another reported Pakistan (Lahore) 1998 Criminal Law Journal 284.
6. Mr. Golam Sarwar, learned Advocate appears for the respondent No. 6 in Writ Petition Nos. 8303 of 2017, 8304 of 2017 and 8309 of 2017. Mr. Md. Kamrul Alam (Kamal), learned Advocate appears for the respondent No. 6 in writ petition Nos. 8305 of 2017 and 8306 of 2017.
7. We have gone through the writ petitions, cited cases and other materials on record.
8. It appears that the detenu was convicted and sentenced in eight criminal proceedings being Sessions Case Nos. 88 of 2009, 121 of 2009, 416 of 2009, 415 of 2009, 236 of 2009, 518 of 2009, 89 of 2009 and 122 of 2009 by the judgments and orders dated 26-5-2011, 26-5-2011, 30-3-2010, 31-3-2010, 4-7-2010, 26-6-2010, 26-5-2011 and 26-5-2011 respectively passed by the learned Sessions Judge, Bogura.
9. All the criminal cases were tried and disposed of separately. In each case, the conviction was under section 138 of the NI Act and sentence was to suffer imprisonment for one year alongwith fine of different amount. It is undisputed that when a person is sentenced to suffer imprisonment in different cases, the sentences shall run consecutively in accordance with section 397 of the Code of Criminal Procedure (shortly, the Code) which runs as follows:
"397. When a person already undergoing a sentence of imprisonment, or transportation, is sentenced to imprisonment, or transportation, such imprisonment, or transportation shall commence at the expiration of the imprisonment, or transportation to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence:
Provided that if he is undergoing a sentence of imprisonment, and the sentence on such subsequent conviction is one of transportation, the Court may, in its discretion, direct that the latter sentence shall commence immediately, or at the expiration of the imprisonment to which he has been previously sentenced:
Provided, further, that where a person who has been sentenced to imprisonment by an order under section 123 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately."
10. On a plain reading of the aforesaid provision, it appears that in the case more than one sentence of imprisonment, the subsequent imprisonment shall commence after the expiration of the imprisonment to which has been previously sentenced. In other words, the sentences shall run consecutively one after another i.e. the sentence being one year in each case, in 8 (eight) cases the detenu has to suffer eight consecutive years, one after another. However, in the said provision there is an exception with the words "unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence" which clearly indicate that sentences of all cases may run concurrently i.e. by one year if in the subsequently judgment the Court directs as above.
11. In the present cases, there is no such direction given by the Trial Court who awarded the sentences. However, we find the ordering portion of the judgments in the following terms:
"That accused, Md. Zahirul Haque Momin (Absconding) be convicted under section 138 of the Negotiable Instrument Act, 1881 as amended upto date and sentenced to suffer imprisonment for a term of 1(one) year and also to pay a fine of Taka... The period of sentence shall be effective from the date of his surrender or arrest by police whichever is earlier. Issue conviction warrant accordingly."
12. In view of above, the period of imprisonment shall be counted from the date or his arrest or surrender before the Court, whichever is earlier. Drawing our attention to this direction, learned Advocate for the petitioner submits that it is in fact alternative words and mandate of direction as to concurrent serving out of sentences as reflected in the provision under section 397 of the Code.
13. The provision of section 397 of the Code is unambiguous and to the effect that to run the sentences concurrently there must be a clear expression as to the concurrent running of sentences with the previous sentence. But in the present judgments, we do not find such expression. Rather, the words used in the judgment are plain and simple indicating to serve it from the date of arrest or surrender for that particular sentence of imprisonment. Therefore, it cannot be said that by the judgment passed in these cases the Court below directed to run the sentences concurrently with the previous sentences. Hence, the petitioner has to serve out the sentences in all 8 (eight) criminal cases consecutively. This view of ours finds support from the case of Salim Raza vs. The State and another reported in 1998 Pakistan Criminal Law Journal (PCrLJ) 284 (Lahore) relevant portions of which are as follows:
"4. I have given my anxious consideration to the arguments advanced on behalf of the parties, gone through the record, relevant provisions of Cr.P.C. and two precedent cases relied by the learned Additional Advocate-General, the learned counsel for the petitioner referred to section 35, Cr.P.C. The same is a relevant to the present controversy as the petitioner has been convicted at separate trials and not at same trial for two or more offences. The case covered by section 397, Cr.P.C., which reads as under: -
"Sentence of offender already sentenced for another offence-When a person already undergoing a sentence of imprisonment (imprisonment for life) is sentenced to imprisonment or (imprisonment for life), such imprisonment or (imprisonment for life) shall commence at the expiration of the imprisonment or (imprisonment for life) to which he has been previously sentenced, unless the Court directs the subsequent sentence shall run concurrently with such previous sentence......"
It is clear from the above provision that it is within the discretion of the Court passing the second conviction to make the sentence concurrent but in the absence of any direction the same shall run consecutively. In the case in hand the learned Sessions Judge was not pleased to exercise the discretion in favour of the petitioner. There is no difficulty in arriving of the conclusion from the facts record that one conviction was earlier in time and the same was followed the conviction in the other case. The trial Court has given the petitioner benefit section 382-B, Cr.P.C., therefore, it could safely be inferred that the omission or failure to make discretion about the sentence being concurrent or otherwise must be intentional. This view is supported by the observation of late Md. Justice M.R. Kiani in the case of Mian Gulzar Muhammad (supra). The relevant section reads as under:-
"......I hold that the accused was undergoing his first sentence when the second and third were pronounced on him and that consequently, where there is nor order making them concurrent, they will be undergone consecutively. The petition is dismissed."
14. We have also gone through the case reported in 18 BLC 451 cited by the learned Advocate for the petitioner wherein the High Court Division held that judgment cannot be changed, revised or reviewed and after pronouncement of judgment the Court becomes Junctus-officio. The ratio was laid down in hearing of an application for recalling previous judgment and order passed in the absence of the petitioner but the present case having distinct facts, the cited case is not applicable.
15. In view of above discussions, we do not find any merit in these Rules Nisi.
16. In the result, the Rules Nisi issued in Writ Petition Nos. 8303 of 2017, 8304 of 2017, 8305 of 2017, 8306 of 2017, 8307 of 2017, 8308 of 2017, 8309 of 2017 and 8310 of 2017 are discharged without any order as to costs.
17. The petitioner is directed to surrender before the Court below to serve out the remaining sentences, if those are not interfered by any higher forum.
Communicate a copy of this judgment and order to the respondents at once.
High Court Division (Criminal Appellate Jurisdiction)
Present:
Mr. Justice S.M. Kuddus Zaman
And
Ms. Justice Fahmida Quader
Jail Appeal No. 181 of 2018
Shopon
------------- Appellant
VS
State
------- Respondent
Judgement Date : March 01, 2023
Counsels:
Ms. Nargis Akter, Advocate
—For the Appellant.
Mr. S.M. Fazlul Haque, Deputy Attorney General and Mr. M.A. Kamrul Hasan Khan (Aslam), Deputy Attorney General
—For the Respondent.
Judgment
S.M. Kuddus Zaman, J:
1. This Jail Appeal at the instance of the convict-appellant Shopon is directed against judgment and order of conviction and sentence dated 18-5-2006, passed by the learned Assistant Metropolitan Sessions Judge, 3rd Court, Dhaka in Metropolitan Sessions Case No. 1487 of 2000 arising out of Motijheel Police Station Case No. 28(05)98 corresponding to GR Case No. 1514 of 1998 convicting the appellant under sections 397 of the Penal Code and sentencing him thereunder to suffer rigorous imprisonment for 10(ten) years and also pay a fine of Taka 10,000 (ten thousand) in default to suffer rigorous imprisonment for 6(six) months more.
2. It has been alleged that the appellant and other two accused persons armed with fire arms and bomb committed robbery in the house of PW 2 Md. Moajjem Hossain on 23-5-1998 at 11-30 am During trial prosecution examined 7 witnesses who were cross-examined by the defense and documents produced and proved by the State were marked as Exhibit Nos. 1 and 2 series. On consideration of facts and circumstances of the case and evidence on record the learned Assistant Metropolitan Sessions Judge passed above judgment and order of conviction and sentence.
3. Being aggrieved by above judgment and order of conviction and sentence convict accused Shopon as appellant preferred this Jail Appeal.
4. Ms. Nargis Akter, learned Advocate for the appellant submits that in connection of this case the appellant was arrested on 23-5-1998 and he did not get bail at any stage of the above case. After serving out above sentence in full the appellant has been released from the jail. As such, the appellant is not interested to challenge the conviction inflicted upon him in this case but the appellant wants disposal of this Jail Appeal on merit.
5. Mr. SM Fazlul Haque, learned Advocate for the State submits that since the appellant has already served out above sentence as was inflicted upon him by the learned Metropolitan Assistant Sessions Judge and he also does not challenge the order of conviction as stated above this appeal may be dismissed on merit.
6. We have considered the submissions of the learned Advocates for the respective parties and carefully examined all materials on record.
7. In order to bring home the charge leveled against the accused-appellant the prosecution has examined 7 witnesses and produced and proved documents which were marked as Exhibits No. 1-4.
8. PW 1 Rehana Hossain is the wife of the informant and an eye witness of the occurrence. In her evidence she stated that appellant Shopon is her cousin brother and the dacoits snatched away a gold chain and taka 6,000 from appellant Shopon. The dacoits also fastained the appellant with ropes. Appellant Shopon did not commit dacoity in her house. The witnesses was not declared hostile and cross-examined by the prosecution.
9. PW 2 Md. Moajjem Hossain who is the husband of PW 1 Rehana and informant of this case stated that convict Shopon is from his village and a distant relation. He did not mention his name in the FIR. Dacoits fastained him and snatched away Taka 600 and gold chain from him. In cross-examination he stated that convict Shopon did not commit the occurrence of dacoity.
10. PW 3 Mousumi is the daughter of PW 1 Rehan and PW 2 Moajjem and an eye witness of the occurrence. She stated that the dacoits fastained convict Shopon and Dadon with ropes. In cross-examination she stated that convict Shopon is a distant cousin of her father and convict Shopon was not involved in the commission of the dacoity.
11. PW 4 Dadon Miah is a witness of the seizure list and he proved the seizure list and his signature on the same which were marked as Exhibit Nos. 2 and 2(1) respectively. In cross-examination he stated that the dacoits also snatched Taka 6,000 and a gold chain from appellant Shopon.
12. PW 5 Sub-Inspector Md. Nazrul Islam is the Investigating Officer of this case who proved the sketch map and index of the occurrence place and his signature on above documents which were marked as Exhibit Nos. 3 and 4 respectively.
13. PW 6 Abdus Salam Khan is a neighbor of the informant and PW 1 Rehana. He stated that PW 1 Rehana stated to him that one dacoit was caught and others fled away. He saw the dacoit who was apprehended and accused Shapon is that person. In cross-examination he stated that accused Shopon used to visit the house of the informant frequently.
14. PW 7 Mahbub Hasan Khan stated that he heard of the sound of bomb blast and came to the occurrence house. He also identified accused Shopon as a dacoit. In cross-examination above witness stated that he did not see who committed above dacoity.
15. Above is all about the evidence-oral and documentary adduced by the prosecution in this case.
16. It turns out from above evidence that PW 1 Rehana Hossain, PW 2 Md. Moajjem Hossain and PW 3 Mousimi are the residents of the occurrence house and victims of above dacoity. PW 2 Moajjem is the informant of this case and his wife and daughter namely Rehana Hossain and PW 3 Mousumi were present in the occurrence house at the time of occurrence. Above two eye-witnesses of the occurrence have consistently stated that accused Shopon was a victim of above dacoity and he was not involved in the commission of the dacoity.
17. None of the above witnesses was declared hostile by the prosecution and cross- examined.
18. As mentioned above the alleged dacoity occurred in the broad day light at 10-30 am and accused Shopon was well known to prosecution witnesses No. 1, 2 and 3. Moreover, they have stated that Shopon is their distant relation and Shopon was a victim of above dacoity.
19. PW 6 Abduls Salam Khan has stated that PW 1 Rehana told to him that one dacoity was caught and he was appellant Shopon but this evidence of PW 6 Abdus Salam Khan has not been corroborated by PW 1 Rehana. PW 7 Mahbub Hasan Khan has stated in cross-examination that he does not know who were involved in the commission of above dacoity.
20. As such, no prosecution witness has given consistent and credence inspiring evidence as to the involvement of the appellant in above dacoity. No incriminating material of above dacoity was recovered from the possession of the appellant.
21. In the impugned judgment the learned Assistant Sessions Judge has mentioned about a confession of accused Shopon made under section 164 of the Code of Criminal Procedure. But no such confession was marked as an exhibited document nor the Magistrate who recorded above confession has been examined as a prosecution witness.
22. It is well settled that in order to record an order of conviction and sentence on the basis of a confession the prosecution must prove that the confession was made voluntarily and the same was true. The voluntariness of a confession can be proved by the evidence of the Magistrate who recorded the same under section 164 of the Code of Criminal Procedure. While the truthfulness of the confession can be established by facts and circumstances of the case and other materials on record.
23. Since the confession recording Magistrate was not examined as a prosecution witness in this case and above confession was not marked as an exhibited document it has not been proved that accused Shopon made any confession voluntarily and above confession was true.
24. On consideration of above facts and circumstances of the case and evidence on record we are of the view that the prosecution has miserably failed to prove the charge leveled against appellant Shopon under section 397 of the Penal Code beyond reasonable doubt But the learned Assistant Sessions Judge has most illegally convicted the appellant and sentenced him to suffer rigorous imprisonment for 10(ten) years and also pay fine of Taka 1,000 which is not tenable in law.
25. It is unfortunate that the appellant has already served out above sentence and released from prison. We are unable to return his invaluable time of life but we can record an order of acquittal which will remove from his forehead the stigma of conviction.
26. In above view of the materials on record we find substance in this Jail Appeal which deserves to be allowed.
27. In the result, this Jail Appeal is hereby allowed. The impugned judgment and order of conviction and sentence dated 18-5-2006, passed by the learned Assistant Metropolitan Sessions Judge, 3rd Court, Dhaka in Metropolitan Sessions Case No. 1487 of 2000 arising out of Motijheel Police Station Case No. 28(05)98 corresponding to GR Case No. 1514 of 1998 is hereby set-aside. Accused Shopon is acquitted of the charged leveled under section 397 of the Penal Code against him in above case.
28. Send down the Lower Court's record immediately.
Communicate this judgment and order to the Court concerned at once.
High Court Division (Statutory Original Jurisdiction)
Present:
Mr. Justice Muhammad Khurshid Alam Sarkar
Company Matter No. 150 of 2021
Bangladesh Freight Forwarders Association
------------- Petitioner
VS
The Registrar, Joint Stock Companies and Firms and Ors.
------- Respondents
Judgement Date : December 14, 2021
Counsels:
Mr. A.M. Aminuddin, Senior Advocate and Mr. A.B.M. Hamidul Mishbah, Advocate
—For the Petitioner.
Judgment
Muhammad Khurshid Alam Sarkar, J:
1. By filing this application under Section 81(2) read with Sections 85(3) and 396 of the Companies Act, 1994 (briefly, the Companies Act), the Bangladesh Freight Forwarders Association (BAFFA), a company limited by guarantee without having share-capital, seeks validation/approval of Annual General Meetings (AGMs) for the calendar years 2020 and 2021, which had already been held on 21.04.2021 through virtual platform by BAFFA, upon condoning the delay thereof and, also, for exoneration from the fine incurred for default.
2. The fact of the case, briefly, is that the petitioner, i.e. Bangladesh Freight Forwarders Association (BAFFA), is the only/sole national trade organization represented by the Freight Forwarders in Bangladesh. The main objects of BAFFA are to promote and safeguard the interest of its members engaged in the business of supply chain management of goods in international trade by sea, land and air or combined multimodal transportation and other related services, including packing and warehousing. The petitioner is licensed under the Ministry of Commerce, Government of the People's Republic of Bangladesh, bearing License No. 06/2010 dated 27.01.2010, and is duly incorporated under the Companies Act, bearing Registration Number TO-735/10, dated 22.03.2010. Since its incorporation, the company has been holding its AGM regularly and within the stipulated time and the company was set to hold its 10th AGM for the calendar year 2020 which was scheduled to be held on 30.03.2020 and for that purpose the company booked BAF Shaheen Hall as the venue but due to the outbreak of COVID-19 pandemic, the Government of Bangladesh had declared General Holidays (lockdown) from 26.03.2020, forcing the company to postpone the 10th AGM and, accordingly, the company vide its letter No. BAFFA/2020/090 dated 03.05.2020 to the Registrar of Joint Stock Companies and Firms (RJSC) requested for extension of time for holding the AGM when the pandemic situation improved and, pursuant thereto, RJSC vide letter being No. TO-735/2020309297/558 dated 03.06.2020 extended the time up to 29.06.2020. However, the COVID-19 pandemic situation continued to deteriorate and it was impossible to hold the AGM within 29.06.2020 and subsequently the company vide its letter No. BAFFA/2020/098 dated 08.06.2020 requested RJSC for further extension of time until 30.09.2020, for holding the 10th AGM. Subsequently, the Ministry of Commerce, through issuing a notification, vide Nothi No. 26.00.0000.157.99.001.18.154 dated 15.07.2020 directed all the trade associations, groups, chambers, etc. who were unable to hold general meeting/s and elections since March 2020, to postpone holding of meeting/s and elections till 31.12.2020 and, in compliance with the aforesaid direction, the company did not hold the 10th AGM in the year 2020. Meanwhile, the time for holding the 11th AGM emerged and, in December 2020, the company's representatives approached the Director, Trade Organization (DTO), Ministry of Commerce to discuss and seek guidelines for holding the 10th and 11th AGM. The Director, Trade Organization (DTO) verbally advised the company to hold both the 10th and 11th AGMs on the same day, gave certain guidelines as to the procedure for such AGM and further advised that the total procedure might be intimated to RJSC and a copy be sent to the DTO for its appraisal and, accordingly, the company, by its letter No. BAFFA/2021/020 dated 26.01.2021, wrote to RJSC to allow the company to hold the 10th and 11th AGMs on the same date during the period between 20 February 2021 and 30 March 2021 but the company did not receive any response from RJSC. The company, then, wrote another letter to RJSC, being letter No. BAFFA/2021/148-1 dated 10.03.2021, regarding holding of the 10th and 11th AGMs for the calendar years 2020 and 2021 on the same date i.e. on 27.03.2021 and at the same venue BAF Shaheen Hall. Thereafter, the company issued notices for the 10th and 11th AGMs to all Members vide letter No. BAFFA/AGM/2021/149 and BAFFA/AGM/2021/150 dated 11.03.2021. Meanwhile Bangladesh was officially celebrating the 100th Birth Anniversary of the Father of the Nation Bangabandhu Sheikh Mujibur Rahman and the Golden Jubilee celebrations of the independence of Bangladesh, and for the said occasions, a number of foreign Heads of States and Heads of Governments were visiting Bangladesh and thus there were VVIP movements within the city, which required strict control of vehicular traffic on the city streets that continued until 27 March 2021. Upon receiving the instructions from Dhaka Metropolitan Police regarding the control of vehicular traffic in Old Airport Road, the Shaheen Hall authority informed the company to cancel the program scheduled to be held at their premises on 27.03.2021. Consequently, the company had to cancel its 10th and 11th AGMs and, subsequently the company tried to hold the AGMs on a new date soon after 27.03.2021 but the Shaheen Hall Authority could not give any date immediately and, finally, the Shaheen Hall Authority managed to accommodate the company for holding the 10th and 11th AGMs on 21.04.2021. The company had informed its members about the new date of holding the 10th and 11th AGM on 21.04.2021, at the same venue vide circulating an e-mail on 23.03.2021. Subsequently, due to the deteriorating COVID-19 situation in Bangladesh and the Circular No. 03.00.26.90.082.46.025.2021-124, dated 29.03.2021, issued from the Honorable Prime Minister's Office, the company again had to cancel the scheduled 10th and 11th AGM at BAF Shaheen Hall. BAF Shaheen Hall authority later on refunded the hall rent paid in advance. Thereafter, in accordance with the aforesaid Government Circular, dated 29.03.2021, the company's Board of Directors decided to hold the 10th and 11th AGMs online through Virtual Platform. Accordingly, the company had issued a letter, vide letter No. BAFFA/2021/178 dated 01.04.2021 to the RJSC informing about the holding of the 10th and 11th AGMs for the calendar years 2020 and 2021 on virtual platform on 21.04.2021. Subsequently the company issued revised notices dated 06.04.2021 to all its members regarding the holding of the 10th and 11th AGMs for the calendar years 2020 and 2021 through online virtual platform along with virtual meeting ID and pass-code link to all the members through an e-mail dated 18.04.2021 and all the members duly received the aforesaid notices dated 06.04.2021 and the e-mail dated 18.04.2021, which were duly accepted by all and no objections or resentments were shown or expressed and, finally, with the wholehearted support and spontaneous presence of the esteemed members, and the quorum being fulfilled, the petitioner-company was able to successfully hold its 10th and 11th Annual General Meetings through using virtual platform on 21.04.2021. The company now approaches this Court with a prayer for obtaining post-facto approval of the said AGMs.
3. By filing an affidavit-in-opposition, the respondent No. 2 contests this matter. The affidavit-in-opposition, filed by the respondent No. 2, does not seek to deny or disagree the factual statements made in the petition; rather the affidavit-in- opposition contains statements of law aiming at opposing the instant application on the issues of (i) calling and holding of the General Meetings of a company, (ii) notices for calling AGM and (iii) locus stand of the petitioner.
4. Mr. AM Aminuddin, the learned Senior Advocate appearing for the petitioner- company submits that the delay in holding the AGM is not due to any fault or laches on the part of the petitioner-company or its Directors, but due to the force majeure event which is clear from the facts and circumstances stated in the petition. He submits that since it is evident that the petitioner company at all times has been acting bona fide, and since in compliance with the directions and guidelines issued by the Office of the DTO, Ministry of Commerce and the Prime Minister's Office, with regard to calling, conduct and holding of the AGMs of the companies of Bangladesh, therefore, the holding of the 10th and 11th AGMs in good faith through using the virtual platform, may be approved and validated by this Court by exercising its discretionary power under Section 85(3) of the Companies Act. He submits that the petitioner-company has inadvertently missed to seek permission from this Court before calling the AGMs and, now, upon receiving professional advice, has come to know that the High Court Division reserves the jurisdiction under Section 81(2) of the Companies Act to condone the delay in holding the AGM and under Section 85(3) of the Companies Act, the High Court Division has the inherent and discretionary power to give any necessary direction/s to the company with regard to holding the 10th and 11th AGMs held on the same day through virtual platform, as well as allow the proceedings of the said AGMs. He contends that the 10th and 11th AGMs were successfully held on 21.04.2021 through using the virtual platform, without any resentment or objection or disorder, and that unless the aforesaid delay in holding the 10th and 11th AGM for the calendar years 2020 and 2021, as well as the proceedings of the said AGMs held on 21.04.2021, are not approved and validated post-facto by this Court, the company shall be gravely prejudiced and shall suffer irreparable loss and injury.
5. By making the above submissions, the learned Advocate for the petitioner prays for allowing the aforesaid delay in holding the 10th and 11th AGM for the calendar years 2020 and 2021 and, thereby, to post-facto approve and validate the proceedings of the said AGMs held on 21.04.2021 by the petitioner through virtual platform.
6. Mr. Akhtar Imam, the learned Senior Advocate appearing for the respondent No. 2, takes me through Section 81(2) of the Companies Act and submits that the petitioner-company after having failed to hold the 10th AGM on or before 29.06.2020, the Court's permission was mandatory. By placing the provisions of Sections 81 and 85(3) of the Companies Act, the learned Senior Advocate professes that there is no provision within the four-corners of the Companies Act to ex-post facto condone delay of over 02 months after holding any AGM of a company. Mr. Imam, in an endeavour to place his above count of arguments, takes this Court through Rule 44 of the Companies Rules, 2009 (Companies Rules) and submits that Rule 44 of the Companies Rules stipulates that an Order passed by the Court under Section 81 or Section 85 of the Companies Act directing the calling of a general meeting of a company shall contain directions as to the time and place of the meeting and a copy of the said Order shall be filed by the applicant with RJSC before the meeting is held. Mr. Imam next submits that the wording/language of Sections 81 and 85 of the Companies Act and Rule 44 of the Companies Rules make it abundantly clear that in the event a company fails to hold its AGM for a particular year within the statutory time frame, the said AGM must be held as per directions of the Court and, therefore, the Court does not have the power under Section 81(2) or 85(3) of the Companies Act or Rule 44 of the Companies Rules to grant ex-post facto condonation of delay. He submits that since the said provisions do not allow the Court to approve/allow a meeting that has already been held beyond the statutory period without the permission of the Court, the 10th and 11th AGMs held on 21.04.2021 should be declared to be the invalid meetings and the said 10th & 11th AGMs of the petitioner-company for the calendar years 2020 and 2021 ought to be held afresh as per directions of this Court. In support of his submissions, he refers to the cases of (1) Sultan Siddique V. Spectra Net 4 BLC (1999) 348, (2) Social Marketing Company V. Mahbubuzzaman: (1993) 13 BLD 569, (3) the case of K.S.B. Pump Limited., 1974 PLD 362, (4) Taihan Electric V. TDT Copper: (1999) 96 Comp Case 415 and (5) Shankar Sundaram v. Amalgamation Private Limited: (2002) 108 Comp Cases 885 (CLB).
7. De next submits that holding of the meetings was invalid on the ground of violation of the relevant provisions of the Companies Act for serving notices for calling an AGM by giving only 14 days notice, instead of 21 days notice as required by Section 85(1)(a) of the Companies Act. In this connection the learned Advocate refers to the case of Kuldeep Singh Vs. Paragon (1988) 64 Comp cases 19 along with some other cases in a bid to substantiate his arguments that the notice requirement is mandatory, and its violation will result in invalidation of meeting and resolutions passed. By referring to the case of N.V.R. v. Madras Race Club (1949) 19 Com cases 175, he submits that consent must be given by all members expressly in calling a meeting with a notice of shorter days than the time stipulated in the Companies Act.
8. Mr. Imam then submits that while Section 81(2) of the Companies Act requires an application to be made by a member/shareholder of a company, Section 85(3) of the Companies Act requires an application to be made by a director or member of the company or the matter may be taken up by the Court suo motu, but the application in the instant company matter has been filed by the company itself and as such the petitioner lacks locus standi to file this application. He submits that Section 81(2) of the Companies Act is specific to AGMs whereas Section 85(3) of the Companies Act is in relation to all general meetings and argues that Section 81(2) of the Companies Act does not give power to the Court to take up the matter suo motu and, in order for the Court to exercise its power to pass any order in this instant company matter suo motu, the Court has to exercise the power under Section 85(3) of the Companies Act, which is only applicable on the grounds of impracticability of holding a general meeting. In support of his above count of submission, he refers to the case of Satish Chandra Banik v. Dacca Jute Mills-7 PLD (1968) Dac 610). In continuation of the above point, he submits that if this Court decides to exercise its suo motu powers under Section 85(3) of the Companies Act, the petitioner-company ought to be directed to hold afresh the 10th and the 11th AGMs for the calendar years 2020 and 2021 by serving adequate notice as per the Companies Act and, thereafter, in accordance with the directions of this Court, AGMs may be held. In this connection the learned Advocate refers to the cases of Sarwar Zaman V. Yongtai ADC (2007) 855 and (1998) 93 Comp. Cases 99. He finally submits that as per the express wordings of Sections 81(2) and 85(3) of the Companies Act and as per settled precedents, the instant application by the company ought to be rejected.
9. By putting forward the above submissions, the learned Advocate for the respondent No. 2 prays for declaring the 10th and 11th AGMs for the calendar years 2020 and 2021 to be invalid and to direct the petitioner-company to hold the said AGMs afresh by serving appropriate notices on its members under Section 85(1)(a) of the Companies Act.
10. Upon hearing the learned Advocate for the petitioner-company, the learned Senior Advocate for the respondent No. 2, on perusal of the petitioner's application as well as the affidavits filed by the respondent No. 2 together with their annexures and having read the relevant laws and citations, I find that the following issues are to be adjudicated upon by this Court: (1) whether an AGM of a company can be called and held after expiry of the time stipulated in the Companies Act, without first obtaining permission of the Company Court, (2) whether notice for calling and holding of the 10th & 11th AGMs of the petitioner-company was served in accordance with the provisions of the Companies Act, (3) whether an incorporated company itself can stand as the petitioner of an application under Section 81(2) and 85(3) of the Companies Act, (4) whether there is any discretionary power available to this Court to accord validation to an Annual General Meeting of a company which already took place in breach of the relevant legal provisions governing the issues of time-frame for calling and holding of the General Meeting of a particular calendar year and (5) whether this Court is competent to convert an application under Section 81(2) of the Companies Act into an application under Section 85(3) of the Companies Act.
11. Examination of the relevant provisions of the Companies Act, being Section 81(1) of the Companies Act, is necessary for the purpose of an effective resolution of the issue No. 1, as framed by this Court hereinbefore, namely, whether an AGM of a company can be called and held after expiry of the time stipulated in the Companies Act, without first obtaining permission of the Company Court. Section 81 of the Companies Act reads as follows:
81. Annual General Meeting (1) Every company shall in each year of the Gregorian calendar hold, in addition to any other meetings, a general meeting as its annual general meeting and shall specify the meeting as such in the notices calling it; and not more than fifteen months shall elapse between the date of one annual general meeting of a company and that of the next;
Provided that a company may hold its first annual general meeting within a period of not more than eighteen months from the date of its incorporation and if such general meeting is held within that period, it shall not be necessary for the company to hold any annual general meeting in the year of its incorporation or in the following year;
Provided further that the Registrar may, on an application made by a company within thirty days from the date of expiry of the period specified for holding the annual general meeting as aforesaid, extend the time within which any annual general meeting, not being the first annual general meeting shall be held, by a period not exceeding ninety days or not exceeding the 31st December of the calendar year in relation to which the annual general meeting is required to be held, whichever is earlier.
12. From a minute perusal of the provisions of Section 81(1) of the Companies Act, it appears that for all types of companies [be it (i) a private or public company, (ii) listed or non-listed company, (iii) a company having share-capital or without having share-capital], an AGM must be held for each of the Gregorian calendar year, and though the gap between holding of one AGM to holding of another AGM may be maximum 15 (fifteen) months, but the latest date for holding the AGM for each calendar year is 31st December for the concerned calendar year. If any company fails to hold its AGM on or before 31st December for the concerned calendar year, it must approach the Company Court for extension of time for holding the said AGM. No one other than the Company Court is authorised by law to extend the time for a particular calendar year for holding the AGM of a company after passing/crossing 31st December of the said particular calendar year; the RJSC is competent to extend the time for a maximum period of 90 days or upto 31st December of the concerned calendar year, whichever is earlier, subject to fulfilling the conditions that the application is filed before him well within thirty days of the expiry of the specified period (i.e. fifteen months from the previous AGM without crossing the 31st December of the concerned calendar year).
13. let it be known by all the concerned individuals and entities that since the Legislature has purposefully employed the word 'shall' in holding the AGM within the concerned calendar year (every company 'shall' in each year of the Gregorian calendar.....) and again in computing the time from one AGM to the next AGM (....and not more than fifteen months 'shall' elapse......) and, further, since non- compliance of the said time-frame regarding holding of the AGM of a company results in punishment of fine, the provisions of Section 81 of the Companies Act are to be mandatorily applied by the companies operating their activities in Bangladesh and, therefore, even if there is a delay of a single day in holding the AGM of a company after crossing the 31st December of the concerned calendar year or after fifteen months have elapsed from holding the previous AGM to present AGM or after expiry of ninety days' extension granted by the RJSC, no AGM shall be valid if it is held without permission of the Company Court. The aforestated view is supported by the ratio laid down in the cases of (i) Md. M. Rahman Vs. Joint Stock Companies 2019 (1) 15 ALR 96, (ii) BPDB Vs. RJSC 2019 (2) 16 ALR 254 and BLI Securities Ltd. Vs RJSC 2019 (3) 17 ALR 26.
14. Here in this case, the company was incorporated on 22.03.2010, and while the company was competent to hold its first AGM on any date immediate after its incorporation in the calendar year 2010 with the latest date for holding the said 1st AGM on 22.09.2011, however, the company failed to hold its 1st AGM within 22.09.2011 and, eventually, upon obtaining permission from the Court, it held its 1st and 2nd on 31.07.2013 at 4.00 pm and 4.30 pm respectively. And, from a careful scrutiny of the papers filed by the petitioner-company, this Court finds that the 3rd AGM was called and held for the calendar year 2013 on 31.07.2013 i.e. on the same date of holding the 1st and 2nd AGMs by virtue of obtaining necessary permission from this Court. Since then, as this Court finds from the papers, the 5th AGM to 9th AGM were held within the time specified in the Companies Act without crossing the 31st December of the respective calendar years of 2015, 2016, 2017, 2018 and 2019.
15. Since the 9th AGM was held on 24.03.2019 for the calendar year 2019, the 10th AGM was required to be called and held by the company before completion of fifteen months without crossing the concerned calendar year of 2020, whichever is earlier. In this case, fifteen months being earlier in point of time, the 10th AGM was required to be called and held on or before 24.06.2020. But the company failed to call and hold the 10th AGM within the said time. This being the landscape, while it was incumbent upon the company to send any member of the company to this Court for holding the AGM for the calendar year 2020 seeking extension of as much time as needed to mitigate the situation, under a misconception of law, it approached the executives of the land and, ultimately, fell in error by holding the AGM for the calendar year 2020 and, thereafter, committed another mistake in the same breath by holding the AGM for the calendar year 2021, without first validly holding the AGM for the calendar year 2020.
16. In an endeavour to substantiate the company's holding of the AGMs, the petitioner-company has sought to rely on a number of Government Circulars. However, from a mere reading of the same, it is apparent that the Government, having prohibited holding all types of public meetings in person, has simply advised all the concerned persons/entities to hold the meetings virtually, and none of the said Government Circulars in any style of wordings mandate the companies to virtually hold their AGM beyond the time schedule specified in the Companies Act without obtaining permission from the Court, in a scenario where 31st December of the concerned calendar year has already elapsed. Even if the said Government Circulars had contained a mandate for holding AGMs of the Bangladeshi companies beyond the time-frame specified in the Companies Act, the said AGMs would have been invalid in the eye of law, for, no Government Circular is legally capable of overriding a provision of any Act of Parliament. The irresistible conclusion on the issue No. 1, thus, is that the calling, holding and conducting of the 10th and 11th AGMs having been done in sheer violation of law, the same are liable to be declared illegal with certain Directions upon the company to call and hold the same afresh.
17. Given that this Court has already found hereinbefore that calling and holding of the 10th and 11th AGMs were illegal, the adjudication of the issue No. 2 (which is regarding legality of the notices issued by the company for calling and holding the 10th and 11th AGMs of the company) has become redundant. However, because of persistent insistence made by the learned Senior Advocate Mr. Akhtar Imam upon this Court to lay down the law on this point, this Court is taking up the issue for its adjudication.
18. It transpires from the annexed papers that vide an e-Mail dated 23.03.2021 (Annexure J), the company informed its members that the 10th and 11th AGMs will be held at Shaheen Hall on 21.04.2021 and, subsequently vide two separate notices, the petitioner-company informed its members by registered post that the 10th and the 11th AGMs would be held virtually on 21.04.2021.
19. It is the contention of the learned Senior Advocate for the respondent No. 2 Mr. Akhtar Imam that while the first notices through e-Mail do not qualify as a valid notice due to sending it through e-Mail, the subsequent registered-post notices were also illegal because of providing only 14 days time. Let me now see whether there has been any violation of the relevant provisions of law, namely, Section 85(1), Regulations 50 and 113 of the Schedule-1 of the Companies Act.
85. Provision as to meeting and votes:-(I) The following provisions shall have effect with respect to meeting of a company notwithstanding any provisions made in the Articles of Association of the company in this behalf:
(a) an Annual General Meeting may be called by twenty one days notice in writing, and a meeting other than an Annual General Meeting or a meeting for the passing of a special resolution may be called by twenty one day's notice in writing:
Provided that a meeting may be called by shorter notice than aforesaid, if it is so agreed in writing-
(i) in the case of an Annual General Meeting, by all the members entitled to attend and vote thereat: and
(ii) in the case of any other meeting by the members of the company holding, if the company has a share capital not less than 95 percent of such part of the paid-up share capital of the company as gives a right to vote at the meeting, or, having if the company has no share capital, not less than 95 percent of the total voting power exercisable at the meeting;
(b) notice of the meeting of a company with the statement of the business to be transacted at the meeting shall be served on every member in the manner in which notices are required to be served by Schedule I; but accidental omission to give notice to, or the non- receipt of notice by, any members shall not invalidate the proceedings at any meeting;
Proceedings at General Meeting
50. Subject to the provisions of sub-Section (2) of Section 87 of the Companies Act, 1994 relating to special resolution, twenty one days notice shall be served; in this twenty one days the day on which notice is given shall be included; in the notice the place the day and the hour of meeting and, in case of special business, the general nature of that business shall be given in manner hereinafter mentioned, or in such other manner, if any, as may be prescribed by the regulations of the company, entitled to receive such notice from the company but the accidental omission to give notice to or the non receipt of notice by any members shall not invalidate the proceedings at any general meeting.
Notice
113. A notice may be given by the company to any member either personally or by sending it by registered post to him to his registered address or, if he has no registered address in Bangladesh, to the address, if any, within Bangladesh supplied by him to the company for the giving of notice to him.
(emphasis supplied on the underlined)
20. From a mere reading of the provisions regarding time-frame for serving notice of an AGM, it is easily conceivable that for the purpose of calling an AGM of a company, notice shall be served upon its members entitled to vote thereat, at least twenty one days before the date of the meeting, which shall include the day on which notice was given. However, the law makes an exception to the aforesaid strict time-frame of twenty one days for calling an AGM of a company, in a scenario where all the members of the company having voting power agree to call a meeting by a notice shorter than twenty one days. In order to hold an AGM validly, therefore, allowing/affording twenty one days time to the members of the company from the date of issuing of notice to the date of holding of the AGM is a mandatory provision inasmuch as the Legislature, by providing two provisions, has meant that any of them has to be complied with; had it been a mere directory legal provision, the Legislature would not have provided the alternative to the twenty one days time-frame as to giving notice for calling an AGM. However, the law regarding mode of services of notices by the company to its-members i.e. whether notice should be served personally or by registered post or by some other means, is a mere directory provision inasmuch as the scheme of the law is to ensure sending of the notice of the meeting in a manner or by using a device by which usually people get/receive their correspondences. And, more importantly, after sending of a notice by the company, since non-receipt of the said notice is not capable of invalidating the meeting, the provision can not be seen as a mandatory one.
21. In the case in hand, it is evident that notices were given with fourteen days time in calling the 10th and 11th AGMs of the company and, hence, on this ground as well, the said AGMs are to be seen to have been held illegally and are required to be called and held afresh.
22. Now, comes the issue No. 3, namely, whether an incorporated company can itself stand as the petitioner of an application under Section 81(2) or Section 85(3) of the Companies Act. For this purpose, let me look at the provisions of Sections 81(2) and 85(3) of the Companies Act.
(2) If a company defaults in complying with the provisions of sub-Section (1), the Court may, on the application of any member of the company, call or direct the calling of a general meeting of the company and give such ancillary or consequential direction as the Court thinks expedient in relation to the calling, holding and conducting of the meeting.
85(3) If for any reason it is impracticable to call a meeting of a company in any manner in which meeting of that company may be called or to conduct the meeting of the company in manner prescribed by the articles or this Act, the Court may either of its own motion or on the application of any director of the company or of any member of the company who would be entitled to vote at the meeting, order a meeting of the company to be called, held and conducted in such manner as the Court thinks fit, and where any such order is given the Court may give such ancillary or consequential directions as it thinks expedient and any meeting called, held and conducted in accordance with any such order shall for all purposes be deemed to be a meeting of the company held and conducted.
(underlined by me)
23. From a plain reading of the provisions of Section 81(2) of the Companies Act, it appears that when there is a need for approaching the Company Court, anyone from the category of members of the company will be competent to make an application, and from a reading of Section 85(3) of the Companies Act, it appears that any director of the company and any member of the company with voting right are competent to approach this Court on top of this Court's suo motu power. Now, the pertinent question that arises here is whether the Legislature has excluded the company or the Managing Director/Director of a company without having voting right from being eligible to stand as a petitioner under Sections 81(2) and 85(3) of the Companies Act by not mentioning them. The answer may be found both in the negative as well as in the positive; the rationale behind finding the positive answer is that, firstly, by naming the specific category of individuals to be the petitioners under Sections 81(1) and 85(3) of the Companies Act, the Legislature has impliedly excluded the remaining categories, including the company or Managing Director/Director and, secondly, since the company and RJSC are usually impleaded as the respondents in an application under Sections 81(2) and 85(3) of the Companies Act, making the same company as the petitioner sounds unusual. And, the rationale behind negative answer is that since there is no prohibitory or exclusionary statement or provision either in Section 81 or in Section 85 or in any other Section of the Companies Act, and since Section 81 entitles 'the company' to approach the Registrar of Joint Stock Companies to seek an extension of maximum ninety days time, anyone with ordinary prudence would take a view that since the company has been allowed by the Legislature to approach the RJSC, it is not the intention of the Legislature to debar the company from becoming, or standing as, a petitioner before the Company Court and thus narrowing down/decreasing the scope of approaching the Court of law. Given the prevailing culture of defaulting in complying with the provisions regarding timely calling and holding the AGMs by the companies, the Legislature has actually intended to enable 'any member of the company' to approach the Company Court, so that any one (in the meaning of member of the company) can compel the company to call and hold its pending AGM/s. That being the one side of a coin, the other side is, the company may itself want to call and hold an AGM, which could not be called and held within the time specified in Section 81(1) of the Companies Act for some obvious reason despite putting in its best effort and, in that scenario, it is the company itself and its responsible officers who are exposed to be punished under Section 82 of the Companies Act and, therefore, these categories (i.e. company and its salaried Managing Director/Director without holding any share) being the worst sufferers cannot be made incompetent to approach the Company Court at its/their earliest opportunity without waiting for 'a member of the company' or 'a Director of the company with voting power' to stand as the petitioner. And, most importantly, when the Legislature has endowed the Company Court with suo motu power to call and hold any types of meeting, including AGM, on the ground of impracticability of calling and holding the same as per the provisions of the Companies Act or Articles of Association, it is difficult for this Court to comprehend that the company and its responsible Managing Director/Director being the ultimate victims will be debarred from seeking permission to call and hold its due AGM. Finally, in an application under Section 81(2) and 85(3) of the Companies Act, primarily a petitioner seeks permission from the Court; no relief is claimed against the company itself. Since, after disposal of the matter, certain ancillary or consequential directions are usually passed by the Court upon the company and/or upon the RJSC, they are made party/parties as respondent/s. And, that being the scenario, there is nothing wrong to implead the company as the respondent when a petition will be filed by the company's Managing Director/Director without having voting right and, even, without impleading the company as a respondent, a petition under Section 81(2) and 85(3) may be filed.
24. In the backdrop of findings of this Court on the issue No. 1, which led to holding that calling and holding of AGMs for the calendar years 2020 and 2021 were illegal, no purpose is going to be served by the ratio to be laid down on the issue No. 3 and, accordingly, further examination on the issue No. 3 aiming at laying down a concrete law is hereby avoided.
25. I may now embark upon examination of the issue No. 4, namely, whether there is any discretionary power available to this Court to accord validation to any Annual General Meeting of a company which already took place in breach of the relevant legal provisions governing the issue of timeframe for calling and holding of an Annual General Meeting of a particular calendar year.
26. Sections 81 to 89 of the Companies Act set out the necessary provisions regarding different types of meeting of a company (i.e. regarding AGM, EGM, Statutory Meeting and Board Meeting) and from a careful reading of all these provisions, I find that no company is allowed to seek validity of any meeting which has been called and held illegally inasmuch as, from the following wordings couched in Section 81(2) of the Companies Act '... .....call or direct the calling of a General Meeting..........' and, also, from the language employed in Section 85(3) that 'the Court may.......... order a meeting of the company to be called, held and conducted in such manner as the Court thinks fit.........', this Court's power is limited either to call and hold the meeting by the Court itself through its appointed Chairman or to direct the concerned person of the company to call and hold the meeting, along with passing necessary consequential and supplemental Orders and/or Directions.
27. Therefore, this Court being not empowered to accord validation to a general meeting or other types of meeting, which were held illegally in violation of the provisions of the Companies Act, cannot give validation to the AGMs of the petitioner-company for the calendar years 2020 and 2021.
28. let me conclude this Judgment by dwelling on the last issue, namely, whether this Court is competent to convert an application under Section 81(2) of the Companies Act into an application under Section 85(3) of the Companies Act.
29. Since the Company Court has been invested with the suo motu power to call, hold and conduct any types of the meeting of a company (Board Meeting, General Meeting, Extra Ordinary General Meeting and Statutory Meeting) in a scenario where calling or holding or conducting, either doing any of these three businesses or any two of these businesses or all of the three businesses, becomes impracticable as per the provisions of the Companies Act or as the provisions of the Articles of Association of the company, there is no impediment to treat an application under Section 81(2) of the Companies Act as an application under Section 85(3) of the Companies Act by exercising Court's suo motu power.
30. Accordingly, the instant case shall be treated as an application under Section 85(3) of the Companies Act. In fact, the petitioner has invoked the provisions of Section 85(3) of the Companies Act in tandem with the provisions of Section 81(2) of the Companies Act.
31. With the above findings and observations, this Court now makes the following Declarations, Orders and Directions:
(1) The AGMs called, held and conducted for the calendar years 2020 and 2021 (i.e. 10th AGM and 11th AGM held on 21.04.2021) are hereby declared to have been done illegally.
(2) This Court hereby appoints Mr. Mostafizur Rahman Khan, Bar-at-Law, an Advocate of this Court, as the Chairman of the company for the purpose of presiding over the 10th and 11th AGMs of the company for the calendar years 2020 and 2021 for a fixed remuneration of Tk. 3,00,000/- (three lacs). The Chairman is directed to ask the Company Secretary to call, hold and conduct the said AGMs for the calendar years 2020 and 2021 (i.e. 10th and 11th AGMs) afresh on or before 19th March 2022 by giving 21 (twenty one) days notice to the members of the company who have voting power.
(3) Following successful completion of the said AGMs for the calendar years 2020 and 2011, the company Secretary, thereafter, shall call the AGM for the calendar year 2022 on or before 31st December 2022 by giving at least 21 days notice to the members of the company entitled to vote in the AGM. Therefore, no AGM shall be called and held after crossing 31st December of the concerned calendar year without first obtaining permission from this Court.
(4) Since the company has expressed its willingness to spend a token amount of Tk. 2,00,000/- (two lacs) for charity purpose, the company may issue pay orders in favour of the following mosques: (i) Tk. 1,00,000/- (One Lac) to Mir Bari Noorany Jame Masjid, Chandiber, Bhairab, Kishoregonj, (ii) Tk. 50,000/- (fifty thousand) to Vatidhal Purbopara Jame Masjid, Derai, Sunamgonj and (iii) Tk. 50,000/- (fifty thousand) to Garamasi Moddhapara Baytun-Noor Jama Masjid, Belkuchi, Sirajgonj. On furnishing receipt of payment, the order may be drawn up, if so prayed for.
32. Since this Court has treated the instant petition under Section 85(3) of the Companies Act, it would be appropriate to record this case to have been disposed of, instead of recording the same to have been dismissed. In the result, this case is disposed of, however, without any Order as to costs.
High Court Division (Criminal Appellate Jurisdiction)
Present:
Mr. Justice Md. Shohrowardi
Criminal Appeal No. 1144 of 2021
A.H. Ershadul Haque
------------- Appellant
VS
The State and Ors.
------- Respondents
Judgement Date : February 06, 2023
Counsels:
Mr. Sudipta Arjun and Mr. Syed Fazla Elahi, Advocates
—For the Appellant.
Mr. Monirul Islam, D.A.G, Ms. Anjuman Ara Begum, Ms. Kazi Samsun Nahar, Mr. Md. Shamim Khan, A.A.Gs.
—For the Respondents.
Judgment
Md. Shohrowardi, J:
1. This appeal has been preferred under section 410 of the Code of Criminal Procedure, 1898 challenging the legality of the judgment and order of conviction and sentence dated 17.01.2021 passed by the Additional Metropolitan Sessions Judge, Sylhet in Sessions Case No. 2881 of 2013 arising out of C.R. Case No. 353 of 2010 convicting the appellant under Section 138 of the Negotiable Instruments Act, 1881 and sentencing him to suffer simple imprisonment for 1(one) year and also to pay a fine of Tk. 5,00.000.
2. Relevant facts for the disposal of the appeal are that the complainant filed the C.R. Case No. 353 of 2010 before the Chief Judicial Magistrate, First Court, Sylhet under Section 138 of the Negotiable Instruments Act, 1881 against the appellant alleging, inter alia, that the complainant deals with gold business at Sylhet and he is the proprietor of "Ruhi Jewellers". The complainant and appellant had a good relationship and due to such relationship, he used to come to the shop of the complainant. All on a sudden, due to a personal problem he took Tk. 5,00,000/- (five lac) from the complainant on condition to return the same within 1 month. After elapsing of time, the complainant went to the house of the appellant to get back the money and accordingly the petitioner issued a cheque bearing No. 10/Kha-1202194 in favour of the complainant on 11.03.2010. Thereafter the complainant deposited the cheque in the account of his business concern "Ruhi Jewellers" which was first dishonoured on 11.03.2010 due to insufficiency of the fund. Thereafter on request of the appellant, he deposited the cheque for encashment but on 15.03.2010 it was dishonoured for the same reason. Then the appellant again requested to place the cheque after 10 days and accordingly complainant on 25.03.2010 deposited the cheque for encashment and ultimately the cheque was dishonoured due to insufficient fund. Thereafter, the complainant on 01.04.2010 sent a legal notice to the appellant by registered post to pay the cheque amount within the statutory period which was received on 04.04.2010 but he did not pay the money. By such dishonour of cheque, the appellant has committed an offence under Section 138 of the Negotiable Instrument Act, 1881.
3. At the time of filing the complaint petition, the complainant was examined under Section 200 of the Code of Criminal Procedure, 1898 and the learned Magistrate was pleased to take cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1881 and issued summons against the appellant. Thereafter, the appellant voluntarily surrendered before the Court below and the case was transferred to the Court of Metropolitan Sessions Judge, Sylhet for trial and the case was registered as Sessions Case No. 2881 of 2013. Subsequently, the case was sent to the Additional Metropolitan Sessions Judge, Sylhet for trial who framed the charge against the appellant under Section 138 of the Negotiable Instruments Act, 1881.
4. During the trial, the complainant examined himself as P.W. 1. After concluding the trial, the trial Court by judgment and order dated 22.01.2018 convicted the appellant and sentenced him to pay a fine of Tk. 5000 (five thousand) and that the complainant would get Tk. 5,00,000 (five lac) and the fine amount of Tk. 5000 (five thousand) will be deposited to the government treasury against which the appellant preferred Criminal Revision No. 960 of 2018 before the High Court Division and obtained Rule. After hearing, a Division Bench of this Division by judgment and order dated 31.10.2019 set aside the judgment and order of conviction passed by the trial Court and sent the case on remand with a direction in the following terms;
"(1) This Criminal Revision is allowed. The judgment and order dated 22.01.2018 passed by the learned Metropolitan Additional Sessions Judge, Sylhet in Sessions Case No. 2881 of 2013 is hereby set aside and the case is sent back for re-trial
(2) Upon receipt of the record, the trial court shall allow the prosecution side including the complainant, and also the accused person, reasonable opportunity to present their respective cases. If the accused (opposite party) appears, he may also be allowed an opportunity to cross examine the P.W.1 and to adduce defence evidence, if any.
(3) The trial Court shall, for the purpose of the re-trial, inform the learned Advocate earlier engaged by the accused opposite party, if he is in practice.
(4) The entire process of the retrial should be concluded expeditiously, preferably within 4(four) months from the date of receipt of the copy of this judgment."
5. Thereafter, the appellant surrendered before the trial Court and he was examined under Section 342 of the Code of Criminal Procedure, 1898 and the appellant examined himself as D.W. 1. After concluding the trial, the trial Court by impugned judgment and order convicted the appellant and sentenced him as stated above.
6. P.W. 1 Md. Manik Khan stated that he deals with the gold business and owner of the 'Ruhi Jewellers'. The appellant is previously known to him and 1 year ago he took a loan of Tk. 5,00,000 from him. Subsequently, he issued a cheque on 11.03.2010 for payment of the loan of Tk. 5,00,000. He deposited the cheque on 15.03.2010 for encashment in the account of Ruhi Jewellers maintained with 'Uttara Bank Limited, Zindabazar Branch, Sylhet' which was dishonoured on 25.03.2010 for insufficient of fund. On 01.04.2010, the complainant served a legal notice upon the appellant to pay the cheque amount within 30 days which was received by the appellant on 04.04.2010 but he did not pay the cheque amount. Consequently, he filed a complaint petition on 13.05.2010 following the law. He proved the complaint petition as exhibit-1 and his signatures as exhibit-1 series. He proved the dishonoured cheque as exhibit 2 and the dishonoured slip as exhibit 3, the legal notice as exhibit 4 and the postal receipt as exhibit 5. During cross-examination, P.W. 1 affirmed that he is not dealing with any loan business and he also filed other cases for dishonouring cheques in different courts. He also stated that the appellant took a loan for the construction of his building which has not been mentioned in the complaint petition. In reply to a question during cross-examination P.W. 1 affirmed that he did not mention the date of disbursement of the loan in favour of the appellant and no written agreement was executed between the appellant and the complainant regarding the loan taken by the appellant. He denied the suggestion that there is no reason for taking a loan from him. He affirmed that Shaikh Ahmad of Jamalpur is known to him. He denied the suggestion that the said Saiek Ahmad is not his friend. He also affirmed that he does not know whether the said Saiek Ahmad is a friend of the appellant. He also denied the suggestion that he used to go along with Saiek Ahmad to the chamber of the appellant. He stated that he is not aware that Shaiek Ahmad is the clerk of the appellant. He denied the suggestion that in connivance with the clerk Saiek Ahmad, he fraudulently obtained the cheque from the Court chamber of the appellant. He denied the suggestion that in connivance with Shaiek Ahmed, he put the date, amount and name of the drawee in the cheque. He denied the suggestion that the appellant did not take any loan from him.
7. D.W. 1 AH Ershadul Haque stated that he is a regular practitioner and he was also the AGP from 1996-2001 and he was GP from 2001 to 2009 of Sylhet Judge Court. The complainant is neither his friend nor his relation. He did not issue any cheque in favour of the complainant and except the signature of the cheque, he did not write anything on the cheque. He was also not a customer of the complainant. He constructed his house in Arambag after taking a loan from DBH. He is also conducting cases as an advocate of the Bank in Artha Rin Adalat. He used to withdraw money from the bank to purchase the court fees through the clerk and kept the signed cheque in his chamber and the clerk used to write the amount in the signed cheque. On 03.02.2010 he signed in the applications for addition of party in Title Suit No. 20 of 2007 in the Court of Subordinate Judge, Second Court, Sylhet and his clerk Shaiek Ahmed signed in the said application as an attorney. He also submitted the attested copy of vokalatnama and the application for the addition of a party. Shaik Ahmad along with the complainant used to come to his chamber and somehow the complainant managed the cheque through his clerk Sadhan and Shaiek Ahmed. He also filed a complaint against Sadhan on 18.10.2015 to the Bar Association, Sylhet. During cross-examination, D.W. 1 affirmed that he signed in the cheque but he denied the suggestion that he issued the cheque for payment of the debt.
8. The learned Advocate Mr Sudipta Arjun appearing on behalf of the appellant submits that the complainant failed to prove that the appellant issued the cheque for payment of the consideration and no statement has been made in the complaint petition as regards the date of payment of the loan by the appellant and during trial of the case, the complainant failed to adduce any evidence to prove that the appellant issued the cheque in favour of the complainant to pay the debt and failed to make out a case under Section 138 of the Negotiable Instruments Act, 1881 and therefore, he prayed for acquittal of the appellant from the charge levelled against him by setting aside the impugned judgment and order passed by the trial Court. He also relied on the decision made in the case of Kamalas vs Vidyadharan MJ reported in 5 SCC 264 and Md. Abul Kaher Shahin vs Emran Rashid reported in 25 BLC (AD) 115.
9. The learned Senior Advocate Mr S.M. Shahjahan appearing along with learned Advocate Mr Md. Jahangir Hossain on behalf of respondent No. 2 submits that there is a presumption under Section 118(a) of the Negotiable Instruments Act, 1881 that drawer of the cheque issued the cheque in favour of the complainant for consideration and admittedly the appellant signed the cheque which proved that the appellant issued the cheque in favour of the complainant for payment of the debt. Therefore, he committed an offence under Section 138 of the Negotiable Instruments Act, 1881 and the appeal is liable to be dismissed. He also cited a decision made in the case of Syed Anowar Towhid vs Tayobbi vs Syed Zahid Ali and another reported in 13 BLC(2008) 428.
10. The issue involves in the instant appeal whether the complainant proved ingredients of Section 138 of the Negotiable Instruments Act, 1881 and whether the appellant rebutted the presumption under Section 118(a) of the Negotiable Instruments Act, 1881.
11. In the instant case, there is no denial of the fact that the appellant is a practicing Advocate and former GP of the Sylhet District. The appellant did not deny the fact that he signed the cheque. No argument has been made on behalf of the appellant as regards the legal procedure to be followed before filing the case under Section 138 of the Negotiable Instruments Act, 1881.
12. In the Roman law, the sixth-century Digest of Justinian provides, as a general rule of evidence that: "Ei incumbit probatio qui dicit non que negat." which means that "proof lies on him who asserts, not on him who denies" It is there attributed to the second and third-century jurist Julius Paulus Prudentissimus. It was introduced in Roman Criminal law by Emperor Antoninus Pius.
13. The presumption of innocence was subsequently expressed by the French cardinal and canonical jurist Jean Lemoine, the first canon lawyer, to formulate the legal principle of the presumption of innocence in the phrase "item quilbet presumitur innocens nisi probetur nocens (a person is presumed innocent until proven guilty)", based on the legal inference that most people are not criminals. It requires that the trier of fact, be it a juror or judge, begin with the presumption that the state is unable to support its assertion. [Words and phrases, 1914, P.1168]. "To ensure this legal protection is maintained, a set of three related rules govern the procedure of criminal trials. The presumption means:
"1. With respect to the critical facts of the case-whether the crime charged was committed and whether the defendant was the person who committed the crime-the state has the entire burden of proof.
2. With respect to the critical facts of the case, the defendant does not have any burden of proof whatsoever. The defendant does not have to testify, call witnesses or present any other evidence, and if the defendant elects not to testify or present evidence, this decision cannot be used against them.
3. The jury or judge is not to draw any negative inferences from the fact the defendant has been charged with a crime and is present in court and represented by an attorney. They must decide the case solely on the evidence presented during the trial. [Mueller, Christopher B, Laird C. Kirkpatrick(2009) Evidence. 4th ed. Aspen (Wolters Kluwer) ISBN978-0-7355-7968-2.P.P.133- 34]"
14. In the Blacktone's ratio [known as Black stone's formulation] it has been stated that it is better that "ten guilty persons escape than that one innocent suffer." Subsequently, Benjamin Franklin stated that "It is better 100 guilty persons should escape than that one innocent Person should suffer." Defending British soldiers charged with murder for their role in the Boston Massacre, John Adams also expanded upon the rationale behind Blackstone's Ratio when he stated that:
"We find, in the rules laid down by the greatest English Judges, who have been the brightest of mankind: We are to look upon it as more beneficial, that many guilty persons should escape unpunished than one innocent person should suffer. 'The reason is, because it's of more importance to the community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not. But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security whatsoever. [ Adams Argument for the Defense; 3-4 December 1770]
15. Although the Constitution of the United States of America does not cite it explicitly, the presumption of innocence is widely held to be followed from the Fifth, Sixth, and Fourteenth Amendments. Coffin v. United States, 156 U.S. 432 (1895) was an appeal case before the Supreme Court of the United States in 1895 which added the principle that the accused is presumed to be innocent until his guilt is proved beyond a reasonable doubt. In the referred case, The Supreme Court of America has held that
"Now the presumption of innocence is a conclusion drawn by the law in favor of the citizen, by virtue whereof, when brought to trial upon a criminal charge, he must be acquitted unless he is proven to be guilty. In other words, this presumption is an instrument of proof created by the law in favour of one accused, whereby his innocence is established until sufficient evidence is introduced to overcome the proof which the law has created. This presumption on the one hand, supplemented by any other evidence he may adduce, and the evidence against him on the other, constitute the elements from which the legal conclusion of his guilt or innocence is to be drawn. The fact that the presumption of innocence is recognized as a presumption of law and is characterized by civilians as a presumptio juris, demonstrates that it is evidence in favor of the accused. For in all systems of law legal presumptions are treated as evidence giving rise to resulting proof to the full extent of their legal efficacy."
16. The duty on the prosecution was famously referred to as the "golden thread" in the criminal law by Lord Sankey LC in the Woolmington v DPP judgment dated 23.05.1935. House of Lords opined that;
"Throughout the web of English criminal law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception.."No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained."
17. Negotiable Instruments Act.1881 is a special law. An offence under Section 138 is not compoundable and before filing a case the drawer and the drawee of the cheque are at liberty to make a compromise between them. Since an offence under Section 138 of the Negotiable Instruments Act, 1881 is not compoundable, after filing the complaint petition, there is no scope to settle the dispute out of Court. An offence under section 138 of the Negotiable Instrument Act, 1881 is a pure and simple criminal offence. Therefore, the age-old principle that the accused is presumed to be innocent until proven guilty beyond all reasonable doubt is required to be proved by the complainant based on clear, cogent, credible or unimpeachable evidence. The presumption of innocence is a fundamental right of the accused. An accused has a constitutional right to remain silent. The presumption of innocence itself is evidence in favour of an accused.
18. In P. Ramanatha Aiyar's Advanced Law Lexicon, 3rd edition, at page 3697, the term 'presumption' has been defined as under:
"A presumption is an inference as to the existence of a fact not actually known arising from its connection with another which is known. A presumption is a conclusion drawn from the proof of facts or circumstances and stands as establishing facts until overcome by contrary proof. A presumption is a probable consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged but of which there is no direct proof. It follows, therefore that a presumption of any fact is an inference of that fact from others that are known". (per ABBOTT, C.J., R. v. Burdett, 4 B. & Ald, 161). The word 'Presumption' inherently imports an act of reasoning- a conclusion of the judgment; and it is applied to denote such facts or moral phenomena, as from experience we know to be invariably, or commonly, connected with some other related facts. (Wills on Circumstantial Evidence). A presumption is a probable inference which common sense draws from circumstances usually occurring in such cases. The slightest presumption is of the nature of probability, and there are almost infinite shades from slight probability to the highest moral certainty. A presumption, strictly speaking. results from a previously known and ascertained connection between the presumed fact and the fact from which the inference is made."
19. By Act No. XVII of 2000 the legislature repealed section 139 and amended Section 138 of the Negotiable Instruments Act, 1881 by repealing the words and commas i.e. "for the discharge in whole or in part, of any debt or other liability" without making any amendment in Section 43 of the said Act wherein it has been stated that a negotiable instrument made, drawn, accepted, indorsed or transferred without consideration, or for a consideration which fails, creates no obligation of payment between the parties to the transaction. Therefore, because of the provision of Section 43 of the said Act a person who issued a cheque without consideration has no obligation to pay the cheque amount. The presumption under section 118 (a) of the said Act is not conclusive proof of the fact that the drawer issued a cheque in favour of the drawee for payment of the consideration. When the accused cross- examined P.Ws. and examined himself as D.W. denying the issuance of the cheque in favour of the complainant and make out a probable deference case, heavy-duty lies on the complainant to prove the consideration for which the cheque was issued in favour of the drawee. In the complaint petition, it has been stated that the complainant paid Tk. 500000 to the appellant in cash as a loan but no date of payment of loan has been mentioned in the complaint petition. It is further stated that after due date, the complainant went to the house of appellant to get back the money without mentioning any date, but no evidence has been adduced to that effect. The burden of proof that a cheque had not been issued for consideration is on the accused. If the accused failed to discharge the onus lies on him it is to be presumed that he issued the cheque for consideration. However, the Court will not insist upon the accused to disprove the existence of consideration by adducing direct evidence.
20. In view of provision of section 138(1)(a) of the said Act, a cheque is required to be presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. Be that as it may, there is no scope to issue a undated cheque. If the payee or holder in due course is allowed to present the undated cheque, the purpose of Section 138 (1)(a) will be frustrated. The presentation of the cheque within 06(six) months to the bank is not without any purpose. It is not practically possible for the drawer of the cheque to keep the money in the account for a indefinite period. Therefore, a cheque issued without mentioning the name of the payee or date does not come within the purview of section 138 of the said Act. Although there is no bar in issuing a antedated or post dated cheque in view of the provision of section 21C of the said Act. Nothing has been stated in the said Act as regards issuance of undated cheque.
21. In section 138 of the Negotiable Instruments Act, 1881, the legislature used the word "another person" meaning thereby that the drawer issued the cheque in favour of a 'particular and specified person'. On a bare reading of section 138 and 43 of the said Act in a juxtaposition it reveals that there is no scope to issue any blank cheque without writing the name of the payee in the cheque. A person cannot be convicted for any act unless he violates any penal provision of law. No duty has been attributed in the said Act to the drawer of a cheque to pay the undated and blank cheque inasmuch as Sub-section 2 of Section 16 of the said Act stats that the provision of this Act relating to a payee shall apply with the necessary modifications to an indorse as defined in Section 16(1) of the said Act. Therefore, a cheque issued without writing the name of payee in the cheque is not a cheque in the eye of law and the drawer of a blank cheque has no obligation to pay the cheque amount.
22. In the case of Md. Idris Chowkder @ Idris Vs. The State and another, reported in 3 LM (AD) (2017) (2) 560 judgment dated 03.07.2014 our Apex Court has held that:
"An offence under section 138 of the Negotiable Instruments Act is not compoundable, it being a special law. However, in view of the submissions made by the learned Advocates on Record, we are of the opinion that the ends of Justice will be sufficiently met if the sentence of the petitioner is reduced to imprisonment for the period already undergone by him in prison, and the sentence of fine is set aside. We note that the complainant appeared before us to say that he has received his money in full satisfaction."
23. In the case of Syed Anowar Towhid (Tayeb) vs Syed Zahed Ali and another reported in 13 BLC 428 it has been observed that-
Sections 138-141 of the Negotiable Instruments Act, 1881 has been amended with an aim to punish the delinquent drawer of cheque who knowing full well that his bank account does not contain sufficient funds, issues cheque in order to deceive his creditor. Therefore, the proceeding under section 138 of the Negotiable Instruments Act, 1881 is only related to the dishonour of a negotiable instrument which may proceed independent of any other claim to be decided through civil proceedings. No question of defective title arises in the instant case since the complainant-opposite party categorically stated in the petition that the cheque was dated one and, as such, the factual aspect as to whether the cheque was dated one or not cannot be decided by this Court which is a matter for evidence in the trial Court and therefore, the question relating to such fact cannot be considered at this stage.
24. On a bare reading of section 138 of the Negotiable Instruments Act, 1881 it reveals that the legislature empowered the Court to convict and sentence the accused to suffer imprisonment for a term which may extend to one year or with a fine which may extend to [thrice) the amount of the cheque or with both if the charge is proved against the accused beyond all reasonable doubt. No doubt the penal provision of section 138 of the said Act is harsh. Therefore, the age-old principle that the accused is innocent until proven guilty beyond all reasonable doubt is required to be followed strictly in a case under Section 138 of the Negotiable Instruments Act, 1881.
25. In Section 4 of the Evidence Act, 1872 three classes of presumption have been mentioned namely (i) may presume (refutable), (ii) shall presume (also refutable) and conclusive presumption (irrefutable). To refute the statutory presumption under Section 118(a) of the Negotiable Instruments Act, 1881 an accused is not required to prove his defence case beyond all reasonable doubt as required by the complainant in a criminal case. An accused may either adduce direct evidence to show that the cheque is not supported by consideration as required under Section 43 of the said Act or by cross-examining the witness/witnesses he is entitled to show that the cheque was issued without consideration. The accused may also rely on circumstantial evidence or Section 114 of the Evidence Act, 1872.
26. In Section 118(a) of the Negotiable Instruments Act, 1881, the legislature used the words "until the contrary is proved". A bare reading of Section 118(a) of the said Act makes it clear that presumptions to be raised under the said section is discretionary and refutable. The accused has to make out a probable case that the cheque has been issued without consideration or for a consideration which fails. The complainant is bound to prove all relevant facts stated in the complainant petition. In the complainant petition, it has been stated that he paid Tk. 500000 to the accused as a loan. No evidence has been adduced to prove said loan or consideration as required under Section 43 of the Negotiable Instrument Act, 1881.
27. It is found that the appellant issued a blank cheque without mentioning the name of "another person" i.e payee as required under section 138 of the said Act and no date was written in the said cheque to present the cheque within six months from date on which it was drawn or within the period of its validity, whichever is earlier as required under section 138 (1)(a) of the said Act. The accused has given a satisfactory explanation while he was examined as D.W. 1 as to how the signed undated and blank cheque came into possession of the complainant. On the contrary, the complainant did not adduce any evidence to the effect that he disbursed a loan of Tk. 500000 to the accused. The evidence of D.W. 1 as regards the issuance of the blank cheque has not been denied by the complainant by giving any suggestion to D.W. 1. In the given fact, the duty lies on the complainant to prove that the cheque has been issued in the name of the complainant.
28. In determining whether a reverse burden is compatible with the presumption of innocence regard should also be had to the pragmatics of proof. How difficult would it be for the prosecution to prove guilt without the reverse burden? How easily could an innocent defendant discharge the reverse burden? But courts will not allow these pragmatic considerations to override the legitimate rights of the defendant. Pragmatism will have greater sway where the reverse burden would not pose the risk of great injustice Where the offence is not too serious or the reverse burden only concerns a matter incidental to guilt. And greater weight will be given to prosecutorial efficiency in the regulatory environment. Presumption of Innocence and Reverse Burdens: A Balancing Duty, by David Khamer published in [2007] C.L.J. (March Part) 142
29. The presumption is a rule of evidence and does not conflict with the innocence of the accused. The presumption of innocence of accused is a legal presumption. The duty of the prosecution may be discharged with the help of the presumption of law or fact or with both unless the accused adduces evidence to show the reasonable possibility of the non- existence of the presumption. A fact is said to be proved, when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
30. It is noted that by Act No. XVII of 2000, Section 139 of the Negotiable Instruments Act, 1881 has been repealed, but section 139 of the said Act in India remains the same.
31. In the case of Bharat Barrel & Drum Manufacturing Company vs Amin Chand Payrelal (1999) 3 SCC 35 interpreting Section 118(a) of the Negotiable Instruments Act the Supreme Court of India has opined that
Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by consideration. Such a presumption is rebuttable. The defendant can prove the non- existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt.
32. The nature and extent of presumption came up for consideration before the Supreme of India Court in M.S. Narayana Menon v. State of Kerala' Judgment dated 4.7.2006, Criminal Appeal No. 1012 of 1999 para 30 wherein it has been held that;
"Applying the said definitions of 'proved' or 'disproved' to the principle behind Section 118(a) of the Act, the court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non- existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon."
33. In Krishna Janardhan Bhal vs Dattatraya G, judgment dated 11.1.2008 considering the case of M.S. Narayana Menon Alias Mani vs State of Kerala and another reported in [(2006) SCC 39], K. Prakashan vs P.K Surenderan [2007(12) SCALE 96, Johnk. John vs Tom Varghese & another reported in [JT 2007(13) SC 222, Hiten P Dalal vs Bratingdranath Banerjee reported in (2001) 6 SCC 16, K.N Beena vs Muniyappan and another (2001) 8 SCC 458, Narender Singh and another vs State of M.P (2004) 10 SCC 699, Ranjitsing Brahmajeetsing Sharma vs State of Maharashtra and another reported in (2005) SCC 294 and Rajesh Ranjan Yadav @ Pappu Yadav V. CBI (2007) 1 SCC 70, K. Bhaskaran vs Sankaran Vaidhyah Balar and others reported in AIR 1999 SC 3762, S.R Muralidar vs Ashok G.Y [ILR 2001 Karnataka 4127], M/S. Devi Tyres vs Nawab Jan reported in [AIR 2001 Karnataka HCR 2054], Bharat Barrel & Drum Manufacturing Company vs Amin Chand Payrelal reported in (1999) 3 SCC 35 it has held that
"A statutory presumption has an evidentiary value. The question as to whether the presumption whether stood rebutted or not, must, therefore, be determined keeping in view the other evidences on record. For the said purpose, stepping into the witness box by the appellant is not imperative. In a case of this nature, where the chances of false implication cannot be ruled out, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond a reasonable doubt The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact."
34. A similar issue has been dealt with by the Supreme Court of India in the case of Kamalas Vs. Vidhyadharan M.J. and another, reported in 5 Supreme Court Cases 264 (2007) and after elaborate discussion, the Apex Court of India has held that:
"The Act contains provisions raising presumption as regards the negotiable instruments under Section 118(a) of the Act as also under Section 139 thereof. The said presumptions are rebuttable ones. Whether the presumption stood rebutted or not would depend upon the facts and circumstances of each case."
35. In the case of Md. Abul Kaher Shahin Vs. Emran Rashid reported in 25 BLC (AD) 115 our Apex Court adopted the view of the Supreme Court of India made in the case of Kamalas (Supra) wherein our Apex Court relying on the decision made in the case of Alauddin vs State reported in 24 BLC (AD) 139, Shahidul Islam vs Bangladesh and others, reported in 2 SCOB (2015) HCD 1, Dalmia Cement (Bharat) Ltd. vs Galaxy Traders and Agencies Ltd, reported in AIR 2001 SC 676), Bharat Barrel and Drum Manufacturer Co. vs Amin Chand Payrelal reported in AIR 1999 (SC) 1008, Rameshwar Singh vs Bajit Lal, reported in AIR 1929 PC 95, and Hiralal vs Badkulal reported in AIR 1953 SC 225 has held that:
"When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the cheque in question was not supported by consideration. However, the court need not insist in every case that the accused should disprove the non- existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of consideration apparently would not serve the purpose of the accused. Something, which is probable has to be brought on record for getting the burden of proof shifted to the complainant. The burden of proof of the accused to disprove the presumption under sections 118 and 138 of the Act is not so heavy. The preponderance of probability through direct or substantial evidence is sufficient enough to shift the onus to the complainant. Inference of preponderance of probabilities can be drawn from the materials on record and also by reference to the circumstances upon which the party relies."
36. The presumption under Section 118(a) of the Negotiable Instruments Act, 1881 is always rebutable and the standard of proof of doing so is that of the preponderance of probabilities. The accused either adducing evidence or by cross- examining the PWs are entitled to rebut the said presumption. The accused is not bound to prove his innocence by adducing evidence. A negative fact cannot be proved by adducing positive evidence. The issue as to whether the presumption stood rebutted or not must be determined based on the evidence adduced by the parties. In a case under Section 138, the false implication cannot be ruled out. Therefore, the Court shall not put on a blind eye to the ground realities. In that case, the background of the case and the conduct of the parties are required to be taken into consideration. No explanation has been given by the complainant as to why no instrument was executed between the parties although handsome money was claimed to have been paid to the appellant.
37. Although there is a presumption under section 118(a) of the said Act as regards the payment of consideration in favour of the payee but section 118(a) of the said Act does not absolve the complainant to prove other requirements of the law. D.W. 1 in examination of chief stated that "নালিশকারী বা তার প্রতিষ্ঠান-ক আমি কোন চেক দেয়নি। চে-কর স্বাক্ষর ব্যতীত অন্যান্য লেখা আমার হা-তর নয়।" The above statement of D.W. 1 has not been denied by the complainant during cross-examination. When a cheque is issued by any person in favour of any other private individual without mentioning the name of the payee and date of issuance of the cheque, a doubt creates as regards the actual payee of the cheque, if there is no debt or any liability to be discharged by the accused. Admittedly the appellant did not mention the name of the payee and the date in the cheque. During cross-examination no suggestion was given to D.W. 1 that he has written the name of the complainant as a payee in the cheque. Therefore, it is to be presumed that the complainant himself or somebody on his behalf has written the name of the complainant as a payee in the cheque.
38. It is found that the complainant is neither friend nor he had any business transaction with the appellant. The complainant has failed to prove that the appellant has taken a loan from him. On consideration of the evidence of both parties in a juxtaposition, I am of the view that the appellant has rebutted the presumption under sections 118(a) of the Negotiable Instruments Act, 188. Therefore, there was no reason for the issuance of cheque by the appellant in favour of the complainant.
39. Because of the above facts and circumstances of the case, evidence and the proposition, I am of the view that the complainant has failed to prove the charge under section 138 of the Negotiable Instruments Act, 1881 against the appellant by adducing legal evidence beyond all reasonable doubt.
40. I find merit in the appeal.
41. In the result, the appeal is allowed.
42. The impugned judgment and order of conviction and sentence passed by the trial Court are hereby set aside.
43. The appellant is entitled to get back Tk. 2,50,000 paid before filing the appeal. The trial Court is directed to allow the appellant to withdraw Tk. 2,50,000.
44. Send down the lower Court's records at once.
High Court Division (Civil Revisional Jurisdiction)
Present:
Mr. Justice Md. Akhtaruzzaman
Civil Revision No. 1600 of 2021
Abdul Matlob and Ors.
------------- Petitioners
VS
Md. Anowar Hossain and Ors.
------- Opposite Parties
Judgement Date : December 15, 2022
Counsels:
Mr. Md. Faizullah, Advocate
—For the Petitioners.
Judgment
Md. Akhtaruzzaman, J:
1. This Rule under section 115(1) of the Code of Civil Procedure is directed against the judgment and order dated 11.03.2021 passed by the learned District Judge, Noakhali in Miscellaneous Appeal No. 31 of 2020 thereby reversing and setting aside the order dated 14.09.2020 passed by the learned Senior Assistant Judge, Noakhali Sadar in Misc. (Preemption) Case No. 94 of 2010.
2. Facts relevant for disposal of this Civil Revision, in brief, are that as a co-sharer by inheritance as well as co-sharer by purchase the petitioner filed Miscellaneous Case No. 94 of 2010 under section 96 of the State Acquisition and Tenancy Act, 1950 (in short, the Act, 1950). The consideration money mentioned in the disputed sale deed No. 7900 dated 01.06.2005 was Tk. 1,00,000/-. The Preemptor-petitioner came to know about the said sale on 24.09.2010 and then filed the case on 29.11.2010 within the limitation period but due to ignorance of the engaged lawyer 10% compensation money of the deed value was mistakenly deposited being unware of the change of law in the year 2006 which was 33% preemptee-opposite party Nos. 1- 3 contested the Miscellaneous Case by filing a written objection dated 26.04.2011 but did not utter a single word in respect of non-depositing deficit consideration money or compensation. During the trial on 14.09.2020 the matter was unveiled by the preemptor-petitioner himself who instantly filed an application to cure the defect. Eventually the petition was allowed by the trial Court on the day fixed for hearing without any objections raised from the opposite parties. Thereafter, the petitioner deposited Tk. 23,000/- in the respective Court to fulfill the legal requirements as well as the deficiency.
3. As against this, the preemptee-opposite party Nos. 1-3 filed Miscellaneous Appeal No. 31 of 2020 before the District Judge, Noakhali who vide order dated 11.03.2021 allowed the Appeal setting aside the order passed by the learned Senior Assistant Judge with the observations that the trial Court was wrong in allowing the preemptor in depositing the deficit compensation money at a belated stage since deposition of the compensation money along with applicable interest at the time of filing the case is a condition precedent preferring preemption petition.
4. Being aggrieved by and dissatisfied with the above judgment and order dated 11.03.2021 the pre-emptor petitioner moved before this Court by filing the present Civil Revisional application contending inter alia that the learned District Judge, Noakhali has committed error in fact and law in allowing Miscellaneous Appeal No. 31 of 2020 occasioning failure of justice.
5. None appears to oppose the Rule.
6. Mr. Md. Faizullah, the learned Advocate appearing for the preemptor petitioner submits that the learned District Judge, Noakhali erred in law in admitting and dispose of Miscellaneous Appeal No. 31 of 2020 since the order passed by the learned Senior Assistant Judge, Noakhali Sadar dated 14.09.2020 was not an appealable order rather it was a revisionable one under section 115(2) of the Code of Civil Procedure. Mr. Faizullah next submits that the learned District Judge, Noakhali in the impugned order dated 11.03.2021 wrongly observed that there is no scope of depositing any deficit amount after filing preemption petition and the compensation as well as other requisite money needs to be deposited along with the said petition instantly under section 96(3)(b)(c) of the Act, 1950. Referring the decision reported in 42 DLR (AD) 77 the learned Advocate finally contends that the deficit amount could be deposited even after lapse of the statutory time frame.
7. Heard the learned Advocate for the preemptor-petitioner and perused the materials on record. Admittedly, the preemptor-petitioner filed the preemption case under Section 96 of the of the Act, 1950 on 9.11.2010 depositing in the Court the amount of the consideration money of the case land along with 10% compensation thereof. The face value of the deed was Tk. 1,00,000/-. Notice was duly served upon the Opposite Parties but they refrained from appearing before the Court and the case was fixed for ex-parte hearing on 26.04.2011 which date they filed a written objection and it was accepted by the Court subject to payment of Tk. 300/- as CP cost. In the written objection the Opposites parties did not raise any question in respect of non- payment of deficit compensation money and other deposits mandated by the relevant provisions of Section 96 of the Act. In the civil revisional application the pre-emptor petitioner asserts that his engaged lawyer had deposited 10% of the deed value as compensation being unware and forgotten the change of law in the year 2006 when it becomes 33% instead of 10%.
8. For felicity of discussion, I feel tempted to reproduce the application filed by the preemptor-petitioner dated 14.09.2020 which runs as under:
"প্রার্থীগণ পক্ষে বাকী থাকা ক্ষতিপূরণের টাকা দাখিলের অনুমতির প্রার্থনা
সবিনয় নিবেদন এই,
উক্ত নম্বর মোকদ্দমা এস.এ টি এ্যাক্ট এর ৯৬ ধারা মতে আনীত অগ্রক্রয়ের মোকদ্দমা হয়। অত্র মোকদ্দমা দায়েরকালে প্রার্থীপক্ষ হাল আইনের বিধান মতে নালিশী কবলার মূল্যের উপর ২৫% ক্ষতিপূরণ ও ৮% সুদ একুনে মোট ৩৩% ক্ষতিপূরণ ও সুদের টাকা দাখিল না করিয়া ভুলে মাত্র ১০% ক্ষতিপূরণ সহ চালান যোগে দাখিল করিয়া মোকদ্দমা দায়ের করিয়াছেন। এক্ষণে উক্তরূপ ভুল প্রার্থীপক্ষের অনিচ্ছাকৃত ত্রুটি ও নিযুক্তীয় এডভোকেট সাহেবের সঠিক পরামর্শের অভাবে হইয়াছে। প্রার্থী পক্ষ ইচ্ছা করিয়া ত্রুটি করে নাই। তদাবস্থায় অত্র মোকদ্দমার নালিশী কবলার লিখিত মূল্য ১০,০০,০০০/- টাকার উপর মোকদ্দমা দায়েরের কালে প্রদত্ত ১০% ক্ষতিপূরণ ১০,০০০/- টাকা বাদ বাকী ক্ষতিপূরণ ও সুদ বাবদ ২৩,০০০/- টাকা এক্ষণে চালান যোগে দাখিল করার মর্মে প্রার্থীপক্ষকে অনুমতি প্রদান করা আবশ্যক। নচেৎ প্রার্থীগণের অপূরণীয় ক্ষতির কারণ হইবে। ন্যায়বিচার বিঘ্নিত হইবে।
অতএব বিনীত প্রার্থণা মাননীয় আদালত দয়া প্রকাশে উপরোক্ত অবস্থাধীনে অত্র মোকদ্দমায় প্রার্থীপক্ষে নালিশী ককলার মূল্যের উপর বাকী ক্ষতিপূরণ ও সুদ বাবদ ২৩% হারে ২৩,০০০/- টাকা চালান যোগে দাখিল করার মর্মে বিহিত আদেশ দানে মর্জি হয়।
ইতি, তাং-১৪/০৯/২০২০ ইং"
From the above it appears that due to latches of the engaged lawyer of the preempted petitioner 10% compensation money of the deed value was deposited by him at the time of filing the case and he has no mala fide intention not to deposit the remain compensation, interests etc.
9. After taking hearings from both the parties, the learned trial Court allowed the said petition and directed the preemptor to deposit the rest amount Tk. 23,000/- as deficit compensation as well as other applicable interests. But the preemptee being aggrieved by the order dated 14.09.2020 passed by the learned Senior Assistant Judge, Noakhali Sadar preferred Miscellaneous Appeal No. 31 of 2020 before the District Judge, Noakhali who vide impugned judgment and order dated 11.03.2021 allowed the same setting aside the order of the learned Senior Assistant Judge, Noakhali Sadar in Preemption Case No. 94 of 2010 with the observations that under Section 96(3)(b)(c) of the Act, 1950 the statutory deposit is a condition precedent and noncompliance renders the application liable to be dismissed. The lower appellate Court further observes that the direction given by the Senior Assistant Judge for depositing the balance compensation money dated 14.09.2020 out of time is illegal and without jurisdiction.
10. I have given anxious consideration on the petition dated 14.09.2020 by the pre- emptor petitioner along with the materials on record as well as the relevant laws and case laws. Section 96(3)(a)(b) of the Act 1950 is reported below:
96. Right of pre-emption...........
(3)(a) An application made under sub-section (1) shall be dismissed unless the applicant or applicants, at the time of making it, deposit in the Court the amount of the consideration money or the value of the transferred holding or portion or share if the holding as stated in the notion under section 89 or in the deed of transfer, as the case may be, together with compensation at the rate often per centum of such amount.
(b) On receipt of such application accompanied by such deposit, the Court shall give to the transferee and to the other persons made parties thereto under sub-section (2) to appear within such period as it may fix and shall require such persons to state the consideration money actually paid for the transfer and shall also require the transferee to state what other sums he has paid in respect of rent since the date of transfer and what expenses he has incurred in annulling encumbrances on, or for making any improvement in respect of, the holding, portion or share transferred, and the Court shall then, after giving all the parties an opportunity of being heart after holding an enquiry as to the actual amounts of the consideration money and rent paid and the expenses incurred by the transferee in annulling encumbrances on, or for the improvement of, the land transferred, direct the applicant or applicants to deposit a further sum, if necessary, within such period as it thinks reasonable:
Provided that the transferee shall, in no case, be entitled to claim consideration money excess of the amount mentioned in the deed of transfer
10A. Section 96 of the Act, 1950 was amended in 2006. The relevant portion of section 96(3)(a) (b) (c) and (4) runs as under:
96. Right of Pre-emption:
(3) An application under sub-section (1) shall be dismissed unless the applicant or applicants, at the time of making it, deposit in the Court-
(a) the amount of the consideration money of the sold holding or portion or share of the holding as stated in the notice under section 89 or in the deed of sale, as the case may be;
(b) compensation at the rate of twenty five per centum of the amount referred to in clause (a); and
(c) an amount calculated at the rate of eight per centum simple annual interest upon the amount referred to in clause (a) for the period from the date of the execution of the deed of sale to the date of filing of the application for preemption.
(4) On receipt of such application accompanied by such deposits, the Court shall give notice to the purchaser and to the other persons made parties thereto under subsection (2) to appear within such period as it may fix and shall require the purchaser to state what other sums he has paid in respect of rent since the date of sale and what expenses he has incurred in annulling encumbrances on, or for making any improvement in respect of the holding, portion or share sold.
11. From the above it appears that in the old law there was a provision for depositing of consideration money of the sale deed together with compensation at the rate of 10% of such amount but in the new law, the compensation was enhanced at 25% instead of 10% along with simple annual interest at the rate of 8% on the value of the transferred holding.
12. The preemptor-petitioner in the revisional application admitted that due to the ignorance and/or latches of his engaged lawyer 10% compensation money of the deed value of the case land was deposited at the time of institution of the pre- emption petition and since after gathering knowledge about the changed law the pre- emptor himself sou-motu filed the petition on 14.09.2020 with a bona fide intention of depositing the deficit compensation money along with other interests etc. in accordance with the amended law of 2006 which was allowed by the learned Senior Assistant Judge, Noakhali Sadar.
13. In the case of Serina Begum v. Mofizul Islam reported in 42 DLR (AD) 77 preemption was sought with regard to 70 acres of land out of 3.22 acres and the pre- emptor deposited Taka 4000/- with compensation at the rate of 10% while filing the pre-emption case. The preemptees contended that the proportionate value of the pre- empted land would come to Tk. 8,680/- and since the deposit is short the application for pre-emption must fail and in deciding the appeal, the Apex Court observed that when the pre-emptor respondent prayed for leave to deposit the balance consideration money with statutory compensation the appellants opposed that application, that clearly shows that the appellants were trying to achieve something indirectly namely, frustrating the very pre-emption proceeding. The learned Munsif rightly granted the prayer. The High Court Division was correct in taking the view.
14. In the instant case, the preemptee-petitioners in their written objection did not raise any specific objection against the amount of depositing the actual consideration money paid by them for the case and the said fact of deficit deposit, which was only Taka 2,300/- was detected by the pre-emptor himself at the time of hearing of the case. So, in view of the decision given in the case of Serina Begum (supra) this Court is inclined to hold that both the Courts below had fair and equitable jurisdiction to consider the prevailing situation and adjudicate the matter awarding a reasonable opportunity to the preemptors-opposite party to make the deficit deposit even beyond the statutory time limit.
15. Regard being had to the discussion as made above and facts and circumstances to the case, it becomes clear like anything that the impugned judgment and order passed by the learned District Judge, Noakhali in Miscellaneous Appeal No. 31 of 2020 suffers from error of law and/or legal infirmity and that is why this Civil Revision is liable to be succeeded.
16. Consequently, the Rule is made absolute without any order as to costs. The impugned judgment and order dated 11.03.2021 passed by the learned District Judge, Noakhali in Miscellaneous Appeal No. 31 of 2020 is set-aside and accordingly, the order dated 14.09.2020 passed by the learned Senior Assistant Judge, Noakhali Sadar in Misc. (preemption) Case No. 94 of 2010 now pending in the Court of Senior Assistant Judge, Noakhali Sadar is confirmed.
17. The learned Senior Assistant Judge, Noakhali Sadar is directed to dispose of the case within 6(six) months positively without granting any adjournments to either parties considering the age of the case.
18. The order of stay granted earlier by this Court is hereby vacated.
19. Let a copy of this judgment be sent to the Courts concerned at once.
High Court Division (Civil Revisional Jurisdiction)
Present:
Mr. Justice Mahmudul Hoque
And
Mr. Justice Mohi Uddin Shamim
Civil Revision No. 407 of 2019
Abdul Kalam Azad (Md.) and Ors.
------------- Petitioners
VS
Md. Iqbal
------- Respondent
Judgement Date : August 16, 2022
Counsels:
Mr. Gautom Kumar Roy and Mr. Mohammad Saifuddin Khokon, Advocates
—For the Petitioners.
Mr. A.M. Amin Uddin, Senior Advocate, Mr. Munshi Moniruzzaman Ms. Shamima Binte Habib and Mr. M. Mushfiqur Rahman, Advocates
—For the Respondent.
Judgment
Mahmudul Hoque, J:
1. In this revision Rule was issued calling upon the opposite party to show cause as to why the impugned judgment and order dated 21-1-2019 passed by the learned Joint District Judge, 2nd Court, Gazipur in Miscellaneous Case No. 25 of 2018 allowing an application under Order XXI, rule 101 read with section 151 or the Code of Civil Procedure directing restoration of possession of the case property to the opposite party applicant should not be set-aside and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. Facts of the case in abridge are that, the opposite party, as applicant, filed Miscellaneous Case No. 25 of 2018 in the court of learned Joint District Judge, 2nd Court, Gazipur under Order XXI Rule 101 the Code of Civil Procedure against the present petitioner, as opposite party, praying for restoration of possession of the case property as a bona fide claimant, stating, that the property covered by RS Plot No. 1232 under RS Khatian No. 789 corresponding to SA Plot No. 678, SA Khatian No. 515 measuring 49 decimals originally belonged to Abdur Rahman Kha, Abdul Latif Kha and others. Abdar Rahman Kha transferred 8.75 decimals of land by Deed No. 3993 dated 16-6-1962 and 6.50 sataks of land by Deed No. 5521 dated 12-8- 1965. Abdul Latif Kha transferred 5.25 sataks of land vide Deed No. 3994 dated 16- 6-1962 and 2.75 sataks of land by Deed dated 12-8-1965, totalling 23.25 decimals to Md. Hossain Ali Bepari. Said Hossain Ali Bepari made a Gift No. 2167 dated 22-9- 1983 for the aforesaid quantum of land along with other land to his 4 sons namely (1) Md. Sahajahan Mian (2) Md. Borhanuddin Miah, (3) Md. Liakat Ali and (4) Md. Sowkat Ali who got their names mutated in the respective khatians. Sahajahan Miah, Md. Borhanuddin Miah and Md. Sowkat Ali by a registered Power of Attorney No. 17824 dated 10-10-2013 appointed one Harunur Rashid Bhuiyan as their attorney, Md. Liakat Ali by registered Power of Attorney No. 20686 dated 17-12-2013 appointed one Md. Kazi Nizamuddin as attorney. Said Harunur Rashid Bhuiyan and Md. Kazi Hizamudin for and on behalf of their principals transferred 5.64 decimal of land to the applicant by registered Deed No. 1979 dated 19-2-2014 and Deed No. 4588 dated 16-3-2014. After purchase the applicant got his name mutated in the khatian, constructed boundary wall and a tin shed building measuring 20′×15′ on the south west portion and some portion of the land has been using for the purpose of pathway. All of a sudden on 11-3-2015 Nazir of the concerned court went to the place and with the help of police force took possession of the case property demolishing the structures ignoring protest of the applicant and saying that in an Execution Case No. 3 of 2012 the predecessor of the present petitioners Abdul Kalam Azad got a decree and the court ordered to effect delivery of possession to them.
3. Thereafter, the applicant made a search in the concerned court and came to know that predecessor of present petitioners named Abul Kalam Azad filed Title Suit No. 67 of 1993 subsequently, renumbered as Title Suit No. 102 of 1994 in the Court of Joint District Judge, 2nd Court, Gazipur for a decree of Specific Performance of Contract claiming that Md. Hossain Ali entered into an agreement for sale with the predecessor of the present petitioner, Abul Kalam Azad for selling 6.60 decimals of land. The suit was contested by Hossain Ali and after hearing the trial court dismissed the suit, thereafter, Abul Kalam Azad preferred First Appeal No. 10 of 1996 before the High Court Division which was allowed in part by judgment and decree dated 5-3-2012, decreeing the suit for 2.25 decimals land only, but the decree holder put the decree in execution giving the boundary of the property for 6.60 decimals instead of 2.25 and the Nazir along with police force and Advocate Commissioner without specifying the property measuring 2.25, decimals illegally dispossessed the applicant from the property by demolishing all the structures standing thereon, consequently, the applicant filed the application under Rule 101 of Order XXI the Code praying restoration of possession of the property.
4. The present petitioners, as opposite parties, in the miscellaneous case opposed the application by filing written objection, contending inter alia, that the applicant has no title and possession in the case property, but being a businessman' and owner of a garment factory adjacent to the case property encroached some portion from which at the time of delivery of possession of the property to the petitioner, structures was removed. It is also contended that the case is not maintainable before establishing his title by filing an Independent suit and also claimed that the application is barred by limitation.
5. The execution court framed four issues for determination of the claim of the contending parties. In course of hearing both the parties examined witnesses and submitted documents in support of their respective claim which were duly marked as exhibits.
6. The court below after hearing, by the impugned judgment and order dated 21-1- 2019 allowed the miscellaneous case and directed to restore possession of the case property to the applicant. At this juncture, the petitioner moved this Court by filing this revision application under section 115(1) of the Code of Civil Procedure and obtained the present Rule and order of stay.
7. Mr. Gautom Kumar Roy with Mr. Mohammad Saifuddin Khokon, learned Advocates appearing for the petitioner submit that the case is pot maintainable being barred by limitation under Article 165 of the Limitation Act as it was filed beyond 30 days from the date of dispossession and he further submits that unless an independent suit is filed by the third party applicant under Rule 103 of Order XXI of the Code for establishment of his title first, the miscellaneous case under Rule 101 of Order XXI of the Code is not maintainable. He further argued that the judgment and order passed by the court below against the death person, as such, it is nullity in the eye of Jaw. In support of his submissions he has referred to the cases of Md. Abdul Kaiyum vs. Krishnadhan Banik and others reported in 49 DLR (AD) 140, Saleh Ahmed vs. Md. Zakaria reported in 37 DLR 296 and Delwar Hossain Khan vs. Amzad Hossain reported in 4 BLC 462.
8. Mr. AM Amin Uddin, Senior Advocate with Mr. Munshi Moniruzzaman with Ms. Shamima Binte Habib and Mr. M. Mushfiqur Rahman, learned Advocates appearing for the opposite party submit that the case is not barred by limitation, as the applicant was dispossessed by the court in execution of decree on 11-3-2015 and the miscellaneous case was filed on 12-4-2015, within time fixed under Article 165 of the Limitation Act, Learned Advocate argued that the applicant was dispossessed on 11- 3-2015, the date on which he was dispossessed should be excluded from computation under section 12(1) of the Limitation Act. Therefore, after exclusion of 11th March limitation started on and from 12th March and the dates 10-4-2015 and 11-4-2015 was weekly holiday i.e. Friday and Saturday. The miscellaneous case was filed on 12-4-2015 on the very day of opening of the court, therefore, the case was filed very much within 30 days as provided in Article 165 of Limitation Act. It is also argued that hearing was concluded on 19-9-2019, the predecessor of present petitioners Abul Kalam Azad died on 3-11-2018. As per Rule 6 Order XXII of the Code neither the case has become abated not the judgment and order is a nullity.
9. Mr. Mushfiqur further submits that any person who is not party to the suit can come to the court with an application under Rule 101 of Order XXI of the Code and for filing such application a 3rd party is not required to file any independent suit under Order 21 Rule 103 of the Code for establishment of title, but Rule 103 provided a provision for the decree holder to file an independent suit for establishment of his title where an order is made by the court under Rules 98, 99 and 101 allowing such application, but in the instant case the application under Rule 101(1) was allowed by the court allowing restoration of possession to the applicant. As such, the decree holder is to file an independent suit and result of the suit shall be the consequences of order passed under Rule 101 in favour of the applicant. In support of his submissions he also relied on the decision referred by the petitioners reported in 49 DLR (AD) 140 and Md. Salim Hossain and others vs. Artha Rin Adalat and others reported in 2013 BLD (AD) 74.
10. Heard the learned Advocates of both the parties, have gone through the revision application, plaint in suit, judgment and decree passed in First Appeal No. 10 of 1996 by this Court, application in Execution Case No. 3 of 2012, order sheets in Miscellaneous Case No. 25 of 2018, report of Nazir and Advocate Commissioner available in lower court records and the impugned judgment and order of the execution court.
11. Application in Miscellaneous Case No. 25 of 2018 and written objection discloses the fact that one Md. Hossain Ali entered into an agreement for sale with the predecessor of the present petitioner, for sale of 6.60 decimals land. Being failed to get the sale deed, predecessor of the petitioners named Abul Kalam Azad filed Title Suit No. 102 of 1994 in the court of Joint District Judge, 2nd Court, Gazipur which was contested by Hossain Ali. The trial court after hearing dismissed the suit, thereafter, Abul Kalam Azad preferred First Appeal No. 10 of 1996 which was allowed and decreed the suit in part decreeing only 2.25 decimals of land in favour of the plaintiff. After passing of decree by this Court in part, the plaintiff in suit got the decree amended before the trial court, but did not amend the boundary given in the bainanama, plaint, as well as in the deed obtained through court and on the basis of said boundary for 6.60 decimals the decree holder put the decree in execution and prayed for delivery of possession by deploying police force.
12. From reports submitted by the Nazir as well as by the Advocate Commissioner on 26-1-2015 and 27-1-2015 respectively, it appears that the Nazir and Advocate Commissioner went to the place for effecting delivery of possession and were waiting there, for one hour giving time to the decree holder to specify the property, but the decree holder failed to identify and specify the property to deliver the same to him. Because of failure to identify the property by the decree holder, it was not possible on the part of the Nazir and the Advocate Commissioner to effect delivery of possession. Subsequently, the decree-holder again filed an application for deploying police force accordingly, the court deployed police force who went to the place on 11-3-2015 and effected delivery of possession by demolishing structures of the applicant and in the report submitted by the Advocate Commissioner Mr. Golam Kibria Maruf on 18-3-2015 gave a boundary of the property which corresponds the boundary of bainanama, plaint in suit and the boundary mentioned in the execution application for 6.60 decimals not for 2.25 decimals which has given rise to filing of the application under Rule 101 of Order XXI of the Code by the applicant.
13. In reports dated 26-1-2015 and 27-1-2015 both the Nazir and the Advocate Commissioner unequivocally stated that the decree holder failed to specify the property. In this situation, the question may arise how on the following occasion, the Nazir and the Advocate Commissioner could identify the property, in what process has not been disclosed in the report submitted on 11-3-2015. After allowing First Appeal No. 10 of 1996 in part, the plaintiff-appellant ought to have got the boundary of the property amended instead of boundary given in the bainanama, plaint and decree passed, but the decree holder did not take any step for amendment of boundary. Because of boundary given in the plaint and decree for 6.60 decimals instead of 2.25 decimals as decreed by the appellate court, the possession of the property delivered by the court was unspecified and reports submitted both by the Nazir and the Advocate Commissioner reflects nothing in what process they delivered possession to the decree holder.
14. Apart from this, the disputed Plot No. 678 contains 49 sataks of land out of which the plaintiff in suit got a decree for 2.25 sataks only. In this situation specification of 2.25 sataks of land must be definite for effecting delivery of possession, but ID the instant case boundary was given in the plaint, decree and execution case on the basis of bainanama which was for 6.60 decimals not for 2.25, as such, the applicant has cause of action for filing application under Rule 101 of Order XXI of the Code. The applicant in support of his such claim submitted a series of documents showing chain of title right from Abdur Rahman Kha and Abdul Latif Kha and it is also admitted by the present petitioner that ultimately Ali Hossain acquired the property by purchase, who gifted the same to his four sons. If we concede that the decree holder by the decree acquired 2.25 sataks land out of SA Plot No. 678, there remains balance of the total land. Four sons of Hossain Ali by two separate registered deeds dated 16-3-2014 and 19-2-2014 transferred 5.64 decimals of land to the applicant, as such, there cannot be any question about acquisition of title by the applicant in the suit Plot No. 678. Because of acquisition of title by purchase by the applicant as well as other occupants in the suit plot, the property must be specified to effect delivery of possession to the decree holder, but in the instant case this Court finds that there was no specification of the property deemed and delivery of possession effected on an unspecified quantum of land.
15. We have gone through the impugned judgment and order of the execution court. The court below while allowing the application clearly observed and held that the boundary given in bainanama and registered sale deed executed by the court in execution of the decree as well as execution application are same, but the plaintiff got decree for 2.25 decimals only. Consequently, the boundary given in bainanama, plaint and decree as well as in the execution case cannot be a boundary for 2.25 decimals and finally held that all the exhibits 1-11 clearly proved that the applicant is owner of 5.64 sataks of land under Plot No. 678 and he was dispossessed through the process of court who is a bona fide claimant.
16. To appreciate the submission of the learned Advocate for the petitioners, we have gone through the application. Article 165 and section 12 of Limitation Act as well as section 9 of the General Causes Act. From a cumulative reading of those provisions of law we find that, the date of dispossession on 11-3-2015 shall be excluded from computation of time. From 12-3-2015, 30 days expired on 10-4-2016 as the month of March is 31 days. On 10th and 11th April, 2015 was weekly holiday, the case was filed on the following day i.e. on 12-4-2015, Sunday within time, hence, the argument on the point of limitation foiled.
17. Secondly, question raised that the judgment and order passed against the death person. Rule 6 of Order XXII provides that after completion of hearing and before pronouncement of judgment if any person either plaintiff or the defendant died, the suit will not abate and consequences of that judgment or decree should be same as if it had been pronounced before the death took place, hence, this contention of the petitioners also failed.
18. Thirdly, it is argued that the applicant cannot file an application under Rule 101 of Order 21 without filing an independent suit under Rule 103 of Order XXI for establishing his title first, relying on the decision reported in 49 DLR (AD) 140. We have gone through the decision referred by the petitioners as well as relied upon by the opposite party wherein, it has been held that;
"A bona fide claimant has to be put back into possession of the disputed property as mandated by Rule 101 notwithstanding the suit filed under Rule 103 to establish the right of the plaintiff to the present possession of the property. The direction under Rule 101 cannot be held back on the ground of institution of the suit under Rule 103 of Order XXI of the Code."
19. In view of the decision referred above we also find that fee applicant was not required to file an independent suit for establishment of his title in the property, but the decree holder is to file an independent suit for establishment of his title first. From the evidences as well as exhibits this Court finds that the applicant acquired the property by purchase from actual owner of the property and on the other hand the decree holder also got a decree for 2.25 decimals of land from the same plot, unless the decree holder specify his decretal property by giving a definite boundary, not the boundary given in bainanama, plaint, decree, as well as in the execution application, the execution of decree and dispossession of the applicant through court is found to be unjust as appearing from reports submitted by the Nazir and the Advocate Commissioner on 26-1-2015 and 27-1-2015, wherein they clearly stated that the decree holder failed to identify and specify the property to be delivered to him.
20. From perusal of the impugned judgment and order, this Court also find that the execution court rightly allowed the application and directed restoration of possession to the applicant.
21. In view of the above, this Court finds no merit in the Rule as well in the submissions of the learned Advocate for the petitioners.
22. In the result, the Rule is discharged, however, without any order as to costs.
23. The order of stay granted at the time of issuance of the Rule stands vacated.
Communicate a copy of this judgment to the court concerned and send down the lower court records at once.
High Court Division (Civil Revisional Jurisdiction)
Present:
Mr. Justice Md. Zakir Hossain
Civil Revision No. 4823 of 2011
Shah Md. Shamsuddin
------------- Petitioner
VS
Moymunnessa and Ors.
------- Opposite Parties
Judgement Date : February 14, 2022
Counsels:
Mr. Didar Alam Kollol, Advocate
—For the Petitioner.
Mr. Md. Alamgir Mostafizur Rahman and Mr. Md. Jahangir Hossain, Advocates
—For the Opposite Parties.
Judgment
Md. Zakir Hossain, J:
1. At the instance of the pre-emptee-appellant-petitioner, the Rule was issued by this Court with the following terms:
"Let the records be called for and a Rule be issued calling upon the opposite party No. 1 to show cause, as to why the impugned judgment and order dated 28-2-2011 passed by the Additional District Judge, 3rd Court, Sylhet in Miscellaneous Appeal No. 90 of 2002 affirming the judgment and order dated 15-6-2002 passed by the Senior Assistant Judge, Sylhet in Miscellaneous (Pre-emption) Case No. 36 of 1997 should not be set-aside and/or such other or further order or orders passed as to this Court may seem fit and proper."
2. The opposite party No. 1 as pre-emptor filed Miscellaneous (Pre-emption) Case No. 36 of 1997 in the Court of the learned Senior Assistant Judge, Sadar, Sylhet impleading the instant petitioner as pre-emptee and others as the opposite parties. The case of the pre-emptor, in short, is that the case land was originally belonged to Hazi Ismail Ali, Israil Ali, Hazi Kasim Ali and their sister, Mofizer Maa. Hazi Ismail Ali died leaving behind Umra Bibi, the aforesaid brothers and sister as heirs and accordingly, the record of right Was prepared in their names. The pre-emptor came to know that the case land has been sold out to the opposite party No. 1 by opposite party Nos. 2 and 3. Thereafter, the pre-emptor on 21-7-1997 obtained certified copy of the disputed sale deed and became Certain that the case land had been sold out to the opposite party No. 1 on 19-3-1997 without giving any intimation to her. The alleged sale deed was executed beyond the knowledge of her. If she could not know about the sale of the case land, the pre-emptor would purchase the same. The case land is very essential to her and, as such, she filed the instant case under section 96 of the State Acquisition and Tenancy Act, 1950 in short 'the SAT Act' for getting the case land by way of pre-emption.
3. The pre-emptee-petitioner contested the case by filing written objection denying the claim of the pre-emptor contending inter alia that the pre-emptor was not co- sharer in the case land, in spite of that she was informed before purchase of the case land. The pre-emptor denied purchasing the same. The pre-emptee purchased the case land within the knowledge of all concerned. After purchase, he developed the case land by spending huge amount of money. The pre-emptor has no eight to file the pre-emption case and, as such, he prayed for dismissal of the case.
4. After conclusion of the trial, The Trial Court allowed the Pre-emption Case. The Appellate Court dismissed the appeal concurring with the decision of the trial Court, Impugning the judgment and order of the Appellate Court, the pre-emptee-petitioner filed the aforesaid application and obtained the Rule and stay therewith.
5. Mr. Didar Alam Kollol, the learned Advocate appearing on behalf of the petitioner takes me through the judgment of the Courts below and evidence on record and Submits that the judgment and orders of the Courts below are perverse and slipshod and not bated on evidence on record. Therefore, those are liable to be turned down by this Court to secure the ends of justice. He further submits that Umra Bibi is not a co-sharer. He further submits that the pre-emption application was hopelessly barred by waiver, acquiescence and estoppels; as the pre-emptor refused to purchase the case land within the knowledge of the pre-emptor. He further submits that the pre- emption case was bad for non joinder of Kachabala, daughter of Mofizer Maa. He further submits that the pre-emptee-petitioner, after purchasing, developed the case land by constructing houses, excavating ponds and planting trees which has been substantiated by the report of the local inspection. Nevertheless, the trial Court as well as Appellate Court did not consider the vital aspect of the case and, as such, committed an error of law causing a failure of justice.
6. In support of his submission, he relies on the decisions of Adul Hai and another vs. Chan Banu Bibi reported in 13 MLR (AD) 140, hid Serajul Islam and another vs. Md. Abdul Latif and others, reported in 2014 (22) BLT (AD) 530, Fazaruddin vs. Maijuddin and another, reported in 44 DLR (AD) 62 and the case of Mahmud Ali and another vs. Bangladesh others.
7. Per contra, the learned Advocate Mr. Md. Alamgir Mostafizur Rahman along with Mr. Md. Jahangir Hossain appearing on behalf of the pre-emptee-opposite party No. 1 submits that the right of pre-emption accrues after completing the registration in view of section 60 of the Registration Act not before that and, as such, the contention of the pre-emptee is that the preemption case is barred by waiver, acquiescence and estoppels is not tenable in the eye of law. He further submits that the pre-emptee in his written objection did not raise any specific allegation as to the effect that one Mofizer Maa was not made party in the pre-emption case and therefore, it cannot be held that pre-emption case is bad for defect of the parties. He further submits that the case land is not homestead and, as such, the pre-emptee failed to prove the contention as to incurring money. Therefore, at this stage, the submissions as to the effect are baseless and cannot be considered by this revisional Court. He further submits that the trial Court as well as Appellate Court by its concurrent findings rightly found that the pre-emptor is entitled to get the case land by way of pre- emption. He further submits that the parties to the case cannot ask any question to the witness beyond the pleadings. Therefore, it cannot be said that the pre-emption case is bad for defect or non-joinder of Mofizer Maa. He finally submits that as the Rule does not have any substance, therefore, the same is liable to be discharged to secure the ends of justice.
8. In support of his submissions, he relies on the decisions reported in 69 DLR (AD) 339, 60 DLR (AD) 73, 2001 BLD 597, 7 BLC 16, 7 MLR 38, 1985 BLD 61, 62 DLR (AD) 242 and 6 BLC (AD) 106.
9. I have perused the entire materials on record thoroughly and also considered the submissions advanced by the learned Advocates of the parties with care and attention and also meticulously perused the convoluted question of law and facts involved in this case. Both the Courts below found that the pre-emptor is a co-sharer of the case land. But the submission of the learned Advocate for the petitioner is that as per Exhibit No. 1, the pre-emptor is not a co-sharer, since in the khatian Umro Mia was written in place of Umra Bibi.
10. On perusal of the Exhibit No. 1-SA khatian it is seen that it ought to have written as Umra Bibi but it was wrongly written as Umro Mia i.e. wife of Md. Akrom. Therefore, it is clear that it is Umra Bibi but not Umro Mia. Hence, the contention of the petitioner that the pre-emptor is not a legal heir of Umra Bibi cannot be accepted. Therefore, the concurrent findings of the Courts below that the pre-emptor is a co- sharer of the case holding as a legal heir of Umra Bibi wife of Md. Akrom is based on evidence on record. Both the Courts findings are that the pre-emption case is not bad for defect of party. In the written objection, the pre-emptee just mentioned a general denial that the pre-emption case is bad for defect of party. But the pre-emptee did not state as to the effect that Kachabala daughter of Mofizer Maa was a necessary party. Therefore, the submission does not have any substance.
11. This argument of the learned Advocate for the petitioner that pre-emption case is barred by principle of waiver, acquiescence and estoppels is unfounded as the pre- emptee hopelessly failed to make out of the case waiver and acquiescence.
12. Now we turn to the contention as to effect whether the pre-emptor developed the land after purchase. On perusal of the deed in question, it is seen that at the time of purchase, the suit land was 'শাইল ও আমন রকম ভূমি'
13. On perusal of evidence of pre-emptee opposite party (OPW) No. 1, it appears that he made some developments in the case land. In his evidence, the OPW-1 states-
"খরিদ করার পর পাকা ঘর বানিয়েছে। নালিশী ভূমিতে ৮০,০০০ টাকা খরচ করেছি। এখানে আমি কমিয়াজী ব্যবসা করে মোট আটটি পুকুর খনন করেছি। নালিশী জমির খাজনা প্রদান করেছি ১৩৮৯-১৩৯৭ সন পর্যন্ত।"
14. The rent receipts were marked as Exhibit-Ka. The report of the Commissioner who held inspection is lying with C-2 file of the trial Court. The Advocate Commissioner in his report categorically stated:
"নালিশা ভূমির উত্তর পূর্ব কোণে পূর্ব-পশ্চিম লম্বালম্বি অধস্থায় একটি বসত ঘর বিদ্যমান রহিয়াছে যাহা ১৪ হাত দৈর্ঘ্য ও ১২ হাত গ্রন্থ বিশিষ্ট। উক্ত বসত ঘর ২/2^{2}/_{2} বৎসর পূর্বে তিন হাত উচ্চতা সম্পূর্ণ ইটের গাখনি ও রড সিমেন্টের ঢালাই পিলার দ্বারা নির্মাণ করা হইয়াছিল। বর্তমানে বাঁশ ও টিন চতুর্দিকে বেষ্টিত ও বসত ঘরটিতে টেউ টিনের ছানী রহিয়াছে। উক্ত বসত ঘরটিকে আমার স্কেচ ম্যাপের " " করিয়া দেখানো হইল।
নালিশী ভূমিতে চারটি ডোবা রহিয়াছে। এই ডোবাগুলিকে "খ", " ", "ঘ" এবং " " চিহ্নিত স্থান যারা চিহ্নিত করিয়া দেখানো হইল। তৎমধ্যে "খ" চিহ্নিত ভোষাটি ৩০ হাত দৈঘ্য ও ১৭ হাত প্রস্থ বিশিষ্ট। উক্ত ডোবাটি বসত ঘরের লগ্ন দক্ষিণে অবস্থিত। এই ডোবাটি বেশ গভীর। আশপাশের অনেক লোকজন এই ডোবাতে গোসল করিয়া থাকে তাই সবাই এই ডোবাকে পুকুর বলে।
"খ" চিহ্নিক ডোবাটির উত্তরে ৯ হাত দৈর্ঘ্য × ৭ হাত গ্রন্থ বিশিষ্ট " " ডোবাটি অবস্থিত। নালিশা ভূমির উত্তর-পূর্বকোণে ১২ হাত দৈর্ঘ্য ও ১০ ব্যূত গ্রন্থ এবং প্রায় ৫/৬ ফুট গভীরতা বিশিষ্ট " " চিহ্নিত ডোবাটি বিদ্যমান। তৎপশ্চিমে ২০ হাত দৈর্ঘ্য ও ১০ হাত গ্রন্থ এএবং ৫/৬ ফুট গভীরকা বিশিষ্ট " " চিহ্নিত ডোবাটি বিদ্যমান আছে।
প্রত্যেকটি ভোষাই মাছ চাষের উপযোগী। একমাত্র "গ" চিহ্নিত ভোষা ব্যতিত বাকী তিনটি অর্থাৎ "খ", "ঘ" এবং " " চিহ্নিত ডোবাটি পানি ও কুচুরী পানা বিদ্যমান আছে।
নালিশা ভূমিতে শিম, ঝিংগা, লাউ ইত্যাদির বেশ কয়েকটি ঝাড় রহিয়াছে। এবং প্রায় ২ বৎসর পূর্বের ২ টি বাঁশ ঝাড় রহিয়াছে তবে উক্ত বাঁশ ঝাড়গুলো ২৫/৩০ ছোট ছোট বাঁশ বিদ্যমান আছে। এই গাছ গাছালিগুলোকে আমার স্কেচ ম্যাপে "সবুজ” কালি দ্বারা চিহ্নিত করিয়া দেখানো হইল।"
15. The pre-emptor did not challenge the report and sketch map therewith by filing written objection. Therefore, the report of the Advocate Commissioner remains uncontroverted. Though it is true that the report of the Commissioner is not a conclusive evidence nonetheless it is a piece of evidence. The report of the Advocate Commissioner corroborates the contention of the pre-emptee so far as to the development cost Moreover, the pre-emptor did not challenge the statement of the OPW 1 so far it relates to the development cost. Therefore, the evidence of OPW 1, so far as to the amount of the development cost has not been challenged by the pre- emptor by way of suggestion at the time of cross-examination and, as such, the same remains unchallenged.
16. On my independent assessment of evidence on record, I am of the view that the pre-emptee is entitled to have Taka 80,000 as development cost. The pre-emptor is hereby directed to deposit Taka 80,000 as development cost to the trial Court within three months from the date of receipt of the copy of the judgment, failing which, the Miscellaneous (Pre-emption) Case No. 36 of 1997 shall be dismissed.
17. With the above observation and direction, the Rule is discharged, however, without any order as to-costs. The earlier order of stay granted by this Court thus stands recalled and vacated.
Let a copy of the Judgment along with LCRs be communicated to the Court below at once.
High Court Division (Civil Revisional Jurisdiction)
Present:
Mr. Justice Zafar Ahmed
Civil Revision No. 4314 of 2017
Abul Kashem (Md.) and Ors.
------------- Petitioners
VS
Superintendent, Telegraph Cumilla and Ors.
------- Opposite Parties
Judgement Date : February 13, 2023
Counsels:
Mr. B.M. Elias, Advocate
—For the Petitioners.
Mr. Md. Faruk Hossein, Advocate
—For the Opposite Parties.
Judgment
Zafar Ahmed, J:
1. In the instant revisional application filed under section 115(4) of the Code of Civil Procedure (in short, the 'CPC'), the plaintiff-petitioners have challenged the judgment and order dated 29-8-2017 passed by the Additional District Judge, 1st Court, Cumilla in Civil Revision No. 51 of 2015 disallowing the same and affirming the order dated 7-9-2015 passed by the Joint District Judge, 1st Court, Cumilla in Title Suit No. 99 of 1992 rejecting the application for local investigation filed by the plaintiff- petitioners under Order XXVI, rule 9 of the CPC.
2. The defendant-opposite-party No. 1 entered appearance in the Rule.
3. The predecessor of the present petitioners as plaintiff filed Title Suit No. 99 of 1992 impleading the opposite-parties, who are various office bearers of Telegraph Office, Cumilla and other relevant Government departments, as defendants praying for a decree declaring that the suit path situated between TS Plot No. 167 to the west and TS Plot No. 282 in the East as shown in green ink in the TS Map is a path and that the plaintiffs have got the right of easement to use the said passage uninterruptedly without any obstruction. The schedule to the plaint runs as follows:-
"District-Cumilla, Police station-Kotwali, Mouza-Monoharpur, TS Plot Nos. 167 and 282 corresponding to SA Plot Nos. 112, 113 and 114 comprising an area of 148′×31′ and 101′×7′ which is the suit land as shown in green ink in the enclosed Town Survey Map.
Bounded By:-
North-Dhaka-Chattogram Road.
South-Ujir Dighir Par
East-Telegraph Office
West-Circuit House."
4. It is stated in the plaint that no plot number was assigned for the passage in question in the survey map, but an indication of a passage is shown therein which is evident from the case map attached to the plaint shown in green ink. The passage exists for over hundred years and the plaintiffs used to use the passage continuously for entrance to the Dhaka-Chattogram main road for attending their daily business through the front of the Telegraph office and the Circuit House. The passage was recorded in the Town Survey (TS) map in the year 1912-13.
5. It is further stated that the plaintiffs are the residents at the north-east comer of Ujir Dighir Par, commonly known as Mogultoly at Monoharpur Mouza and the homestead of the plaintiffs is situated in SA plot Nos. 99, 100 and 101 of the said Mouza which was recorded in SA Khatian No. 80 and was finally published in the name of one Murary Robert. The successors-in-interest of Murary Robert sold the land to the plaintiff and to his son by registered deeds dated 10-3-1983, 17-3-1983, 13-4-1983 and 14-4-1983 respectively and delivered possession thereof.
6. It is further stated that the relevant Plot No. 112 of SA Khatian No. 5 was recorded in the name of Postal Department comprising an area of 0.1650 acres. Plot Nos. 113 and 114 of the same Mouza were recorded in the name of the Collector in the SA Khatian No. 2. The total area of plot No. 114 was shown as 0.7100 acres. During the SA operation the recorded path of the TS Map which was prepared and finally published in the year 1912, was wrongly not shown in the SA Map prepared in 1963. The TS Plot No. 167 corresponds to SA Plot No. 113.
7. It is further stated that the defendants attempted to close the path by constructing boundary wall without keeping the passage used by the plaintiff. The plaintiff would suffer irreparable loss which cannot be compensated in money, if the path is closed and in that case the plaintiff would have to surrender their homestead. This would create a great injury to the plaintiff and his family members and, as such, the plaintiff needs a declaration as prayed for.
8. Pending disposal of the suit, the plaintiff-petitioners on 29-6-2015 filed an application for local inspection on the grounds stated therein. Both the Courts below rejected the said application on the ground that earlier on 21-3-1994 the plaintiffs filed an application for local inspection which was rejected up to the High Court Division and accordingly, the subsequent application was not maintainable. The Courts below did not consider the merit of the application, but categorically found that there were some distinctions between the two applications in respect of the nature although the subject matter was same.
9. It is stated in the instant revisional application that the earlier application for local inspection was rejected on the ground that the same suffered from vagueness inasmuch as the said application did not contain the CS and SA Khatian and plot number which were essential to hold local investigation, whereas in the subsequent application, the relevant SA Khatian and plot numbers were mentioned. Both the earlier and subsequent applications for local investigation have been annexed to the instant revisional application. On perusal of those, I find substance in the statements made in the instant application.
10. The learned Advocate appearing for the petitioners refers to the case of Jabbar Jute Mills Ltd. vs. Md. Abul Kashem and another, 10 MLR (AD) 301 and submits that the ratio laid down in the reported case is applicable to the case in hand. It was held in the reported case:
"It further appears from schedule-2 of the plaint that the suit land has not been properly described and depicted and the same is not identifiable in the locality. Hence local investigation was essentially required for ascertaining the identity and location of the suit land by a survey knowing Advocate Commissioner."
11. The object of local investigation is to obtain evidence which from its very nature can only be obtained on the spot and to elucidate any point which is left doubtful on evidence taken before the Court (12 BLT 452). Accordingly, it was held that whether a boundary wall falls within a certain plot or not can only be determined by local investigation (1993 BLD 339).
12. The learned Advocate appearing for the opposite-party No. 1 submits that both the Courts below rightly rejected the application for local investigation for the reason the earlier application was rejected by the High Court Division. I do not find substance in the argument. The earlier application was rejected on the ground of vagueness which has been cured in the subsequent application.
13. The plaintiff has filed the instant suit for declaration of easement right over the path in question. Being fortified with the facts and circumstances of the case as well as the case laws discussed above, this Court is of the view that the instant application for local investigation has merit and hence, local investigation the essentially required to ascertain the identity and location of the path over which the plaintiffs claim easement right. Accordingly, the Rule succeeds.
14. In the result, the Rule is made absolute. The impugned order is set-aside. The trial Court is directed to ascertain the identity and location of the suit path in question by local investigation by a survey knowing Advocate Commissioner forthwith.
Communicate the judgment and order at once.
High Court Division
Present:
Mr. Justice Md. Mozibur Rahman Miah
Mr. Justice Mohi Uddin Shamim
First Miscellaneous Appeal No. 66 of 2020 and Civil Rule No. 515 (FM) of 2018
Anisur Rahman (Md.)
------------- Appellant/Petitioner
VS
Regional Manager, Bangladesh House Building Finance Corporation
------- Opposite Party/Respondent
Judgement Date : March 05, 2023
Counsels:
Mr. H.M. Borhan, Advocate
—For the Appellant/Petitioner.
Ms. Hosneara Begum, Advocate
—For the Respondent.
Judgment
Mohi Uddin Shamim, J:
1. [cite_start]This miscellaneous appeal is directed against the order No. 58 dated 11-9-2018 passed by the learned District Judge, Kushtia in Miscellaneous Execution Case No. 1 of 2012, rejecting an application praying for installments in paying the decretal amount filed by the judgment-debtor[cite: 1].
2. [cite_start]The facts of the case, in short, are that, the appellant took loan amounting to Taka 5,50,000 from the respondent No. 1, the House Building Finance Corporation, Regional Office, Kushtia on 28-11-1983 for erecting a house[cite: 1]. [cite_start]Subsequently, the appellant did not repay the loan[cite: 1]. [cite_start]Therefore, the respondent No. 1-Corporation filed a case being Miscellaneous Case No. 7[cite: 1].
... (Omitted text) ...
10. [cite_start]Further, the appellant did not pray for any installment to repay the loan money before the Trial Court in the miscellaneous case[cite: 1]. [cite_start]He filed the application for installment before the Executing Court, which is beyond its jurisdiction[cite: 1]. [cite_start]Save and except the execution of the decree, the Execution Court has got no authority to grant such installments through alteration or modification of the decree[cite: 1]. [cite_start]It has only authority to execute a decree as it is and no way it can go beyond the decree[cite: 1].
11. [cite_start]In such view of the matter, we find no merit in the appeal[cite: 1].
12. [cite_start]In the result, the appeal is dismissed[cite: 1].
13. [cite_start]Since the appeal has been dismissed, the connected rule being Civil Rule No. 515(fm) of 2018 is also discharged[cite: 1].
14. [cite_start]The order of stay as granted by this Court in Civil Rule No. 515 (fm) of 2018 as regards to further proceedings of the Execution Case stands vacated[cite: 1].
15. [cite_start]No order as to costs[cite: 1].
[cite_start]Communicate the judgment to the Court concerned at once[cite: 1].
High Court Division (Civil Revisional Jurisdiction)
Present:
Mr. Justice Sheikh Abdul Awal
Civil Revision No. 5172 of 2005
Ajit Kumar Dhar (Mallik) and Ors.
------------- Petitioners
VS
Kamrul Anwar Chowdhury and Ors.
------- Opposite Parties
Judgement Date : July 25, 2022
Counsels:
Mr. Saleh Mahmud Naheed, Advocate
—For the Petitioners.
Mr. Sk. Md. Jahangir Alam, Advocate
—For the Opposite Parties.
Judgment
Sheikh Abdul Awal, J:
1. This Rule was issued calling upon the opposite party. No. 1 to show cause as to why the impugned judgment and decree dated 5-9-2005 (decree signed on 11-9- 2005) passed by the learned Joint District Judge, Patiya, Chattogram in Other Class Appeal No. 28 of 2004 affirming those dated 21-1-2004 (decree signed on 27-1- 2004) passed by the learned Assistant Judge, Satkhira, Chattogram in Other Class Suit No. 8 of 2002 decreeing the suit should not be set-aside and/or such other or further order or orders passed as to this Court may seem fit and proper.
2. Material facts of the case, briefly, are that the plaintiff opposite party No. 1 and others filed Other Class Suit No. 8 of 2002 before the learned Senior Assistant Judge, Chattogram for specific performance of contract impleading the petitioner as defendants praying the following reliefs:
ক) নালিশী তপশীলের জমি ৩-১১-৯৬ ইং বায়না চুক্তিমূলে বায়না বাদ বাকী ৭,৫০০ টাকা বাদীর নিকট হইতে গ্রহনে ১/২ নং বিবাদীকে বাদীর বরাবরে নির্দায় বিক্রী কবলা দলিল সম্পাদন রেজিস্ট্রি করিয়া দেওয়ার নির্দেশ মূলক ডিক্রী হয়।
খ) আপোষে আদালতের নিদিষ্ট মেয়াদের মধ্যে ১/২ নং বিবাদী কবলা সম্পাদন ও রেজিস্ট্রি করিয়া না দিলে আদালতের মাধ্যমে তারিখের কবলা সম্পাদন ও রেজিস্ট্রি করিয়া দেওয়ার বিহীত আদেশ হয়।
গ) মোকদ্দমার তাবৎ ব্যয় বিবাদীর বিরুদ্ধে ডিক্রী হয়।
ঘ) বিচারে বাদী আর যে যে প্রতিকার পাইতে পারেন তাহাও ডিক্রী দিবার আদেশ হয়।
3. The case of the plaintiff in short is that the suit property originally belonged to defendant Nos. 1-2 and their mother Laxmi Rani and due to sell the suit property by they executed a bainanama with the plaintiff on 3-1-1996 and fixed the consideration money of the suit properly was Taka 13,500; that the plaintiff paid Taka 6,000 on the date of bainanama to the donors of bainanama and the defendants handed over the possession of the suit property to the plaintiff. It has been mentioned in the bainanama that the donors of the bainanama shall execute the register the deed within 3 (three) years from the date of bainanama accepting the outstanding money of bainanama. In the meantime Laxmi Rani died and thus, the defendant Nos. 1-2 inherited the suit land. According to the bainanama, the plaintiff requested to the defendants to execute and register the kabala by accepting the rest money of the bainanama. But the defendants delayed by saying this and that on various pretext and finally the defendants did not execute and register the kabala according to terms and condition of bainanama and hence, the suit.
4. Defendant Nos. 1-2 contested the suit by filing a written statement denying all the material allegations made in the plaint contending, inter-alia, that the suit is not maintainable in its present form and manner and also barred by limitation. There is no cause of action for the suit and the suit is also barred by section 42 of the Specific Relief Act and also not maintainable for vague schedule. The case of the defendants in short is that the suit property belonged to the predecessor of the defendant Nos. 1 and 2 namely, Laxmi Rani (mother of the defendant Nos. 1-2) and accordingly BS Khatian was published and recorded in the name of Laxmi Rani. She sold 6 sataks of land to Abdur Rahim and others from the suit plot and rest 10 sataks of land was under possession of Laxmi Rani. During right, title and possession of the suit property under Laxmi Rani she died on 19-3-1996. At the death of Laxmi Rani the defendant Nos. 1-2 inherited the said 10 sataks of land under the suit plot; that the defendants did not receive Taka 6000 for bainanama and they did not execute bainanama dated 3-11-1996. They also did not hand over any possession of the land in question in favour of the plaintiff. The plaintiff has forged signature and LTI of Laxmi Rani and, as such, the suit is liable to be dismissed with cost.
5. Defendant Nos. 4-7 were added on 8-6-2003 as added defendants and filed a written statement denying all the material averments made in the plaint contending, inter-alia, that the suit is not maintainable in its present form and manner, there is no cause of action for the suit, the schedule of the suit land is vague and indefinite, the suit is barred by section 42 of the Specific Relief Act. The case of the defendant Nos. 4-7 is that Laxmi Rani was the owner of the suit land and accordingly BS Khatian was recorded in her name. Laxmi Rani and her son Sujit Kumar herein the defendant No. 2 sold 0.06 acres of land in favour of the defendant Nos. 4-7 by registered kabala No. 3967 dated 26-11-1997. Sujit Kumar also sold 5 acres of land in favour of the defendant Abdus Salara by registered kabala dated 26-11-2001 and handed over possession and in this way the defendants along with one Hafez Ahmed were in possession over 0.11 acres of land by purchase. The share of Hafez Ahmed used to possess by the defendants as he staying at Abu Dhabi. The bainanama is a forged and fabricated document and, as such, the suit is liable to be dismissed with cost.
6. At the trial both the parties led evidence both oral and documentary to prove their respective cases.
7. The trial Court after hearing the argument of both parties and on considering the materials on record by its judgment and decree dated 21-1-2004 decreed the suit in favour of the plaintiff.
8. The defendants, thereupon, preferred Other Appeal No. 28 of 2004 before the learned District Judge, Chattogram, which was eventually transmitted to the Court of the learned Joint District Judge, Patiya, Chattogram for disposal, who by the impugned judgment and decree dated 5-9-2005 dismissed the appeal and affirmed the judgment and decree of the trial Court.
9. Aggrieved defendants men preferred this Revision application and obtained the present rule.
10. Mr. Saleh Mahmud Naheed, the learned Advocate appearing for the defendant- petitioners at the very outset upon placing an application under Order 41, Rule 23 read with section 107 and 151 of the Code of Civil procedure submits that both the Courts below ought to have sent the disputed bainanama to the hand writing expert to ascertain the genuineness of the same and in failing to do so committed an error law resulting an error in the impugned decision occasioning failure of justice. Drawing support of his submission the learned Advocate relying on the decisions reported in 8 BLC (AD) 67 and 56 DLR (AD) 41 submits that the provision of section 73 of the Evidence Act permits the Court to compare the disputed signature with the admitted signature, but still then superior Courts have sounded caution to avoid the course of comparing the signature thumb impression by the Court itself. Since by scientific process or method examination of signature, particularly thumb impression, has developed much and, as such, it is safe and sound to leave the matter of examination of signature including thumb impression as well as hand writing to the expert or to the person specialized in the examination of writing including thumb impression for avoiding possibility or probability of falling very much in error in arriving at an opinion by the Court upon resorting to comparison for ascertainment of similarity or dissimilarity of writing or thumb impression and thus, this is a fit case for sending back the case to the trial Court for fresh trial providing the parties opportunity to the suit to adduce other evidence in this regard.
11. Mr. Sk. Md. Jahangir Alam, the learned Advocate appearing on behalf of the plaintiff-opposite-party No. 1, on the other hand, supports the judgments of both the Courts below, which were according to him just, correct and proper. The learned Advocate next relying on the decision reported in 56 DLR (AD) 117 submits that in view of the provision of section 107(2) of the Code of Civil Procedure this Court is competent enough to compare the signature of the of the defendant appearing in the bainanama in question with the available admitted signatures in record and, as such, question to send back the case on remand to the trial Court to fill up the gap does not arise at all.
12. I have considered the submissions of the learned Advocates for both the sides and perused the Civil Revision application, judgments of two courts below and other papers.
13. On a query from the Court the learned Advocate for the defendant-petitioner could not show any error of law or illegality from the judgments of 2 courts below. He, however, submits that since the expert opinion was not obtained as to the genuineness of bainanama the case may be sent back on remand to the trial Court to detect the genuineness of bainanama by hand writing expert opinion.
14. On scrutiny of the record, it appears that during trial the defendants' side kept silent in the trial Court as well as in the appellate Court below as to obtain hand writing expert's opinion. I have gone through the judgments of both the Courts below to the best of my ability and find that the trial Court on due consideration of the entire evidence and materials on record came to the conclusion that the defendants could not prove that the Laksmirani did not execute the bainanama or in other word the bainanama in question is forged and not genuine document by way of oral and documentary evidence as well as scientific examination.
15. The impugned judgment is a judgment of affirmance. The appellate court considered all the material points and taking into consideration all the evidence and materials on record concurred with the finding of the trial Court. The Court of appeal below in its turn arrived at a conclusion that-
"১/২ নং বিবাদী এবং লক্ষী রানী কর্তৃক নালিশা জমি বিক্রয়ের নিমিত্তে ৬-১১-৯৬ তারিখ unregis- tered বায়না নামা সম্পাদন করিয়া দেয়ার বিষয়টি সাক্ষ্য আইনের বিধান অনুসারে বাদী দলিলের attesting witness এবং লিখককে সাক্ষ্য প্রদান করিয়া প্রমাণ করিতে সমর্থ হওয়ায় এবং 54 DLR (2002) P. 357 এ প্রদত্ত সিদ্ধান্ত অনুসারে বায়না নামার সম্পাদন বায়না নামার সম্পাদনকারী হিসাবে প্রদত্ত স্বাক্ষরত্রয় যে, ১/২ নং বিবাদী ও লক্ষী রানীর নয় তা Handwriting Expert এর মতামতের মাধ্যমে প্রমানের দায়িত্ব বিবাদীর হওয়া স্বত্বেও বিবাদী অনুরূপ কোন পদক্ষেপ গ্রহণ না করায় বিজ্ঞ নিম্ন আদালত সঠিক ও আইন সঙ্গতভাবেই বায়না নামার অনুবলে বাদীর মোকদ্দমায় ডিক্রি প্রদান করায় উক্ত রায় ডিক্রিতে হস্তক্ষেপ করার যুক্তিসঙ্গত কোন কারণ আছে বলিয়া মনে করি না।"
16. This finding certainly indicates that the learned Joint District Judge, Patiya, Chattogram considered all aspects of the matter and thereafter, recorded the order of rejection.
17. Since, admittedly the defendant did not take any attempt to detect the genuineness of bainanama by way of examination of hand writing expert in the courts below and since both oral and documentary evidence having been available on record to decide the case on merit, I am not inclined to accept the sole submission of the learned Advocate for the defendant-petitioners. In the case of Aftab Ali (Captain Retired) vs. SM Kutubuddin being dead his heirs Nuzhat Banu and others reported in 56 DLR (AD) 117, it has been held that-
"The other ground that weighed with the High Court Division in sending back the case on remand is that the defendant No. I should be given a chance to get the disputed signature examined by hand-writing expert, in our view, was not a well founded one, since during the period between December 8, 1988 (the date on which written statement was filed) till July 23, 1992 (the date on which hearing concluded) defendant did not take any step for getting the disputed signature examined by handwriting Expert and later on since the filing of the appeal in 1992 till the hearing thereof in 1996 no step was taken for examination of the disputed signature by the handwriting Expert. In the background of the said fact we are of the view the High Court Division was in serious error in sending back the case on remand to the trial Court to enable the defendant to get the signature examined by the handwriting Expert. The order of remand made by the High Court Division was totally in error giving high premium to the laches of the contesting defendant and such nature or kind of order of remand has always seen deprecated by the superior Court. There should not be an order of remand either to allow the negligent party or the party who is guilty of laches as the premium of negligence or laches, nor to a party, as in the instant case, reluctant for the reason (s) best known to him to do something or to fill up the gap in the prosecution of the case."
18. In view of my discussions made in the foregoing paragraphs vis-Ã -vis. the above quoted decision reported in 56 DLR (AD) 117, I find no reason to send back the case on remand to the trial Court for fresh trial providing opportunity to the parties to obtain hand writing expert's opinion as to genuineness of bainanama.
19. By now I have covered the points raised by Mr. Saleh Mahmud Naheed, the learned Advocate for the defendant-petitioners. Now let me advert to some of the submission made by Mr. Sk. Md. Jahangir Alam, the learned for the opposite party No. 1. One of the main contention as raised by him relying on the decision reported in 2 BLC (AD) 134 is that a finding of fact whether concurrent or not arrived at by the lower appellate Court is binding upon the High Court Division in Revision except in certain well-defined circumstances such as non-consideration and misreading of the material evidence affecting the merit of the case and in the present case the judgments of 2 Courts below are well based on correct evaluation of the facts and materials of the case and, as such, question of interference does not arise at all.
20. The impugned Judgment is found to be well-reasoned and well-supported by the materials on record. I, therefore, do not find any illegality or legal infirmity in the impugned Judgment occasioning failure of justice so as to justify interference by this Court exercising revisional power under section 115(1) of the Code of Civil Procedure. I find no merit in the revision, which must fail accordingly.
21. In the result, the Rule is discharged without any order as to costs. The order of stay granted earlier by this Court stands vacated.
Let a copy of this judgment along with lower Courts record be sent down at once.
High Court Division (Special Original Jurisdiction)
Present:
Mr. Justice Md. Nazrul Islam Talukder
And
Mr. Justice S.M. Mozibur Rahman
Writ Petition No. 1087 of 2019
Standard Stitches Limited and Ors.
------------- Petitioners
VS
Bangladesh and Ors.
------- Respondents
Judgement Date : September 28, 2021
Counsels:
Mr. Probir Niogi, Senior Advocate with Mr. Md. Muniruzzaman and Ms. Anita Gazi Rahman, Advocates
—For the Petitioners.
Mr. Α.Κ.Μ. Amin Uddin, D.A.G., Ms. Anna Khanom Koli, A.A.G. and Mr. Md. Shaifour Rahman Siddique, A.A.G.
—For the Respondents.
Judgment
Md. Nazrul Islam Talukder, J:
1. On an application under Article 102 of the Constitution of the People's Republic of Bangladesh, the Rule Nisi was issued calling upon the respondents to show cause as to why the impugned notices under Memo Nos. 2297 and 2298 dated 20.01.2019 and the impugned notices under Memo Nos. 3003 and 3005 dated 27.01.2019 issued by the Respondent No. 3 under Sections 19 and 20 of the Anti-Corruption Commission Act, 2004 and Rule 20 of the Anti-Corruption Commission Rules, 2007 read with Section 160 of the Code of Criminal Procedure directing the petitioners to appear before the Respondent No. 3 along with the documents with respect to the land of Plot No. 54, Mohakhali Commercial Area, Dhaka (Annexures-O, 0-1, P. and P-1) following the application dated 11.12.2018 (Annexure-N) filed by the Respondent No. 5, shall not be declared to have been passed/issued without lawful authority and are of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. The facts leading to issuance of the Rule Nisi are as follows:
a) that Bangladesh Shilpa Rin Sangstha (in short BSRS), now Bangladesh Development Bank Limited (in short BDBL) filed Miscellaneous Case No. 15 of 1987 before the Court of learned District Judge, Dhaka under the provision of President Order No. 128 of 1972 against the Respondent No. 5's Company namely the United Trading Corporation Limited for realization of its loan. By an order dated 25.08.1989, the learned trial Judge attached the schedule property before the judgment. Thereafter the said Miscellaneous Case No. 15 of 1987 was transferred to the Court of learned Subordinate Judge and the Artha Rin Adalat, Dhaka, 2nd Court and the same was renumbered as Title Suit No. 01 of 1999. The suit was decreed on 24.05.1999 in favour of the successor of BSRS i.e. Bangladesh Development Bank Limited (hereinafter referred to as BDBL). The aforesaid fact is evident from the judgment and decree dated 24.05.1999 passed in Title Suit No. 1 of 1999 which are annexed with the writ petition and marked as Annexure-A and A-1.
b) that on 31.05.1999, BDBL filed Artha Execution Case No. 18 of 1999 for an amount of Tk. 3,62,83,864.84/- (three crore sixty two lac eighty three thousand eight hundred sixty four taka eighty four paisa) only and the attached scheduled land was sold at a price of Tk. 25 crore to the petitioners namely Standard Stitches Limited and Standard Group Limited and one Md. Arifur Rahman and the Respondent No. 4 under Section 38 of the Artha Rin Adalat Ain, 2003 and accordingly, the execution Court executed a registered sale certificate dated 27.02.2013 in favour of the purchasers and delivered possession of the suit land to the purchasers on 20.05.2014 pursuant to the Sale Certificate No. 5 dated 27.02.2013 through writ for delivery of possession. The aforesaid fact is evident from the sale certificate being No. 05 dated 27.02.2013 which is annexed with the writ petition and marked as Annexure-B. At the time of registration of sale certificate, the authority concerned realized Tk. 75,000,000/- as registration fees, stamp fees and other fees from the petitioners.
c) that Rajhani Unnayon Kartipakkha (hereinafter referred to as RAJUK) filed Writ Petition No. 4800 of 2014 before the High Court Division challenging the above mentioned sale and obtained a Rule Nisi and order of stay of all further proceedings of the Artha Execution Case No. 18 of 1999; against the said order of stay, the petitioners filed Civil Petition For Leave To Appeal No. 1225 of 2014 before the Appellate Division of the Supreme Court of Bangladesh and considering the delivery of possession of the suit land to the petitioners, on 20.07.2014, the Appellate Division passed an order of status- quo in respect of possession and position of the land in question till disposal of the Rule. The aforesaid fact is evident from the certified copy of the order dated 20.07.2014 which is annexed with the writ petition and marked as Annexure-C.
d) that a Division Bench of the High Court Division of the Supreme Court of Bangladesh upon hearing the parties discharged the Rule by the judgment and order dated 04.04.2016 and against the said judgment and order, the RAJUK preferred Civil Petition For Leave To Appeal No. 3269 of 2016 and after hearing, the Appellate Division dismissed the same by the judgment and order dated 03.082017. The aforesaid fact is evident from the judgment and order dated 04.04.2016 and 03.08.2017 which are annexed with the writ petition and marked as Annexure-D and D-1.
e) that one Khandaker Nazrul Islam Khokon being third party filed Writ Petition No. 7156 of 2014 before the High Court Division challenging Miscellaneous Case No. 15 of 1987 and the High Court Division issued Rule which reads as under:
"why the entertainment and adjudication of the Miscellaneous Case No. 15 of 1987 of the Subordinate Judge and Artha Rin Adalat No. 2 at Dhaka by the Respondent No. 1 filed by the Respondent No. 2 under Article 33 of the Bangladesh Shilpa Rin Sangstha Order 1972 vide Annexure-F, H and I(1) and why consequently negotiate sale of petitioner property being holding No. 54 Mohakhali Commercial Area within the City of Dhaka through the process of Artha Jari Case No. 18 of 1999 of the 2nd Artha Rin Adalat of Dhaka arising out of Miscellaneous Case No. 15 of 1987 of the Court of Subordinate Judge and Artha Rin Adalat No. 2 at Dhaka vide Annexure-I and J shall not be declared to have been passed without lawful authority and is of no legal effect"; thereafter a Division Bench of the High Court Division upon hearing the parties discharged the said Rule by the judgment and order dated 16.03.2016. The aforesaid fact is evident from the judgment and order dated 16.03.2016 which is annexed with the writ petition and marked as Annexure-E.
f) that another individual named Faisal Morshed Khan as third party also filed Writ Petition No. 5196 of 2013 challenging Order No. 111 dated 07.04.2013 rejecting the application of the petitioner on 31.03.2013 for stay of further proceeding in relation to sale, transfer or handover of the suit land and Order Nos. 102, 103 and 104 passed by the learned Judge of the 2nd Court of Artha Rin Adalat, Dhaka transferring the suit land to the petitioners of this instant case and obtained a Rule Nisi and order of stay of all further proceeding of the Artha Jari Case No. 18 of 1999; against the said order of stay, the petitioners filed a Civil Petition For Leave To Appeal No. 1241 of 2013 before the Appellate Division of the Supreme Court of Bangladesh and the Appellate Division passed an order staying the above mentioned order of the High Court Division till disposal of the Rule by the judgment and order dated 13.11.2013; subsequently a Division Bench of the High Court Division upon hearing the parties discharged the Rule by the judgment and order dated 21.07.2016. The aforesaid fact is evident from the judgment and order dated 13.11.2013 and 21.07.2016 which are annexed with the writ petition and marked as Annexure-F and F-1.
g) that the petitioners and another purchaser i.e. Respondent No. 4 filed an application before the Rajdhani Unnayon Kartipakkho (RAJUK) for mutating their names for the case land pursuant to the above mentioned sale of the Court but without getting any response from RAJUK, the petitioners filed Writ Petition No. 6637 of 2016 before the High Court Division and obtained a Rule Nisi; subsequently on contested hearing, a Division Bench of High Court Division made the Rule absolute by the judgment and order dated 07.09.2016 considering and discussing all the issues and directed the RAJUK to mutate the name of the petitioners in respect of the case land within 60 days. The aforesaid fact is evident from the judgment and order dated 07.09.2016 which is annexed with the writ petition and marked as Annexure- G.
h) that for not complying with the judgment and order as to direction of High Court Division, the petitioners filed Contempt Petition No. 82 of 2017 before the High Court Division and the High Court Division directed the RAJUK to comply with its earlier judgment and order dated 07.09.2016 passed in Writ Petition No. 6637 of 2016 within 2 (two) months without fail by the order dated 10.10.2017. The aforesaid fact is evident from the order dated 10.10.2017 which is annexed with the writ petition and marked as Annexure- H.
i) that the Rajdhani Unnayan Kartipakkha (RAJUK) preferred a Civil Petition For Leave To Appeal No. 4124 of 2017 before the Appellate Division against the judgment and order dated 07.09.2016 passed in Writ Petition No. 6637 of 2016 regarding direction for mutating the name of the petitioners and after hearing the parties, the Appellate Division dismissed the same by the judgment and order dated 01.04.2018 holding the view that the respondents i.e. the present petitioners legally purchased the property through the Court and their title has become unassailable. The aforesaid fact is evident from the judgment and order dated 01.04.2018 which is annexed with the writ petition and marked as Annexure-I.
j) that in the meantime, the Respondent No. 4 entered with an registered agreement for sale being No. 4186 dated 09.05.2016 for 3662.75 ajutangsha of above mentioned land with the petitioners namely Standard Group Limited and Standard Stitches Limited receiving Tk. 12,50,00,000/- (twelve crore fifty lac) as earnest money out of total consideration of Tk. 13,00,00,000/- (Thirteen crore).
k) that on repeated request of the petitioners, the Respondent No. 4 failed to execute and register the sale deed as agreed; thus the petitioners were constrained to institute a suit for specific performance of contract before the Court of learned Joint District Judge, 1st Court, Dhaka being Title Suit No. 559 of 2016 against the Respondent No. 4 for execution of sale deed. The aforesaid fact is evident from the plaint which is annexed with the writ petition and marked as Annexure-J.
l) that during pendency of the said suit, on 21.11.2016, the Respondent No. 5 filed an application under Order 1 Rule 10(2) of the Code of Civil Procedure for addition of party stating, inter alia, that there was an earlier unregistered agreement with the Respondent No. 5 and on the basis of the said agreement, the Respondent No. 4 is bound to register the sale deed of the suit land in favour of him; subsequently the application was withdrawn by filing another application dated 26.01.2017 and in both the applications, it was stated that the Respondent No. 4 took Tk. 35,00,00,000/- from the Respondent No. 5 for his business purpose. The aforesaid fact is evident from the application for addition of party dated 22.11.2016 and order dated 26.01.2017 which are annexed with the writ petition and marked as Annexure-K and K-1.
m) that the Respondent No. 5 entered with an registered agreement for compromise being No. 2720 dated 12.04.2018 with the petitioners receiving Tk. 1 crore, gave up his all claims and made an undertaking that he has no grievance against the above mentioned transfer between the petitioners and Respondent No. 4 and he will not make any complaint or allegation against the petitioners in connection with the above mentioned transfer. The aforesaid fact is evident from the photocopy of the registered agreement for compromise which is annexed with the writ petition and marked as Annexure-L.
n) that the above mentioned Suit No. 559 of 2016 was decreed on compromise on 28.02.2017 and the petitioners filed Title Execution Case No. 07 of 2017 and the learned executing Court, Joint District Judge, 1st Court, Dhaka executed and registered the sale deed being No. 3578 dated 22.05.2017 and since then the petitioners being the owners have been enjoying the said land within the knowledge of all concerned. The aforesaid fact is evident from the judgment and decree dated 20.02.2017 and 27.02.2017, order dated 16.05.2017 and the registered sale deed being No. 3578 dated 22.05.2017 which are annexed with the writ petition and marked as Annexure-M, M-1, M-2 and M-3.
o) that on 11.12.2018, the Respondent No. 5 with ulterior motive and in order to make unnecessary harassment filed an application along with two paper cuttings before the Respondent No. 2 against the petitioners for penal action alleging evasion of stamp duty and registration fee against the registration of above mentioned deed while executing and registering the same through the Court of law. The aforesaid fact is evident from the application dated 11.12.2018 which is annexed with the writ petition and marked as Annexure-N.
p) that on the basis of the above mentioned application, the Respondent No. 3 issued the impugned notices dated 20.01.2019 (Annexure-0 and 0-1) under Section 19 and 20 of the Anti-Corruption Commission Act, 2004 and Rule 20 of the Anti-Corruption Commission Rules, 2007 read with Section 160 of the Code of Criminal Procedure directing the petitioners to appear before the Respondent No. 03 along with documents with respect to the land of Plot No. 54, Mohakhali Commercial Area, Dhaka. The aforesaid fact is evident from the notices dated 20.01.2019 under Memo Nos. 2297 and 2298 which are annexed with the writ petition and marked as Annexure-O and 0-1.
q) that on 20.01.2019, the petitioners filed two applications before the Respondent No. 3 seeking for one month time to collect the relevant papers and documents and thereafter the Respondent No. 3 extended the time till 31.01.2019 and issued two notices dated 27.01.2019 under Memo Nos. 3003 and 3005 (Annexure-P and P-1) directing the petitioners to appear before him along with documents with respect to the land of Plot No. 54, Mohakhali Commercial Area, Dhaka. The aforesaid fact is evident from the notices dated 27.01.2019 under Memo Nos. 3003 and 3005 which are annexed with the writ petition and marked as Annexure-P and P-1.
3. Being aggrieved by the impugned notices, the petitioners approached this court with an application under Article 102 of the Constitution and obtained this Rule along with an order of stay of operation of the impugned notices.
4. At the very outset, Mr. Probir Niogi, the learned Senior Advocate along with Mr. Md. Muniruzzaman, Advocate and Ms. Anita Gazi Rahman, Advocate for the petitioners, submits that the petitioners and the Respondent No. 4 purchased the case land through the Court of law and the Rajdhani Unnayan Kartipakkha (RAJUK) and 2 others filed 3 Writ Petitions being Nos. 4800 of 2014, 7156 of 2014 and 5196 of 2013 challenging the legality of the said sale and all the writ petitions were discharged; thereafter the RAJUK preferred Civil Petition For Leave To Appeal No. 3269 of 2016 against of the judgment and order of Writ Petition No. 4800 of 2014 and the same was dismissed on 03.08.2017; thereafter the petitioners and the Respondent No. 4 filed Writ Petition No. 6637 of 2016 for direction upon the RAJUK to mutate their names; subsequently the said Rule was made absolute by the judgment and order dated 07.09.2016 and for noncompliance of the said order, the petitioners filed Contempt Petition being No. 82 of 2017 against the RAJUK and obtained a further order of direction; subsequently against the said judgment and order dated 10.10.2017, the RAJUK preferred Civil Petition For Leave to Appeal being No. 4124 of 2017 and the same was dismissed on 01.04.2018 with a finding that the respondents i.e. the present petitioners and Respondent No. 4 legally purchased the case property through Court and their title has become unassailable and as such, the impugned notices directing the petitioners to appear before the Respondent No. 03 along with the documents questioning the lawful sale by initiating an inquiry are illegal, without jurisdiction and without lawful authority and are of no legal effect.
5. He next submits that the Respondent No. 4 purchased a portion of the case property through the Court and agreed to sell his portion to the petitioners by executing an agreement for sale and receiving earnest money; subsequently he denied to execute the sale deed by receiving the remaining consideration and thereby the petitioners filed a suit for specific performance of contract and obtained a decree and pursuant to the said decree, Title Execution Case being No. 07 of 2017 was filed and then the learned Judge of the executing Court, Joint District Judge, 1st Court, Dhaka executed and registered the sale deed being No. 3578 dated 22.05.2017 and thus there is no scope to re-open the same in the name of inquiry without permission of the Court and therefore the impugned notices are illegal, without jurisdiction and without lawful authority and are of no legal effect.
6. He then submits that the Stamp Act, 1899 and the Registration Act, 1908 have provided certain provisions for realizing unpaid duties or revenues if any, but provided no provision for filing any criminal proceeding under the provision of the Penal Code or under the provision of the Prevention of Corruption Act, 1947 for realizing unpaid duties or revenues and therefore, the impugned notices are liable to be declared illegal and without lawful authority and are of no legal effect.
7. He further submits that under Section 63A of the Registration Act, 1908, the unpaid amount of duties for the deed not properly valued shall be realized from the concerned registering officer and under the provision of the Stamp Act, 1899, there are provision for realizing the revenues but without complying with those provisions of law, the Respondent No. 3 most illegally with mala fide intention started the process of inquiry against the petitioners pursuant to the application filed by the Respondent No. 5 and therefore, the impugned notices are liable to be declared without lawful authority and are of no legal effect.
8. He additionally submits that the sale deed was executed and registered by a competent court of law pursuant to a decree of specific performance of contract and as such, without any order of the concerned court, there is no scope to proceed with the realization of shortage of payment of stamp duty or tax if any and therefore, the impugned notices of the Respondent No. 3 to proceed with the inquiry pursuant to the application (Annexure-N) filed by the Respondent No. 5 are liable to be declared without lawful authority and are of no legal effect.
9. He candidly submits that the Registration Act, 1908 and the Stamp Act, 1899 are not included in the schedule of the Durniti Damon Commission Act, 2004 and therefore the impugned notices of the Respondent No. 3 to proceed with the inquiry pursuant to the application (Annexure-N) filed by the Respondent No. 5 are liable to be declared without lawful authority and are of no legal effect.
10. Mr. Niogi, with reference to Clause 5.73 of the Constitutional law of Bangladesh (3rd edition) by Mahamudul Islam, submits that "a mala fide exercise of discretionary power is bad as it amounts to abuse of discretion"; in support of his submission, Mr. Niogi has referred to a legal decision taken in the case of Nur Mohammad Vs. Mainuddin Ahmed, reported in 39 DLR (AD), wherein it was held that "power conferred by or under any law must not be exercised mala fide or for collateral purpose. The mala fide act is an act without jurisdiction;" and then Mr. Niogi has also referred to a legal decision taken in the case of Mohammad Ali Vs. Burma Eastern reported in 38 DLR (AD) 41 wherein it was decided that a mala fide act is by its nature an act without jurisdiction. No legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power".
11. Mr. Niogi vigorously submits that as per Rule 3(5) of the Anti-Corruption Commission Rules, 2007, the ACC shall not directly go for conducting inquiry in respect of complaints which have not been found to be prima facie correct and true by the Scrutiny Committee, but in the present case, the impugned notices have been issued upon the petitioners on the basis of a complaint filed by the Respondent No. 5 without satisfying itself as to the prime-facie correctness of the allegation.
12. Mr. Niogi further points out that the allegations made in the petition of complaint do not come within the purview of the scheduled offence of the ACC Act, 2004 and further, the provision of the Registration Act, 1908 and the Stamp Act, 1899 are available for realizing the shortage of payment of duties and taxes if any as alleged in the petition of complaint of the Respondent No. 5.
13. Mr. Niogi lastly submits that it appears from the petition of complaint of the Respondent No. 5 that the Respondent No. 2 has prior knowledge about the sale of the case land through the Court, thus the notices have been issued by exercising the discretion arbitrarily taking mala fide intention.
14. On the other hand, Mr. Hassan M.S. Azim, the learned Advocate appearing on behalf of the Anti-Corruption Commission (ACC) has contested the Rule and submitted affidavit-in-opposition and supplementary affidavit-in-opposition denying the statements and grounds taken in the writ petition and categorically submits that the impugned notices dated 20.01.2019 (Annexures O & 0-1 to the writ petition) and the impugned notices dated 27.01.2019 (Annexures P & P-1 to the writ petition) issued by Respondent No. 3 under Sections 19 and 20 of the Anti-Corruption Commission Act, 2004 directing the petitioner to appear before the Respondent No. 03 along with the documents with respect to the land of plot No. 54, Mohakhali Commercial Area, Dhaka, pursuant to the application dated 11.12.2018 (Annexure-N to the writ petition filed by the Respondent No. 05, were issued for fact finding inquiry for discovering the truth which will go to assist the Commission eiuier(sic) to proceed further by lodging an F.I.R. or to keep the complaint with the record if found to be without any basis and as such, since the impugned notices are the parts of fact finding process under the relevant law, the writ petition is not at all maintainable.
15. He next submits that it is by now a settled law that sub-section (1) and (2) of Section 19 of the ACC Act, 2004 have given wide jurisdiction to the Anti-Corruption Commission to inquire into and investigate any allegations whatsoever as covered in its schedule and in doing so, the Commission may direct any authority, public or private, to produce relevant documents and the person concerned shall be bound to comply with the direction.
16. He then submits that the impugned notices dated 20.01.2019 (Annexures O & 0- 1 to the writ petition) and the impugned notices dated 27.01.2019 (Annexures P & P- 1 to the writ petition) under Sections 19 and 20 of the Anti-Corruption Commission Act, 2004 have been issued in respect of an allegation of creating forged documents and hence, such allegations clearly fall within the schedule offence of the Anti- Corruption Commission Act, 2004.
17. He candidly submits that the allegation of 'mala fide exercise of power by the Anti-Corruption Commission' as raised by the petitioners is baseless inasmuch as no facts showing the allegation of malice to have a basis have been narrated by the writ petitioners anywhere in the writ petition or in the supplementary affidavits and hence, the allegation of lack of jurisdiction because of malice in fact is not tenable in the facts and circumstances of the case.
18. He additionally submits that the impugned notices were issued bona fide as a fact finding process and to hear the story of the writ petitioners and the writ petitioners had ample opportunity to appear before the Commission and present their cases with documents and the writ petitioners by submitting applications for extension of time had in fact accepted the position that they would appear before the Commission and submit their cases and relevant documents.
19. He vigorously submits that the allegations against the writ petitioners being "জাল ডকুমেন্ট সৃজনপূর্বক রাজউকের লে-আউটভুক্ত প্লট দখলের অভিযোগ" are very serious in nature and the same requires a thorough inquiry in order to decipher the veracity of those allegations and as such, the Rule Nisi issued in the instant writ petition is liable to be discharged for ends of justice so as to allow the Commission to discharge its functions as per law.
20. He then points out that the Anti-Corruption Commission has the authority to questioning any person about the correctness of its documents as a fact finding process and unless and until any legal action is initiated on the basis of the said findings, there is no scope to review the matter in writ jurisdiction and thus the writ petition is a pre-matured one; in support his submission, the learned Advocate has referred to a legal decision taken in the case of Sonali Jute Mills Ltd. Vs. ACC reported in 22 BLC (AD) 147 wherein it was held that "sub-section (1) and (2) of the Section 19 have given wide jurisdiction to the Commission to enquire into and investigate any allegations whatsoever as covered in its schedule and in doing so, the ACC may direct any authority, public or private to produce relevant documents".
21. He lastly submits that the submission of the learned Advocate for the writ petitioners is that the Commission has already come to know about the relevant facts through the instant writ petition is a dangerous proposition inasmuch as if such proposition is accepted, then every time if there is a notice issued by the Anti- Corruption Commission under Sections 19 and 20 of the Anti-Corruption Commission Act, 2004, the same will trigger filing of a writ petition which will open a floodgate and in the facts and circumstances of the instant case, there is no justification for allowing anyone to trigger that floodgate to open and considering all the aspects of this matter, the Rule may be discharged.
22. The Respondent No. 5 Md. Sekender Ali Moni has also submitted affidavit-in- opposition stating, inter-alia, that the present deponent filed the application dated 11.12.2018 to the Anti-Corruption Commission neither with ulterior motive nor in order to harass the petitioner but out of grudge and resentment derived from non- cooperation of Mr. Atiqur Rahman, the Chairman of Standard Group Limited and Standard Stitches Limited, in recovery of outstanding debts from the sale proceeds of land received by the friend of the present respondent, Mr. Md. Arifur Rahman, the vendor of land who is impleaded in the instant writ petition as Respondent No. 4; that the Respondent No. 5 was unable to conceive that the consequence of the application dated 11.12.2018 would be so harassing to Mr. Md. Atiqur Rahman, who is the Chairman of Standard Group and Standard Stitches and Chairman (former Director) of Jamuna Bank Limited with whom the present deponent has no enmity and for this consequence of the application, the present deponent feels discomfort and feeling so the present deponent on 08.07.2019 filed an application to the Anti- Corruption Commission seeking for withdrawal of the application of the present deponent dated 11.12.2018 and the present deponent also sworn an affidavit to that effect on the same day. The aforesaid fact is evident from the application and affidavit dated 08.07.2019 which are annexed with the affidavit-in-opposition filed by the Respondent No. 5 and marked as Annexure 1 and 1-A.
23. Mr. Α.Κ.M. Amin Uddin, DAG along with Mrs. Anna Khanom Koli, AAG and Mr. Md. Shaifour Rahman Siddique, AAG appearing on behalf of the Respondent No. 1, has adopted the submissions made by the learned Advocate for the Anti-Corruption Commission.
24. We have gone through the writ petition and the affidavit-in-oppositions submitted by the Respondent Nos. 2 and 5 and perused all the materials annexed therewith. We have also heard the learned Advocates for the writ petitioners, the Anti-Corruption Commission, the Respondent No. 5 and the learned Deputy Attorney- General for the respective parties and considered their submissions to the best of our wit and wisdom.
25. On perusal of the record, it appears that admittedly the writ petitioners purchased the case land through the court by way of sale certificate and the learned judge of the Execution Court handed over possession of the land to the petitioners by way of writ for delivery of possession. Challenging the said sale, several writ petitions and leave petitions were filed and ultimately all of them were discharged and dismissed. The writ petitioners as auction purchasers having failed to mutate their names against their purchased property filed Writ Petition No. 6637 of 2016 against RAJUK and the said Rule was made absolute by a Division Bench of this Division. Then RAJUK filed Civil Petition For Leave To Appeal No. 4124 of 2017 before the Appellate Division against the said judgment of the High Court Division and the same was dismissed on 01.04.2018 with a findings that the writ petitioners have legally purchased the case property through Court and their title has become unassailable. Thus the matter at hand is a judicially decided one and subsequent questioning about the said documents of purchase without reviewing the same is violative of the right of property of a citizen as guaranteed under Article 42 of the Constitution. Though during pendency of the instant Rule Nisi, review petition was filed by RAJUK being No. 247 of 2019, but the same was dismissed on 16.01.2020.
26. It may be mentioned that when any legal issue is finally decided by the apex Court of the country, any initiative to re-open the same issue by any authority of the government or statutory authority like ACC in the name of exercise of discretionary power without prior approval of the Court, is absolutely mala fide and abuse of discretionary power. The aforesaid view finds support in Clause 5.73 of the Constitutional law of Bangladesh (3rd edition) by Mahamudul Islam, wherein it is stated that "a mala fide exercise of discretionary power is bad as it amounts to abuse of discretion "; The aforesaid view is also supported by a legal decision taken in the case of Nur Mohammad vs. Mainuddin Ahmed case reported in 39 DLR (AD), wherein it was held that "power conferred by or under any law must not be exercised mala fide or for collateral purpose. The mala fide act is an act without jurisdiction;" and similar view has been expressed in the legal decision taken in the case of Mohammad Ali Vs. Burma Eastern reported in 38 DLR (AD) 41 wherein it was decided that "a mala fide act is by its nature an act without jurisdiction. No legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power".
27. It is true that the ACC is empowered by law to inquire into any allegation whatsoever as covered in its schedule and in doing so may direct any authority, public or private to produce relevant documents but the same must be bona fide and lawful in nature. In affidavit-in-opposition and supplementary affidavit-in-opposition, the ACC has stated that the impugned notices were issued on the basis of the complaint made by the Respondent No. 5.
28. Now let us see the said complaint (Annexure-N) annexed to the writ petition. On the 1st page of the complaint, it is stated that "আরিফুর রহমানের নামে ১ বিঘার কিছু বেশি অংশ ও আতিকুর রহমান ও মোশারফ হোসেনের ফার্মের নামে ১ বিঘার কিছু বেশি অংশ আদালতে সেটেলমেন্ট সেলের মাধ্যমে ক্রয় করেন". It is further stated on the said page that "আদালত কর্তৃক জমি রেজিষ্ট্রেশন ও দখল বুঝাইয়া দেওয়ার পর আমি চেকগুলি নিয়ে ব্যাংকে গেলে সবগুলি চেকই বাউন্স হয়।" So, from the statements of the complaint, it is evident that the ACC was clearly informed about the purchase and handing over possession of the case land through court and thus the notices upon the purchasers sers of the said sale bringing an allegation as "জাল ডকুমেন্ট সৃজনপূর্বক রাজউকের লে-আউটভুক্ত প্লট দখলের অভিযোগ" is not bona fide rather mala fide and also infringement of the fundamental right of property of the petitioners as guaranteed by the Constitution.
29. Further, as per Rule 3(5) of the Anti-Corruption Commission Rules, 2007, the ACC shall not directly go for conducting inquiry in respect of complaints which have not been found to be prima-facie correct and true by the Scrutiny Committee, but in the present case the impugned notices have been issued upon the petitioners neither without holding any initial scrutiny, nor examining the context of the complaint thoroughly which causes the unnecessary consumption of the valuable time of the court as well as harassing the citizens without any reason.
30. With reference to the legal decision taken in the case of Sonali Jute Mills Ltd. Vs. ACC reported in 22 BLC (AD) 147, the submission of the learned Advocate for the ACC is that sub-section (1) and (2) of section-19 have given wide jurisdiction to the Commission to inquire into and investigate any allegations whatsoever as covered in its schedule and in doing so, the ACC may direct any authority, public or private to produce relevant documents. But the allegation under the instant inquiry which is admittedly initiated on the allegation as stated in the application dated 11.12.2018 (Annexure-N) filed by the Respondent No. 05 with regard to taking possession of RAJUK plot unlawfully by creating forged documents and evasion of registration fees and other duties for registering a deed of sale does not come within the schedule offences of the Anti-Corruption Commission Act, 2004 rather it may come under the purview of Section 63A of the Registration Act, 1908 and under the provision of Stamp Act, 1899 and thus the said case law is not applicable to the case of the petitioners. It appears from the annexures of the writ petition that the subsequent sale between the petitioners and the Respondent No. 4 was also held by a Court of law pursuant to a decree of specific performance of contract and thus there is no scope of taking possession of RAJUK plot unlawfully by creating forged documents and evasion of registration fees and stamp fees at all. Apart from these, during pendency of the Rule, the Respondent No. 5 has withdrawn his complaint from the ACC and filed affidavit before this Court in support of the petitioners and thus the complaint itself has become susceptible.
31. Having considered all the facts and circumstances of the case, the submissions advanced by the learned Advocates for the respective parties and the propositions of law cited and discussed above, we find merit in this instant Rule.
32. Accordingly, the Rule is made absolute.
33. In consequence thereof, the impugned notices under memo Nos. 2297 and 2298 dated 20.01.2019 and notices under memo Nos. 3003 and 3005 dated 27.1.2019 issued by the Respondent No. 3 under Sections 19 and 20 of the Anti-Corruption Commission Act, 2004 and Rule 20 of the Anti-Corruption Commission Rules, 2007 read with Section 160 of the Code of Criminal Procedure directing the petitioners to appear before the Respondent No. 3 along with the documents with respect to the land of Plot No. 54, Mohakhali Commercial Area, Dhaka (Annexures-O, O-1, P and P- 1) following the application dated 11.12.2018 (Annexure-N) filed by the Respondent No. 5, are declared to have been made/issued without lawful authority and are of no legal effect.
34. Communicate the judgment and order to the Chairman, Anti-Corruption Commission and other respondents at once.
High Court Division (Criminal Miscellaneous Jurisdiction)
Present:
Mr. Justice Md. Akram Hossain Chowdhury
And
Mr. Justice Shahed Nuruddin
Criminal Miscellaneous Case No. 43049 of 2022
Sohel Rana (Md.) and Ors.
------------- Petitioners
VS
State
------- Respondent
Judgement Date : October 27, 2022
Counsels:
Mr. Syed Mizanur Rahman and Mr. Md. Mozammel Haque, Advocates
—For the Petitioners.
Mr. Md. Mohiuddin Dewan, DAG and Mr. Md. Ashraf Uddin Khan, AAG
—For the Respondent.
Judgment
Md. Akram Hossain Chowdhury, J:
1. Upon an application under section 498 of the Code of Criminal Procedure (shortly Cr.P.C.) this Rule was issued calling upon the opposite-party to show cause as to why the accused-petitioners should not be enlarged on bail in Benapole Port PS Case No. 27 dated 23-05-2022 corresponding to GR No. 201 of 2022 under sections 19(a)/19(f) of the Arms Act, 1878 and now pending in the court of learned Chief Judicial Magistrate, Jashore and/or to pass such other or further order or orders as to this Court may seem fit and proper.
2. Heard the learned Advocate for the accused-petitioner in support of the Rule while the learned Deputy Attorney-General who however appearing for the state, opposes the same.
3. Perused the materials on record.
4. The facts of the case, in brief, are that one Subeder Md. Ahsan Ullah, 49/D Company, Raghunathpur BOP, under Benapole Port, PS-Jashore, as informant, lodged an FIR with Benapole Police Station implicating the present petitioners who are actually the father and son for committing offence under section 19(a)/19(f) of the Arms Act, 1878 alleging that upon getting a secret information the informant along with his force rushed to the accused house situated at village Sadipur under Benapole PS and recovered therefrom five pieces of one shooter gun and other ammunitions and while they arrested the accused with the above materials as mentioned in the FIR who were became injured at that time, and thus, after taking necessary treatment they have been handed over to the Police Station: however, stating frankly in the FIR that-
"উল্লেখ্য আসামীদ্বয়কে ধৃত করার সময় ধস্তাধস্তিতে পড়ে গিয়ে সামান্য আঘাত প্রাপ্ত হয়। পরবর্তীতে উপজেলা স্বাস্থ্য কমপ্লেক্স, শার্শা নিয়ে প্রাথমিক চিকিৎসা দেওয়া হয়।"
5. On the said FIR, the Benapole Port PS Case No. 27 dated 23-5-2022 corresponding to GR No. 201 of 2022 was started against the petitioners under section 19(a) and (f) of the Arms Act, 1878. The Investigating Officer (shortly IO) upon men forwarded the accused-petitioners in the Court of learned Magistrate and sought for their remand; however, that prayer of the Investigation Officer was rejected vide the concern Court's order dated 29-5-2022 (Annexure-B2). The accused-petitioners since then suffering in the custody, though no police report has been submitted, as yet. Thereafter the accused petitioners though submitted application seeking their bail but the same since has been rejected and men being aggrieved they filed Criminal Miscellaneous Case No. 1363 of 2022 before the learned Senior Sessions Judge, Jashore who also rejected their bail prayer vide the judgment and order dated 4-8- 2022. The accused petitioners then against the said bail rejection order moved this Court under section 498 of the Cr.P.C. and obtained the present Rule. However, at the time of the issuance of the Rule no ad-interim order was passed.
6. Mr. Syed Mizanur Rahman who appearing with Mr. Md. Mozammel Haque, teamed Advocate for the accused petitioners', at the very outset, submits that the Border Guard Bangladesh (BGB) has/had no function/authority nor they have any entitlement about to held search and seizure outside the border area as provided under section 103 of the Cr.P.C. However, in the instant case the personnel of the Border Guard Bangladesh (shortly BGB) overwhelmingly do the same showing to have a secret information who had also tortured the petitioners and men implicated them to a case filed under section 19(a)/19(f) of the Anns Act, 1878, whereas in the body of the FIR and seizure-list they claimed to have found 5 (five) pieces of one shooter gun from the house of the petitioners; however, even then no case was lodged under section 19A of the Arms Act, 1878 though they have clearly stated that S (five) one shooter guns have been recovered in the case. The learned Advocate then referring to the Border Guard Act, 2010 as enacted on 20 September, 2010 and submits that though the said statute empowered the BGB to do certain task as provided therein, in respect of same laws as contemplated in its schedule in section 12 of the said Ain 2010 but there has been no mention about to deal with the Arms Act, 1878 and in the said Ain the Arms Act has not been included therein; however, even then in the present case, the BGB, overwhelmingly acted as police personnel, which was not at all their task as provided under the said law. The BGB, a discipline force of Bangladesh who are only entitled to protect the border area as well as other task as provided under sections 12 and 13 of the Border Guard Act, 2010 but nothing else.
7. The learned Advocate then referring to a decision of our apex Court, the case of the State vs. Muhammad Faridul Mollah, reported in VI ADC 807, and submits that their lordships of the apex Court in the said decision upheld the High Court's judgment holding-
"The High Court Division concluded that the seizure-list alleged to have been prepared by the BGB personnel in respect of the seized articles is no seizure- list in the eye of law and accordingly they allowed the appeal."
8. The learned Advocate for the accused petitioners then referring to the law relates and the FIR of the case submits that in the present case, in particular, mere has been so many anomaly of the BGB, a discipline force of Bangladesh which have to be taken your lordships kind consideration. However, since the matter arisen out of Miscellaneous Case seeking bail of the petitioners, the teamed Advocate prays for the bail of the present petitioners about to get opportunity to face the trial and also to place their grievances at the time of the trial.
9. In contrary, in opposing the Rule the learned DAG for the State submits that the BGB, a law enforcing agency, though is entitled to protect the border area but, there has been so many functions as they assigned time to time by the government about to protect the sovereignty as well as to hold discipline in the society, and, as a part of their act the BGB personnels have searched and seized the various arms and ammunitions from the possession of the accused petitioners and then they after recovery of those placed them before the concern Police Station. And thus, there has been no illegality in the procedure as taken by the BGB. However, the learned DAG is unable to show in the BGB Act, 2010 about their dealing with the Arms Act, 1878 which in fact has not been included in section 12 of the said Act, 2010. Whereas, there has been no mention of the Arms Act, 1878, under chapter-4, section 12 of the BGB Ain, 2010. Though so many Ordinance and Act included therein as enacted in Bangladesh but nothing mentioned about the Arms Act, 1878.
10. The learned DAG also could not be placed any decision rebutting the submission as placed by the learned Advocate for the accused petitioners who referred to the apex Court decision as reported in VI ADC 807.
11. However, the learned DAG finally submits that they have got information that by this time, the charge-sheet has prepared curing the anomaly of quoting section 19(a) in the FIR in place of 19A which is awaiting for submission and, as such, since the charge-sheet is prepared in the meantime and to be submitted, hence, the present petitioners in whose present the materials were recovered who are not entitled to get any benefit of bail, at this stage.
12. Heard the learned Advocates for the respective party and we have given our anxious consideration to their submission as they placed and gone through the materials on record. It appears from the FIR that a team of the BGB upon getting an information, searched and seized some arms and ammunitions from that house which was shown as of the house of the petitioners and far away from the border area and both the accused in feet, are the father and son. It also reveals from the FIR itself that the informant party had tortured the accused petitioners while they arrested them from the place of occurrence. Further it reveals therefrom that though there has been a clear assertion in the FIR that as many as 5 (five) Arms were recovered from the place of occurrence; whereas in the FIR and seizure-list without including section 19A of the Arms Act, the case was lodged under sections 19(a)/19(f) which relates to other materials like ammunitions but not for the Arms in question which is thus also raise a question in searching and filing of the FIR itself against the petitioners by the BGB personnel who were not assigned by any Higher authority or by the law to conduct such search and seizure beyond their border area and thus the Court below declined to pass the remand order as sought for against the petitioners. Hence, this Court has to examine those materials as placed before us and has to take into consideration. But since the petitioners, by this time, suffered a period of more than 5 (five) months without trial and having therein no police report, as yet; thus we are inclined to allow the petitioners, who are actually the father and son, to go on bail about to race the trial.
13. Having considered as above and forgoing narratives, we find support in the decision of our apex Court placed which led to find merit in the Rule.
14. In the result, the Rule is made absolute.
15. Let the accused-petitioners (1) Md. Sohel Rana, son of Md. Shahajamal Kalu, and (2) Md. Shahajamal Kalu, son of late Manik Moral be enlarged on bail till conclusion of trial of the above mentioned case, on famishing bail bond subject to the satisfaction of the learned Chief Judicial Magistrate, Jashore.
16. However, the trial Court concerned is at liberty to cancel the bail of the petitioners, if they misuse the privilege of bail, in any manner.
Communicate the judgment and order to the Court concerned, at once.
High Court Division (Special Original Jurisdiction)
Present:
Mr. Justice Md. Khasruzzaman
And
Mr. Justice Md. Iqbal Kabir
Writ Petition No. 14893 of 2019
David Rintu Das and Ors.
------------- Petitioners
VS
Bangladesh and Ors.
------- Respondents
Judgement Date : March 29, 2023
Counsels:
Mr. Bakir Uddin Bhuiyan, Advocate
—For the Petitioners.
Mr. Sazzad Ul Islam, Advocate
—For the Respondents.
Judgment
Md. Khasruzzaman, J:
1. On an application under article 102(1)(2) read with article 44(1) of the Constitution, Rule Nisi under adjudication was issued on 18.12.2019 in the following terms:
"Let a Rule Nisi be issued calling upon the respondents to show cause as to why the Column Nos. 3-5 of Serial No. 4 of Schedule-Ka of the Fisheries Research Institute (Officers and Employees) Service Regulations, 2013 as amended upto 2016 introduced vide S.R.O. No. 141-Ain/2016 published in the Bangladesh Gazette on 26.06.2016 to the detriment of the service rights of the petitioners (Annexure-E) should not be declared to be ultra vires the Constitution and as to why the notice for appointment published in the Daily Samakal on 23.11.2019 by the respondent No. 9 so far as it relates to appointment of Principal Scientific Officer (PSO) having Serial No. 1 (Annexure-G) should not be declared to have been issued without any lawful authority and is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper."
2. Facts necessary for disposal of the Rule Nisi in short are that the petitioner Nos. 1 to 5 joined as Scientific Officer in the Bangladesh Fisheries Research Institute (hereinafter referred to as the BFRI) on different dates i.e. 06.07.1998, 21.01.2001, 21.01.2001, 23.07.2005 and 27.02.2000 respectively as per their respective appointment letters dated 30.06.1998, 06.01.2001, 06.01.2001, 19.07.2005 and 17.02.2000 issued by the authority after being qualified in the competitive examinations and accordingly, they have been serving in their respective post within the satisfaction of the authority; that the respondent No. 6, Director General, Bangladesh Fisheries Research Institute(BFRI) by exercising the power under section 18 of the Bangladesh Fisheries Research Institute Ordinance, 1984 formulated Fisheries Research Institute (Officers and Employees) Service Regulations- 2013 through publication of the same in the Bangladesh Gazette on 27.02.2013. Thereafter, on 24.05.2016 the petitioners were promoted to the post of Senior Scientific Officer (SSO) vide Memo No. 33.04.0000.130.014.09(Part-1)-173 dated 24.05.2016 and accordingly, they joined to their promoted post on the same day and thereafter, the authority issued a letter on 16.06-2016 accepting their joining.
3. It is stated that again in 2016 the respondent No. 6, Director General of Bangladesh Fisheries Research Institute brought some amendments in the said Service Regulations 2013 by introducing new provision to the detriment of the petitioners. In Serial No. 04 of the amended Schedule-Ka, the age limit for the appointment in the post of Principal Scientific Officer by direct recruitment has been shown as up to 40 years changing the age limit of the service Regulations- 2013. In Column No. 4 the method of appointment has been provided to the effect that 80% of the post of Principal Scientific Officer would be filled up by promotion and the remaining 20% would be filled up by direct recruitment by changing the earlier provision relating to method of appointment in the Service Regulations-2013 wherein it was provided that the vacant post of Principal Scientific Officer would be filled up by promotion and in case, the eligible candidate is not found for promotion, then the authority would resort to method of filling up by direct recruitment. In column No. 5 of the amended Schedule- Ka the eligibility criteria which has been fixed therein is detriment to the right and interest of the petitioners.
4. However, after making such amendments in the Service Regulations-2013, respondent No. 9 vide Memo No. 33.04.0000.105.03.006.2019-483 dated 19.11.2019 published notice for appointment in the Daily Samakal on 23.11.2019 regarding some officers and employees in the BFRI including the post of Principal Scientific Officer(PSO) in Serial No. 1 thereof along with some terms and conditions for appointment in the said post of Principal Scientific Officer to be followed to the detriment of the attached service rights and benefits of the petitioners (Annexure-G to the writ petition).
5. Under the circumstances, on 01.12.2019 the petitioners submitted an application to the respondent No. 6 stating the above facts arising out of such amendments in the Service Regulations- 2013 with a prayer to cancel the notice for appointment dated 23.11.2019 and thereby to appoint them in the post of Principal Scientific Officer by promotion which has been received on putting official seal and signature on the same day (Annexure-H to the writ petition) but till date they did not pay any heed to it.
6. Under such circumstances, the petitioners have challenged Column Nos. 3-5 of Serial No. 4 of Schedule-Ka of the Fisheries Research Institute (Officers and Employees) Service Regulations, 2013 as amended upto 2016 introduced vide S.R.O. No. 141- Ain/2016 published in the Bangladesh Gazette on 26.06.2016 (Annexure-E) and also challenged the notice for appointment published in the Daily Samakal on 23.11.2019 by the respondent No. 9 so far as it relates to appointment of Principal Scientific Officer (PSO) having Serial No. 1 (Annexure-G) and obtained Rule Nisi along with order of stay by order dated 18.12.2019.
7. During the pendency of the Rule Nisi and order of stay, the respondent No. 9 issued notice under Memo No. 33.04.0000.015.05.003.20-1667 dated 23.08.2021 asking the aspirants/candidates for submitting their scientist's profile to give promotion to the post of Principal Scientific Officer in the BFRI within 02.09.2021 under the amended Service Regulations which being the subject matter of the Rule Nisi, the petitioners through their learned Advocate sent representation dated 18.12.2019 requesting the authority to comply with the order of stay passed in the writ petition affirmed in C.M.P. No. 1059 of 2019 and thereafter, on 29.08.2021 the petitioners served notice for filing contempt petition but without paying any heed to the same, the respondent issued notice as contained in Memo No. 33.04.0000.015.05.003.20-1667 dated 23.08.2021 asking the aspirants for submitting their scientist's profile for giving promotion to the post of Principal Scientific Officer in the BFRI in violating of the order of stay dated 18.12.2019 passed in the instant writ petition and as such, the petitioners filed an application for issuance of the supplementary Rule Nisi.
8. On the contrary, the respondents have filed an affidavit-in- reply to the application for issuance of supplementary Rule Nisi stating inter-alia that since as per the said memo dated 23.08.2021 the petitioners have already submitted their scientist's profile for consideration of their promotion, they have no right to challenge the same in the present application and as such, they have prayed for rejecting the same.
9. However, upon hearing the parties and on perusal of the application as well as the affidavit-in reply, this Court by order dated 19.09.2021 allowed the application and thereby issued supplementary Rule in the following terms:
"Let a supplementary Rule Nisi be issued calling upon the respondents to show cause as to why order as contained in Memo No. 33.04.0000.105.05.003.20-1667 dated 23.08.2021 (Annexure-O to the application) issued under the signature of the respondent No. 9 giving instruction to the apt aspirants for submitting their scientist's profile for giving promotion to the post of Principal Scientific Officer in Bangladesh Fisheries Research Institute (BFRI) in violating of the order dated 18.12.2019 (Annexure-J) passed by this Court in the instant Writ Petition No. 14893 of 2019 which has been upheld by the Appellate Division by order dated 05.01.2020(Annexure-M) passed in Civil Miscellaneous Petition No. 1095 of 2019 shall not be declared to have been issued without any lawful authority and is of no legal effect and as to why a declaration should not be made that the services of the petitioners and other similar post holders shall not be governed by the previous Fisheries Research Institute (Officers and Employees) Service Regulations-2013 published in the Bangladesh Gazette on 27.02.2013 (Annexure-C) and/or pass such other or further order or orders as to this Court may seem fit and proper."
10. On 25.08.2022 and on 09.11.2022 the learned Advocate for the petitioner Nos. 2, 5 and 1 filed two applications for discharging the Rule Nisi on the ground that they will not proceed with the same. Accordingly, the Rule Nisi was discharged so far it relates to the petitioner Nos. 2, 5 and 1. In such circumstances, the Rule Nisi remains pending so far it relates to the petitioner Nos. 3 and 4 only.
11. Respondent No. 6 filed an affidavit-in-opposition denying all material allegations made in the writ petition stating inter-alia that except petitioner No. 04, none of the petitioners joined in the direct service of the BFRI rather they joined in different projects of BFRI and lastly, the service of petitioner Nos. 1 to 3 was absorbed under the Revenue Set-up on 01.07.2002. It is stated that the original Law of BFRI namely "Fisheries Research Institute Ordinance, 1984 has been repealed by Bangladesh Fisheries Research Act, 2018. However, in pursuance to section 10 of the said Ordinance, 1984 the Board of Governors of BFRI formulated Fisheries Research Institute (Officer and Employees) Service Regulations-1989 which was in force till the Fisheries Research Institute (Officer and Employees) Service Regulations-2013 came into force on 27.02.2013 and lastly the said Service Regulations of 2013 was amended through publication in the Bangladesh Gazette on 26.06.2016 and as such, the amendments are not detriment to the petitioners rather, these are necessary to make the institute more resourceful. It is also stated that BFRI is a scheduled Institute of Bangladesh Agricultural Research Council, (shortly, BARC) and as such, BARC is the mother council of BFRI and the said BARC is regulated by the Bangladesh Agricultural Research Council Act, 2012 and the terms and conditions of the service of BARC is governed by Bangladesh Agricultural Research Council Employees Service Regulations, 2019 (as amended in 2021) wherein 10% of the posts of Principal Scientific Officer is filled up by promotion and the remaining 90% by direct recruitment and the other terms and conditions are similar with the BFRI Service Regulations as amended upto 2016. However it is stated that there are vacancies in 31 out of 38 posts of the Principal Scientific Officer but due to pendency of the instant writ petition, the concerned authority is not able to fill up those vacancies in the said post; and as such the Rule Nisi is liable to be discharged.
12. By filing supplementary affidavit-in-opposition the respondent No. 6 stated that there are 20 Senior Scientific Officers including the petitioners in the service who have fulfilled their preliminary requirement of serving 05(five) years in the feeder post to be promoted in the post of Principal Scientific Officer. But due to pendency of the writ petition the authority has kept the matter of promotion stopped and as such necessary order may be passed.
13. Mr. Mohammad Bakir Uddin Bhuiyan, the learned Advocate appearing on behalf of the petitioner Nos. 3 and 4 submits that there are long lines of the judicial decisions of the Apex Court that new Rules cannot be imposed upon the employees if it is detriment and disadvantage to the employees who were appointed earlier under the previous Rules. He next submits that the impugned provision of the amended Regulations has been made with a view to give special benefits to a particular person or a group of persons who are the most juniors to the petitioners and as such, the same being detriment to the attached rights and benefits of the petitioners is liable to be declared ultra vires the Constitution. He also submits that the provision of the Fisheries Research Institute (Officers and Employees) Service Regulations- 2013 is applicable to the petitioners and therefore, the impugned provision of the Service Regulation is against the fundamental rights of the petitioners as guaranteed under articles 26, 27 and 31 of the Constitution and hence he has prayed for making the Rule Nisi absolute.
14. In support of the submissions, the learned Advocate for the petitioners has relied on the decisions in the case of Giasuddin Bhuiyan (Md) and others Vs. Secretary, Security Services Division, Ministry of Home Affairs, Bangladesh Secretariat, Dhaka and others, 74 DLR(AD)231; Bakrabad Gas System Limited Vs. Al Masud-ar-Noor anc others, 66 DLR(AD) 187; Bangladesh Bank Vs. Sukamal Sinha, 21 BLC(AD)212; anc Paschimanchol Gas Company Limited Vs. Md. Nuruzzaman and others, 24 BLT(AD)171.
15. Mr. Sazzad-ul-Islam, the learned Advocate appearing on behalf of the respondent No. 6 submits that there is no inconsistency in between the earlier Service Regulations and the amended Service Regulations and rather in the impugned Service Regulations, the interests of the departmental candidates have been kept widely other than the direct candidates and as such, the same is not detriment to the rights and interest of the petitioners. He next submits that to fill up the vacancies in 31 posts of the Principal Scientific Officer, the concerned authority published advertisement asking suitable candidates to submit their scientific profile and in pursuance to which the petitioners along with other 15 candidates already submitted their respective scientist's profiles to the respondent No. 6 seeking promotion as per the amended Service Regulations of 2016 and as such, the petitioners have no right to contest the instant Rule Nisi which is liable to be discharged.
16. We have heard the learned Advocates for both the parties, perused the writ petition, all other connected papers annexed thereto, the Service Regulations of 2013 and the amendments made in the Service Regulation in 2016 and the decisions cited above and relied upon by the petitioners.
17. It appears that by the Rule Nisi, the petitioners have asked for declaring the column Nos. 3 to 5 of Serial No. 4 of Schedule-Ka of the Fisheries Research Institute (Officers & Employees) Service Regulations-2013 as amended up to 2016 to be ultra vires the Constitution and thereby also asked for declaring the notices for appointment dated 23.11.2019 and 23.08.2021 so far it relates to the appointment of Principal Scientific Officer to have been issued without any lawful authority and is of no legal effect.
18. Having gone through the records, it appears that the petitioner Nos. 1, 2 and 5 got the Rule Nisi has been discharged for non prosecution and as such, we are concerned with the petitioner Nos. 3 and 4 only. From the writ petition it appears that petitioner Nos.3 and 4 joined as Scientific Officer in the Bangladesh Fisheries Research Institute (BFRI) on 21.01.2001 and 23.07.2005 under the Fisheries Research Institute (Employees) Service Regulations-1999. The said Service Regulations-1999 has been repealed by promulgating Bangladesh Fisheries Research Institute (Officers and Employees) Service Regulations-2013 and thereafter, the petitioner Nos. 3 and 4 were promoted to the post of Senior Scientific Officer on 24.05.2016 under the Service Regulations-2013. It appears that in getting promotion the petitioners had to serve in their initial post for more than 20 years and 16 years respectively. From the supplementary affidavit-in-opposition filed by respondent No. 6, it appears that the petitioners have fulfilled the preliminary requirement of serving 05 (five) years in the Senior Scientific Officer i.e. the feeder post for promotion in the next higher post i.e. Principal Scientific Officer.
19. The petitioners by filing affidavit-in reply has stated that the Board of Governors of Fisheries Research Institute in its 36th meeting held on 13.03.2016 took a decision to condone the required length of service in the feeder post of Principal Officer and accordingly, promoted some officers considering their performance in the service. The Board of Governors also in its 40th meeting held on 18.01.2021 took a decision to condone the required length of service in the feeder post and promoted some Principal Scientific Officer to the post of Chief Scientific Officer. This statement has not been controverted or denied by respondent through filing affidavit in opposition and as such, the same appears to have been admitted by them.
20. So, this being the position of the case, we are of the view that the writ petitioner Nos. 3 and 4 have acquired vested right of getting promotion under the previous Service Regulations of 2013. Right created under the Regulations of 2013 cannot be curtailed or taken away by subsequent amendment of the Service Regulations 2016. It is well settled that any rule made under the proviso to article 133 of the Constitution can be both prospective and retrospective but it cannot be used to take away the vested rights of a person in the service of the Republic or it cannot violate fundamental rights of a person guaranteed in the Constitution. Moreover, as per provision of section 6 of the General Clauses Act, 1897 the vested right acquired by the writ petitioners under the previous Service Regulations of 1983 is not affected on the ground of repeal of the same by the subsequent promulgation of Service Regulations of 2008.
21. In this juncture reliance may be made in the case of Government of Bangladesh and another Vs. Md. Ruhul Amin Munshi and another, 21 BLC (AD) 85 wherein it has been held in paragraph No. 19 as under:
11 there is no power to make a rule under the proviso to Article 133 of the Constitution which affects the vested rights of a person or contravenes independent constitutional provisions or violates fundamental rights as enshrined in Articles 26, 27 and 29 of the Constitution. Moreover, retrospectivity will be arbitrary and unconstitutional if the date from which retrospective effect is given has no reasonable nexus with the provisions contained in the amending rules. In other words, rights or benefits (e.g. as to pay, seniority or right to be considered for promotion) which have been already accrued or earned under the existing Rules cannot be taken away by changing the Rules with retrospective effect or by making new Rules with retrospective effect."
22. In the case of Giasuddin Bhuiyan (Md) and others Vs. Secretary, Security Services Division, Ministry of Home Affairs, Bangladesh Secretariat, Dhaka and others, 74 DLR(AD)231, it has been held as under:
"It is settled that though the appointing authority has right to amend/alter the Service Rules to suit the need of time but not to the detriment to the rights or privileges that existed at the relevant time when an employee of such appointing authority entered into it's service."
23. In the case of Bakrabad Gas System Limited Vs. Al Masud ar-Noor and others, 66 DLR(AD)187, it has been held as under:
"The appointing authority enjoys the power and the authority to frame new rules to regulate the service of its employees, but in no way, can take away the accrued/vested rights of its employees."
24. In the case of Bangladesh Bank Vs. Sukamal Sinha, 21 BLC(AD)212 it has been held as under:
"The authority has every right to amend/alter the service Rules to suit the need of the time and, as such, there is no illegality in preparing the circular with new terms and conditions but such new terms and conditions prepared by the authority shall not be applicable to the detriment or disadvantage to the privilege that existed at the relevant time when an employee of such appointing authority entered into its service."
25. In the case of Paschimanchol Gas Company Limited Vs. Md. Nuruzzaman and others, 24 BLT(AD)171 it has been held as under:
"There is no dispute that the petitioner got appointment in 1997, that is, long before the promulgation of the Service Rules of 2005. So he is entitled to get benefit of the Service Rules under which he got his appointment, that is, he is entitled to get the benefits as provided in Service Rules of 1988 and his service would be regulated under the said provision of law. The High Court Division rightly held that the provisions of Service Rules of 2005 are to be effective in respect of the appointment of the employees who have been appointed on 21.01.2005 or onward."
26. In view of the aforesaid decisions, it is clear that the writ petitioner Nos. 3 and 4 are entitled to get benefits of the promotion to the next higher posts as claimed under the previous Service Regulations of 2013, even after the subsequent amendments in the Service Regulations.
27. Further there is long lines of the decision of our apex Court that without declaring the aforesaid provision of the law to be ultra vires the Constitution, this Court has power to give the substantive relief as prayed for, the Appellate Division in the case of Dr. Nurul Islam Vs. Bangladesh, 33 DLR (AD) 201 has held that where the substantive relief claimed in the writ petition can be granted without striking down any legal provision, that course is to be followed. In the said case, the then Hon'ble Chief Justice Mr. Justice Kemaluddin Hossain observed as follows:
"I like to adhere to the well established self-set rule which says, the Court will not declare a law unconstitutional, if the case in which the question is raised can be properly disposed of in some other way."
28. So, it is clear that the Court has ample power to give the substantive relief as claimed in the writ petition without striking down the legal provision challenged in the writ petition to be ultra vires the Constitution.
29. As we have already found that there are vacancies in as many as 31 posts of the Principal Scientific Officer and to fill up such vacancies, the authority published advertisement asking the suitable candidates to submit their scientists' profiles and since the petitioners have submitted their profiles, the authority is directed to consider the matter of promotion of the petitioners and all eligible candidates to the post of Principal Scientific Officer under the previous Service Regulations-2013 (amended 2016).
30. In view of the discussions made hereinabove and the decisions as referred to above, the Rule Nisi is liable to be disposed of.
31. With the aforesaid observations and directions, the Rule Nisi issued in the instant writ petition is disposed of. The ad-interim order of stay granted at the time of issuance of the Rule and subsequent order of status quo is hereby recalled and vacated.
32. Communicate the order
Md. Iqbal Kabir, J: I agree.
High Court Division
(Writ Jurisdiction)
Present:
Mr. Justice Md. Mozibur Rahman Miah
And
Mr. Justice Md. Kamrul Hossain Mollah
Writ Petition No. 8746 of 2020
Ashfaque Ahmed Chowdhury (Md.)
Petitioner
VS
Government of Bangladesh and Ors.
Respondents
Judgement Date : September 09, 2021
Counsels:
Mr. Muhammad Abdul Halim Kafi, Advocate—For the Petitioner.
Mr. Sheikh Mosfeq Kabir, Advocate—For the Respondents.
Judgment
Md. Mozibur Rahman Miah, J.
1. On an application under Article 102 of the Constitution of the People's Republic of Bangladesh, this Rule Nisi was issued calling upon the respondents to show cause as to why the Memo No. 46.00.9100.017.27.003.16-1240 dated 16-11-2020 issued under the signature of the respondent No. 2 temporarily suspending the petitioner from the post of Chairman of No. 2 Golapganj Union Parishad under Golapganj Upazilla, District-Sylhet under section 34(1) of the Local Government (Union Parishad) Ain, 2009 (Annexure-'B' to the writ petition) should not be declared to have been issued without lawful authority and is of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper.
2. At the time of issuance of the rule, this court also directed the respondent No. 2 to maintain status quo in giving operation to the impugned Memo (Annexure-'B' to the writ petition) for a period of 3(three) months. Record shows that, no further extension was taken of that order of status quo.
3. The precise facts so have been figured in the instant writ petition are: The present petitioner contested the election as a Chairman of Golapganj Union Parishad under Upazilla-Golapganj, District-Sylhet and he has been declared winner in the said election and to that respect, a gazette notification was published on 18-5-2016 and since then, he has been running the said post of Chairman of the union parishad. On 16-11-2020, the petitioner came to know from a website of the Ministry of Local Government, Rural Development and Co-operatives that, respondent No. 2 issued a Memo bearing No. 46.00.9100.017.27.003.16-1240 dated 16-11-2020 purportedly suspending the petitioner from the post of Chairman on the charges of pendency of two different criminal cases quoting the provision of section 34(1) of Local Government (Union Parishad) Ain, 2009. It is at that stage, the petitioner came before this court challenging the order of suspension and obtained the instant rule and order of status quo. By filing an application for issuance of a supplementary rule, it has also been brought to the notice of this court that, on 22-11-2020 that is, three date before issuance of the rule, the charge of the Chairmanship has been handed over to a panel chairman No. 1 and in view of the said development, the petitioner filed application for issuing supplementary rule which we ordered to keep on record for consideration at the time of disposal of the rule.
4. Mr. Muhammad Abdul Halim Kafi, the learned counsel appearing for the petitioner upon taking us to the writ petition and all the documents annexed therein as well as the application for issuing supplementary rule at the very outset contends that, there has been no provision in law that the person against whom a criminal case has started will not be entitled to perform the function of Chairman of a Union as per the provision of section 34(1) of the Local Government (Union Parisahd) Ain, 2009 and therefore, the impugned order of suspension is totally mala fide and the petitioner has become politically victimized by that suspension order which cannot be sustained in law.
5. The learned counsel next contends that, the criminal case which has been mentioned in the suspension order has not been filed in connection with the affairs of union parishad so mere pendency of criminal cases cannot be any excuse of depriving the petitioner from running the position of Chairman of the union parishad which is illegal and cannot be sustained.
6. The learned counsel goes on to submit that, impugned order of suspension has been issued in violation of the principal nature of justice as no show cause notice has been served before issuing the impugned suspension order affording the petitioner to explain his position.
7. The learned counsel next contends that, the impugned order of suspension is violative to the provision of Articles 27 and 31 of the Constitution of the People's Republic of Bangladesh and that of established principal of law which says, a person will be considered to be innocent until and unless, he is found guilty by a competent court of law.
8. It has lastly been contended by the learned counsel that, the respondent did not form "any objective opinion" for the purpose of taking decision in suspending the petitioner and therefore, the respondents have exercised their power arbitrarily and with a mala fide intention and hence, the rule is liable to be made absolute.
9. However, to buttress such submission, the learned counsel has placed his reliance in a slew of decisions reported in 46 DLR (AD) 163; 69 DLR (AD) 366; 70 DLR 252 and an unreported decision passed on 14-3-2021 in Writ Petition No. 8215 of 2020. With the submissions and relying on those decisions, the learned counsel finally prays for making the rule absolute.
10. In contrast, Mr. Sheikh Mosfeq Kabir, the learned counsel appearing for respondent No. 1 by filing an affidavit-in-opposition contends that, impugned order has preferably been passed which calls for no interference.
11. We have considered the submission so placed by the learned counsel for the petitioner and that of respondent No. 1 and perused the writ petition and the annexure appended therewith and also gone through the provision so laid down in section 34(1) of the Local Government (Union Parishad) Ain, 2009. We have also taken note of the decisions cited by the learned counsel for the petitioner in that aspect as well. At the very outset, we peruse the impugned order of suspension which has been annexed as Annexure-'B' to the writ petition. On careful examination of the order of suspension, we find that, while suspending the petitioner from the post of Chairman, the respondents based on two criminal cases where charge-sheet was submitted and accepted by court concerned and on that sole ground the petitioner was suspended from the post of Chairman. From the wording of section 34(1) of the Ain, 2009, we find if charge-sheet is submitted and it is accepted by the court concerned against any Chairman or Member in that event, he or she will be suspended.
12. Now question may crop up, whether on the sole reasons of submitting and accepting any charge-sheet, a public representative who is elected from the vote of public of his/her locality is liable to be ceased his/her position of a Chairman/Member of a union parishad. In that aspect, we find a decision on similar point held by the Hon'ble Appellate Division reported in 46 DLR (AD) 163. Basing on that decision, another judgment was passed by this division reported in 70 DLR 252 in where one of us is a party to it. Moreover, the said decision reported in 70 DLR was upheld by the Hon'ble Appellate Division reported in 69 DLR (AD) 336. In all those decisions, it has consistently been found that, while suspending any public representative be it a Mayor or a Chairman of a Municipality, City Corporation or a Union Parishad an objective opinion should be formed before passing the order of suspension and if it is not obeyed in that case, consequence will follow, the exercise of such authority by the executive be treated as arbitrary and mala fide exercise of law.
13. The case in hand, the said legal proposition is totally applicable having no difference from that of the decision cited by the learned counsel for the petitioner. More so, in the decision reported in 46 DLR (AD) 163, the same point had been agitated and the High Court Division as well as the Appellate Division came to a conclusion that, mere accepting a charge-sheet will not ipso facto justify the order of suspension made by an executing authority until and unless an objective opinion is formed by the authority concerned about the cause of such suspension and eventually, it has been held the suspension of union parishad is illegal. Since similar point has been raised in the instant writ petition so certainly this court under no circumstance can deviate from the decision set at resit by the Hon'ble Appellate Division in the decision reported in 46 DLR (AD) 163 and subsequent decision reported in 69 DLR (AD) as well as 70 DLR 252.
14. In view of the said settled proposition of law, we don't find any iota of substance in the impugned order of suspension which is liable to be set-aside.
15. In the result, the Rule is made absolute however without any order as to cost
16. The Memo No. 46.00.9100.017.27.003. 16-1240 dated 16-11-2020 issued under the signature of the respondent No. 2 temporarily suspending the petitioner from the post of Chairman of No. 2 Golapganj Union Parishad under Golapganj Upazilla, District-Sylhet is thus declared to have been passed without lawful authority and is of no legal effect and the same is struck down. The respondents are hereby directed to allow the petitioner to run the position of a Chairman of No. 2 Golapganj Union Parishad under Golapganj Upazilla, District-Sylhet within a period of 15 (fifteen) days from the date of receipt of the copy of this order.
17. In any case, the order of status quo granted at the time of issuance of the rule stands recalled and vacated. Communicate a copy of this judgment to the respondents at once.
--- Journal: DLR Volume: 75 Division: HCD Page: 504High Court Division
(Writ Jurisdiction)
Present:
Mr. Justice Zubayer Rahman Chowdhury
And
Mr. Justice Md. Iqbal Kabir
Writ Petition No. 6212 of 2014
Bahauddin Ahmed (Md.)
Petitioner
VS
Government of Bangladesh and Ors.
Respondents
Judgement Date : February 08, 2018
Counsels:
Md. Asadullah and Md. Bodiuzzaman Tapadar, Advocates—For the Petitioner.
M.A. Kalam Khan, AAG—For the Respondents.
Judgment
Md. Iqbal Kabir, J.
1. At the instance of the petitioner, this Rule Nisi was issued in the following terms: "Let a Rule Nisi be issued calling upon the respondents to show cause as to why the impugned actions of the respondent No. 5 vide Memo No. 112 dated 11-6-2014 and Resolution No. 2 dated 11-6-2014 under Memo No. 111 dated 11-6-2014 (Annexures-C and C-1 respectively) as to the final panel for appointment of the Nikah and Talak Registrar in the vacant post of No. 9 Noapara Union Madhabpur Hobiganj shall not be declared to have been made without lawful authority and of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper."
2. At the time of issuance of the Rule, this Court restrained the respondents from appointing the Nikah and Talak Registrar in the vacant post of No. 9 Noapara Union, Madhabpur, Hobiganj.
3. The facts stated in the application, in brief, are that petitioner is the son of a retired Nikah Registrar, who had been performing his duties as a Nikah Registrar in No. 9 Nowapara Union. After his retirement, the District Registrar issued a Circular to appoint a Nikah Registrar. The petitioner filed an application stating all his requisite qualification. He appeared before the Advisory Committee constituted with respondent Nos. 2-6. After viva-voce test, the Committee selected the candidates and prepared a panel and it was forwarded to the respondent No. 7, for issuance of necessary license. However, the petitioner came to know that final panel was prepared comprising of three successful candidates without including his name in the panel.
4. Being aggrieved, the petitioner moved this Court and obtained the instant Rule.
5. Mr. Md. Asadullah with Md. Bodi-uz-zaman Tapadar, learned Advocates appear for the petitioner. Mr. Abdul Kalam Khan, learned AAG appears for the respondent No. 1 and Ms. Syeda Nasrin with Ms. Tasmina Zaman, learned Advocates appear for the respondent No. 8.
6. Mr. Md. Asadullah, learned Advocate has place the writ petition and relevant documents annexed thereto. He submits that petitioner, being the son of a retired Nikah Registrar, is entitled to get the license and Advisory Committee is legally bound to follow the provision, laid down in the Rules. But in violation of the Rules 6(Ka), read with Rule 8 of the Muslim Marriages and Divorces (Registration) Rules 2009, the respondents prepared a Panel excluding the petitioner's name.
7. He submits that as the son of a Nikah Registrar, petitioner is entitled to get license. In reference to the application dated 27-8-2017, he submits that earlier he had applied and the Authority appointed him as Nikah Registrar considering the provision of law/though the said order was not communicated with him in time.
8. Ms. Sayeda Nasrin, learned Advocate appearing on behalf of the respondent No. 8 submits that eight candidates were appeared in viva voce examination and petitioner was one of them. He secured 4th position out of those eight candidates. In such a situation, there was no scope to include him in the final panel prepared by the Advisory Committee.
9. Ms. Nasrin submits that rules have given emphasis to "প্রার্থী বাছাই" (select candidate) for the purpose of issuing license. The Advisory Committee is responsible to select three eligible candidates who are the best amongst other candidates who appeared before Advisory Committee. In that process, there is no scope to give any priority and select someone who is not qualified, though he may be the son of a retired Nikah Registrar.
10. She next submits that provision of sub-rule 6(Ka) of the Muslim Marriages and Divorces (Registration) Rules-2009 is optional and the Authority has no legal obligation to act upon it She submits that petitioner showing Annexure G dated 19-11-2013, claimed that earlier he was appointed as a Nikah Registrar. According to Mrs. Nasrin it has no effect, since that was issued only on temporary basis, but it was never acted upon.
11. Mr. Md. Abul Kalam Khan, the learned AAG appearing on behalf of the respondent No. 1 adopted the submission made by the learned Advocate for respondent No. 8.
12. We have heard the submissions, perused the application, affidavit-in-opposition and relevant documents annexed thereto.
13. It is to be noted that the Authority published an advertisement for appointment of a Nikah Registrar. The petitioner applied and he appeared before the Advisory Committee. After scrutiny the Advisory Committee prepared a Panel and sent it to the concerned Authority. Section 4 of Muslim Marriages and Divorces Registration Act, 1974 empowered the Authority to grant license in favour of a person who is eligible and fit for the said license. Rules-2009 was made there under, Rule 6 of Rule-2009 described the procedure of issuance of Nikah Registrar License.
14. From a plain reading or the aforesaid Rules, it appears that all the applications have to be placed before the Advisory Committee and they are responsible to select the candidates. In the instant case, the Advisory Committee selected the first three candidates according to their merit and prepared a panel and sent it to the Authority. It also appears that sub Rule (6ka) of Rule 6 of Muslim Marriages and Divorces (Registration) Rules-2009 laid emphasis, on "প্রার্থী বাছাই" (select candidate) for the purpose of issuing license, thus "প্রার্থী বাছাই" (select candidate) means to select the best and most suitable candidate. The Advisory Committee is responsible to pick up the qualified people who is the best amongst other candidates.
15. It is to be noted that the Advisory Committee selected the first three candidates on the basis of their merit and qualification for enlisting them in the panel. Since, the petitioner, being the son of a Nikah Register, failed to qualify amongst others and secured 4th position viva voce test, there was no scope to give priority to select and enlist his name in the panel as a successful candidate.
16. With regard to the legal implication of sub rule (6Ka) of Rule 6 of the aforesaid Rules-2009, on a plain reading of the aforesaid provisions, we do not find any default clause in the aforesaid Rules. Since there is no default clause in the above Rules, the same should be read as directory, and not mandatory. Therefore, no wrong was committed by the Advisory Committee.
17. Regard being heard to the above noted facts, we find substance in the submissions made by the responds. We also find no wrong in preparing and sending the panel made by the Advisory Committee.
18. Thus, we are of the view that the Rule shall be discharged
19. Accordingly, the Rule is discharged.
20. The order of stay, granted at the time of issuance of the Rule, is hereby recalled and vacated. No order as to costs
Communicate the order.
--- Journal: DLR Volume: 75 Division: HCD Page: 506High Court Division
(Criminal Revisional Jurisdiction)
Present:
Mr. Justice Md. Rezaul Haque
And
Mr. Justice K.M. Emrul Kayesh
Criminal Revision Case No. 1314 of 2020
Sajjad Hossain Milki
Petitioner
VS
State and Ors.
Respondents
Judgement Date : January 12, 2023
Counsels:
Md. Rois Uddin, Advocate—For the Petitioner.
Sikder Mahmudur Razi, Advocate—For the Respondents.
Judgment
Md. Rezaul Haque, J.
1. The Rule in the instant criminal revision was issued calling upon the opposite parties to show cause as to why the order dated 5-1-2020 passed by the learned Additional Metropolitan Sessions judge, 1st Court, Dhaka in Metro Sessions Case No. 20260 of 2019 arising, out of CR Case No. 1548 of 2019 under section 138 of the Negotiable Instruments Act allowing the application by the power of attorney holder to change the complainant now pending in the court of learned Additional Metropolitan Sessions judge, 1st court, Dhaka should not be quashed and/or pass such other or further order or orders as to this court may seem fit and proper.
2. The relevant facts for disposal of this revision are that the opposite party No. 2 Hossain Ahmed Bhuiyan as complainant filed a petition of complaint before the learned Chief Metropolitan Magistrate, Dhaka, bringing allegation against the accused-petitioner under section 138 of the Negotiable Instrument Act, 1881 alleging, inter alia, that the accused petitioner took loan for business purpose from the complainant amounting to Taka 90,00,000 (Ninety Lacs) only. Thereafter to repay the said amount the accused petitioner issued a cheque on 27-3-2019 in favour of the complainant. The complainant presented the said cheque lastly on 1-4-2019 to his bank for encashment but the said cheque was returned unpaid mentioning the reasons as insufficient fund. Thereafter, the complainant through his advocate served legal notice on 25-4-2019 to the accused petitioner and the said notice was received by the accused on 28-4-2019 but as he did not repay the cheque amount within the stipulated period, the complainant filed the petition of complainant being No. CR Case No. 1548 of 2019 before the learned Chief Metropolitan Magistrate, Dhaka on 29-5-2019.
3. The learned magistrate recorded the statement of the complainant under section 200 of the Code of the Criminal Procedure, 1898 and took cognizance of the offence on the same date and issued summons to the accused petitioner. Subsequently, the accused petitioner surrendered before the learned magistrate on 24-9-2019 and obtained bail. Subsequently, the said CR case 1548 of 2019 was transferred to the learned Metropolitan Sessions Judge, Dhaka for holding trial. On transfer, the said case was transferred again to the court of learned Additional Metropolitan Sessions judge, 1st Court, Dhaka for holding trial and registered as Metro Sessions Case No. 20260 of 2019.
4. On 24-9-2019 the complainant Hossain Ahmed Bhuiyan by executing a duly notarized Power of Attorney deed appointed his brother-in-law Mohammad Axshadur Rahman as his attorney to conduct and carry out the said case on his behalf. On 5-1-2020 the said attorney filed an application before the learned Additional Metropolitan Sessions judge, 1st Court, Dhaka to conduct the case on behalf of the complainant and the said application was allowed by the learned judge of the court below. The said order of the learned court has been challenged in the instant criminal revision.
5. Mr. Mohammad Fokhrul Islam with Mohammad Rais Uddin the learned advocates appearing on behalf of the accused-petitioner submits that there is no provision in the Code of Criminal Procedure or in the Negotiable Instruments Act by which holder in due course could be changed by an application in the middle of the proceedings. He further submits that the Power of Attorney so executed by the complainant is only a notarized deed, not a registered instrument. He next submits that changing the holder in due course to conduct the case is not permitted by law. In support of his submissions, the learned advocate relied on the judgment reported in 2017 BLD (AD) 202.
6. Per contra, Mr. Sikder Mahmudur Razi with Mr. Md. Zahirul Islam the learned advocates appearing for the complainant opposite party No. 2 by taking us through the petition of the complainant, the cognizance taking order, the Power of Attorney deed as well as the application dated 5-1-2020 submits that the case was filed by the payee of the cheque Mr. Hossain Ahmed Bhuiyan himself and he was examined by the learned Magistrate under section 200 of the Code of Criminal Procedure while taking cognizance of the offence. Subsequently, he appointed his brother-in-law Mohammad Arshadur Rahman as his attorney to conduct and carry out the subsequent steps of the proceeding including giving depositions on his behalf as the complainant Hossain Ahmed Bhuiyan has to stay abroad most of the time for his business purpose. The said Power of Attorney was duly notarized which has got presumptive value under section 85 of the Evidence Act. The learned advocate submits that on the basis of the said Power of Attorney deed, the Attorney Mohammad Arshadur Rahman filed an application to conduct the case on behalf of the complainant The attorney neither did file any application for changing the name of complainant nor for substituting him as complainant. Therefore, the learned advocate submit that by allowing the said application the learned Additional Metropolitan Sessions judge, 1st Court, Dhaka did not commit any illegality. The learned advocate by referring the judgment of Criminal Miscellaneous Case No. 23406 of 2017 (Md. Kabir Sikder vs. The State) passed by the Division Bench of the Hon'ble High Court Division reported in LEX/BDHC/0323/2018 submits that a criminal case which required to be filed only by the aggrieved person can be filed by empowering a third person through executing a deed of power of attorney stating in clear terms the reasons for not filing the case by the aggrieved. By referring a judgment of the Supreme Court of India reported in MANU/SC/0934/2013: AIR 2014 SC 630, learned Advocate submits that filing of complaint under section 138 of the Negotiable Instruments Act through power of attorney is perfectly legal and competent By referring the said two judgments, the learned advocate of the opposite party No. 2 further submits that the present case was filed by the payee of the cheque as complainant and he was examined under section 200 of the Code of Criminal Procedure by the learned magistrate. Subsequently, he appointed his brother-in-law as his attorney to conduct the subsequent steps of the case which is quasi civil in nature and therefore, having done so, he committed no illegality. Moreover, in the said power of attorney deed he has stated the reasons for appointing an attorney in the first place. The learned advocate further submits that, although the said attorney sought permission of the learned court to conduct the case on behalf of the complainant by his application dated 5-1-2020 and the subject of the application was "আম-মোক্তার বলে বাদীপক্ষে মামলা পরিচালনার আবেদন"; however, while allowing the said application the learned Additional Metropolitan Sessions Judge, 1st Court, Dhaka perhaps was not careful enough in using of the words which may rise confusion as the teamed, court used the words and phrase as "বাদীপক্ষে এক দরখাস্ত দিয়া আম-মোক্তার নামা মূলে বাদী পরিবর্তনের আবেদন করেন। শুনিলাম। আবেদন মঞ্জুর" in his order dated 5-1-2020.
7. With these submissions, the learned advocate has prayed for discharging the rule.
8. Heard the learned advocates of both the parties and perused the revisional application and the relevant documents annexed therewith. It appears to us that admittedly the case was filed by the payee of the cheque himself and at the time of taking cognizance of the complaint, the payee was examined under section 200 Code of Criminal Procedure by the learned Magistrate. Subsequently, he appointed his brother-in-law as his attorney to conduct and carry out the subsequent steps of the proceeding and to represent him as he has to stay abroad for his business pursuit Based on that power of attorney deed, the attorney filed an application before the learned Additional Metropolitan Sessions Judge, 1st Court, Dhaka to conduct the case on behalf of the complainant on the basis of the power of attorney deed. In the four corners of the said application, we do not find anything to the effect that the attorney by the said application made any prayer to change the name of the complainant by substituting his name. Therefore, the submissions of the learned advocate for the accused-petitioner has no leg to stand. Moreover, by the said power of attorney deed, no power in respect of any immovable property was given, and therefore the said Power of Attorney deed is not required to be registered and therefore a duly notarized, power of attorney is sufficient enough and perfectly legal. We have also gone through the judgment referred by the learned advocate for the accused-petitioner as reported in 2017 BLD (AD) 202. In the said judgment, the cheque was issued in the name of one Abu Khair Md. Sakhawatullah, a director of the Jamuna Bank, but the petition of complaint was filed by one Md. Alamgir Alam, an administrative officer of Robin Tex Bangladesh Ltd. which was a violation of section 141(a) of the Negotiable Instrument Act. The fact of the said case is completely different with the case in hand. In such view of the matter, we find no substance in the submissions made by the learned advocates for the accused, petitioner as well as we do not find any harm suffered by the accused petitioner if the case is conducted by the attorney on behalf the complainant Moreover, in our opinion, the Court below should have been more careful in quoting the subject-matter or content of an application as well as in choosing the words and phrase while passing an order and dealing with such kind of applications since by the application dated 5-1-2020 said attorney sought permission of the learned court to conduct the case on behalf of the complainant and he did not seek for changing or substituting the complainant; a mere misquoting of words and phrases do not warrant any interference by this Court Accordingly, the Rule is discharged and the order of stay granted at the time of issuance of the Rule is hereby recalled and vacated.
High Court Division(Writ Jurisdiction)
Present:
Mr. Justice Zafar Ahmed
And
Mr. Justice Md. Bashir Ullah
Writ Petition No. 5243 of 2022
Md. Ishteaq Aziz Khan
Petitioner
VS
President, Bangladesh Medical and Dental Council and Ors.
Respondents
Judgement Date : June 15, 2023
Counsels:
Sikder Mahmudur Razi, Advocate—For the Petitioner.
Judgment
Zafar Ahmed, J.
1. In the instant writ petition, the petitioner challenged the Memo No. বিএমএন্ডডিসি/২-এফ-২০২১/১৯০৭ dated 6-2-2022 (Annexure-I) issued under the signature of the respondent No. 2 disregarding the decision of the Appellate Authority as contained in Memo No. 59.00.0000.141.45.001.21.700 dated 11-11-2021 (Annexure-H) issued under the signature of respondent No. 4 directing the respondent Nos. 1 and 2 to recognize the petitioner's degree of Master of Science in Diabetes obtained from Queen Margaret University, Edinburgh, UK as an academic degree of Master of Science. The petitioner further prayed for a direction upon the respondent Nos. 1 and 2 to recognize the degree in question as per decision contained in Memo dated 11-11-2021 (Annexure-H).
2. This Court, on 25-4-2022, issued a Rule Nisi.
3. The respondent No. 2 Registrar, Bangladesh Medical and Dental Council (in short, the 'BMDC') contested the Rule by filing an affidavit-in-opposition.
4. The relevant facts are that the petitioner obtained Bachelor of Medicine and Surgery degree from Sher-E-Bangla Medical College Barishal under the University of Dhaka in 1998. Thereafter, he was registered as medical practitioner with the BMDC on 15-11-1999. Since then he has been practising as a registered medical practitioner. He left for the United Kingdom (UK) to pursue higher studies. He was awarded the Degree of Master of Science (MSc) in Diabetes from Queen Margaret University, Edinburgh. UK on 10-11-2010. After returning to Bangladesh, he resumed his medical practice. He applied to the BMDC under section 13 of the Bangladesh Medical and Dental Council, Act, 2010 (in short, the 'BMDC Act, 2010') for recognition and determination of equivalence of his UK MSc Degree. In response to the said application, the BMDC invited him for attending an interview which he attended on 11-7-2012. Eventually, after a long delay, the BMDC, vide Memo dated 6-1-2016 recognized the degree in question equivalent to 6(six) months 'Training in Endocrine, diabetes and metabolic disorders'.
5. Challenging the decision of the BMDC, the petitioner filed an appeal under section 16 of the BMDC Act, 2010 before the respondent No. 3 Secretary, Medical Education and Family Welfare Division, Ministry of Health and Family Welfare on 17-1-2021.
6. Section 16(1) requires that the appeal has to be filed within 30 working days from the date of knowledge of the decision of the BMDC. The respondent No. 3 informed the petitioner, vide Memo dated 27-6-2021 that the appeal was time barred, but he was at liberty to re-appeal subject to proof that the appeal is filed within 30 working days from the date of receipt of the decision in question. The petitioner filed fresh appeal on 1-9-2021 stating that he had received the impugned decision through registered post on 6-1-2021. In support of the statement, the petitioner submitted the postal receipt (Annexure-E3 and E4).
7. The appeal of the petitioner was admitted for hearing. Thereafter, the 5-member appellate committee gave its decision in favour of the petitioner. Be it mentioned that the 5-member committee constituted under section 16(2) included two specialist medical practitioners as per requirement of the law. In this case, the 5-member committee was consisted of Director General, Department of Health Education, Heads of the department of Endocrine and Metabolic Disorders of the BSMMU, Dhaka and Dhaka Medical College respectively, representative of Centre For Medical Education (CME) and Deputy Director (Medical Education) of Department of Health Education.
8. The respondent No. 3, vide Memo dated 11-11-2021 (Annexure-G) directed the BMDC to recognize the petitioner's MSc degree as an academic degree. However, the BMDC refused to comply with the decision of the appellate authority and informed the petitioner, vide Memo dated 6-2-2022 (Annexure-I) that its earlier decision would remain effective. Thereafter, the petitioner sent a notice demanding justice to the respondents. Having received no reply, the petitioner filed the instant writ petition and obtained the Rule.
9. The case of the contesting respondent BMDC is that prior to 9-8-2018, MSc degree obtained from a UK University by a medical practitioner in Bangladesh was recognized by the BMDC (Part-B of 3rd Schedule of the BMDC Act, 2010). However, the Schedule of the BMDC Act was amended on 9-8-2018. The amended Part-B of 3rd Schedule does not recognise MSc degree obtained from a UK University as an academic degree as obtained by the petitioner.
10. The further case of the BMDC is that the appeal of the petitioner was time barred under section 16(2) of the BMDC Act and, as such, a decision arising out of the time-barred appeal is not tenable in law and therefore, the BMDC is not legally bound to implement the said decision.
11. The further case of the BMDC is that it was not given any opportunity to participate in the appeal hearing by giving any notice and thus, the BMDC was deprived of putting forward its case which violates the principle of natural justice.
12. The Legislative and Parliamentary Affairs Division, Ministry of Law, Justice and Parliamentary Affairs published authorized translation of the বাংলাদেশ মেডিকেল ও ডেন্টাল কাউন্সিল আইন, ২০১০ under the caption 'Bangladesh Medical and Dental Council Act, 2010'. In the following discussions, the authorised English translation of the BMDC Act is followed.
13. Section 13 of the BMDC Act provides provisions for recognition of post graduate degree or diploma on medical qualifications. Section 13 runs as follows: "13. (1) Where any person, holding a post graduation degree or diploma on medical qualifications granted by a medical institution within or outside Bangladesh, intends to use such degree in Bangladesh, it must be recognized by the Council under this Act. (2) If the name of the medical institution granting post graduation degree or diploma on medical qualifications situated within or outside Bangladesh is not included in Part "A" or Part "B" respectively of the Third Schedule, such institution or, as the case may be, the person holding such degree shall have to apply to the Council for recognition of such qualifications under this Act. (3) On receiving an application under sub-section (2), if the Council thinks fit in the light of standard and policy prescribed in this behalf, it shall, for giving recognition to the said medical qualifications of the applicant or, as the case may be, of the medical institution, by amending Part, "A" or, as the case may be, Part "B" of the Third Schedule, include the name of the said institution with the said qualifications in the relevant part of the said Schedule." (emphasis given)
14. Council means 'Bangladesh Medical and Dental Council [section 2(2)].
15. Part B of 3rd Schedule of the BMDC Act contains lists of recognized medical qualifications of post graduate degree or diploma granted by medical institutions outside Bangladesh. MSc degree awarded by the Universities, Royal Colleges and Institutions of the UK was included in the list. Subsequently, vide amendment to the schedule, which was published in the Gazette on 9-8-2018, MSc degree obtained from the UK University is no longer recognized by the BMDC. The amendment was not given any retrospective effect
16. The petitioner was awarded MSc degree by the Queen Margret University, Edinburgh, UK on 10-11-2010 (Annexure-B). The BMDC Act, 2010 came into force on 20-12-2010 and thereby the Medical and Dental Council Act, 1980 was repealed. Under the repealed Act, MSc degree awarded by the Universities, Royal Colleges and Institutions of the UK was recognized.
17. A careful reading of section 13 read with 3rd Schedule which starts with the sentence "Recognized medical qualifications granted by medical institutions within or outside Bangladesh" denotes that if the degree in question is listed in the schedule, there is no requirement in law that the holder of the degree has to apply to the BMDC for recognition of the same. The degree listed in the schedule in itself is recognized by operation of law.
18. It appears that the petitioner applied to the BMDC for recognition of the MSc degree out of ignorance of law or as a matter of practice. The BMDC ought to have informed him that he was not required to make the application under section 13(2) for recognition as the same was already recognized under both the repealed Act, 1980 and the Act, 2010. Nevertheless, it recognized the degree equivalent to 6 months training in the specified area which it was not authorised by law to do.
19. The petitioner was compelled to file the statutory appeal under section 16 of the BMDC Act Section 16 is reproduced below: "16. (1) Where any application for recognition of medical qualifications or dental qualifications submitted under sections 12, 13, 14 or 15 is refused, the Council shall, in the prescribed manner, immediately inform the institution or the person making the application of such refusal, and the aggrieved intuition or person may, within 30 (thirty) working days from the date of knowing such decision, prefer an appeal against the Council to the Government (2) Where an aggrieved institution or person prefers an appeal under sub-section (1), the Government may, subject to necessary enquiry by a committee consisting of not more than 5(five) members including at least 2 (two) specialist medical practitioners to consider the reasons for refusal of such application, direct the Council to refuse or to grant recognition to the said medical qualifications and to amend the concerned Schedule." (emphasis added)
20. The BMDC refused to comply with the decision of the appellate authority which it notified the petitioner in writing. In so doing, it did not assign any reason. The question is, can the BMDC ignore the appellate authority's decision?
21. Under section 16(2), the Government as appellate authority may "direct the Council ......to grant recognition to the......medical qualifications and to amend the concerned schedule". The original Bengli text of section 16(2) states, "স্বীকৃতি প্রদানপূর্বক সংশ্লিষ্ট তফসিল সংশোধন করিবার জন্য নির্দেশ প্রদান করিতে পারিবেন।".
22. The word 'and' is normally conjunctive. It does not generally mean 'or'. If reading of 'and' as 'or' produces grammatical distortion and makes no sense of the portion following 'and', 'or' cannot be read in place of 'and' [1997 (7) SCC 764]. Under section 16, appeal lies when BMDC refuses to recognize the degree which is not listed in the Schedule. For this reason, when the appellate authority recognizes the degree, it requires to pass, a direction to amend the Schedule. In the instant case, the appellate authority recognized the petitioner's MSc degree, but did not pass any such direction. The reason is simple. The degree was already listed and recognized in the applicable Schedule.
23. In Bangladesh Telecommunication Regulatory Commission (BTRC) and others vs. KM Alam and Co. and others, 19 BLC (AD) 134, the petitioners filed an appeal before the Review Panel under the provisions of the Public Procurement Act, 2006 (PPA) and the Public Procurement Rules, 2008 (PPR). The authority (BTRC) refused to implement the Review Panel's decision citing several reasons and took the stand that it was not bound to implement the same. The Appellate Division held that the Review Panel constituted by the CPTU is part and parcel of the Act and the Rules and that the decision of the such review body cannot be ignored or avoided by the BTRC. (emphasis supplied)
24. We note that rule 60(5) of the PPR, 2008 states that the decision of the Review Panel is final and all concerned parties will act upon such decision. The BMDC Act, 2010 does not contain any analogous provision to that of rule 60(5) of the PPR.
25. One of the cardinal principles of statutory interpretation under the 'purposive construction' rule or 'mischief rule is that the Court is required to construe a statute to advance the cause of the same and not to defeat it The rule was originally formulated in Heydon's Case [(1584) 3 Co. Rep 7a], which is known as the 'Rule in Heydon'. In this case, the Barons of the Exchequer resolved as follows: 'That for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered: (1) what was the common law before the making of the Act; (2) what was the mischief and defect for which the common law did not provide; (3) what remedy the Parliament hath(sic) resolved and appointed to cure the disease of the commonwealth; and (4) the true reason of the remedy, and then the office of all the judges is always to make such construction as shall: (a) suppress the mischief and advance the remedy, and (b) suppress subtle inventions and evasions for the continuance of the mischief pro privato commodo (for private benefit), and (c) add force and life to the cure and remedy according to the true intent of the makers of the Act pro bono publico (for the public good),' (emphasis supplied)
26. In Anderton vs. Ryan (1985), All ER 355, p.359. Lord Roskill observed, "Statutes should be given what has become known as a purposive construction, that is to say that the Courts should identify the 'mischief which existed before passing of the statute and then if more than one construction is possible, favour that which will eliminate the mischief so identified".
27. In New India Assurance Co. Ltd. vs. Nusli Nerille Wadia, (2008) 3 SCC 279, it was observed that to interpret a statute in a reasonable manner the Court must place itself in the chair of a reasonable legislator/author and construe the Act in such a manner that the object of the Act is fulfilled.
28. In construing an Act, the Court must take into consideration of the consequences of the construction. A construction that results in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or uncertainly and friction in the system which the statute purports to regulate has to be rejected and preference should be given to that construction which avoids such results.
29. It is true that unlike rule 60(5) of the PPR, the BMDC Act is silent as to the binding effect of the decision of the appellate authority upon the BMDC. However, section 16(2) of the BMDC Act employs the words, "the Government may......direct the Council". Therefore, the decision of the Government as appellate authority is not a mere opinion or recommendation, which the BMDC may accept or ignore, rather it is a direction upon the BMDC having full force of a statutory appellate body which is part and parcel of the Act and mandatory in nature. Otherwise, the very purpose of enacting the provision of statutory appeal would be frustrated and the exercise undertaken by the appellate authority would become a futile exercise.
30. In Anisminic Ltd. vs. Foreign Compensation Tribunal, [1969] 2 AC 147, the House of Lords felt the difficulty when a 'no certiorari' clause in the statute precluded judicial review on the ground of error of law on the face of the record. The majority of the Law Lords apparently adopted the broader meaning of jurisdiction to grant certiorari. Lord Pearce observed: "Lack of jurisdiction may arise in many ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper inquiry, the tribunal may depart from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity".
31. Referring to Anisminic, the learned Advocate appearing for the respondent BMDC submits that in the instant case, the statutory appellate authority entertained the time barred appeal in violation of law and did not issue any notice upon the BMDC regarding the appeal and as a result, the latter could not present its case before the former which offends the fundamental principle of natural justice, namely 'audi alteram partem' (hear the other side). The learned Advocate submits that due to violation of the statute law and the principle of natural justice, the decision of the appellate committee is a nullity within the meaning of 'Anismic' principle and, as such, the same is not binding upon the BMDC. The argument is fallacious. It was held in Anisminic that in spite of 'no certiorari' clause in the statute ousting the power of judicial review, the Court can interfere when the order of the tribunal or authority is really not an order under the Act conferring special jurisdiction but is a nullity. Article 102(2)(a)(ii) of our Constitution empowers this Division to issue writ of certiorari on an application of the aggrieved person challenging any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority which has been done or taken without lawful authority and is of no legal effect. Mahmudul Islam rightly expressed the view that the term 'local authority' implies a public duty authorised by law or by the 'government to carry on some administrative function. Article 102(2) does not recognise the distinction between judicial and quasi-judicial functions and administrative functions (Constitutional Law of Bangladesh, 3rd ed. para S. 31). The Constitution does not allow the aggrieved person to take recourse to his own judgment in the matter to decide whether be should follow or ignore the decision which is amenable to judicial review. The BMDC did not challenge the decision of the statutory appellate authority which is part and parcel of the Act. Therefore, the BMDC must follow and implement the said decision of the Appellate Authority. It is not allowed to say that the decision was wrong or that it was taken without lawful authority and is of no legal effect. It is for the Court to decide so. The BMDC must not be allowed to usurp the function of judicial review Court or any Court by giving a go-bye to the decision of the statutory appellate authority.
32. The upshot of the case is that the BMDC violated the law in entertaining the petitioner's unnecessary application for recognition of his UK M.Sc. degree. It further violated the law by refusing to recognise the degree and instead recognizing it as 6 months training in the specified area. The ultimate violation of law by the BMDC is refusal to follow the direction of statutory appellate authority. Hence, the Rule succeeds. In the result, the Rule is made absolute. The Memo dated 6-2-2022 (Annexure-I) issued by the BMDC is declared to have been issued without lawful authority and is of no legal effect The same is set-aside.
--- Journal: DLR Volume: 75 Division: HCD Page: 515High Court Division
(Criminal Appellate Jurisdiction)
Present:
Mr. Justice Sheikh Hassan Arif
And
Mr. Justice Biswajit Debnath
Death Reference No. 75 of 2017
With
Criminal Appeal No. 6509 of 2017
And
Jail Appeal No. 264 of 2017
State
Petitioner
VS
Lavlu (Md.)
Respondent
Judgement Date : February 28, 2023
Counsels:
M.A. Muntakim and Chowdhury Shamsad Arifin, Advocates—For the Appellant.
Harunur Rashid, DAG with Zahid Ahammad (Hero), Md. Altaf Hossen Amani, Mohammad Shafayet Zamil and Mohammad Humayun Kabir, AAGs—For the State.
Judgment
Sheikh Hassan Arif, J.
1. This death reference has been sent to us by the Nari-o-Shishu Nirjatan Daman Tribunal, Jessore in view of the provisions under section 29 of the Nari-o-Shishu Nirjatan Daman Ain, 2000 read with section 374 of the Code of Criminal Procedure for confirmation of death sentence imposed by it vide judgment and order dated 30-5-2017 passed in Nari-o-Shishu Mamla No. 231 of 2014, the Tribunal sentenced the convict-Md. Lavlu to death after convicting him under section 9(3) of the Nari-o-Shishu Nirjatan Daman Ain, 2000 (hereinafter called "the said Ain"). The said convict having, in the meantime, preferred Jail Appeal No. 264 of 2017 and Criminal Appeal No. 6509 of 2017, the same have also been sent to us for disposal along with the said death reference. Therefore, the said death reference, criminal appeal and jail appeal are to be disposed of by this common judgment.
2. Background Facts:
2.1. Prosecution case started with the lodging of the FIR by PW1 (Md. Billal Hossain), father of the deceased (Sabina Khatun), with the Kotwali Model Police Station, Jessore alleging, inter-alia, that her daughter, Sabina Khatun (8), was a student of class three and the accuseds, Anwar Hossain and Lavlu, were their neighbours. That the accuseds used to visit his house and accused No. 1 used to call the victim 'বন্ধু' (friend) as he was related to her as grandfather. That in the evening at 7-30 on 23-3-2014, while his said daughter was studying at the veranda of his house, the accuseds came and sought to eat betel leaf (পান) from his mother (PW 2), which his mother could not give as there was no betel Nut. That while his mother went to a nearby house, the accuseds took away the victim on the pretext of giving her sweets and wrapped her mouth with hand. The accuseds then took the victim to the potol field (পটল ক্ষেত) of accused Anwar towards the south-west side of informant's house. The accuseds then raped and killed the victim after tying-up her hands, mouth and legs, and left her in the paddy field with earth in her mouth. That the informant then returned from bazar and found no one at home except his mother. He started searching for her daughter and found the deceased-victim at 09-15 at night at Anwar's paddy land with her hands, legs and mourn tied up. The body was then taken to the General Hospital, Jessore by one Saju and Rafiqul, wherein the victim was declared dead. That police came after knowing about the incident. The informant then, after knowing everything from his mother (PW 2) and neighbour Saleha (PW 5), lodged the FIR on the next day.
2.2. Accordingly, the said FIR was registered as Kotwali Model Police Case No. 92 dated 24-3-2014 under section 9(3) of the said Ain and the charge of investigation was given to PW 7, an SI. of the said police station. However, in the meantime, on the strength of a GD entry, one SI. of the said police station visited the hospital morgue at night on 23-3-2014, prepared inquest report and sent the body for post-mortem. During his investigation, PW7 seized some materials by way of seizure-list, prepared sketch-map & index, examined the post-mortem report and arrested accused-Lavlu, who then made confessional statement before a Magistrate. The investigating officer also recorded statements of witnesses, and upon finding the allegations to be established prima-facie against both the accuseds, he submitted charge-sheet, being Charge-Sheet No. 663 dated 23-7-2014, under section 9(3) of the said Ain against them.
2.3. Thereafter, the case, being ready for trial, was sent to the Nari-o-Shishu Nirjatan Daman Tribunal, Jessore for trial. Subsequently, one of the accuseds, namely, Anower Hossain, having died, the Tribunal framed charge against accused Lavlu only vide order dated 20-4-2015 under section 9(3) of the said Ain. The said charge was then read over to him, but be pleaded not guilty and demanded trial. During trial, prosecution produced nine (09) witnesses (PW 1 to PW 9) including some documents and materials which were, accordingly, marked as exhibits and material exhibits respectively. After completion of recording of the evidences, the Tribunal examined the accused under section 342 of the Code of Criminal Procedure, whereupon the accused again pleaded not guilty and refused to give any evidence in defence. The Tribunal then, after hearing the parties, delivered the impugned judgment and order dated 30-5-2017, thereby, convicting the accused-appellant under section 9(3) of the said Ain and, accordingly, sentenced him to death with a fine of Taka one lakh. The Tribunal then sent the case records to the High Court Division of the Supreme Court of Bangladesh in view of the provisions under section 29 of the said Ain read with section 374 of the Code of Criminal Procedure for confirmation of the said death sentence. As stated above, the convict-appellant has in the meantime preferred the aforesaid jail appeal and regular criminal appeal. Thereupon, after necessary formalities, the said appeals have also been sent to us, along with the said death reference, for disposal.
3. Depositions of the witnesses:
3.1. Before scrutiny of the evidences on record as against the submissions of the learned advocates, let us first describe, in short, as to what the prosecution witnesses deposed before the Tribunal.
3.2. PW 1 (Md. Billal Hossain) was the informant and father of the deceased. Accordingly, he deposed before the Tribunal that the occurrence took place in between 7-30 and 9:00 at night on 23-3-2014. That in the evening on that day, when he came out of the house for bazar, accused-Lavlu entered his house. That other accused-Anower was also in his house at that time. That when he went to bazar, her daughter Sabina, aged 8, was doing study at the veranda of the house and the accuseds were watching television. That after 30/40 minutes, he received a phone call from his sister Dolly, who made query about the whereabouts of Sabina. He then replied that he saw accuseds-Anwar and Lavlu watching TV at home and asked his sister to ask them about it. His sister then informed him that the said two people were also not at home. That people of the house then started searching for the victim, and, after 10 minutes, his brother-in-law, Mirajul, informed him that the victim was found at the potol field of Anwar. He then rushed to the spot and saw the victim being taken to the hospital on a motor cycle by one Raju and Mukul. He then tried to go to the hospital, but was asked by the people not to go there as, according to them, his daughter had already died. That doctor at the hospital declared his daughter dead. That inquest and post-mortem were done thereafter. According to him, the victim was raped and killed by accuseds Lavlu and Anower. He men lodged FIR with the Kotwati police station on the next day. Accordingly, he proved the said FIR as Exhibit-1 and his signature thereon as Exhibit-1/1. He also identified the accused-Lavlu standing on the dock. According to him, the other accused had died.
3.3. In cross-examination, he deposed that the body of the victim was brought to his house by the village member and people on the next day and, thereafter, the body was buried. That he filed the case at about 7/8 after Maghreb on 24-3-2014 and that he himself did not write the FIR, but it was written as per what he told about the incident. He further deposed in cross-examination that police was informed about the incident at about 12:00 at night on 23-3-2014 and police immediately rushed to the house. That Ismail member and Alim also informed police after he informed it. He denied that he did not write in the FIR as regards his visit to the bazar and Lablu's visit to his house or that Lavlu and Anwar were watching TV or that his daughter was doing study at the veranda or that he received a phone call while he was at bazar or that he did not ask his sister to make query from Anwar and Lavlu who were watching TV or that his sister told him that the accuseds were also not at home or that after 10 minutes, his brother-in-law informed him that the dead body was recovered or that local people asked him not to go the hospital. He, however, admitted in cross-examination that he did not see the occurrence and that he saw the dead body after the rape and killing of his daughter. He further admitted that the Upazila election was taking place on the day of the occurrence. He also admitted that he had a wife named Asia, but she was not at home at the time of occurrence. He admitted that Mahfuza Begum (PW 2) was his mother and Fazlul Hoq Bepari was his father and that Dolly was his sister, who was married away to Chandra village which was about 8-10 km away from the place of occurrence. However, he expressed his ignorance as to whether the house of Lavlu was massacred by the village people or whether Lavlu's livestocks were looted away. He also admitted in cross-examination that Lavlu was arrested by RAB. He further deposed that Lavlu fled away immediately after the occurrence, and, after 5/6 months, he was detained by RAB and that RAB detained him after Lavlu's poster was circulated at different places. He further denied the defence suggestion that he was engaged in phensedyl business and that the people of Durgapur village filed case against him in respect of such phensedyl. He further denied the defence suggestion that Lavlu's house was massacred because of village grouping or that Lavlu was chased away from the village or that he was implicated falsely in the case because of that.
3.4. PW 2 (Mahafuza Begum) is the mother of the informant (PW1). She deposed that the occurrence took place in between 7 and 9 o'clock at night in the evening on 23-3-2014. According to her, on that day, Anwar visited her house in the evening and sought to eat betel leaf and Anwar was sitting on a chowky (bed) at the veranda. That other accused Lavlu was standing while holding the roof of that veranda of the house. That upon a call from her sister's house nearby, she went there and, while she was going, she saw victim Sabina, aged 8, studying and sitting on the bed towards eastern side of the veranda. That when she returned from her sister's house, she found the books open on the bed and found her grandchild missing along with the accuseds. She then started to search for her grandchild and, at one point of such searching, found the victim lying upside down with blood stained cloths at the potol field of accused-Anwar. She then rushed to the spot immediately along with Saleha (PW 5), Moti Kaka (PW 3) and other local people. She found the torn-up cloths on the dead body and saw blood thereon. She also found earth in the mouth of the victim and some burn injuries from cigarette on victim's hand and abdomen. That people present there said that the victim was alive and, accordingly, they tried to make the victim breath upon removing the earth from her mouth. That Mukul and Saju then took the victim on a motor cycle and they went away quickly towards the Jessore 250-bed hospital-where the doctor declared that the victim had died long ago. That upon arrival of the dead body and inquest report, the body was buried. She, accordingly, identified accused-Lavlu standing on the dock.
3.5. In cross-examination, she deposed that the potol field of Anwar was half km away from her house and the house of accused-Lavlu was also half km away from her house. She also deposed that police came to her house at about 10-00/10-30 at night, but she could not say as to who gave information to the police. She also deposed that she visited her sister Rokeya's house to see the birth of a cow-calf and she stayed there for 20 minutes. She further confirmed that the house of Rokeya and her house were adjacent to each other. She, however, deposed that she did not see the incident and that she did not go to the hospital when the victim was taken there. That after the death of her granddaughter, she became shocked and, accordingly, she didn't know when her son went to file the case. She also admitted that their original house was in Chowgacha and that they belonged to Dhopadi clan (ধোপাদি বংশ) and the witnesses belonged to Bepari clan. She also deposed in cross-examination that Lavlu was detained by police from Hashimpur Bazar after about 26/27 days of the occurrence and she, along with her son, visited the police station on that day after arrest of Lavlu. However, she expressed her ignorance as to whether Lavlu was beaten by police on that day. She further denied the defence suggestion that they had asked police to extort confession from Lavlu by beating. She also expressed ignorance as to whether local people had massacred Lavlu's house after the occurrence or that Lavlu's livestocks were looted away. She deposed that she gave statement to police on the day of the occurrence. She also denied the defence suggestion that she did not disclose to police about the cigarette bum on the body of the victim.
3.6. PW 3 (Md. Motiur Rahman) was the neighbour of the informant Accordingly, he deposed that the informant and accused were known to him. He also deposed that on 23-3-2014, he saw Anwar and Lavlu talking to each other at the Maghrib time in front of his house. That at about 08-00 o'clock at night, he visited informant's house after hearing hue and cry and upon hearing that the victim had gone missing. He then, along with other people, started searching for the victim and, at one stage, found the victim lying on the potol field of Anwar. That the victim was lying upside down and that her clothes were stained by mud and blood. That he saw Fazlu recovering the victim and taking the victim quickly to the house. That the earth from the mouth of the victim was taken out after taking the victim to the house and she was taken to the hospital quickly by Mukul and someone else on a motor cycle, wherein doctor declared her dead. That the case was filed and police visited the place of occurrence. Accordingly, police seized the piece of victim's payjama and blood stained earth by a seizure-list and took his thumb impression thereon. Accordingly, he proved the said seizure-list as Exhibit-6 and identified his signature thereon. He also identified accused-Lavlu standing on the dock.
3.7. In cross-examination, he admitted that he could not be able to read as to what was written on the said paper with his thumb impression. He could not remember as to when he gave such thumb impression. He deposed that he did not go to the hospital. He also deposed that the distance of Anwar's potol field from his house was about 300 yards and that the distance of Sabina's house from his house was about 250 yards. He also deposed in cross-examination that they had searched for the victim with the torch lights and mere were about 10/12 torch lights. However, they did not deposit torch light to the police. He confirmed that PW 2 also visited the potol field of Anwar. He admitted that the grandfather of victim was his friend. He, however, denied that he did not tell police that he saw Lavlu and Anwar talking to each other standing on the road. He also denied that he did not tell police that he had heard screaming from the house of Billal (PW 1). He also denied that he did not tell police that Sabina was taken to the house by her grandfather and that the earth from her mouth was taken away on that he did not tell police that Mukul and someone else took Sabina to the hospital. He, however, expressed ignorance as to whether the house of accused was massacred. He also denied the defence suggestion that he was involved in such massacre and looting. He, however, admitted that he did not see the rape at the potol field. He denied the defence suggestion that he gave evidence in order to justify his looting.
3.8. PW 4 (Md. Rafiqul Islam) is another neighbour of the informant. He also confirmed the date and time of the occurrence in his deposition and confirmed that the occurrence took place at the potol field of Anwar Hossain at Erenda village. He confirmed that there was Upazila election on the day of the occurrence and he was at the bazar. He deposed that the informant was searching for his daughter, and, being a neighbour, he also joined the searching. That during such search, they came to know that accuseds Anwar and Lavlu were at informant's house and that Sabina's sandal and accused-Lavlu's watch were found on the bank of a pond. They then started searching for Sabina and found her body lying upside down and senseless in the potol field of Anwar Hossain. That Sabina's grandmother Mafuza (PW 2) and neighbour Saleha (PW 5) took Sabina to house with muds on the mouth and nose of Sabina. He then took Sabina to the hospital, with the motor cycle of Saju where the doctor declared her dead. He also took the dead body to Sabina's house after postmortem. According to him, police prepared inquest report on 24-3-2014 and he was present at that time. Accordingly, he proved the said inquest report as Exhibit-2 and his signature thereon as Exhibit- 2/1.
3.9. In cross-examination, he deposed that police came at about 11 in the morning on 24-3-2014. He further deposed that it was written on the inquest report that he had signed the same on 23-3-2014 at 23-50 at night. He deposed that he was at Erenda bazar on the day of occurrence and the distance of Erenda bazar from Sabina's house was near 1/2 km and there are 25/30 houses in between. That he came to know from Sabina's aunt () that Sabina had gone missing and the said aunt's name was Dolly and that he received such information at about 7-00/7-30 in the evening. That he was along with 7/8 people at that time and all of them started searching when it was dark at night. He deposed that the potol field of Anwar was about 30/40 ft. away from Sabina's house and Anwar's house was about 60/70 ft. away from the said potol field. He confirmed that Sabina and Lavlu were from same locality (পাড়া), He deposed that he saw Sabina lying on the all and he did not see as to what happened before that. He also confirmed that he started with the motor cycle from Sabina's house at about 8-30/8-45 at night and Sabina was naked at that time and that a cloth was put on her. That Sabina was bleeding at that time and some blood saddled on his body as well. He also confirmed that he found Sabina in the torch light and that there were torch lights and charger lights in the hands of people, but the torch lights, charger lights and his blood stained cloths were not given to police. He could not say as to wherefrom Sabina's sandal and Lavlu's watch were recovered and as to who recovered them or who deposited them to police. He deposed that he had received dead body on the next day at about 11-12 o'clock and he was present at the time of lodging the FIR. He admitted that Lavtu was arrested by RAB from Hashirnpur of Jessore. He denied that Lavlu was arrested from Kesbobpur on that accuseds-Lavlu and Anwar were not at the house of Sabina's father. He, however, admitted that he did not see Lavlu and Anwar at Sabina's father's house.
3.10. PW 5 (Saleha Begum) was another neighbour of the informant She, accordingly, confirmed the time and date of occurrence. She confirmed that she was watching TV at that time, but she could not remember as to at whose house she was watching TV, but she confirmed that Lavlu and Anwar were standing at that house. She then heard that Sabina went missing and she started searching for Sabina. That after about half an hour, Sabina was recovered naked from the potol field of Anwar. That mere were muds on Sabina's mouth and eyes. That 10/12 people took Sabina to her house, muds were washed away, a pant was put on her and she was sent to hospital. She deposed that Sabina had died.
3.11. In cross-examination, she deposed that Billal was his brother through village relation and that there were two houses in between her house and Billal's (PW1) house. She, however, deposed that she was watching TV serial at Billal's house and the said TV serial was CID. She denied the defence suggestion that mere was no such TV serial named CID or that 7-00 o'clock at night was not the time for CID serial. She also deposed in cross-examination that she was at Sharifill's house for half an hour and she could not remember as to when she returned home. After returning home, she came to know at 07-30 that Sabina had gone missing. That she searched for Sabina for I to 1 1/2 hours and found her. At that time, there were 10/12 people. She expressed her ignorance as to whether Lavlu's house was vandalized on the night of the occurrence and whether Lavlu's livestocks were looted away. However, she confirmed that her house and Lavlu's house were adjacent to each other. She, however, deposed that she had heard later on that Lavlu's house was looted. She also heard that Lavlu was arrested by RAB and then he was beaten by RAB. She again deposed that Lavlu was standing and Anwar was eating betel leafs. She, however, denied the defence suggestion that Lavlu was not standing or that local people implicated Lavlu falsely in the case or that she deposed falsely on the dictation of the local people.
3.12. PW 6 (Anfevr Rahman) was another neighbour of the informant. He, accordingly, confirmed the time and date of occurrence. He also confirmed that Anowar's potol field was near victim-Sabina's house. He, however, deposed that he heard from local people that accuseds-Anwar and Lavlu killed the victim after raping her forcefully. He saw the dead body. In cross-examination, he deposed that he had heard about the incident at about 7-45 or 8-00 o'clock at night on 23-3-2014 and, at that time, he was at this house. That his house was about 400/500 yards away from the place of occurrence and there were 7/8 houses in between his house and the place of occurrence and those houses belonged to Ayub Ali, Faruk Hossian, Azibor, Aftaf Hossain, Abul Kashem and Motiar. That he visited the place of occurrence at about 8-00 o'clock at night, but he did not see the incident of rape. He confirmed that be deposed on the basis of his hearsay. He also could not remember as to whether he had signed any paper. He, however, admitted that Lavlu was arrested by RAB and he deposed that Lavlu was in RAB custody for one month. He, however, denied the defence suggestion that Lavlu was not involved in the incident or that he did not hear anything. However, he could not remember as to whether he was asked by police anything during investigation. He also denied the defence suggestion that the confession of Lavlu was extorted through torture by RAB. He also denied the defence suggestion that Lavlu was not present at the place of occurrence on 23-3-2014. He denied that he gave false deposition.
3.13. PW 7 (Md. Rafiqul Isalm) was the investigating officer of the case. He deposed that on 24-3-2014, he was Inspector (investigation) of the Kotwali police under Jessore District. That on that day, at about 21-15, at night, duty officer SI. Sowmen Das recorded the FIR lodged by PW 1 and the officer-in-charge of the police station handed over the investigation charge on him. He, accordingly, visited the place of occurrence, prepared sketch-map & index on different papers, seized some materials and recorded the statements of witnesses under section 161 of the Code of Criminal Procedure. He also detained absconding accused-Lavlu with the help of RAB and public during investigation and that Lavlu voluntarily gave confessional statement before Magistrate admitting his guilt. That upon examination of post-mortem report and circumstances, he found the allegations under section 9(3) of the said Ain being established against accused-Md. Anwar Hossain @ Anar and accused-Md. Lavlu and, accordingly, he submitted charge-sheet under the said section, being Kotwali Model Police Charge-Sheet No. 663 dated 23-7-2014, under section 9(3) of the said Ain. He deposed that after completion of investigation and during continuation of the case, accused-Anwar had died. Accordingly, he identified accused-Lavlu standing on the dock. He also identified the signature of FIR-recording officer Sowmen Das and his three signatures on the FIR as Exhibits-3, 3/1, 3/2. He also identified the recording officer's signature on the margin of the FIR as Exhibit-1/2. He, accordingly, proved the sketch-map as Exhibit-4 and his signature thereon as Exhibit- 4/1. He also proved the index of the said map as Exhibit-5 and his signature thereon as Exhibit- 5/1. Не, accordingly, deposed that the surathal report of the victim was prepared by his associate, SI. Md. Sayrul Alam Kabir, and he was acquainted with his signature. Accordingly, he proved his signature as Exhibit- -2/2. He deposed that he seized pieces of victim's yellow cloth and blood stained earth at the police station in presence of witnesses vide seizure-list Exhibit-6. Accordingly, he proved his signature on the said seizure-list as Exhibit- 6/1. He also proved the seized pieces of cloth and blood stained earth as material Exhibits-Iandll.
3.14. In cross-examination, he could not say as to who had written the FIR. He deposed that he did not examine the writer of the FIR, but confirmed that the FIR was lodged on 24-3-2014 at 21-15 hour. He also confirmed that police visited the place of occurrence on 23-3-2014, but could not say the exact time. According to him police visited the place of occurrence on 23-3-2014 on the strength of GD, but he could not say the GD number and confirmed that he did not seize the said GD. He also confirmed that accused-Lavlu was arrested on 18-5-2014 with the assistance from RAB and police, but he could not say as to wherefrom Lavlu was arrested. However, he deposed that Lavlu was arrested with the assistance from public, police and RAB, but he did not make anyone of them as witness. He also confirmed the name of the deceased as Sabina Khatun, but confirmed that he did not mention the house of Sabina Khatun in the index. He, however, confirmed that PW 3 did not tell him in 161 statement that Lavlu and Anwar were talking to each other standing on the street. The said witness also did not tell him that he had heard screaming from the house of PW1. That the said witness also did not tell him that Sabina's grandfather took Sabina on his lap. He, however, deposed that the deceased was taken to the hospital from the place of occurrence by police. He confirmed that he saw the post-mortem report, but he did not take statement from doctor under section 161 of the Code. He also confirmed that he did not make separate sketch-map for the house of the informant, but he mentioned about that house in the index. He denied the defence suggestion that Lavlu was not detained by RAB and public or that Lavlu was arrested from Keshobpur or that Lavlu's confessional statement was extorted by torturing at the police station or that he gave such confession against his will or that no prima-facie case was made out or that he gave false deposition.
3.15. PW8 (Dr. Kajol Mollick) was a formal witness as he was the doctor who conducted postmortem on the dead body. According to his deposition, he was working as an emergency medical officer of the 250-bed medical hospital on 24-3-2014 when the dead body of Sabina, aged 8 years, daughter of Billal Hossain, village-Erenda, PS-Kotwali, Jashore, was brought to him by one constable Md. Ruhul Amin Gazi, Constable No. 922. He, accordingly, conducted post-mortem on her dead body and found the following injuries: "Abrasion both Fore-arm extensor surface. Abrasion in both inguinal area which is congested in dissection. Vaginal injuries:-Abrasions in anterior and posterior fornix with clotted blood. Anus:-Abrasion in anal Mucosa which is congested in dissection. Neck and Throat:-Skin healthy, Trachea-Congested".
3.16. He further deposed that according to his opinion:- "Death was due to asphyxia followed by suffocation and sexual assault which is ante-mortem and homicidal in nature".
3.17. Accordingly, he proved the said postmortem report as Exhibit-7 and his signature thereon as Exhibit- 7/1. He also identified the signature of the Civil Surgeon concerned on the said post-mortem as Exhibit -7/2. In cross-examination, he deposed that he had examined the inquest report and examined the dead body by moving the same with the help of one Kollwany Das, wife of the Dom Gobinda Das, but he did not mention in the report the age of such injuries. He, however, denied the defence suggestion that he did not examine the dead body or that he prepared the post-mortem report negligently or that he gave false deposition.
3.18. PW 9 (Md. Amirnl Islam) was also a formal witness as he was the Judicial Magistrate who recorded the confessional statement of accused-Lavlu. He deposed that, on 18-5-2014, he was working as Senior Judicial Magistrate of the Jashore Chief Judicial Magistracy when the investigating officer of the case brought accused-Md. Lavlu Gazi to him for recording his confessional statement under section 164 of the Code. That the said accused was presented to him at 12 o'clock (noon), and, before recording such confessional statement, he gave the accused sufficient time and started recording the statement at 3 o'clock. He also read over the said statement to the accused and took three signatures from the accuseds on the same. This witness gave seven signatures on the same and, accordingly, proved the said confessional statement as Exhibit-8 and his said seven signatures thereon as Exhibits- 8/1 to 8/7 He also proved the signatures of the accused on the said statement as Exhibits- 8/8, 8/9 and 8/10.
3.19. In cross-examination, he deposed that the accused was arrested at 01-30 am and not at 01-30 pm. He also deposed that he had recorded the confession of the accused in his khash kamra, but he did not tell the accused in writing that he was not police or that he was Magistrate or that if the accused did not confess, he would not be sent to the police custody. However, he deposed that "if you admit guilt that would be used as evidence against you"-this statement was made to the accused orally, but not in writing. However, he deposed that he was not aware whether the accused understood English. He confirmed that he wrote the memo under the confessional statement in English. He, however, denied the defence suggestion that he had recorded the said confessional statement without complying with the provisions under sections 364 and 164 of the Code of Criminal Procedure as he was influenced by the prosecution.
4. Submission;
4.1. Before scrutiny of the evidences produced by the prosecution, let us first refer to the submissions made by the learned advocates before this Court. It may be noted that at the outset of the hearing, entire paper book, lower Court records as well as other materials were placed before this Court one after another by the learned Deputy Attorney-General. Thereafter, be made oral submissions in support of confirmation of the conviction and death sentence of the accused-appellant. However, for the sake of our convenience, we will refer to the submissions of the learned advocate of the accused-appellant first followed by the submissions of the learned Deputy Attorney-General.
4.2. Mr. Chowdhury Shamsul Arifin, learned advocate appearing for the accused-appellant, has made the following submissions: (i) That the first place of occurrence, namely, the place of abduction, was not mentioned in the map and no witness deposed as regards such abduction of the victim from her house. Therefore, the prosecution has totally failed to prove the allegation of abduction. (ii) By referring to a medical slip lying with the lower Court record, he submits that the accused was given treatment at the outdoor of a hospital, which suggests that he was seriously beaten up either by public or police. Therefore, the confessional statement of the accused cannot be accepted as legal confessional statement and, as such, the same cannot be the basis of any conviction as the same was not given voluntarily. (iii) That more than one prosecution witnesses categorically deposed that accused-Lavlu was arrested by RAB as against which investigating officer could not disclose as to wherefrom the accused was arrested, which, according to him, creates a serious doubt as regards illegal detention of the accused before extortion of his confessional statement. (iv) By referring to the deposition of PW 6, he submits that this witness has categorically deposed before the Court below that the accused was in the custody of RAB for about one month. Therefore, according to him, under no circumstances, the confessional statement of the accused can be accepted by this Court as voluntary confessional statement (v) By referring to the inquest report and the advice of the officer who prepared such inquest report for examination of victim's cloths, sexual organs, semens and blood, he submits that such examinations were not admittedly done and the DNA was also not examined. This being so, according to him, the prosecution has failed to prove the connection of this accused with the alleged crime of rape and/or killing. Accordingly, he submits that the accused will get the benefit of such non-examination of material evidence by the prosecution in view of the provisions under section 114(g) of the Evidence Act. (vi) Alternatively, as regards sentence, he submits that the accused-appellant is married and he has two children and that the accused was 28 years of age at the time of occurrence. Therefore, according to him, considering his long incarceration in jail and condemned cell, his sentence should be commuted to life imprisonment in case of affirming conviction against him under section 9(3) of the said Ain. (vii) By referring to the confessional statement of the accused-appellant, he submits that if the confessional statement is to be taken as the basis of conviction, the whole statements should be considered by this Court. Therefore, he submits that the confessional statement itself says that the accused-appellant was not involved in the alleged killing of the victim. Therefore, under no circumstances, his death sentence should be accepted by this Court.
4.3. As against above submissions, Mr. Harunur Rashid, learned Deputy Attorney-General, has made the following submissions: (a) That the confessional statement of the accused-Lavlu has no apparent illegality and it is evident from the same that the same was voluntary and true, particularly when the substance of the same corroborates the substantive evidences as regards manner of occurrence as found in the inquest report and postmortem-report which were proved by the relevant witnesses. Therefore, according to him, there is no scope to treat the said confessional statement (Exhibit-8) as being not true and not voluntarily. (b) As regards manner of arrest of the accused, he submits that the investigating officer has clearly recorded such manner of arrest in the case diary and this Court may examine the same to see if such arrest was not lawful or whether the accused was detained illegally. (c) By referring to the deposition of PW 1, he submits that it is clear that Lavlu fled away immediately after the occurrence and, accordingly, this conduct of the accused is relevant in view of the provisions under section 114 of the Evidence Act. (d) By referring to different orders of the Tribunal as well as materials lying on record, learned DAG submits that the accused, at no point of time, retracted his confessional statement, and even in section 342 examination, he did not allege any sort of torture on him or illegal detention by RAB or any other authority. Therefore, according to him, this submission as regards illegal detention or arrest is an afterthought submission. (e) By referring to the depositions of PWs 2 and PW 5, he submits that these two witnesses have categorically deposed that they saw the accuseds immediately before the occurrence took place at the house of the victim-Sabina. Therefore, the doctrine of 'last seen theory' will be applicable in this case, particularly when accused-Lavlu has categorically stated in his confessional statement as regards his presence at the house of victim-Sabina at the relevant time. (f) By referring to section 32 of the Penal Code, learned DAG submits that even though accused-Lavlu stated in confessional statement that he did not overtly take part in the killing, but his omission to prevent accused-Anwar from committing further rape and killing would also come within the mischief of rape and killing. (g) By referring to section 9(3) of the Nari-o-Shishu Nirjatan Daman Ain, 2000, learned DAG submits that in case of death of the victim, only option open to this Court is to impose or confirm death sentence and, according to him, the life imprisonment mentioned therein can only be imposed when the victim survives gang rape. Accordingly, he submits that the death sentence imposed by Tribunal should be accepted by this Court.
5. Scrutiny of Evidences:
5.1. Admittedly, the charge against the appellant is of gang rape coupled with murder punishable under section 9(3) of the said Ain. The prosecution case is that the appellant and accused-Anwar (died after cognizance and before charge framing) abducted victim-Sabina, aged 8 years, from her house, took her to nearby potol field of Anwar and repeatedly raped her, which resulted in her death. Therefore, let us see whether the prosecution has proved, beyond reasonable doubt, that gang rape was committed on the victim and, as a result of which, she died.
5.2. It appears from materials on record that (sic) the prosecution successfully proved the inquest report, as prepared by one SI of the police station concerned at the earliest opportunity, by PW 4 as Exhibit-2 and his signature thereon as Exhibit- 2/1. PW 7 (Investigating Officer) also identified the signature of the author of the said inquest report as Exhibit- 2/2. On the other hand, the postmortem report, as prepared by the doctor concerned, namely, PW 8, has also been proved by the said doctor as Exhibit-7. It appears from the said evidences, in particular the post-mortem report (Exhibit-7), that PW 8 found the following injuries on the victim: "Abrasion both Fore-arm extensor surface. Abrasion in both inguinal area which is congested in dissection. Vaginal Injury:-Abrasions in anterior and posterior fornix with clotted blood. Anus:-Abrasion in anal Mucosa which is congested in dissection". After such examination, the doctors (PW8) in their opinion held: "death was due to asphyxia followed by suffocation and sexual assault which is ante-mortem and homicidal in nature".
5.3. PW 8 proved the said post-mortem by his clear deposition before the Tribunal. It appears from the said post-mortem report that the injuries found therein, in particular the vaginal and anal injuries, are consistent with gang rape. It also suggests some perversion on the part of the perpetrator(s) of such offence, given the age and nature of injuries of the victim. In addition to that, the seizure-list prepared by PW 7, namely Exhibit-6, has also been proved by PW 3 and PW 7 himself before the Tribunal. The materials seized by the investigating officer, namely, pieces of wearing cloths of the victim and the blood stained earth, were also produced before the Tribunal as material Exhibits-I and II by PW 7. If we examine these materials on record, it will be evidently clear that this is a case of gang rape, or multiple rape, on a female victim aged 8 years. Therefore, we have no option but to conclude that the prosecution has successfully proved, beyond reasonable doubt, that the victim-Sabina in this case has been a victim of gang rape, or multiple rape, which resulted in her death.
5.4. Now, the question is who committed such rape. Admittedly, there is no eye witness to the occurrence, namely, the gang rape and the killing. There is no eye witness to the alleged abduction as well. However, there are two witnesses, namely PWs 2 and 5, who have categorically deposed before the Tribunal that immediately before the occurrence, they saw accused-Anwar and appellant-Lavlu with the victim in the same house, namely the house of informant (PW1). PW 2-Mahfuza Begum was the grandmother of the victim and she was in the house of informant (PW1) when victim Sabina was doing study on a bed at the veranda of the house. Accordingly, she (PW 2) deposed that accused-Anwar came to her house immediately after the evening and wanted to eat betel leaf and he sat on a bed at the veranda. At that time, accused-Lavlu was standing holding the roof of the veranda. She also deposed that while she was leaving for her sister's house, victim-Sabina was doing study on a bed at the veranda. But when she returned from her sister's house, she found the books of the victim open on the bed and found the victim missing along with the accuseds. The said witness and others then started searching for the victim and, subsequently, found the victim upside down lying on the potol field of Anwar. She also found some earth in the mourn of the victim and saw some bum injuries on the hand and abdomen of the victim apparently given by burning cigarette. They tried to make the victim breathe and save her, but the victim ultimately died.
5.5. This presence of the accuseds immediately before the occurrence at the house of PW 1 has also been supported by PW 5, who also saw the accuseds being present at the said house at the relevant time. She (PW S) deposed that at the relevant time of occurrence, she was watching TV in the house of PW 1, and accuseds-Lavlu and Anwar were standing there. She also supported the deposition of PW 2 in respect of recovery of the dead body of the victim and the manner in which she was recovered and subsequent death of the victim. Therefore, at least these two witnesses have categorically proved before the Tribunal that they saw two accuseds, including the appellant, at the house of PW 1 immediately before the death of the victim. These depositions of the PWs 2 and 5 may be connected with the confessional statement of accused-Lavlu, if it is found that such confessional statement of Lavlu is voluntary and true.
5.6. As stated above, the confessional statement of Lavlu was proved by the recording Magistrate (PW9) before the Tribunal as Exhibit-8. For the sake of clarity and convenience, we are reproducing the said confessional statement of Lavlu herein below:
"এখন থেকে আনুমানিক দুই মাস আগের ঘটনা, আমি ভিকটিম সাবিনাদের বাসায় টেলিভিশন দেখতে যাই। তখন এই বাসায় খায়েরের বউ আর সাবিনার দাদী ছিল। কিছুক্ষণ পর খায়েরের বউ চলে যায়। এরপর আনার সাবিনাদের বাড়ি আসে। সাবিনা তখন বারান্দায় পড়ছিল। আমরা ঘরে টিভি দেখছিলাম। আনোয়ার @ আনার আসাতে উঠানে বেরিয়ে আসি, দেখি আনার সাবিনার সাথে কথা বলছে। বলছে আজ তোকে আমি বিয়ে করব। আমার সাথে চল। পকেটে টাকা দেখিয়ে লোভ দেখায় সাবিনাকে। এরপর দাদীর কথামত সাবিনা রান্নাঘর থেকে বড় ঘরে ভাত দিয়ে আসে। আনারের সাথে সাবিনা বেরিয়ে যায়। আমি বাড়ির পথে পা বাড়াই। কিছুক্ষণ পর আমি বাড়ির কাছাকাছি যেতে আনার আমাকে তার পটলক্ষেতে সাবিনাদের বাড়ির কাছে ডেকে নিয়ে যায়। ওখানে গিয়ে দেখি আনার সাবিনার মুখের ভিতর কিছু একটা দিয়ে ধর্ষণ করছে। আনার এরপর নেমে আমাকে ধর্ষণ করতে বলে। তখন আমি সাবিনাকে ধর্ষণ করি। এরপর আনার আরো দুইবার ধর্ষণ করে। আনার ভারত থেকে কী যেন সেক্স এর ঔষধ নিয়ে এসেছে। সে ঐ ঔষধ খেয়ে ধর্ষণ করে। ফলে সে এক নাগারে অনেকক্ষণ ধর্ষণ করে। সাবিনা বাচ্চা মেয়ে, ৮/১০ বছর বয়স। এই দীর্ঘ সময় ধর্ষণ এর যন্ত্রণা তার সহ্য করতে পারার কথা না। এরপর তার গালের ভিতর মাটি পুরে দিয়েছিল আনার যাতে সে শব্দ করতে না পারে কলে শারীরিক চাপে তার দম বন্ধ হয়ে যাওয়ার এক পর্যায়ে সাবিনা মায়া যায়। কিছুক্ষণ পর সাবিনার উপর থেকে আমার নেমে আসে। সাবিনা আর কোন ভাবে উঠছে না দেখে আমরা মেসের আগুন জ্বালিয়ে চেক করি। দেখি সে মরে গেছে। তখন আমরা লাশ রেখে যার যার মত বাড়ি চলে যাই। আনার যাওয়ার সময় মৃত মেয়ের খালা তাকে দেখে ফেলে। আনারের গায়ে কাঁদা মাখা অবস্থায় সে দেখতে পায়। পরে র্যাব আমাদের গ্রামে পেলে আমি ভয়ে অস্থির। নিজের মনের ভয়ে পালানোর চেষ্টা করলে লোকজন বুঝতে পেরে আমাকে ধরে ফেলে পুলিশে দেয়। এটা গতকালের ঘটনা।"
5.7. It appears from the recording such confessional statement that the appellant was arrested at 1-30 am on 18-5-2014 and he was taken to the police station at 11-30 am on the same day and was produced before the said Judicial Magistrate at 12-00 pm on the same day and the Magistrate started recording his confessional statement at 3-00 pm. It further appears from the said form that columns-5 and 6 of the same have been fully complied with and the same have been signed by the Magistrate concerned and the accused. As against this, if we examine the deposition of PW 9, namely the recording Magistrate, in particular his reply in cross-examination, it appears that in reply to a question from the accused, he deposed that he did not tell the accused that he was not police, rather he was a Magistrate.
5.8. However, it appears from Clause-1 of Column-5 of the Form (Exhibit-8) that he signed Column-5 endorsing that he carefully explained afresh to the accused that he was not an officer of police but a Magistrate. Therefore, we do not find any reason as to why the said Magistrate deposed that he did not say the same to the accused. It further appears from question-1 under Column-6 of the said Form that the Magistrate told the accused that he would not be sent to the police custody, but he did not tell the accused that he would not be sent to the police custody if he did not make confessional statement and he admitted this position in his cross-examination. However, he specifically told the accused that if he made confession, it would be used against him as evidence and this position has been confirmed by the Magistrate by Clause-3 under Column-5 of the form. The Magistrate also admitted the same in the cross-examination that he orally told the accused that the confessional statement could be used against him as evidence. Therefore, apart from some minor ignorable irregularities, we do not find any major incongruity in recording the said confessional statement by the said Magistrate (PW9).
5.9. Learned advocates for the accused also could not shake his such position in extensive cross-examination. On the other hand, it appears from the contents of the said confessional statement that the manner of occurrence, in particular the rape and killing as stated by this appellant in his confessional statement, is clearly supported by substantive evidences, namely the findings of the inquest report (Exhibit-7) and the materials seized by the seizure-list (Exhibit-6). Post-mortem report clearly suggests that multiple rape took place on the victim. The said rape was committed in a perverse way, namely that the accused-Anwar was using some sort of medicine from India to increase his stamina, which resulted in the suffocation of the victim. Even the appellant has observed in his confessional statement that the victim was not supposed to endure such long time rape given her age about 8/10 years. This appellant, in the confessional statement, has also stated that Anwar put earth into the mouth of the victim so that she could not make any sound. PW 2 categorically deposed that the victim was recovered with the muds into her mouth. Some other witnesses also supported the said claim. The seizure-list prepared by PW 7, as proved by PWs 3 and 7 as Exhibit-6, and materials (Material Exhibits-I and II) also proved such manner of committing rape. This being so, we have no option but to hold that the confessional statement, as given by this appellant, is not only voluntary one, but the contents of the same are true. This being so, we also have no option but to hold that the statement of this appellant in his confessional statement is categorically supported by substantive evidences, namely, the post-mortem report (Exhibit-7), seizure-list (Exhibit-6) and material exhibits (Exhibits-I and II). Therefore, although there was no eye witness to the occurrence of rape and killing in this case, the last seen aspect of the accuseds with the victim and other circumstantial evidences were so strong that the chain of such circumstantial evidences could not be broken at all by the extensive cross-examination on behalf of the accused.
5.10. Although a point has been raised by the learned advocate appearing for the appellant as regards alleged mystery surrounding the arrest of the accused, particularly when one of the witnesses (namely PW 6) deposed that the accused-appellant was arrested by RAB and that he was kept in custody for one month, we have not found anything on record as to how that witness (PW 6) made such statement before the Tribunal, particularly when he did not mention anything as regards the source of his such knowledge or whether he saw the accused under the custody of RAB anywhere. Learned advocates for the accuseds before the Tribunal also could not extort any such information from the said witness. Therefore, we are of the view that the said deposition of PW 6 before the Tribunal was a mere sweeping remark which does not have any footing to stand, and the accused, accordingly, will not get any benefit from such statement The other reason for discrediting such deposition of PW 6 is the very statement of accused himself in his confessional statement, wherein he concluded the same by saying that-
পরে র্যাব আমাদের গ্রামে গেলে আমি ভয়ে অস্থির। নিজের মনের ভয়ে পালানোর চেষ্টা করলে লোকজন বুঝতে পেরে আমাকে ধরে ফেলে পুলিশে দেয়। এটা গতকালের ঘটনা।
5.11. Therefore, according to him, he was detained by public and was handed over to police the day before he made the confessional statement. On the other hand, in the section 342 examination of this accused-appellant, he did not mention a single word about any sort of torture or illegal detention in respect of him. He also did not file any application for retraction of his confessional statement during the entire course of the trial. Therefore, we are of the view that this submission of the learned advocate representing the appellant as regards illegal detention of the appellant or torture of the appellant for extorting confessional statement is an afterthought argument mainly based on the said sweeping remark of the PW 6. The deposition of PW 5 as to the beating of the appellant by RAB is also a mere hearsay without any reference as to from whom she heard it. Therefore, such deposition also cannot be taken into considerate. This being so, such submission of learned advocate for the appellant does not have any substance at all, particularly when the investigating officer of the case was not confronted with any such question during cross-examination.
5.12. In this regard, we have also examined the case diary of the investigating officer, wherein we have not found any such irregularity or indication of illegal detention or torture of the appellant This being the position, we have no option but to hold that the prosecution has successfully proved, beyond reasonable doubt, that this appellant, along with accused-Anwar (already expired), committed gang rape resulting into the death of the victim and, accordingly, the charge against this appellant under section 9(3) of the Nari-o-Shishu Nirjatan Daman Ain, 2000 has been proved beyond reasonable doubt.
Sentencing:
5.13. Sentencing by a judge has now become a much talked-about issue in our sub-continent The Appellate Division of our Supreme Court has already expressed frustration in Ataur Mridha vs. State, 73 DLR (AD) 298 as regards absence of any specific guidelines for the judges to give appropriate and proportionate sentence. The majority judgment, as delivered by his Lordship Mr. Justice Hasan Foez Siddique (as his Lordship then was), expressed such frustration in the following way: "137. There is no guidance to the Judge in regard to selecting the most appropriate sentence of the cases. The absence of sentencing guidelines is resulting in wide discretion which ultimately leads to uncertainly in awarding sentences. A statutory guideline is required for the sentencing policy. Similarly, a properly crafted, legal framework is needed to meet the challenging task of appropriate sentencing. The judiciary has enunciated certain principles such as deterrence, proportionality, and rehabilitation which are needed to be taken account while sentencing. The proportionality principle includes factors such as mitigating and aggravating circumstances. The imposition of these principles depends on the fact and circumstances of each case. The guiding considerations would be that the punishment must be proportionate. The unguided sentencing discretion led to an unwarranted and huge disparity in sentences awarded by the courts of law. The procedure prescribed by law, which deprives a person of life and liberty must be just, fair and reasonable and such procedure mandates humane conditions of detention preventive or punitive. The main aim of punishment in judicial thought, however, is still the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided. While deciding on quantum of sentence as accused getting away with lesser punishment would have adverse impact on society and justice system. Sentencing for crimes has to be analysed on the touchstone of three test viz. crime test, criminal test and comparative proportionality test."
5.14. Further, in doing the balancing act between aggravating and mitigating circumstances, his Lordship observed as follows: "On balancing the aggravating and mitigating circumstances as disclosed in each case, the Judge has to judiciously decide what would be the appropriate sentence. In Judging an adequate sentence, the nature of the offence, the circumstances of its commission, the age and character of the offender, the injury to the individuals or to the society, whether the offender is a habitual, casual or a professional offender, affect of punishment on the offender, delay in the trial and the mental agony suffered by the offender during the prolonged trial, an eye to correction and reformation of the offender are some amongst many factors that have to be taken into consideration by the Courts. In addition to those factors, the consequences of the crime on the victim while fixing the quantum of punishment because one of the objects of the punishments is doing justice to the victim. A rational and consistent sentencing polices requires the removal of several deficiencies in the present system. An excessive sentence defects its own objective and tends to undermine the respect for law. On the other hand, an unconscionably lenient sentence would lead to a miscarriage of justice and undermine the people's confidence in the efficacy of the administration of criminal justice." (See para 138)
5.15. The minority view in Ataur Mridha case, as expressed by his Lordship Mr. Justice Muhammad Imman Ali, also supports this anxiety of the majority view (see paragraphs 82 and 83 of the reported case), wherein his Lordship proposed to have a separate sentencing hearing for determining such aggravating and mitigating circumstances. It may be noted that there is no specific provision in our law, in particular the Code of Criminal Procedure, for separate sentencing hearing. However, there is no bar in holding such hearing. Rather, we have found the intention of the Legislator in favour of holding such sentencing hearing either separately or along with the hearing on the point of conviction. This provision is enunciated under sub-section (5) of section 367 of the Code of Criminal Procedure, which is reproduced below: "Section 367(5)-If the accused is convicted of an offence punishable with death or, in the alternative, with transportation for life or imprisonment for a term of years, the Court shall in its judgment state the reasons for the sentence awarded". (Emphasis given)
5.16. Therefore, it appears that the Legislature has made it mandatory for the Court to state reasons for imposition of particular sentence when such sentences are death sentence or "transportation for life"-meaning 'life imprisonment' (see section 53A of the Penal Code) or imprisonment for a term of years.
5.17. Taking away the life of an individual is a highly serious act and the Courts of law are always reluctant to pass any such order unless it is bound to do so by the Act of the Legislature. Some countries in modern world have already abolished death sentence basically on the ground that the parties to a criminal proceeding are human being and they are bound to do mistakes and such mistakes should not be allowed to take away the life of an individual. There are judicial pronouncements in our sub-continent which suggest that when a case is proved merely on circumstantial evidences, imposition of death sentence should be avoided. Indian Supreme Court in Bachan Singh vs. State of Punjab (1980) 2 SCC 684, which is widely known as Bachan Singh case, has already given some strict guidelines to be followed and has categorically declared that death sentence may only be given in 'rarest of rare cases'. Different benches of the Indian Supreme Court have also expressed their view to hold separate sentencing hearing on the ground that it would be fairer to the parties concerned, in particular the accuseds, and such hearing is necessary for balancing between aggravating and mitigating circumstances.
5.18. Now, the question arises, how the Court will exactly know such circumstances when accused is not given any hearing, particularly when unlike England, Bangladesh does not have any such Sentencing Council or Board which may assist the Court in reaching such decision by providing sufficient information about the mitigating and aggravating circumstances surrounding the accused concerned. Unlike the Children Act, 2013, there is no provision in our Code of Criminal Procedure seeking any report (সামাজিক প্রতিবেদন) in respect of the accused from the probation officer of the area concerned. Therefore, the Judges fall into a dilemma when they are required to impose a particular sentence.
5.19. It has been reported by different newspapers that the rate of death sentences in Bangladesh, as imposed by the district judiciary, have been increasing rapidly. It may be noted that once a death sentence is imposed, the convict is immediately transferred to the condemned cell in view of the provisions under section 30 of the Prisons Act, 1894. Although the Indian Supreme Court (see Sunil Batra vs. Delhi Administration and others, MANU/SC/0184/1978: AIR 1980 SC 1579), has already declared that such prisoner has to be under 'executable death sentence' and such stage comes only after the mercy petition of the prisoner is rejected by the President in exercise of his Constitutional power, the jails in our country strictly follow the existing practice of transferring the prisoner immediately to the isolated condemned cell once death sentence is imposed by the trial Court or Tribunal.
5.20. Different newspaper reports suggest that more than one thousand prisoners under death sentence are now confined in such condemned cells in different jails of Bangladesh. On the other hand, it is admitted position that the High Court Division is lagging behind about six years in its disposal of death reference cases. Therefore, once an accused is imposed with death sentence, he is bound to stay in such isolated condemned cell for a minimum period of six years. This being so, the Judges in our country should be very cautious in imposing death sentences.
5.21. As against our above observation, we have examined the impugned judgment wherein the reason for imposition of death sentence on the accused-appellant has been stated in the following terms:
"এই মামলায় একটি আট বৎসর বয়স্কা শিশুকে আসামি আনোয়ার ওরফে আনার (বর্তমানে মৃত) এর সহিত আসামি লাভলু পালাক্রমে ধর্ষণ করিয়া এবং ধর্ষণের ঘটনায় সাক্ষী না রাখিবার অসৎ উদ্দেশ্যে পূর্ব পরিকল্পিতভাবে অত্যন্ত পৈশাচিত এবং নৃশংসভাবে ভিকটিমের মুখের ভিতর কাদা মাটি দিয়া শ্বাসরোখের মাধ্যমে উক্ত শিশু ভিকটিম সাবিনাকে হত্যা করিয়াছিল বিধায় এই আসামির প্রতি কোন প্রকার অনুকম্পা প্রদর্শনের সুযোগ নাই এবং উক্ত ঘটনাটিকে হালকাভাবে দেখারও সুযোগ নাই। কাজেই আসামি মোঃ লাভলুকে নারী ও শিশু নির্যাতন দমন আইন, ২০০০ এর ৯(৩) ধারাধীনে দোষী সাব্যস্তক্রমে সর্বোচ্চ শান্তি মৃত্যুদন্ড তৎসহ ১,০০,০০০ (এক লক্ষ) টাকা অর্থ দন্ডে দন্ডিত করিবার সিদ্ধান্ত গৃহীত হইল।"
5.22. It appears from above reasoning of the Tribunal that the Tribunal did not at all give any hearing to the accused, or the learned advocates of the accused to make submissions in favour of any mitigating circumstances available in his favour or to determine the extent of gravity of the criminal act perpetrated by the accused-appellant. It cannot be denied that the prosecution has mostly relied on the confessional statement of this accused-appellant to convict him. Without this confessional statement, the prosecution would have been in serious struggle in proving the charge against this appellant beyond reasonable doubt, and, in that case, its only piece of circumstantial evidence was a 'last seen scenario'. Therefore, when the appellant's confessional statement was relied upon for convicting him, the mitigating circumstances, if any, in such confessional statement should have also been considered by the Tribunal.
5.23. As stated above, in view of the provisions under sub-section (5) of section 367 of the Code, since the Legislature has mandated that the Court must give specific reasons for sentencing death or life or any terms of years, such reasons cannot be stated by the Judges unless a separate sentence-hearing is given to the parties before the delivery of the judgment. Therefore, when final argument of the parties is concluded and the trial judge has made up his mind to convict the accused for the offences punishable with death or life imprisonment or imprisonment for a term of years, the judge concerned should express his such mind to the parties in open Court or Tribunal and then should fix a date, within shortest possible time, for separate hearing on sentencing so that the intention of the Legislature as provided by sub-section (5) of section 367 of the Code is reflected. Our Appellate Division, in the above referred Ataur Mridha case, has also indicated such methodology, although not specifically stated in the majority judgment. But such proposal of separate hearing has been given in minority view and the same view has not been disagreed with by the majority judges. Therefore, we are of the view that in each case where an accused is to be convicted of an offence punishable with death or of life imprisonment or imprisonment for a term of years, the trial judges shall give a separate hearing, before pronouncement/delivery of the judgment, in respect of appropriate sentences to be imposed on the said accused, and, in which hearing, the accused should be entitled to provide materials available in his possession including his social background, crime record, age, financial and family status etc. as indicated by our Appellate Division in the majority view quoted above, namely: "138....... ......On balancing the aggravating and mitigating circumstances as disclosed in each case, the Judge has to judiciously decide what would be the appropriate sentence. In Judging an adequate sentence, the nature of the offence, the circumstances of its commission, the age and character of the offender, the injury to the individuals or to the society, whether the offender is a habitual, casual or a professional offender, affect of punishment on the offender, delay in the trial and the mental agony suffered by the offender during the prolonged trial, an eye to correction and reformation of the offender are some amongst many factors that have to be taken into consideration by the Courts. In addition to those factors, the consequences of the crime on the victim while fixing the quantum of punishment because one of the objects of the punishments is doing justice to the victim. A rational and consistent sentencing polices requires the removal of several deficiencies in the present system. An excessive sentence defects its own objective and tends to undermine the respect for law. On the other hand, an unconscionably lenient sentence would lead to a miscarriage of justice and undermine the people's confidence in the efficacy of the administration of criminal justice."
5.24. In such hearing, the trial judge shall balance between aggravating and mitigating circumstances with an eye on the particular issues like the nature of sentence, circumstances of its commission, the age and character of the offender, the injury to the individuals or to the society, whether the offender is a habitual, casual or a professional offender, effect of punishment on the offender, delay in the trial and mental agony suffered by the offender during the prolonged trial and even eye to correction and reformation of the offender etc., and, only after that, the trial judge shall deliver/pronounce the judgment and order of conviction along win sentence.
5.25. In the present case in hand, since the trial judge concerned has not given such opportunity to the accused, we have heard the learned advocate for the appellant and the learned DAG on the mitigating and aggravating circumstances. In such hearing, learned advocate appearing for the appellant has submitted that at the time of occurrence, the accused was about 28 years of age and that he had two children and a wife. On the other hand, he has submitted that the confessional statement categorically indicates that this accused has only committed rape once and he did not have any perverse mentality except that he committed rape on a minor girl. On the other hand, the most aggravating acts of rape have been committed by accused-Anwar, who has died in the meantime. He further submits that immediately after arrest, this accused made confessional statement, which in fact helped the prosecution to close the case. Therefore, according to him, the sentence on this accused should be commuted to life sentence.
5.26. We have scrutinized the aggravating and mitigating circumstances available in this case carefully. Since the prosecution case is mostly based on the confessional statement of this appellant, the whole statements in his confessional statement should be taken into consideration while balancing such aggravating and mitigating circumstances. In the said confessional statement, this accused has categorically stated that the most perverse act of rape with brutality was committed by accused-Anwar. This accused has admitted that he also committed rape once and he did it on the instigation of the accused-Anwar, who called him to the place of occurrence. There are evidences on record that the house of this appellant was massacred by the village people. In the absence of separate hearing on sentencing by the Tribunal, we are not in a position to know as to what happened thereafter to the wife and the children of this accused. In a country like ours, the female members as well as children of a family are mostly dependent on the male member. On the other hand, the admitted position is that the appellant has in the meantime served in jail for nine years including more than five years in condemned cell. During this more than five years of time in condemned cell, he was under the apprehension every day that he would be hanged any time. Therefore, according to the observation of our Appellate Division in Ataur Mridha case, he died every day. This being so, we are of the view that the sentence of death of this appellant should be commuted to the sentence of life imprisonment and he should get benefit of section 3SA of the Code of Criminal Procedure and ratio of our Appellate Division in the aforementioned Ataur Mridha case in respect of total tenure of such life imprisonment Accordingly, we should reject this death reference. However, his Criminal Appeal No. 6509 of 2007 should be dismissed and the impugned judgment and order should be affirmed in so far as the conviction is concerned.
ORDERS OF THE COURT:
5.27. In view of above discussions of law and facts, the orders of the Court are as follows: 1) This Death Reference No. 75 of 2017 is rejected. 2) The Criminal Appeal No. 6509 of 2017, as preferred by the convict, Md. Lavlu @ Lavlu, is dismissed. Accordingly, the impugned judgment and order dated 30-5-2017 passed by the Nari-o-Shishu Nirjatan Daman Tribunal, Jessore in Nari-o-Shishu Case No. 231 of 2014 convicting the appellant under section 9(3) of the Nari-o-Shishu Nirjatan Daman Ain, 2000 are, hereby, affirmed. However, the sentence of death, as imposed by the Tribunal upon the appellant, is commuted to the sentence of life imprisonment and the convict shall get the benefit of section 35A of the Code of Criminal Procedure for the period he has been in custody in the meantime. The jail appeal, being Jail Appeal No. 264 of 2017, as preferred by him, is disposed of accordingly. 3) The authorities concerned, including the Jail Authority, are directed to withdraw the convict, Md. Lavlu, son of Md. Intaj Ali of Village-Erenda Battola Para, Police Station-Kotwali, District-Jashore, from the condemned cell immediately and shift him to the general prison. 4) The trial Courts and the Tribunals in Bangladesh are directed to hold a separate hearing on sentencing of the accused before delivery/pronouncement of the judgment in the following manners: (a) When the final argument of the parties is concluded and the judge has made up his mind to convict the accused for the offences punishable with death or life imprisonment or imprisonment for a term of years, the judge shall express his/her such mind to the parties in open Court or Tribunal and then shall fix a date, within shortest possible time, for separate hearing on sentencing of the accused in order to determine the appropriate sentences to be imposed. (b) In such hearing, the parties shall be entitled to produce the aggravating and mitigating materials available in their possession including the social background, crime record, age, financial status etc. of the accused as indicated by our Appellate Division in its majority judgment in Ataur Mridha vs. State, 73 DLR (AD) 298 at paragraphs 137 and 138 of the reported case keeping in mind the intention of the Legislature as inherent in sub-section (5) of section 367 of the Code of Criminal Procedure, 1898. (c) In such hearing, the trial judge shall balance between aggravating and mitigating circumstances with an eye on the particular issues like the nature of sentence, circumstances of its commission, the age and character of the offender, the injury to the individuals or to the society, whether the offender is a habitual, casual or a professional offender, effect of punishment on the offender, delay in the trial and mental agony suffered by the offender during the prolonged trial and even eye to correction and reformation of the offender etc., and, only after that, the trial judge shall deliver/pronounce the judgment and order of conviction along with sentence. 5) The Registrar-General of the Supreme Court of Bangladesh is directed to send a copy of this judgment containing above directions or to issue a circular in this regard directing the Courts and the Tribunals concerned in Bangladesh to comply with the above directions about sentencing. 6) Let a copy of this judgment be also sent to the Hon'ble Secretary, Ministry of Law, Justice and Parliamentary Affairs, for necessary actions in this regard. Let an advance order be issued communicating the above result in respect of the convict-appellant. Send down the lower Court records immediately.
--- Journal: DLR Volume: 75 Division: HCD Page: 536High Court Division
(Civil Revisional Jurisdiction)
Present:
Mr. Justice Bhishmadev Chakrabortty
And
Mr. Justice Md. Ali Reza
Civil Revision No. 5229 of 2022
Moazzem Husain and Ors.
Petitioner
VS
Zakir Husain and Ors.
Respondents
Judgement Date : July 10, 2023
Counsels:
Mohammad Abdul Khaleque, Advocate—For the Petitioner.
Md. Saiful Islam, Advocate—For the Respondents.
Judgment
Md. Ali Reza, J.
1. Defendants 2 and 3 as petitioners have preferred this revision calling upon plaintiff-opposite party 1 to show cause as to why order dated 20-10-2022 passed by the Joint District Judge, Court No. 2, Dhaka in Title Suit 5303 of 2008 rejecting the application under Order 26 Rule 13 read with section 151 of the Code of Civil Procedure filed by the petitioners for allotting saham with rasta in their favour pursuant to Advocate Commissioner's report dated 6-5-2010 and allowing the application under Order 26 Rule 9 of the Code filed by opposite party 1 for local investigation to ascertain the present position of the land mentioned in schedules Uma(2) and Thha of the plaint should not be set-aside and/or such other or further order or orders passed as to this court may seem fit and proper.
2. At the time of issuance of the rule an order of stay of further proceeding of the suit and status quo in respect of possession and position of the suit property were passed.
3. The opposite party 1 as plaintiff filed Title Suit 5303 of 2008 on 14-9-2008 in the Court of Joint District Judge, Court No. 2, Dhaka for declaration of title and partition.
4. The case of the plaintiff, in short, is that Alhaj Musarraf Hossain was the owner in possession of the suit property. He died on 24-1-1997 leaving behind 2(two) sons, 1(one) daughter and wife. They maintained joint possession in the suit property. Due to inconvenience and enjoyment in possession plaintiff asked defendants for partition by metes and bounds to which defendants did not respond. Hence the suit was filed.
5. Defendants 1-3 contested the suit by filing written statement denying the material averments made in the plaint.
6. On 14-6-2009 plaintiff and defendants 1-3 jointly filed a compromise petition comprising all the fixtures, identifications, boundaries, sketch maps, accounts along with all other necessary prospects of the entire suit property as mentioned in schedules Ka-Dha. It was clearly stipulated in clause 5.8 of the compromise that neither party shall cancel or add or amend or terminate this document for any reason and the respective parties shall be obliged to fulfill their respective responsibilities as stated. This compromise was mediated by the presiding Judge and all the parties and their Advocates including the presiding Judge put their signatures on this compromise on 14-6-2009.
7. In pursuance of compromise plaintiff as PW 1 and defendants 1-3 as DWs 1, 2, 3 deposed on 14-6-2009 and all the parties in a voice supported compromise through mediation of the Court and put signatures thereto and also admitted that they got their Sahara and wanted the decree.
8. Accordingly the suit was decreed in preliminary form on compromise by Order 27 dated 15-6-2009 under section 89A of the Code on the finding that terms and conditions of the compromise are correct and legal.
9. The decree was signed on 22-6-2009 and the compromise was made part of the decree.
10. Thereafter both plaintiff and defendants 1-3 filed two separate applications under Order 26 Rule 9 read with section 151 of the Code for holding local investigation and those were allowed and accordingly learned Advocates Mr. Saha Alam and Mr. Habibur Rahman were appointed to elucidate the matter in dispute according to preliminary decree. The report was submitted on 6-5-2010.
11. It was then alleged by defendants that the commissioners could not make delivery of possession of the property mentioned in schedules Uma (2) and Thha out of 21 schedules for want of road for which final decree could not be drawn up. On the other hand plaintiff contends that there are roads of RAJUK in schedules Uma(2) and Thha covering both the full plots in question as per map which was made part of the decree and commissioners were appointed to act not beyond but as per decree.
12. In the compromise petition mere are clear descriptions how the roads are to, be used with respect to property under schedules Uma (2) and Thha. Those property are clearly depicted and identified with documents, khatians, measurements along with admitted sketch-maps done by the professionals. The decree also contains the boundaries of those schedules. The road of south city corporation is at the south of Uma(2) schedule property touching the boundaries of both parties. There is also a city corporation road at the south side of Thha schedule property also touching the boundaries of both parties.
13. Meanwhile defendants filed an application for correction of the compromise petition. The trial Court rejected the application by Order 86 dated 9-8-2015 on the finding that since plaintiff does not concede with such correction and compromise was done under section 89A of the Code with the consent and admission of all the parties followed by decree the application is rejected. The Court further found that in the report the commissioners exceeded their power vested upon them by making some extraneous remarks which are not permitted under the law and there is no scope to go beyond the compromise decree and the report of the commissioner was accepted in part except the observations and recommendations given in respect of schedules Uma (2) and Thha and further commission is to be held for those two schedules.
14. On 24-10-2016 the Court while disposing of the application by Order 102 observed that without any amending order all the schedules relating to Uma(2) and Thha have been tempered by cross mark with red colour ink without initial and plaintiff for such reason prayed for restoring the original compromise dated 14-6-2009 and decree dated 22-6-2009 to which defendants raised objection on the plea that commissioners have tailed to make partition of schedules Uma (2) and Thha according to compromise dated 14-2-2009 and plaintiff also did not take any step according to Order 86 dated 9-8-2015 for appointing commissioner. Court found that there is no lawful scope of appeal or to interfere with the decree passed under section 89A of the Code and Court also expunged the red marked signs being beyond original compromise and the next date was fixed on 20-11-2016 for appointment of commissioner.
15. Subsequently defendants 1-3 filed an application on 4-1-2017 for appointment of commissioner for the property of schedules Uma (2) and Thha. This application was filed under Order 26 Rule 9 of the Code and the same is also apparent from the statement made in paragraph 4 of the supplementary affidavit bearing No. 9138 dated 28-2-2023. By Order 104 dated 4-1-2017 the application was allowed and manipulating portion of compromise was corrected. Plaintiff being aggrieved by allowing such appointment of commissioner preferred Civil Revision 2217 of 2017 before this Court and this Court made the rule absolute by judgment and order dated 10-3-2022 allowing to proceed with the application dated 4-1-2017 filed by defendants 1-3 under Order 26 Rule 9 of the Code.
16. But instead of proceeding with the application dated 4-1-2017 filed under Order 26 Rule 9 of the Code defendants 1-3 again filed another application under Order 26 Rule 13 of the Code on 18-9-2022 contending that since both commissioners Mr. Sana Alam and Mr. Habibur Rahman appointed by both parties have died and although a new commissioner Mr. Ataur Rahman has already been appointed on 16-1-2017 even then another commissioner is required to be appointed to convey possession with road in schedules Uma(2) and Thha according to recommendation of the commissioner's report dated 6-5-2010.
17. On 20-9-2022 plaintiff also filed application for appointing commissioner under Order 26 rule 9 of the Code for filing a report by determining the separate boundaries of the parties with separate road with clear description by fixing pillars on the basis of compromise decree in respect of schedules Uma (2) and Thha. On the same day plaintiff filed another application that he has no objection in the event of appointing commissioner by defendants for the purpose of demarcation by fixing pillars.
18. Both parties' applications were heard and the Court rejected the defendants' application and allowed that of the plaintiff by the impugned Order 215 dated 20-10-2022 on the finding that there is no instruction to make over possession with road in respect of Uma (2) and Thha schedules according to compromise and since appointment of commissioner allowed by Order 104 dated 4-1-2017 was maintained in judgment passed in Civil Revision 2217 by 2017 there is no legal scope to appoint another commissioner under Order 26 Rule 13 of the Code and further found that in order to elucidate the present position of the suit property it is expedient and legal to appoint commissioner under Order 26 Rule 9 of the Code.
19. As against the same defendants 2 and 3 came before this Court with this revision and obtained rule with interim orders of stay and status quo.
20. Mr. Mohammad Abdul Khaleque, learned Advocate appearing on behalf of the petitioner submits that the Court below committed an error of law resulting in an error in such order occasioning failure of justice in rejecting the application for holding commission and failed to appreciate that property under schedules Uma(2) and Thha could not be partitioned with road as claimed by the defendants without appointing commissioner under Order 26 rule 13 of the Code. He submits that the trial Court did not even take into notice that plaintiff also has no objection in appointing commissioner and since part of the property is yet to be partitioned the application ought to have been allowed for completion and despite such admission by plaintiff the Court was wrong in rejecting the application upon fanciful consideration. He very candidly submits that after preliminary decree passed the proper procedure is to issue a commission to make partition under Order 26 Rule 13 of the Code to make the decree final and without complying with such procedure the final decree cannot be passed and the matter hangs sine die. He further submits that the lower Court failed to consider this important aspect of the case and wrongly rejected the application against the law which is subject to interference and the rule having merit may be made absolute.
21. Mr. Md. Saiful Islam, learned Advocate appearing on behalf of the plaintiff-opposite party 1 opposes the rule and submits that the trial Court did not commit any error of law occasioning failure of justice in rejecting the defendants' application for commission. He further submits that in earlier Order 104 dated 4-1-2017 as well as in Civil Revision 2217 of 2017 there was no claim of road by the defendants but now in the instant revision arising out of the impugned order dated 20-10-2022 defendants are claiming road in violation of the compromise decree which is not permitted under the law. He men submits that all demands beyond the decree by any of the parties have been foreclosed as soon as the compromise decree was passed and since all consenting parties deposed and put their signatures in the compromise and the same has been made part of preliminary decree under section 89A of the Code there is no scope to invite the procedure laid down in Order 26 Rule 13 of the Code to make such decree final specially when the preliminary decree has already become final in accordance with law. He finally submits that the defendants' application was made in order to delay the proceeding and since the application was made with mala fide intent and beyond the decree the same may be rejected thereby the rule may be discharged.
22. We have heard the learned Advocates and perused the materials on record.
23. This is not an ordinary preliminary decree passed in a suit for partition. After filing of the suit all the parties filed compromise petition on 14-6-2019 with respect to 21 schedules which are clearly described and depicted with documents, khatians, adjustments, measurements, roads along with admitted sketch maps and accordingly all the consenting parties deposed on the same day and they in a voice admitted that the suit is disposed of on mediation in accordance with the compromise petition and they all have got their respective saham. All the parties put their signatures including the presiding Judge on 14-6-2019 and the suit was disposed of through the mediation of the Court according to the provision laid down in section 89A of the Code and the compromise was made part of the decree on 15-6-2009 and the decree was signed on 22-6-2009.
24. The contention of the defendant is that both Advocate commissioners after holding local investigation could not make delivery of possession of the property, mentioned in the schedules Uma (2) and Thha for want of road as a result of which final decree could not be drawn up till today. The commissioners' report was filed on 6-5-2010. From reading of the relevant portion of the report it appears that the commissioner have made some extraneous observations and suggestions about road which are beyond the writ and the decree itself. From paragraph 5 of the application dated 18-9-2022 filed by defendants it also appears that they claim saham with road according to the recommendation made in the report dated 6-5-2010. But the Court's Order 86 dated 9-8-2015 shows that such recommendation of the commissioners with regard to subject matter of schedules Uma (2) and Thha was rendered as out of their jurisdiction and both parties are bound by compromise without having any scope to go beyond such compromise. Thus the claim brought by application dated 18-9-2022 is deemed to be past and closed by Order dated 9-8-2015 and cannot be reopened. The Order dated 9-8-2015 cannot be challenged in any appeal or revision according to provision of section 89A(12) of the Code. It is to be mentioned here that admittedly the application upon which the report dated 6-5-2010 was submitted was made under Order 26 Rule 9 of the Code. Order dated 9-8-2015 further allows both parties to appoint commissioner under Order 26 rule 9 not under Rule 13 of the Code. Order 104 dated 4-1-2017 was also passed pursuant to application filed under Order 26 Rule 9 of the Code. Plaintiffs application dated 20-7-2022 filed under Order 26 Rule 9 of the Code is made for the purpose of elucidating the demarcation by fixing pillars with description of roads among the sharers in consonance with the compromise decree. In the instant case application filed under Order 26 Rule 9 of the Code does not appear to go against the sprite of section 89A of the Code.
25. Clause 5.8 of the compromise shows that neither party can amend or add or terminate any of the terms of the compromise for any reason whatsoever. But the contention of application dated 18-9-2022 filed by defendants under Order 26 Rule 13 of the Code is an apparent violation' of this clause. Compromise decree in a partition suit allotting and specifying the properties according to the share of each party is a final decree and nothing remains to be done except to engross it on stamped paper under Article 45 of the Stamp Act. This view also finds support from the case of Tajjaternessa vs. Md. Suruj Mia and others, 45 DLR 28; AIR 1945 (Pat) 482; 24 (Pat) 427. This is moreover a very special case being decreed in preliminary form upon compromise under section 89A of the Code. Therefore in the instant case application under Order 26 Rule 13 to appoint commissioner to make partition is not permissible where right and share of each of the parties have already been settled and invoking such provision of law is not only redundant but also shall open the flood gate of never ending harassments. The instant revision preferred against the order dated 20-10-2022 also appears to be barred under section 89A(12) of the Code because no appeal or revision shall lie against any order or decree passed by the Court in pursuance of settlement between the parties under this section.
26. We therefore hold that the application dated 18-9-2022 filed by defendants under Order 26 Rule 13 of the Code is not maintainable and the rule has no merit. In the result the rule is discharged and the Order 215 dated 20-10-2022 passed by the Joint District Judge, Court No. 2, Dhaka is hereby upheld. Commissioner is directed to abide by and perform in accordance with the compromise decree while dealing with application dated 20-9-2022 filed by the plaintiff-opposite party 1. The orders of stay and status quo passed by this Court stand vacated.
Communicate this judgment and order to the concerned Court. --- Journal: DLR Volume: 75 Division: HCD Page: 541High Court Division
(Civil Revisional Jurisdiction)
Present:
Mr. Justice Md. Zakir Hossain
Civil Revision No. 1847 of 2016
Shamima Begum and Ors.
Petitioner
VS
Rezuana Sultana (Jhumur) and Ors.
Respondents
Judgement Date : November 06, 2022
Counsels:
Md. Ahsan Habib, Advocate—For the Petitioner.
Md. Golam Rabbani, Advocate—For the Respondents.
Judgment
Md. Zakir Hossain, J.
1. At the instant of the petitioners, the Rule was issued by this Court with the following terms: "Records be called for. Let a Rule be issued calling upon the opposite party No. 1 to show cause as to why the impugned judgment and order dated 28-2-2016 passed by the Joint District Judge, 2nd Court, Joypurhat in Miscellaneous Appeal No. 37 of 2011 affirming the judgment and order dated 17-7-2011 passed by the Senior Assistant Judge, Sadar, Joypurhat in Preemption Miscellaneous Case No. 7 of 2003 rejecting the case should not be set-aside and/or pass such other or further order or orders as to this Court may seem tit and proper."
2. Facts leading to the issuance of the Rule are inter alia that the petitioner Nos. 1 & 2 as pre-emptors on 22-2-2003 instituted Pre-emption Miscellaneous Case No. 7 of 2003 under section 24 of the Non-Agricultural Tenancy Act, in short 'the NAT Act' before the Court of the learned Senior Assistant Judge, Sadar, Joypurhat against the opposite parties for pre-empting the land as described in the schedule to the pre-emption application contending inter alia that they are the co-sharers of the suit land by purchase and the opposite party Nos. 2 & 3 behind the back of the pre-emptors transferred the case land to the pre-emptee-opposite party No. 1. Being aware as to the sale of the property, the pre-emptor procured a certified copy of the deed on 4-12-2002 and filed the aforesaid suit within the stipulated time. The pre-emptee-opposite party No. 1 contested the pre-emption case contending inter alia that the pre-emption case is not maintainable in its present form and bad for defect of parties. It is also contended that before the execution of the sale deed, the pre-emptee-opposite party Nos. 2 & 3 went to him and approached the pre-emptors for purchasing the case land. But he refused to purchase the same as he has adequate land therein and as per their advice, the opposite party Nos. 2 & 3 transferred the case land to the pre-emptee-opposite party No. 1. After purchasing the case land by appointing local Ameen, the suit land was identified with the assistance of the pre-emptor No. 2 and with the help of the pre-emptor No. 2, a wall was constructed in the case land to the North and West boundaries of the case land which is about 2 to 2.5 feet and the pre-emptor No. 2 put his signature in the sketch map prepared by the local Ameen and the specific case of the opposite party is that the pre-emptors in order to harass the pre-emptee brought this case though the case is barred by principle of waiver, acquiescence and estoppels.
3. After conclusion of the trial, the learned Senior Assistant Judge was pleased to dismiss the pre-emption case holding the view that the preemption case is absolutely barred by principle of waiver, acquiescence and estoppels. Being aggrieved by and dissatisfied with the judgment and order of the trial Court, the pre-emptors preferred Miscellaneous Appeal No. 37 of 2011 before the Court of the learned District Judge, Joypurhat. After admitting the appeal, the learned District Judge transmitted the same to the Court of the learned Joint District Judge, 2nd Court, Joypurhat for disposal. Upon hearing, the learned Joint District Judge was pleased to dismiss the appeal concurring with the decision of the trial Court Challenging the legality and propriety of the judgment and order of the Appellate Court, the pre-emptor being petitioner moved this Court and obtained the said Rule therewith.
4. Mr. Md. Ahsan Habib, the learned Advocate appearing on behalf of the petitioners strenuously submits that the pre-emption case is not barred by principle of waiver, acquiescence and estoppels, nevertheless, the courts below concurrently found that the pre-emption case is barred by principle of waiver, acquiescence and estoppels. He further submits that the right of the pre-emption accrued after the registration of the deed but not before; therefore, the pre-emptor's right has not been extinguished and it accrued after registration of the deed. He further submits that during the measurement of the land, the pre-emptee-opposite party did not put his signature, therefore, the courts below emphasizing on the sketch map illegally held that the pre-emption case is barred by principle of waiver, acquiescence and estoppels.
5. In support of his contention, he relies on the decisions of the cases of Hazi Mohammad Abdul Malek vs. Jamal Hossain, 12 ALR 2018 (AD) 157; Syed Shamsul Atom vs. Syed Hamidul Haque and others, 69 DLR (AD) 339 and Dewan Ali (Md.) vs. Md. Jasimuddin and others, 60 DLR (AD) 73.
6. Per contra, Mr. Md. Golam Rabbani, the learned Advocate for the opposite parties submits that the Courts below concurrently found that the pre-emptors refused to purchase the case land and after purchasing, his consent and mediation, the peaceful possession of the case land was handed over to the pre-emptee and, as such, the case is absolutely barred by principle of waiver, acquiescence and estoppels. Therefore, there is no apparent reason to interfere with the concurrent findings of the Courts below and, as such, the Rule is liable to be discharged. In support of his contentions, he relies on the decisions of the cases of Akkiasur Rahman vs. Safarullah reported in 42 DLR (AD) 189; Rokeya Begum vs. Abu Zaher, 5 BLC (AD) 97 and Sree Aumullaya Chandra Haider vs. Md. Mohsin Ali Mondol, 54 DLR 500.
7. Heard the submissions advanced by the learned Advocates for both the parties along with convoluted question of law in involved in this case and perused the materials on record with care and attention and seriousness as it deserves.
8. Now, the pertinent question is whether the impugned judgment and order is liable to be interfered with by this Court The learned Senior Assistant Judge after thoroughly discussing the evidence on record held: "সাক্ষ্য পর্যালোচনায় দেখা যায় যে, ওপিডব্লিউ ২ ও ৩ এর মৌখিক সাক্ষ্য দ্বারা প্রার্থীকগণ কর্তৃক নালিশী দলিলের পূর্বে নালিশী জমি খরিদ করতে অস্বীকৃতি জ্ঞাপন করা এবং অন্যত্র বিক্রির পরামর্শ দেওয়ার বিষয়টি পরিপূর্ণভাবে সমর্থিত হয়েছে। এক্ষেত্রে বলা যায় প্রার্থীকগণ expressly নালিশী জমি খরিদ করার দাবী পরিহার করেছেন। আবার মামলার প্লিডিংস পর্যালোচনায় দেখা যায় প্রার্থীকগণ ২ নং প্রতিপক্ষের দলিলের বিষয় সম্পর্কে কোন আপত্তি করেন নাই। এ কারণে যদিও প্রার্থীকগণের প্রিয়েমশন অধিকার ক্ষুণ্ণ হয় নাই, তথাপি প্রার্থীকদের নালিশী সম্পত্তির প্রয়োজনীয়তার পরিমান সম্পর্কে ধারণা দেয় এবং নালিশী সম্পত্তি অন্যত্র হস্তান্তরিত হওয়া সংক্রান্তে প্রার্থীকদের impliedly সম্মতি থাকার বিষয় প্রকাশ করে। ওপিডব্লিউ ১, ২ ও ৩ সকলেই নালিশী জমির মাপযোগে সংক্রান্ত প্রত্যক্ষসাক্ষী। এই সাক্ষীগণের মৌখিক সাক্ষ্য হতে নালিশী দলিলের পরে ২নং প্রার্থীক স্বয়ং উপস্থিত থেকে নালিশী জমি মাপযোগ করে দেওয়ার দাবী সন্দেহাতীতভাবে প্রমাণিত হয়েছে। এক্ষেত্রে ২নং প্রার্থীকের সম্মত্তি প্রকাশ পেয়েছে। প্রার্থীকপক্ষের বিজ্ঞ আইনজীবী যুক্তিতর্ক শুনানীর সময় বলেছেন, নালিশী দলিলের তারিখে ২নং প্রার্থীক তার কর্মস্থল নাটোরে ছিলেন। ফলে নালিশী দলিল সম্পর্কে প্রার্থীক অবগত থাকার দাবী প্রমাণিত হয় নাই। লক্ষণীয় যে, নালিশী দলিলের তারিখে ২নং প্রার্থীকের নাটোরে থাকার বিষয়টি সাক্ষ্য দ্বারা প্রমাণিত নয়। তাছাড়া, নালিশী দলিলের পূর্বে সম্পত্তি অন্যত্র খরিদ করার পরামর্শ দেওয়া এবং নালিশী দলিলের পরে স্বয়ং উপস্থিত থেকে মাপযোগ করে দেওয়ার বিষয় সাক্ষ্য দ্বারা প্রমাণিত হওয়ায় দলিল রেজিস্ট্রেশনের তারিখে ২নং প্রার্থীক নাটোরে থাকার কারণে প্রার্থীকপক্ষ মামলায় কোন সুবিধা পাবেন না। নালিশী দলিলের পূর্বে নালিশী সম্পত্তির খরিদ করার দাবী পরিহার করা এবং মালিশী দলিলের পরে ১নং প্রতিপক্ষ বরাবর নালিশী সম্পত্তি হস্তান্তরিত হওয়ার বিষয়ে প্রার্থীকপক্ষের সম্মতি থাকার বিষয় শুধুমাত্র লিখিত আপত্তিতে কাগজে কলমে প্রকাশিত হয় নাই বরং মৌখিক সাক্ষ্য দ্বারা পুঙ্খানুপুঙ্খভাবে প্রমাণিত হয়েছে। এমতাবস্থার, অত্র মোকদ্দমায় estoppel নীতি প্রয়োগ হতে কোন বাধা নাই। ঘটনা ও তথ্যের আলোকে রেকর্ডভুক্ত সাক্ষ্য প্রমাণ পর্যালোচনায় বর্তমান ক্ষেত্র 42 DLR (AD) 189 পৃষ্ঠায় উল্লিখিত মামলায় সিদ্ধান্ত অনুসরণযোগ্য। সার্বিক বিবেচনায় ওয়েভার, একুইসেন্স এন্ড এস্টোপেল এর নীতি দ্বারা যারিত সিদ্ধান্ত নেওয়া হলো।"
9. The Appellate Court concurred with the decision of the Trial Court holding the view that the pre-emptors refused to purchase the case land and after transferring the same at his presence and consent the case land was made over to the pre-emptee. In order to determine the intricate question of law involved in this case, we may ponder to ratio and obiter of some cases:
10. In the case of Hazi Mohammad Abdul Malek vs. Jamal Hossain 12 ALR 2018 (AD) 157, it was held: The High Court Division founded is reasoning on the fact that the pre-emptpr admittedly refused to buy a minor's property to avoid complication. In this respect, the Single Bench of the High Court Division was wrong because the legal position, as envisaged by section 96 of the State Acquisition and Tenancy Act, 1950 is that right to pre-emptive purchase accrues only after the property is sold, not before that, and that pre-emptive right does not exist, and is not enforceable before the sale, which principle is supported by the decision of this Division in Fazaruddin vs. Mayejuddin and others, 44 DLR (AD) 62."
11. In the case of Syed Shamsul Atom vs. Syed Hamidul Haque and others 69 DLR (AD) 339, it was held: "We have also perused the decision reported in 13 MLR (AD) 198: 60 DLR (AD) 73 wherein it has considered whether the right of pre-emptor extinguishes by waiver, acquiescence and estoppels and found that the right of pre-emption arises on the date of the transfer of the disputed land. Therefore, there cannot be waiver of the right before its accrual. When not specifically proved by clean evidence on record, the contention of waiver of the right of pre-emption cannot be accepted. This decision also found that right of pre-emption accrues on the date of registration of the sale deed. The pre-emptive right of purchase of the case land accrued to the pre-emptor only after the case land was sold to the purchaser pre-emptee by its owner and not before. Pre-emptive right does not exist before sale and so it is not enforceable before sale. Any such right before sale is an inchoate and immature right. Hence no conduct of the pre-emptor before sale of the case land refusing to purchase the same or consenting to sale thereof to other can constitute waiver, acquiescence or estoppels demolishing his right of pre-emption. The bare requisite for extinction or demolition of pre-emptor right lies in the accrual or existence of such right. In the instant case, the facts and circumstances proved on evidence do not establish that the conduct of the pre-emptor amounted to waiver, acquiescence or estoppels affecting his right of pre-emption."
12. In the case of Dewan Ali (Md.) vs. Md. Jasimuddin and others 60 DLR (AD) 73, it was held: "The view taken in the aforesaid case of Fazruddin appears to be a better view. Right of Pre-emption accrues on the date of registration of the sale deed. The pre-emptive right of purchase of the case land accrued to the pre-emptor only after the case land was sold to the purchaser pre-emptee by its owner and not before. Pre-emptive right does not exist before the sale and so it is not enforceable before sale. Any such right before sale is an inchoate and immature right Hence no conduct of the pre-emptor before sale of the case land refusing to purchase the same or consenting sale thereof to another can constitute waiver, acquiescence or estoppel demolishing his right of pre-emption. The bare requisite for extinction or demolition of pre-emption right lies in the accrual or existence of such right. In the instant case, the facts and circumstances proved on evidence do not establish that the conduct of the pre-emptor amounted to waiver, acquiescence or estoppel affecting his right of pre-emption."
13. In the case of Akkiasur Rahman vs. Safarullah 42 DLR (AD) 189, it was held: "Waiver and acquiescence in preemption: Facts proved in a particular case may give rise to waiver and acquiescence and a pre-emptor may be held to be estopped from enforcing his right of pre-emption. It will be a question for proper inference from the facts provided in each particular case as to whether the peal of waiver and acquiescence exists or not."
14. It was also held: "It is the abandonment of a right, and is either express or implied-it may be implied from conduct which is inconsistent with the continuance of the right."
15. It was further held: "In its proper legal sense, acquiescence implies that a person abstains from interfering while a violation of his legal rights is in progress--it operates by way of estoppel."
16. In the case of Rokeya Begum vs. Abu Zaher 5 BLC (AD) 97, it was held: "The appellant waived her right of preemption by refusing to purchase the land transferred at the earliest opportunity and that she is stopped from repurchasing the land when the lower appellate Court had misread the evidence of PWs on question of acquiescence and estoppel and thereby committed an illegality in arriving at its decision and hence the High Court Division did not commit any illegality in exercise of its jurisdiction under section 115(1) of the Code of Civil Procedure."
17. It was also held: "It appears that the learned Single Judge on due consideration of evidence came to the finding that the appellant waived her right of pre-emption by refusing to purchasing the land; transferred at the earliest opportunity and that she is estopped from purchasing the land. The learned Judge in so holding rightly relied upon the decision in the case of Akhlasur Rahman vs. Safarullah, 1994 BLD (AD) 20: 42 DLR (AD) 189. In Akhlasur Rahman, this Division held........."that the right (right of pre-emption) can be waived or relinquished at an earlier date than on date of actual completion of sale under the law or thereafter."
18. It was further held: "No doubt, the plea of waiver and acquiescence is a question of interference to be drawn from the facts proved in a give case. The learned Singe Judge, in the instant case rightly noted that the lower appellate Court had misread the evidence of the DWs on question of acquiescence and estoppel and thereby committed an illegality in arriving at its decision and, as such, the learned Single Judge did not commit any illegality in exercise of his jurisdiction under section 115(1) of the CPC."
19. In the case of Sree Aumullaya Chandra Haider vs. Md. Mohsin Ali Mondol 54 DLR 500, it was held: "A pre-emption may be held to be stopped from enforcing his right of preemption if he abandons such right either expressly or by implied conduct. Acquiescence implies that if a person abstained from interfering while a violation of his legal right is in progress it operates by way of estoppel. In the instant case, there are adequate evidence on record to prove that the petitioner hand knowledge of the sale made by his brother and he gave consent to the sale in question waiving his preferential right of purchase."
20. It was also held: "So far the second ground taken by the learned appellate court is concerned, it appears that the petitioners' right of preemption is said to have been barred by the principle of waiver and acquiescence as it has been found by evidence that the petitioner refused to purchase the case land at the time of payment of earnest money and that the sale transaction was completed with a consent and full knowledge of the co-sharer petitioner. It appears that both the courts below have concurrently found on the basis of available evidence on record that the petitioner was not only aware of the transfer made by his own brother but he had also give consent to the transaction having involvement in the negotiation. On perusal of the evidence, it appears that there are sufficient corroborative evidences in proof of such contention. So I am not inclined to interfere with such contention."
21. The petitioner No. 2 examined himself as PW-1. His evidence has not been supported by any other witnesses as no corroborative evidence was advanced by the pre-emptor. In his evidence, he states that the opposite party No. 1 and opposite party Nos. 2-3 behind his back without giving him any proposal for selling out the property created a sale deed. He states to the effect- "নালিশী জমি আমার খুব প্রয়োজন।" তিনি আরো স্বীকার করেন, "আমি এমআরআর ১৩৪৬ নং খতিয়ান এর সম্পতি নিয়ে মামলা করেছি। এই খতিয়ানের প্রজাদের মধ্যে কজন জীবিত, কজন মৃত বলতে পারব না। এই খতিয়ানের সকল প্রজা এবং তাদের ওয়ারিশদের পক্ষ করেছি। সাক্ষী আরজি দেখে বলেছে যে, "আমি এমআরআর খতিয়ানের প্রজাদের পক্ষ করি নাই। আমি জয়পুরহাট শহরে মোট ৫০ শতক জমি খরিদ করেছি। আমার খরিদকৃত ৫০ শতক জমি বাবদ আমার নামে আরএস খতিয়ান হয়েছে। এই ৫০ শতক জমি জয়পুরহাট পৌর এলাকার মধ্যে।" তার সাক্ষ্যে তিনি আরো বলেন যে, "নালিশী দাগের দখলকারদের সকলকে পক্ষ করি নাই।" (Emphasis supplied)
22. OPW 1, Md. Abu Bakkar Siddique, aged-73, in his evidence states: "নালিশী জমির লাগা উত্তর-দক্ষিণে লম্বা একটি রাস্তা এবং রাস্তার পূর্ব পাশে প্রার্থক আফজালের দোতলা বাড়ি আছে। নালিশী জমির লাগা পশ্চিমে প্রার্থকের নিজ নামীয় ১৬.৫ শতক ফাঁকা জমি আছে। এই ১৬.৫ শতক জমির লাগা পূর্বে আনুমানিক আরো ৫ শতক জমি ২নং প্রার্থকের আছে। এই জমিতে প্রার্থকের পাকা বাড়ি নির্মাণাধীন আছে। নালিশী জমির লাগা উত্তরে ১নং প্রার্থকের ৫ শতক জমি ফাঁকা আছে। নালিশী জমির লাগা রাস্তার পূর্ব পাশে আনুমানিক ২০ শতকের উপর প্রার্থকের পাকা প্রাচীর ঘেরা আরো একটি বাড়ি আছে। নালিশী জমি বিক্রির পূর্বে প্রার্থককে বারবার (একাধিকবার) প্রস্তাব নিয়ে গেছি। প্রার্থক তার অনেক জমি থাকায় নালিশী জমি কিনতে অস্বীকৃতি জানায়।"
23. OPW 2, aged-72, in his evidence states: "আমি নালিশী জমি প্রথমে প্রার্থকদের বরাবর বিক্রির প্রস্তাব নিয়ে যাই।" তিনি জেরায় বলেন যে, "আফজাল বরাবর বিক্রির প্রস্তাব নিয়ে গেলে সে খরিদ করার আশ্বাস দিয়ে একাধিকবার সময় নেয়। আমি মোট ২ বার গিয়েছি।" তিনি আরো বলেন যে, "দলিলের ৫ দিন পর মাপঝোপ করা হয়। মাপঝোপের সময় ১নং প্রতিপক্ষের বা তার স্বামী উপস্থিত ছিল না। মাপঝোপের সময় আফজালসহ ৫/৬ জন উপস্থিত ছিল। স্কেচ ম্যাপে সই করেছে ৪ জন।"
24. OPW 3, Md. Shariful Islam in his evidence states: "আমি পক্ষদের চিনি। নালিশী জমি চিনি। আমি রাজমিস্ত্রি। প্রার্থী ও প্রতিপক্ষদের বাড়িতে কাজ করেছি। নালিশী জমির বিক্রির পূর্বে আমি আফজালের কাছে বিক্রির প্রস্তাব নিয়ে গিয়েছিলাম। আফজাল কিনতে অস্বীকৃতি জানায় এবং অন্যত্র বিক্রি করার কথা বলেছে। তারপর, প্রার্থকদের জ্ঞাতসারে নালিশী জমি বিক্রি করি। মাপঝোপ করে সীমানা প্রাচীর দেওয়া হয়। নালিশী জমির সীমানা প্রাচীর আমি দিয়েছি।" তিনি জেরায় কৌশলে আরো বলেন যে, "স্কেচ ম্যাপে আমি, আফজাল ও আমিন সাহেব সই করেছে।"
25. The pre-emptor No. 2 (PW 1) himself admitted that he did not make all the co-sharers as party to the pre-emption case and he admitted that he purchased SO decimals of land including the case land within Joypurhat, Pourashava and RS record was duly prepared in their names and, as such, their co-sharership in the holding as well as in the case land has been ceased as per law and therefore, he has got no locus standi to file the aforesaid pre-emption case. The pre-emptors have 50 decimals of land within Joypurhat, Poura-shava, but the pre-emptee has got no land except the case land measuring 6.5 decimals.
26. Unfortunately, the pre-emptors after waiving their right instituted the pre-emption case to snatch the property of the pre-emptee. In this respect, the relevant portion of the famous poems of Nobel laureate Rabindranath Tagore may be read thus: "এ জগতে, হায়, সেই বেশি চায় আছে যার ভূরি রাজার হস্ত করে সমস্ত কাঙালের ধর চুরি।"
27. The conduct of the pre-emptors before and after purchase amply proved that the pre-emptor-petitioners waived their right of preemption and, as such, the pre-emption case was rightly dismissed by the trial Court. The petitioners intentionally relinquished of their statutory right and thereby waived the right of pre-emption. The Appellate Court assigning cogent reason concurred with the finding of the trial Court; therefore, it does not warrant for any interference by this Court. It is true that the right of pre-emption accrues after the deed entered in the volume as per section 60 of the Registration Act, 1908, but if the right of pre-emption is waived before and after registration, obviously the Court may turn down the prayer of preemption; otherwise, the equitable principle of waiver, acquiescence which operate as estoppels will be meaningless. Nothing is absolute in law; therefore, it cannot be held absolutely that the preemption right shall accrue only after registration of the deed and if it so, the equitable principles of waiver and acquiescence shall be futile and fruitless.
28. It cannot be denied that the scarcity of the urban land is increasing day by day; therefore, the pre-emption by co-sharer by purchase should be discouraged by reviewing and revisiting section 24 of Non-Agricultural Tenancy Act. Section 96 of the State Acquisition and Tenancy Act, in short, the SAT Act was amended by Act XXXV of 2006 considering the socio-economic perspective of the country, but in the meantime, 73 years have been elapsed of enacting NAT Act, 1949. By lapse of time, a conspicuous revolution has been taken place and urbanization has been tremendously progressed; therefore, the law does require to be reviewed for the greater interest and welfare of the people of the country. In this respect, I am of the view that a comparative distinction between the two should be mentioned here for better appreciation.
29. For better understanding and appreciation, relevant provisions of section 96 of SAT Act, 1950 may be read thus: 96. (1) If a portion or share of a holding of a raiyat is sold to a person who is not a co-sharer tenant in the holding, one or more co-sharer tenants of the holding may, within two months of the service of the notice given under section 89, or, if no notice has been served under section 89, within two months of the date of the knowledge of the sale, apply to the Court for the said portion or share to be sold to himself or themselves: Provided that no application under this section shall lie unless the applicant is- (a) a co-sharer tenant in the holding by inheritance; and (b) a person to whom sale of the holding or the portion or share thereof, as the case may be, can be made under section 90: Provided further that no application under this section shall lie after expiry of three years from the date of registration of the sale deed. (2) In an application under sub-section (1), all other co-sharer tenants by inheritance of the holding and the purchaser shall be made parties. (3) An application under sub-section (1) shall be dismissed unless the applicant or applicants, at the time of making it, deposit in the Court- (a) the amount of the consideration money of the sold holding or portion or share of the holding as Stated in the notice under section 89 or in the deed of sale, as the case may be; (b) compensation at the rate of twenty five per centum of the amount referred to in clause (a); and (c) an amount calculated at the rate of eight per centum simple annual interest upon the amount referred to in clause (a) for the period from the date of the execution of the deed of sale to the date of filing of the application for preemption. (Emphasis supplied)
30. For better understanding and appreciation, relevant provisions of section 24 of NAT Act, 1949 may also be read thus: 24. (1) If a portion or share of the non-agricultural land held by a non-agricultural tenant is transferred, one or more co-sharer tenants of such land may, within four months of the service of notice issued under section 23 and, in case no notice had been issued or served, then within four months from the date of knowledge of such transfer, apply to the court for such portion or share to be transferred to himself or to themselves, as the case may be. (2) The application under sub-section (1) shall be dismissed unless the applicant at the time of making it deposits in Court the amount of the consideration money or the value of the portion or share of the property transferred as stated in the notice served on the applicant under section 23 together with compensation at the rate of five per centum of such amount. (Emphasis supplied)
31. In the above backdrop, it is expected that the Government shall take necessary step to amend the provision of section 24 in line with the latest amendment of section 96 of the SAT Act, 1950 for the greater interest of the people of the country.
32. The following points may be considered by legislators: (i) Only the co-sharer tenant by inheritance can file pre-emption case under section 24 of the NAT Act. (ii) Transfer by way of sale only be preemptible and the pre-emption case has to file within two months from the date of registration as per section 60 of the Registration Act or if no notice is given under section 23 of the NAT Act within two months from the date of knowledge. (iii) The maximum period of filing preemption case shall not be more than two years from the date of expiry of the registration of the sale deed. (iv) The pre-emptor has to deposit consideration money along with 35% of the compensation of consideration money and an amount of 10% annual interest upon the amount of consideration money for the period from the date of execution deed of sale and to the date of filing the application for pre-emption. (v) The remaining co-sharer tenants by inheritance may join in the original application within two months from the date of service notice or within two months from the date of knowledge of registration of the deed. (vi) If pre-emption case is allowed, the pre-emptee has to execute a registered sale deed within stipulated time failing which the Court shall execute the registered deed and shall hand over the possession to the pre-emptor. (vii) Non-agricultural land or holding should be considered as synonym. If the non-agricultural land is recorded in different khatians by survey operation or by mutation proceeding, the right of pre-emption shall be ceased. (viii) The ceiling of the agricultural or non-agricultural land should not be more than twenty bighas in case of agricultural land and only five bighas in case of non-agricultural land and accordingly, consequential amendment has to be made in Bangladesh Land Holding (Limitation) Order, 1972 (PO 98 of 1972), the Land Reforms Ordinance, 1984 (Ordinance No. X of 1984) and section 90 of the SAT Act (Act XXVIII of 1951). (ix) As per Rules of Business and Allocation of Business, it is the subject of the Ministry of the Land, therefore, the Ministry of Land may take necessary step to review the provisions of law relating to preemption as set out under section 24 of the NAT Act.
33. Having regards to the facts and circumstances of the case, I am of the view that the Rule is devoid of any substance and accordingly, it shall fall through.
34. In the result, the Rule is discharged, however, without passing any order as to costs.
35. Let a copy of the judgment with LCRs be sent down to the Court below at once. A copy of the judgment also be transmitted to the Secretary, Ministry of Land for taking necessary step.
--- Journal: DLR Volume: 75 Division: HCD Page: 558High Court Division
(Civil Revisional Jurisdiction)
Present:
Mr. Justice Md. Rezaul Hasan
Civil Revision No. 340 of 2021
Md. Islam
Petitioner
VS
Tasfiya and Ors.
Respondents
Judgement Date : May 30, 2023
Counsels:
Md. Abdul Quddus Tarafder, Advocate—For the Petitioner.
Md. Shahabul Alam Chowdhury, Advocate—For the Respondents.
Judgment
Md. Rezaul Hasan, J.
1. This Rule has been issued calling upon the Opposite Parties to show cause as to why the impugned judgment and decree dated 30-9-2010 decree signed on 6-10-2020), passed by the District Judge, Chuadanga, in Family Appeal No. 20 of 2019, partly allowing the appeal and thereby modifying the judgment and decree dated 2-5-2019 (decree signed on 2-5-2019), passed by the Judge of the Family Court, Damurhuda, Chuadanga, in Family Suit No. 7 of 2015, decreeing the suit, should not be set-aside and/or pass such other order or orders passed as to this Court may seem fit and proper.
2. Facts, relevant for disposal of the Rule, in short, are that, the opposite party No. 1, Tasfiya (minor) and her mother Mosammat Banna Khatun, as plaintiffs, had filed Family Suit No. 7 of 2015, before the court Family Court, Damurhuda, Chuadanga, against the present petitioner Md. Islam (husband of the plaintiff No. 2 and father of the plaintiff No. 1) demanding the unpaid dower of Taka 1,50,000 and also Taka 5,000 per month as her maintenance and Taka 3,000 per month as maintenance of the child. The case of the plaintiffs is that, there was a premarital affair between the defendant Md. Islam and Mosammat Banna Khatun (the plaintiff No. 2) and at one stage she became pregnant. It has also been stated that, the matter was taken before a village salish (arbitration), since the defendant had refused to marry her (plaintiff No. 2) and as per the decision of the salish consisting of the village nobles, a marriage was solemnized on 17-7-2014 and dower money was fixed at Taka 1,50,000. Thereafter, the child was born after marriage, who was 1 1/2 month old at the time of filing of this suit. The defendant instead of providing maintenance to the plaintiffs, was pressing the plaintiff No. 2 for dowry, and at one stage, on 19-8-2014, the family members of the defendant came to the father's house of the plaintiff No. 2 and demanded Taka 2,00,000 as dowry. The plaintiff No. 2 demanded her dower and maintenance, but that was not heeded to, hence, she has filed this suit.
3. The defendant appeared and contested in the suit by filing written statement in which he has denied that the minor was not his child and also asserted that on 19-8-2014 he was compelled to sign the Kabinnama and that there was no valid marriage. He has also denied to have ever demanded dowry. It has also been alleged that, the plaintiff No. 2 is an woman of bad character and there was a DNA Test in which it was found that the child was not begotten by him and it was not his child.
4. The plaintiff No. 2 has examined herself as PW 1 and has produced and proved the Kabinnama (Exhibit 1) and the certified copy of order dated 23-3-2015 of the Sessions Judge cum Nari-o-Shishu Nirjatan Daman Tribunal, Chuadanga in Nari-o-Shishu Case No. 211 of 2014 (Exhibit 2) in support of her case. On the other hand, the defendant himself examined has deposed as DW 1 and has produced and proved certain documents marked as Exhibit Ka (certified copy of the order No. 11 dated 8-4-2015 of Nari-o-Shishu Case No. 211 of 2014), Exhibit Kha (certified copy of DNA Test report dated 31-5-2015) and Exhibit Ga (the certified copy of the order of acquittal dated 19-11-2018 passed in Nari-o-Shishu Case No. 211 of 2014) in support of his defence.
5. The trial court, after hearing the parties and having assessed the evidence on record, had dismissed the suit on 2-5-2019 (decree signed on 2-5-2019). Against the said judgment and decree of the trial court, the plaintiffs preferred Family Appeal No. 20 of 2019, before the District Judge, Chuadanga. The appellate court, after hearing the parties and having reassessed the evidence on record, has allowed the appeal in part and thereby modified the judgment and decree of the trial court, vide its judgment and decree dated 30-9-2020 (decree signed on 6-10-2020).
6. Being aggrieved by and dissatisfied with the said judgment and decree, the defendant-respondent-petitioner has filed this revisional application under section 115(1) of the Code of Civil Procedure and obtained the present Rule.
7. Learned Advocate Mr. Md. Abdul Quddus Tarafder appeared on behalf of the defendant-respondent-petitioner. He mainly submits that, this plaintiff No. 2 had filed Nari-o-Shishu Case No. 211 of 2014 alleging that she was beaten by the defendant-petitioner for coercing dowry from her and cognizance was taken, against him, under section 11(Ga) of the Nari-o-Shishu Nirjatan Ain Ain, 2000. He next submits, in the said case the accused Md. Ismail filed an application, on 8-5-2015, for holding DNA Test of the child and the said application was allowed by the Tribunal (Exhibit Ka). Thereafter, the DNA analysis was made by Forensic DNA Laboratory of Bangladesh Police, Malibagh, Dhaka, and it has given a report on 31-5-2016 (Exhibit Kha), prepared by Nusrat Yesmin, Assistant DNA Analyst and in the said report it has been mentioned that the defendant (accused in that case) was not biological father of the child born of Mosammat Banna Khatun. Hence, the judgment of acquittal dated 19-11-2018 was passed in Nari-o-Shishu Case No. 211 of 2014 (Exhibit Ga). He also submits that, the trial court has rightly considered the factual aspect of the case as well as the relevant provisions of law and has dismissed the family suit, vide its judgment and decree dated 2-5-2019. He proceeds on that the appellate court, without at all considering the evidence on record, has failed to appreciate the evidence arrived at wrong finding and has passed the impugned judgment and decree dated 30-9-2020. He concludes that, this Rule has merit and the same may kindly be made absolute.
8. Learned Advocate Mr. Md. Shahabul Alam Chowdhury appeared on behalf of the plaintiffs-appellants-opposite parties. He on the other hand, submits that, the Nari-o-Shishu Case No. 211 of 2014 was filed before the Nari-o-Shishu Nirjatan Daman Tribunal under section 11 (Ga) of the Nari-o-Shishu Nirjatan Daman Ain, 2000 and the issue decided by the Tribunal, in that case, were totally different from those of the family suit Therefore, the judgment and order passed by the Nari-o-Shishu Nirjatan Daman Tribunal, Chuadanga, had no relevance in deciding the family suit. He next submits that, the appellate court, as the last court of tact, has independently reassessed the oral and documentary evidences and the judgment of the appellate court is based on proper appreciation of law and facts and on proper interpretation of section 261 and 262 of the Mulla's Principles of Mahomedan Law. The appellate court has rightly reversed the findings of the trial court and there is no case of misreading or non-reading of any evidence by the appellate court. He concludes that, this Rule has no merit and he prays for discharging the Rule.
9. I have heard the learned Advocates appeared for the parties, perused the application for revision, as well as the judgment and decree of both the courts below. I have also considered the pleadings of the parties in the light of the evidence on record and the provisions of law applicable in this case. I find that, an application was filed by the accused Md. Islam in Nari-o-Shishu Case No. 211 of 2014 before the Tribunal, for a DNA Test purportedly denying the fatherhood of the child Tasfiya and the said application was allowed by the Tribunal and accordingly Nusrat Yesmin, Assistant DNA Analyst held DNA Test and submitted the DNA Report dated 31-5-2016. But, that Nusrat Yesmin was not at all summoned as a witness to prove the said report, either in the criminal case or in the present suit, nor even before the appellate court.
10. Having examined the judgment dated 19-11-2018, passed by the Nari-o-Shishu Nirjatan Daman Tribunal, Chuadanga, in Nari-o-Shishu Case No. 211 of 2014, I find mat, the Tribunal has discharged the accused because the prosecution has failed to prove its case beyond reasonable doubt, particularly when the Doctor, PW 6, deposed that he did not find any sign of torture on the person of the victim. Hence, the Tribunal has acquitted the accused (defendant in this case). But it is evident that the DNA report dated 31-5-2016 was not at all proved before the Tribunal, nor it was relied upon by the Tribunal in passing the judgment of acquittal. Besides, the issues before the Tribunal were totally different from those to be considered in the family suit. Therefore, the judgment of the Nari-o-Shishu Case No. 211 of 2014 had no relevance in deciding this family suit.
11. I have also considered the judgment of the trial court, I find that it has relied upon the DNA report dated 31-5-2016 which was not at all proved before it, nor even before the Tribunal before whom this report was originally placed.
12. Rather, in order to admit the DNA report into evidence inspite of it being not proved, the trial court has invoked paragraph No. 6 of section 60 of the Evidence Act, 1872, in aid, which creates an exception as to the manner of proof of an expert opinion and provides that, "the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable".
13. For example paragraph No. 6 of section 60 of the Evidence Act may apply to prove an opinion based on Modi's Medical Jurisprudence and Toxicology. But, the DNA test report did not refer to any opinion incorporated in any such treatise. Hence, paragraph number 6 of section 60 was not applicable and this would not relieve the defendant from his burden to prove the DNA test report in proper manner.
14. The interpretation of paragraph No. 6 of section 60 by the trial court is erroneous. It has committed grave error of law in relying upon paragraph No. 6 of section 60 to negate the burden that lied upon the defendant to prove the same.
15. Be that as it may, the feet remains that Nusrat Yesmin, Assistant DNA Analyst the DNA analysts of Forensic DNA Laboratory of Bangladesh Police, who has prepared the report dated 31-5-2016 and opined that, the child born of Mosammat Banna Khatun was not biological child of Md. Islam, was not called as witness to prove the said report As such, the said report ought not to have considered or admitted into evidence or to mark the same as an exhibit by the trial court. This DNA test report, since not proved, is 'no evidence' in the eye of law.
16. In addition to the above, the trial court has committed fatal misinterpretation of section 112 of the Evidence Act and all these findings are based on serious lack of knowledge of the interpretation of statute.
17. Section 112 of the Evidence Act, which reads as follows" "The fact that any person was bora during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten." (emphasis added).
18. In view of the provision of section 112 and in the light of the facts proved, the child Tasfiya was born of a valid marriage between its mother and the defendant Md. Islam. This is the conclusive proof of the infant's legitimacy. No other evidence, be it the DNA Test report or anything else, can be admitted into evidence to rebut the statutory 'conclusive proof. The court has no jurisdiction to admit or to rely on any evidence, whatsoever, in violation of section 112, unless and until this section is amended.
19. Having considered the provisions of section 252 and 254, I find that the essentials of valid marriage are present in this case and these provisions have rightly been considered by the appellate court and it's finding is based on proper appreciation of evidence and the law. The appellate court has also considered the question of validity of the marriage between the defendant and the plaintiff No. 2 Mosammat Banna Khatun, who was pregnant at that time, the appellate court, having considered the provisions of section 260/261 and 262 of me Mahomedan Law of DF Mulla, has found that the marriage was valid as per these three sections.
20. There is no prohibition in these sections, which exhaustively lays down the law as regards the Muslim marriage. Therefore, the appellate court has rightly found the marriage between the plaintiff No. 2 and with the defendant was not prohibited under the law governing Muslim Marriage.
21. On the other hand, in a case reported in Amina vs. Hasan Koya AIR 2003 (SCW) 2496, the Supreme Court of India had to consider the validity of a marriage took place during the pregnancy of the bride and the husband's obligation to pay maintenance to the child. In that case, the marriage took place on 28-12-1972. A child was bom on 3-5-1973 i.e. 4 (four) months and 6 (six) days after the marriage. The husband divorced his wife on 2-5-1977. Maintenance was subsequently refused by the husband, because the wife had become pregnant before marriage and concealed the fact The Supreme Court allowed maintenance and said that the husband knew about the pregnancy at the time of marriage, as evidenced by his conduct This judgment of the Indian Supreme Court applies to the fact and circumstances of this case and I safely indorse the views expressed by their Lordships in the case of Amina vs. Hasan Koya.
22. Besides, we should not overlook the case made out by the plaintiff No. 2 in her application dated 23-3-2015 (Exhibit 2) before the Nari-o-Shishu Nirjatan, Daman Tribunal, Chuadanga, in Nari-o-Shishu Case No. 211 of 2014 in which she has admitted that, "নিবেদন এই যে, অত্র মোকদ্দমার হাজতি আসামীর সহিত অত্র মোকদ্দমার ভিকটিম বন্যা খাতুনের সহিত বিবাহ হয় এবং বিবাহের পূর্ব প্রেম ঘটিত কারণ দৈহিক সম্পর্ক গড়ে উঠে এবং ভিকটিম অন্তসত্ত্বা হয়ে পড়ে ভিকটিম (বাদী) এর গর্ভের সন্তান হাজতী আসামীর ঔরষজাত। হাজতি আসামী স্ত্রী সন্তান সহ ঘর সংসার করিতে চাই।" This is a clear admission of the defendant that strengthens other evidence of the plaintiffs case and if the case denied the statement made in the application, then no doubt he is a liar and the entire evidence as DW 1 should be brushed aside.
23. In view of the deliberation recorded above, I do not find any merit in this Rule. The Rule is liable to be discharged with exemplary cost.
In the result, the Rule is discharged.
Order
The impugned judgment and decree dated 30-9-2010 decree signed on 6-10-2020), passed by the District Judge, Chuadanga, in Family Appeal No. 20 of 2019, modifying the judgment and decree dated 2-5-2019 (decree signed on 2-5-2019), passed by the Judge of the Family Court, Damurhuda, Chuadanga, in Family Suit No. 7 of 2015, is hereby upheld, subject to the modification made by this Court
The defendant-respondent-petitioner shall pay Taka 1,00,000 as cost to the plaintiff No. 2 within 30 days from the date of receiving this judgment and order otherwise this amount shall be realized from the decreetal amount as part of the decree.
The living cost has been increased by this time and, as such, the defendant-respondent-petitioner is further directed to pay the maintenance of the plaintiffs i.e. both his child Tasfiya and wife Mosammat Bannya Khatun from the date on which the cause of action arose i.e. from 19-8-2014 @ Taka 10,000 per month until they were taken to the custody of the defendant and he will provide their maintenance, medical care and education cost etc.
The decree of the courts below is hereby modified as above. The defendant is directed to pay the entire decreetal amount within 2(two) months from the date of receiving this judgment in the trial court. In default, the trial court shall, upon filing of an execution case, cause to recover the entire outstanding decreetal dues along with interest at the rate of 20% per annum till recovery of the amount in full.
The executing court shall, if any execution case is filed, call for the information about the bank account of the defendant and other movable and immovable assets and shall pass an order of attachment or any other order, as the situation may justify, for ensuring recovery of the decreetal dues.
The order of stay and granted earlier by this Court is hereby vacated.
Let a copy of this judgment along with LCR be sent to the concerned Courts at once.
Let another copy of this judgment be sent to the Law Commission in view of the observation made in paragraph No. 18.
--- Journal: DLR Volume: 75 Division: HCD Page: 563High Court Division
(Writ Jurisdiction)
Present:
Mr. Justice Zubayer Rahman Chowdhury
And
Mr. Justice Kazi Ebadoth Hossain
Writ Petition No. 9904 of 2010
Khoundkar Alamgir
Petitioner
VS
National University and Ors.
Respondents
Judgement Date : December 11, 2022
Counsels:
Khondoker Shahriar Shakir, Advocate—For the Petitioner.
Khan Mohammad Shameem Aziz, Advocate—For the Respondents.
Judgment
Zubayer Rahman Chowdhury, J.
1. The decision taken by the Syndicate of the National University at its 119th meeting held on 28-8-2010, deducting three increments granted to the petitioner at the time of his appointment as Assistant Professor in the Department of Islamic History and Culture, National University, Gazipur (hereinafter referred to as the University) is under challenge in the instant application filed under Article 102(2) of the Constitution.
2. Pursuant to a notice captioned 'সহকারী অধ্যাপক ও প্রভাষক পদে নিয়োগ পুনঃ বিজ্ঞপ্তি' published in the Daily Inqilab on 9-9-2004, the petitioner applied seeking appointment in the post of Assistant Professor. As the petitioner was already serving as an Assistant Director (Publications) in the Department of Archeology, Dhaka at the relevant time, his application was forwarded by the Ministry of Culture by Memo dated 2-12-2004. The petitioner appeared before the Selection Board and he was selected for appointment in the post of Assistant Professor in the Department of Islamic History and Culture (briefly, the Department), which was approved by the Syndicate at its 75th meeting held on 13-1-2005. Thereafter, respondent No. 4 issued the appointment letter on 16-1-2005, appointing the petitioner as Assistant Professor in the Department with a salary scale of Taka 7,200-2,600 x 14-10,840 along with three additional increments.
3. The petitioner joined in the said post on 1-2-2005 and since then, he has duly received his monthly salary. However, in the monthly bill of December 2010, an amount of Taka 7,233 was shown to have been deducted from his salary under the head "deduction of salary," however, without any prior intimation. The petitioner sent a letter to respondent No. 5 on 12-12-2004 seeking an explanation and he was verbally informed that pursuant to an office order dated 15-3-2010, issued by respondent No. 7 (Deputy Secretary, University-2, Ministry of Education), a decision had been taken by the Syndicate to deduct the amount paid in respect of three increments that was earlier granted to the petitioner at the time of his appointment as Assistant Professor. The petitioner filed an application before the Vice Chancellor of the University requesting him to withdraw the aforesaid decision, but to no effect. The petitioner sent a Demand for Justice Notice on 11-12-2010, but still there was no response. Being constrained, the petitioner moved this Court and obtained the instant Rule.
4. The Rule is being opposed by respondent No. 1 by filing an affidavit-in-opposition.
5. Mr. Khondoker Shahriar Shakir, the learned Advocate appearing in support of the Rule, having placed the application as well as the supplementary affidavit along with the documents annexed thereto, submits that the Syndicate, being the highest decision making body of the University, had approved the appointment of the petitioner along with three increments and therefore, the Authority cannot pass an order subsequently deducting the said increments without issuing any prior notice. Referring to the relevant provisions of the National University Act and the National University Rules, Mr. Shakir submits that granting of increments to qualified persons at the time of their appointment as a Teacher in the University is not uncommon as it is usually granted to attract persons with academic accomplishments to the teaching profession. He submits that once a privilege had been granted to a person, it cannot be curtailed subsequently without assigning any reason.
6. Mr. Shakir further submits that admittedly the Syndicate took the impugned decision on being instructed by the Ministry of Education pursuant to the inquiry that was conducted with regard to the appointments made during the tenure of the then Vice Chancellor. He submits that the Ministry of Education is entrusted with implementing Government policies and overseeing the functions of the Schools and Colleges at the secondary and higher secondary level. He submits that it is only the University Grants Commission (briefly, UGC) that can issue directions upon the University with regard to its policies and financial matters. However, with regard to disciplinary and other issues of the University, the Syndicate is the sole authority to take any decision in that regard. He submits that by issuing the letter, the Ministry had acted beyond its jurisdiction and on that ground, the impugned decision of the Syndicate is liable to be set-aside.
7. Mr. Shakir submits that the petitioner, who has already retired from service in June 2021, filed an application during pendency of the instant Rule seeking issuance of a direction to release his pension and other benefits in respect of the 'undisputed amount" that is due to him from the University. Although the said application was allowed by order dated 7-3-2022 directing the University "to release the pension, lump grants and other retirement benefits of the petitioner, so far it relates to the undisputed portion only within 7 (seven) working days from the date of receipt of the instant order without fail", the University did not comply with the said directive and consequently the petitioner is now passing his days in financial hardship.
8. Mr. Khan Mohammad Shamim Aziz, the learned Advocate appearing on behalf of the University in opposition to the Rule submits that various appointments were made during the tenure of the then Vice Chancellor between 2003 and 2005. In view of the irregularities alleged to have been committed regarding the appointments made during the said period, on being directed by the Parliamentary Standing Committee, the Ministry of Education conducted an inquiry and submitted a report, following which respondent No. 7 issued the Memo dated 15-3-2010 containing certain directives, in pursuance of which the Syndicate took the impugned decision to deduct the increments that had earlier been granted to the petitioner. Mr. Aziz further submits that although an applicant for the post of Assistant Professor was required to have two years teaching experience, the petitioner had no such experience and therefore, the Syndicate had rightly taken the decision to deduct the increments granted to the petitioner.
9. From Annexure B to the writ petition, it appears that the University had re-published an advertisement in September, 2004 inviting applications for appointment in the post of Assistant Professor in several Departments of the University including the Department of Islamic History and Culture. The said advertisement also invited applications for appointment in the post of Lecturers in the Departments of Bangla, English, Pali and Arabic.
10. Pursuant to his selection by the Selection Board, which was duly approved by the Syndicate at its 75th meeting held on 13-1-2005, the petitioner was appointed in January 2005, as an Assistant Professor in the Department of Islamic History and Culture and he was granted three increments at the time of his appointment. From Annexure E to the writ petition, it appears that respondent No. 4 (The Registrar, National University, Gazipur) issued the appointment letter, which is quoted herein below: "নিয়োগ পত্র ড. খোন্দকার আলমগীর, পিতা-খোন্দকার আনোয়ার উদ্দিন, গোয়ালখালী বাসস্টপ, খান এ সবুর রোড, ডাকঘর- জিপিও, থানা-খালিশপুর, খুলনা-৯০০০-কে নির্বাচনী বোর্ডের ১৩-১২-২০০৪ তারিখের সভার সুপারিশ ও সিন্ডিকেটের ১৩-১-২০০৫ তারিখের সভার (৭৫তম সভার) সিদদ্ধান্ত অনুযায়ী ৭,২০০- ২৬০ × ১৪ ১০,৮৪০ টাকা বেতল স্কেলে প্রারম্ভিক মূল বেতনের সঙ্গে ৩ (তিনটি) অতিরিক্ত ইনক্রিমেন্টসহ সহকারী অধ্যাপক (ইসলামের ইতিহাস ও সংস্কৃতি) পদে নিম্নবর্ণিত শর্তে স্থায়ী ভিত্তিতে নিয়োগ দান করা হলোঃ"
11. Let us now refer to Annexure I, which gave rise to this episode. By Memo dated 15-3-2010, the Ministry of Education (hereinafter referred to as the Ministry) communicated the decisions that was taken by the Government with regard to certain irregularities which were alleged to have taken place at an earlier point of time, without specifying any particular period. The said Memo is quoted verbatim: "গণপ্রজাতন্ত্রী বাংলাদেশ সরকার শিক্ষা মন্ত্রণালয় নং-শাঃ১৮/জাতীয় বিঃ-১/২০১০/১৭ তারিখঃ ১৫-৩-২০১০ বিষয়ঃ জাতীয় বিশ্ববিদ্যালয়ের বিভিন্ন অনিয়ম ও দুর্নীতি প্রসঙ্গে। উপর্যুক্ত বিষয়ের প্রেক্ষিতে নির্দেশক্রমে জানানো যাচ্ছে যে, জাতীয় বিশ্ববিদ্যালয়ের বিভিন্ন পদে জনবল নিয়োগ/স্থায়ী নিয়োগ, এডহক নিয়োগ, নিয়মিত/স্থায়ী করা, পদোন্নতিদেয়সহ প্রাসঙ্গিক অন্যান্য বিষয়ের অতীতে যে সব অনিয়ম সংঘটিত হয়েছে এখন যাতে আর কোন অনিয়ম/জালিয়াতি না হয় সে জন্য সরকার নিম্নোক্ত সিদ্ধান্ত গ্রহণ করেছেঃ ক) অতীতের উদাহরণ দিয়ে নিয়োগ ও পদোন্নতির ক্ষেত্রে জাতীয় বিশ্ববিদ্যালয়ের চাকুরী বিধি কোনভাবেই লঙ্ঘন করা যাবে না। খ) ডঃ আফতাব আহমাদ-এর আমলে (৫-৭-২০০৩ হতে ২০-৭-২০০৫ পর্যন্ত ২ বছর ১৬ দিন) নিয়োগ ও পদোন্নতি প্রাপ্তদের বিষয়ে তদন্ত প্রতিবেদন মন্ত্রণালয় পর্যালোচনা করছে। এ জন্য সংশ্লিষ্ট কর্মকর্তা-কর্মচারীদের পরবর্তী পদোন্নতি কার্যক্রম পুনরাদেশ না দেয়া পর্যন্ত গ্রহণ করা যাবে না। গ) ডঃ আফতাব আহমাদ উপাচার্য থাকাকালীন সময়ে তদন্ত প্রতিবেদনে উল্লিখিত অনিয়মের অভিযোগসমূহ নিষ্পত্তি না হওয়া পর্যন্ত ঐ সময়ে নিয়োগ/পদোন্নতিপ্রাপ্তদের পদোন্নতি, স্থায়ীকরণ, শিক্ষাছুটির জন্য মনোনয়ন ও দক্ষতাসীমা অতিক্রম সংক্রান্ত যাবতীয় কার্যক্রম সাময়িকভাবে বন্ধ থাকবে। ) বিশ্ববিদ্যালয় কর্তৃপক্ষকে ঐ সময়ে নিয়োগ-প্রাপ্তদের প্রদত্ত অনিয়মিত বেতন ভাতার বর্ধিতাংশ স্ব স্ব কর্মকর্তা-কর্মচারীর বেতন হতে সমন্বয় করার উদ্যোগ গ্রহণ করতে হবে। ) ভুয়া নিয়োগ বিজ্ঞপ্তির সাথে জড়িতদের বিরুদ্ধে আইন অনুযায়ী কঠোর ব্যবস্থা গ্রহণ করতে হবে। চ) জাতীয় বিশ্ববিদ্যালয়ের সকল নতুন নিয়োগ প্রদান পরবর্তী নির্দেশনা না দেয়া পর্যন্ত বন্ধ থাকবে। কোন পদ শূন্য হলে বর্তমানে প্রয়োজনহীনভাবে যে সকল জনবল রয়েছে তা থেকে সমন্বয় করতে হবে (প্রয়োজনীয় যোগ্যতা সাপেক্ষে)। ছ) চাকুরী বিধির ধারা স্থগিত করে নিয়োগপ্রাপ্ত উপ-রেজিস্ট্রার সমমানের পদে নিয়োগপ্রাপ্তদেরকে প্রদত্ত অবৈধ অর্থ ফেরৎ নেয়ার ব্যবস্থা গ্রহণ করতে হবে। (হোসনে আরা বেগম) উপ-সচিব (বিশ্ববিদ্যালয়-২)"
12. It is in compliance with the aforesaid directive issue by the Ministry that the Syndicate took the decision to deduct the increments that had been granted to the petitioner at the time of his appointment as Assistant Professor.
13. From Annexure B, being the re-advertisement, it appears that the requirement for appointment to the post of Assistant Professor was stated as under: "যোগ্যতা ও অভিজ্ঞতা পিএইচডি/সমমানের ডিগ্রী অথবা এমফিল/সমমানের ডিগ্রী এবং ২ (দুই) বৎসরের শিক্ষকতার অভিজ্ঞতা অথবা অনার্সসহ মাস্টার্স/সমমানের ডিগ্রী। অনার্স ও মাস্টার্স পর্যায়ের কোন একটিতে প্রথম শ্রেণী থাকতে হবে। শিক্ষা জীবনে কোন পরীক্ষায় তৃতীয় শ্রেণী গ্রহণযোগ্য নয়।"
14. A careful reading indicates that the advertisement referred to three different categories of applicants. The first category relates to candidates holding a Ph.d. or equivalent degree; the second category relates to candidates holding an M. Phil or equivalent degree along with two years teaching experience and the third category relates to candidates holding both Honours and Masters degree or any equivalent degree. The categories are to deemed as separate as the word "or" ("অথবা") appears in between each of the categories. The requirement with regard to a candidates having two years teaching experience has been specified in the second category, namely for a candidate having an M. Phil or an equivalent degree. It is important to note that the words "যোগ্যতা ও অভিজ্ঞতা" (Qualification and Experience), are separate and district Obviously, the first one relates to 'educational qualification' and the second one relates to 'work experience'.
15. The second part of the criterion stipulated as under: "স্বীকৃত মানের জার্নালে প্রকাশনা থাকতে হবে। ন্যূনপক্ষে ৩ (তিন) বছরের শিক্ষকতার অভিজ্ঞতা থাকতে হবে। শিক্ষকতার অধিকতর দক্ষতার অধিকারী প্রার্থীদের অভিজ্ঞতা শিথিলযোগ্য।"
16. Firstly, the candidates were required to have publications in reputed journals. Secondly, the candidates were required to have at least three years teaching experience. Lastly, in case of candidates with 'more competence' (অধিকতর দক্ষতা) in teaching, the requirement regarding teaching experience would be relaxed. It is to be noted that the three requirements are not conjunctive; they are district and separate.
17. Reverting to the case in hand, admittedly, the petitioner was serving in the Department of Archeology and he did not have any teaching experience. After initial scrutiny, the petitioner was asked to appear before the Selection Board and, on being selected, his appointment was approved by the Syndicate. It is obvious that the petitioner had not been appointed directly by the then Vice Chancellor of the University. Rather, the process of appointment was completed in three stages firstly, the initial scrutiny of the petitioner's application, secondly, his selection by the Selection Board comprising of senior academics and officials and finally, the approval of his appointment by the Syndicate.
18. At this stage, it may be pertinent to examine the composition of the Syndicate, the highest decision-making body of the University. From Annexure III of the supplementary affidavit-in-opposition dated 5-12-2021 filed by respondent No. 1, being the minutes of the proceedings of the 75th meeting of the Syndicate held on 13-1-2005, it transpires that the said meeting which was presided over by the Vice Chancellor of the University, was attended by the Secretary, Ministry of Agriculture, Government of Bangladesh. The Vice Chancellor, Jahangir Nagar University, the Pro Vice Chancellor, National University, the Treasurer, National University, a member of University Grants Commission, a member of the Public Service Commission, the Dean of the Post Graduate Training and Research Center, National University, the Principal, Siddheswari Girls College, Dhaka, the Principal, Dhaka City College, Dhaka and the Principal, Siddheswari Degree College, Dhaka. It is therefore apparent that the appointment of the petitioner was approved by the Syndicate comprising of ten distinguished persons holding positions of responsibility. That being the factual position, it cannot be said that the petitioner's appointment was done irregularly or in a mala fide manner, as has been suggested by the letter dated 15-3-2010, issued by the Ministry, as evidenced by Annexure I to the writ petition.
19. It is also been argued by Mr. Aziz that although some other candidates were appointed in the post of Assistant Professor in the Department of Economics, Philosophy, Statistics and Finance and Banking, none of them were granted any increments. Mr. Aziz has tried to impress upon us that the petitioner's appointment was made not only in an arbitrary and mala fide manner, but there was apparent bias in the process of his appointment. We are not inclined to accept the submission advanced by Mr. Aziz. On a careful perusal of the minutes of the 75th meeting of the Syndicate, it appears that some candidates, who had been appointed as Lecturers in the Departments of Economics, Management and Marketing, were given four increments at the time of their appointment and the said appointments were approved by the Syndicate at the very same meeting, i.e., the 75th meeting held on 13-1-2005. It goes to show that the petitioner was not the only person who was granted increments; rather some persons appointed in the post of Lecturer, which is one post lower than the post of Assistant Professor, were granted as many as four increments.
20. The granting of increments to qualified candidates at the time of their appointment is not novel. It has been stipulated in the Act and Service Rules of the University that increments can be granted at the time of appointment in order to attract persons with academic accomplishments in the service of the University. Rule 10(Ga)(2) and (3) of the Service Rules of the National University stipulates as under: "১০। (গ) প্রারম্ভিক বেতন- ১) ২) কোন ব্যক্তিকে তাহার বিশেষ মেধার স্বীকৃতি স্বরূপ বাছাই কমিটির সুপারিশের ভিত্তিতে সিন্ডিকেটের সিদ্ধান্ত মোতাবেক উচ্চতর প্রারম্ভিক বেতন অথবা অতিরিক্ত এক বা একাধিক ইনক্রিমেন্ট প্রদান করা যাইবে পারে। ৩) শিক্ষকদের ক্ষেত্রে প্রভাষক পদে নিয়োগের সময় জাতীয় বেতন কাঠামোর নির্ধারিত স্কেলের কোন পর্যায় হইতে প্রারম্ভিক বেতন ধার্য করা হইবে তাহা সিন্ডিকেটই নির্ধারণ করিবে এবং শিক্ষাগত যোগ্যতার প্রতিটি স্তরের অর্জিত প্রথম বিভাগ/শ্রেণীর জন্য একটি করিয়া অতিরিক্ত ইনক্রিমেন্ট ও এমফিল/পিএইচডি'র জন্য একটি করিয়া অতিরিক্ত ইনক্রিমেন্ট প্রারম্ভিক বেতনের সঙ্গে যোগ করিয়া মূল বেতন ধার্য করা হইবে। তবে নির্বাচনী বোর্ডের সুপারিশের ভিত্তিতে স্বীকৃত Standard Publication এর জন্যও অতিরিক্ত ইনক্রিমেন্ট প্রদান করা যাইবে।" (emphasis added)
21. The practice of granting increments is further substantiated by section 24(Da) of the National University Act 1992, which provides as follows: (ড) বিশ্ববিদ্যালয় অথবা কলেজের কোন শিক্ষক অথবা স্কয়ারকে শিক্ষা ও গবেষণার ক্ষেত্রে তাঁহার বিশেষ অবদানের জন্য মেধা ও মনীষার স্বীকৃত এবং কোন কলেজকে উহার সার্বিক যোগ্যতার স্বীকৃতি হিসাবে পুরষ্কৃত করিতে পারিবে;
22. Furthermore, in Annexure 10 to the application dated 12-12-2021, being the Memo dated 29-11-2021, issued by UGC, it has been stated as under: "সম্প্রতি অর্থ মন্ত্রণালয়ে, অর্থ বিভাগ (বাস্তবায়ন অনুবিভাগ) থেকে ২৬ আশ্বিন, ১৪২৮ বঙ্গাব্দ/১১ অক্টোবর, ২০২১ তারিখের এস.আর.ও নং ৩১৮- আইন/২০২১ এর মাধ্যমে সরকারি চাকরি আইন, ২০১৮ (২০১৮ সনের ৫৭ নং আইন) এর ধারা ১৫ এ প্রদত্ত ক্ষমতাবলে সরকার, ১ পৌষ, ১৪২২ বঙ্গাব্দ মোতাবেক ১৫ ডিসেম্বর, ২০১৫ খ্রিস্টাব্দ তারিখের এস.আর.ও নং ৩৯৬-আই/২০১৫ দ্বারা জারিকৃত চাকরি (যেতন ও ভাতাদি) আদেশ, ২০১৫ এর নিম্নরূপ অধিকতর সংশোধন করা হয়েছেঃ পিএইচডি ডিগ্রিসহ প্রথম নিয়োগপ্রাপ্ত অথবা চাকুরিরত বা কর্মরত থাকাকালীন পিএইচডি ডিগ্রি অর্জনকারী শিক্ষা বিভাগীয় কোন কর্মচারী (শিক্ষক) যে পদে কর্মরত থাকিবেন, উক্ত পদের জন্য নির্ধারিত ও আহরিত বেতন গ্রেড অনুযায়ী তিনি পিএইচডি ডিগ্রি অর্জনের জন্য ৩ (তিন) টি অগ্রিম যেতনবৃদ্ধির সুবিধা প্রাপ্য হইবেন।"
23. At this juncture, let us examine the petitioner's credentials minutely. From Annexure-O to the application dated 12-12-2021, it appears that the petitioner has published 44 articles between December 1991 and 2021, out of which 12 articles have been published in reputed Journals published from Uzbekistan, India, Pakistan and Srilanka. Several of the petitioner's articles have also been published in the Journal of the Asiatic Society of Bangladesh and the Dhaka University Studies, two of the most reputed academic Journals of our country. Additionally, the petitioner has also authored two books, one of which has been published from New Delhi, India. No doubt, the petitioner's academic expertise is well documented through the publications of books and articles, both at home and abroad. Therefore, the granting of three increments to the petitioner was well in accordance with the provisions of the Act and the Rule.
24. Regrettably, despite having such an accomplished academic back-ground, the petitioner, who had served as a Teacher of the University for sixteen years, was treated in a manner which is both arbitrary and mala fide. To begin with, the Ministry had improperly exercised its authority in issuing the directive upon the University, which is an autonomous body set up under a statute. In the "Allocation of Business Among The Different Ministries and Divisions", published in April, 2017 by the Cabinet Division, Government of Bangladesh, Chapter 15 relates to the "Ministry of Education". Although the role and function of the Ministry has been elaborated under as many as forty different headings, not a single heading relate to the National University. For a better understanding, chapter 15 is reproduced hereinbelow: "15. MINISTRY OF EDUCATION A. Secondary and Higher Education Division 1. Matters relating to Secondary and Higher Education. 2. Formulation of sectoral plans in Secondary and Higher Education sector. 3. Preparation, Implementation, Monitoring and Evaluation of Educational Projects in Secondary and Higher Education sector. 4. Educational Research and Training relating to Secondary and Higher Education including publications of scientific and professional books/journals. 5. National Students Council. 6. Educational Policy and Reforms relating to Secondary and Higher Education. 7. Curriculum Development relating to Secondary Education. 8. Preparation, Printing and Distribution of Text Books. 9. Policy directives on holding the public examinations relating to Secondary Education level conducted by the Education Boards under this Division. 10. Processing with of Educational Projects/Schemes PEC/NEC/ECNEC and implementation of the decisions of the Cabinet. 11. Expert Bodies in the filed of Education, Research etc. relating to Secondary and Higher Education and financial aid to these organizations. 12. (a) Aid from foreign and international bodies in the field of Secondary and Higher Education. (b) International organizations and other international programmers in the field of secondary and Higher Education. 13. Pride of performance. Merit Awards in the fields of Arts, Science and Education relating to Secondary and Tertiary level. 14. Education and welfare of Bangladesh students overseas, financial assistance to Bangladeshi Educational Institutions abroad. 15. Bangladeshi Students Associations abroad. 16. Equivalence of Degrees, Diplomas, Certificates and Exchanges/Credit transfer of Degrees, Diplomas and Certificates with foreign countries in Secondary and Tertiary level. 17. Educational Exchange programmers, exchange of students, teachers, educationists, technologists, scientists etc. 18. Charities and Charitable Institutions pertaining to subjects belonging to this Division. 19. Matters relating to the recommendations of Education Commission relating to Secondary and Higher Education. 20. First Appointment and administration of the officers of BCS (General Education). 21. Secretarial administration including budget and other financial matters tinder this Division. 22. Matters relating to recruitment of teachers. 23. Matters relating to University Grants Commission (UGC). 24. Matters relating to Monthly Payment Order (MPO). 25. Administration and control of the following Subordinate Offices and Organizations under this Division: (a) Directorate of Secondary and Higher Education (DSHE). (b) Bangladesh Bureau of Educational Information & Statistics (BANBEIS). (c) International Mother Language Institute (IMLI). (d) Education Engineering Department (EED). (e) National Curriculum and Textbook Board (NCTB). (f) Bangladesh National Commission of UNESCO (BNCU) (g) Non-Government Teachers' Registration and Certification Authority (NTRCA) (h) Directorate of Inspection and Audit (DIA). (i) Prime Minister's Education Assistance Trust. (j) Non-Government Teachers Employee Retirement Benefit Board. (k) Non-Government Teachers Employees Welfare Trust (NGTE). (1) National Academy for Education Management (NAEM). 26. Administrative coordination with Scouts, Girl Guides and Rover scouts and strengthening their activities in Secondary Institutions. 27. Matters relating to Bangladesh National Cadet Corps (BNCC). 28. Liaison with International Organizations and matters relating to Treaties and Agreements with other countries and world bodies relating to subjects allotted to this Division. 29. Review and Formulation of Laws, Rules and Regulations on subjects allotted to this Division and matters relating to litigations thereof. 30. Inquires and statistics on any of the subjects allotted to this Division. 31. Fees in respect of any of the subjects allotted to this Division except fees taken in courts. 32. Matters relating to all Secondary Education Boards. 33. Matters relating to foreign teachers and students in Bangladesh. 34. Matters relating to accreditation Council. 35. Distance Education including Educational Media and Technology. 36. Overseas studies and scholarship for Bangladeshi students and teachers; 37. National Research Fellows. 38. Coordinating all matters relating to Secondary and Higher Education with other Ministries/Division and Organizations. 39. Matters relating to Audit in this Division. 40. All laws on subjects allotted to this Division."
25. As the heading itself suggests, Chapter 15 lays down the parameters of the role and function of the Ministry of Education. Although serial No. 22 concerns "matters relating to recruitment of Teachers", it is obviously in relation to Schools and Colleges, which becomes apparent from serial No. 24, which concerns "matters relating to Monthly Payment Order (MPO)", since granting of MPO is confined to Schools and Colleges.
26. In our considered view, the Ministry of Education is primarily concerned with the formulation and implementation of Government policies in the field of education at the secondary and higher secondary levels. It is the University Grants Commission (briefly, UGC) that is entrusted with the duty of overseeing the academic activities and matters relating to allocation of budget of the public Universities.
27. In this contest, it may be pertinent to refer to some relevant provisions of the National University Act, 1992 (briefly, the Act).
28. The preamble of the Act reads as follows: যেহেতু কলেজ শিক্ষার স্নাতক ও স্নাতকোত্তর পর্যায়ে পাঠক্রম ও পাঠ্যসূচীর আধুনিকীকরণ ও উন্নতিসাধন, শিক্ষার গুণগত মান উন্নয়ন এবং শিক্ষকদের প্রশিক্ষণ ও যোগ্যতা বৃদ্ধি সহ কলেজের যাবতীয় বিষয় ও ব্যবস্থাপনার দায়িত্ব একটি বিশ্ববিদ্যালয়ের উপর ন্যস্ত করা সমীচীন ও প্রয়োজনীয়; সেহেতু এতদ্বারা নিম্নরূপ আইন করা হইল:- ১(১) এই আইন জাতীয় বিশ্ববিদ্যালয় আইন, ১৯৯২ নামে অভিহিত হইবে।
29. Section 3 of the Act stipulates: ৩। আপাততঃ বলবৎ অন্য কোন আইনে বিপরীত যাহা কিছুই থাকুক না কেন, এই আইনের বিধানাবলী কার্যকর হইবে।
30. Section 24 of the Act provides as follows: ২৪। (১) সিন্ডিকেট বিশ্ববিদ্যালয়ের প্রধান নির্বাহী সংস্থা হইবে এবং আইন যা অর্ডার এর বিধান এবং ভাইস-চ্যান্সেলর ও কর্তৃপক্ষ এর উপর অর্পিত ক্ষমতা সাপেক্ষে, বিশ্ববিদ্যালয়ের সকল ক্রিয়াকলাপ এবং আর্থিক বিষয়াবলীর উপর সাধারণ ব্যবস্থাপনা এবং বিশ্ববিদ্যালয়ের শিক্ষক, ছাত্র, কর্মকর্তা ও কর্মচারীদের উপর অত্ত্বাবধানের ক্ষমতা রাখিবে। (২) উপ-ধারা (১) এর অধীনে প্রয়োগযোগ্য ক্ষমতা ও সামগ্রিকতা ক্ষুন্ন না করিয়া সিন্ডিকেট বিশেষতঃ- (ট) এই আইন ও সংবিধির বিধান সাপেক্ষে, ভাইস-চ্যান্সেলর, প্রো-ভাইস-চ্যান্সেলর ও ট্রেজারার ব্যতীত বিশ্ববিদ্যালয়ের সকল শিক্ষক, কর্মকর্তা ও কর্মচারী নিয়োগ, তাঁহাদের দায়িত্ব নির্ধারণ ও চাকুরীর শর্তাবলী স্থির এবং তাঁহাদের কোন পদ অস্থায়ীভাবে শূন্য সেই পদ পূরণের ব্যবস্থা গ্রহণ করিতে পারিবে;
31. A combined reading of the aforesaid provisions of the Act makes it abundantly clear that being a statutory body, the University is fully empowered to deal with any and all administrative and financial matters as well as the appointment of Teachers including the terms of their service.
32. It has been persistently argued by Mr. Shakir that the conduct of the concerned respondent is both arbitrary and mala fide. From Annexure II of the affidavit-in-opposition filed by respondent No. 1, it appears that a list was prepared showing the increments that had been granted to several Teachers of the University, wherein the petitioner's name appeared at serial No. 3. The heading was captioned as under: "গঠিত কমিটি কর্তৃক পেশকৃত শিক্ষকদের অগ্রীম ইনক্রিমেন্ট সংক্রান্ত তথ্য, কর্মকর্তা/কর্মচারীদের অগ্রীম ইনক্রিমেন্ট সংক্রান্ত এবং চাকুরী বিধির ধারা স্থগিত করে মোট ২৪ জন কর্মকর্তাকে নিয়োগ প্রদান সংক্রান্ত তথ্য নিম্নরূপঃ নাম ও ক্রমিক পিতা/স্বামীয় নং সাম শিক্ষকদের অগ্রীম ইনক্রিমেন্ট সংক্রান্ত তথ্য বিবরণীঃ পদবী পিএফ নং ৩. ডঃ খন্দকার সহকারী আলমগীর অধ্যাপক খন্দকার ইসলামী ১৭৯০ আনোয়ার ইতিহাস উদ্দীন ২য় চাকুরী ঢাকা বিশ্ববিদ্যালয়ের সংবিধি নিয়ম মোতাবেক মোতাবেক সরফায়ী বিধি মোতাবেক প্রাপ্য অনিয়মিত প্রাপ্য অনিয়মিত ইনক্রিয়েট ইনক্রিমেন্ট অগ্রীম ইনক্রিমেন্ট অগ্রীম ইনক্রিমেন্ট ইনক্রিমেন্ট মন্তব্য সকল পরীক্ষায় 00 ০৩ ২য় বিভাগ/ শ্রেণী"
33. This report was prepared by a Committee that was constituted to enquire into the appointments alleged to have been made improperly during the tenure of the then Vice Chancellor of the University between 2003 and 2005. What appears to be striking is that with regard to the petitioner's academic qualification, in the column of comments (মন্তব্য), it was stated: "সকল পরীক্ষায় ২য় বিভাগ/শ্রেণী "
34. Although this particular report was presented before the Syndicate, nowhere within the four comers of the said report has it been mentioned that the petitioner had obtained his Ph.D. degree from the University of Dhaka in July, 2003, as evident from Annexure M. In other words, the process of enquiry, beginning at the behest of the Ministry and culminating with the report disclosing that the petitioner had obtained Second Class in all his University exams, but omitting to mention the Ph.D. degree that he had obtained from the University of Dhaka, is palpably mala fide. It is now well settled that when any action is tainted with mala fide, it is bound to be declared as arbitrary and consequently, as being without lawful authority.
35. We have also noted, albeit with some astonishment, that although the University was directed by this Court by order dated 7-3-2020 "to release the pension, lump grants and other retirement benefits of the petitioner, so far it relates to the undisputed portion only within 7 (seven) working days from the date of receipt of the instant order without fair, there was total noncompliance with the said order. No doubt, such conduct on the part of University not only manifests its arbitrary and mala fide conduct vis-a-vis the petitioner, it also tantamounts to contempt of Court. However, the petitioner has refrained from bringing any contempt proceeding against the University.
36. Article 31 of the Constitution stipulates that every citizen of the country is entitled to enjoy the protection of law and has a right to be treated in accordance with law. It further stipulates, as a measure of prohibition, that "no action detrimental to the life, liberty, body reputation or property of any person shall be taken except in accordance with law."
37. In the instant case, the respondents, in particular the University, violated the petitioner's fundamental right guaranteed under the Constitution and had also acted in a mala fide and arbitrary manner. Furthermore, not only has it given a complete go-bye to the well settled principle of natural justice in that no prior show cause notice was issued to the petitioner before taking the impugned action, it also did not comply with the directive issued by the Court on 7-3-2020, which no doubt, tantamount to 'contempt of Court'.
38. Be that as it may, having regard to the foregoing discussion, we are inclined to hold that the Syndicate's decision to deduct three increments that was granted to the petitioner at the time of his appointment as Assistant Professor was arbitrary and mala fide and therefore without lawful authority.
39. In the result, the Rule is made absolute.
40. The respondents are hereby directed to make payment of the pension and other benefits including the deduction made against payment of three increments to the petitioner within a period of 90 (ninety) days from the date of receipt of certified copy of the judgment passed today.
41. If the concerned respondents fail to comply with the directive passed today, the petitioner shall be at liberty to initiate appropriate legal proceeding against the delinquent officials, if so advised, in accordance with law.
There will be no order as to cost.
--- Journal: DLR Volume: 75 Division: HCD Page: 573High Court Division
(Civil Revisional Jurisdiction)
Present:
Mr. Justice A.K.M. Asaduzzaman
Civil Revision No. 1122 of 2002
Ohirunness and Ors.
Petitioners
VS
Azibur Mondal and Ors.
Respondents
Judgement Date : February 16, 2023
Counsels:
Md. Nurul Amin, Advocate—For the Petitioner.
Md. Hemaith Ullah, Advocate—For the Respondents.
Judgment
A.K.M. Asaduzzaman, J.
1. This Rule was issued calling upon the opposite parties to show cause as to why the judgment and decree dated 6-9-2001 passed by the Additional District Judge, 2nd Court, Chuadanga in Title Appeal No. 19 of 1989 modifying the judgment dated 31-12-1988 passed by the then Subordinate Judge, Chuadanga in Title Suit No. 7 of 1986 decreeing the suit should not be set-aside.
2. Opposite party Nos. 1-1(Ga) as plaintiff filed Title Suit No. 42 of 1979 in the Court of the then Subordinate Judge, Kushtia for declaration of title and for partition of the suit land, which was subsequently renumbered as Title Suit No. 7 of 1986 after being transferred to the Court of Subordinate Judge, Chuadanga.
3. Plaint case, in short, inter alia, is that the suit land originally belonged to Kazem Ali Biswas, who died leaving behind wife Felunnossa, two daughters Aziran and Kariman. Thereafter Felunessa died leaving behind two daughters Aziran and Kariman. Thereafter Kariman died leaving behind husband Solaiman and sister Aziran. Aziran died leaving behind daughter Zahura and son Azibar. Zahura died leaving behind three daughters Lalunessa, Belunessa and Riponnessa and brother Azibar Rahman. In such a way Azibar got nine annas four pai share in the suit jama. The defendant Ohiran is the daughter of Mandaraesa, who is the second wife of Solaiman. Belunessa and Riponnessa transferred their share to Ohiron Nessa. Lalunessa transferred her share to Azibar. When Aziran was living in her husband's house Solaiman prepared record four annas instead of eight annas of Sirajkandi Mouza and other three Khatians are recorded in the name of Kariman. But other Jama was not correctly recorded, in her name. The record in the name of Solaiman is wrong. The plaintiff got the share of Azibar and possessed the same. The defendant Nos. 2 to 6 are the heirs of Iman Ali and the CS records and SA records prepared in their names are wrong. The father of the plaintiff was not aware about the wrong record. He came to know of the wrong record on the 15th Chaitra, 1384 BS. The plaintiff amended his plaint on 18-1-1987 and prayed for partition. The contention of the amended plaint is that Aziran Nessa alias Anjiron Nessa Bibi before the death of her mother mortgaged to Munshi Abdul Jabbar and took loan Taka 150 on 12-5-1930 by registered mortgage deed and subsequently after repayment Abdul Jabber returned the mortgage deed in favour of Aziran Nessa. Solaiman was living in the house of his father-in-law. All the documents of the suit land was lying with Solaiman.
4. Defendant Nos. 1, 2, 3-5, 8 and 10 filed three separate written statements denying the plaint case.
5. According to the defendant Nos. 3-5 in short, inter alia, is that the land of Jama Taka 22 was acquired by their self money and correctly recorded in CS Khatian 242 in the name of Aziran 4 annas, Karimon 8 annas and Iman Ali and Soleman 2 annas each. The land under Sirajkandi Mouza belonged to Kariman 12 annas and Iman Ali 4 annas. The CS record is absolutely correct. Aziran died leaving behind son Azibar and daughter Zahura. Iman Ali died leaving 3 sons Awlad, Badal and Puti and daughter Saleha. Karimon died leaving behind husband Soleman and son Khokai. After the death of Kariman Soleman took second wife Manoda. In such a way Soleman and Khokai Biswas got the entire share of Kariman. Khokai Biswas died without marrying leaving only father Soleman. In such a way Soleman got 10 annas share of those two jamas and got 12 annas from CS Khatian No. 1023, 739 and 747. Ohiran was born from wedlock of the second wife Manoda. Soleman died leaving behind wife Manoda and daughter Ohiran. Manoda died leaving only daughter Ohiran and got the land and possessed the same by way of inheritance. Iman Ali got 2 annas share of CS Khatian No. 252, 1027 and Iman Ali again got 4 annas share of CS Khatian No. 1023, 739 and 473. Iman Ali died leaving defendants Nos. 3 and 4. Zahura, daughter of Aziran, died leaving behind 3 daughters Belu, Laku and Ripon and brother Azibar. Belu Nessa, Laku Nessa and Riponnessa transferred their shares to defendant No. 1 and delivered possession in favour of him. During the SA operation the suit land was correctly recorded and published according to the share of the CS Khatian. During the life time of the Azibar Rahman he never challenged the CS Khatian. The plaintiff is a cunning conspirator who from the very beginning knows about the CS and SA records but on the basis of false plea filed the present suit. The suit khatians never belonged to Kajem Biswas. The defendant did not make all the cosharers as defendants. Hence the suit is liable to be dismissed with cost.
6. According to defendant No. 2 the suit land belonged to Kajem Biswas, who died leaving behind two daughters Karimon Nessa and Aziron Nessa. Karimon Nessa died leaving behind her husband Soleman Biswas and sister Aziron Nessa. Aziran Nessa died leaving behind son Azibar Rahman and daughter Zahura Khatun. Zahura Khatun died leaving behind 3 daughters Belu Nessa, Laku Nessa and Ripon Nessa. Belu Nessa and Ripon Nessa transferred their share in favour of defendant No. 1.
7. According to defendant No. 8-10 the land in CS Khatian No. 242 belonged to Kazem Biswas. Kazem Biswas died leaving behind two daughters Kariman Nessa and Aziran Nessa. Aziran Nessa settled 0.22 acre of land in favour of the father of the defendants Nos. 8 and 10 SA Khatian No. 250 was rightly prepared in the name of Joynal. Joynal transferred the lands of Plots Nos. 81 and 479 including some non-suited land in favour of the defendant No. 2 by way of two registered kabala deeds dated 24-10-78.
8. By the judgment and decree dated 31-12-1988 the Subordinate Judge decreed the suit on contest.
9. Being aggrieved there against the contesting defendant Nos. 1, 3-5 preferred Title Appeal No. 19 of 1989 before the Court of District Judge, Chuadanga, which was heard on transfer by the Additional District Judge, 2nd Court, Chuadanga. Who by the impugned judgment and decree allowed the appeal in pail and after modifying the decree dated 15-1-1989 decreed the suit.
10. Being aggrieved there against defendant petitioner obtained the instant Rule.
11. Mr. Md. Numl Amin, the learned advocate appearing for the petitioner drawing my attention to the lower court record along with the impugned judgment submits that although the plaintiffs contention to the effect that property belonged to Kazem Ali Biswas from whom plaintiffs predecessor obtained the suit property as a co-sharer but nowhere from the lower court record it will appear that how said Kazem Ali acquired the property rather neither the CS record nor subsequently khatian also will ascertained the presence of Kazem Ali in the suit premises. In that view of the matter defendant contention that property was belonged to Aziran Nessa, Karimon Nessa, Iman Ali and Soleman Ali Biswas as been confirmed by the CS khatian being their self acquired land being found proved but the court below totally over looked this aspect of the case. He further submits that by DW 3 Ahmed Malitha defendant successfully able to prove that after the death of Koriman nessa since. Kokai Biswas was one of his son, the share of Azironnessa given by the court below obviously will reduce but the court below upon miss-reading the evidence tailed to consider this aspect of this case and decreed the suit most arbitrarily. The impugned judgment is thus not a proper judgment, which is liable to be set-aside.
12. Mr. Md. Hemaith Ullah, the learned Advocate on the other hand, appearing for the opposite party in reply to the submission of the learned advocate for the petitioner submits that when the defendant purchased the land from the heirs of Zahura, a daughter of Aziron Nessa admitting the chronology of the plaintiffs and admitting the presence of Kazem Biswas, court below committed no illegality in decreeing the suit believing the chronology of plaintiffs. He further submits that the deposition of DW 2 regarding the presence of Kokai Biswas as one of the son of Korimon Nessa not been corrobo-rated by any other evidence court below committed no illegality in disbelieving the contention of the defendants on the same and reducing the share as claimed by the defendant. The impugned judgment since contains no illegality, he thus prays for discharging the Rule.
13. Heard the learned Advocate and perused the lower court record and the impugned judgment of the court below.
14. This is a suit for declaration of title as well as for partition. According to the plaintiff, suit property was belonged to Kazem Ali Biswas-After his death, he was survived by his wife, daughter Karimon Nessa and daughter Aziron Nessa. After the death of wife, these two daughters Korimon Nessa and Aziron Nessa became sole owner of the property. Korimon Nessa died, leaving behind husband Soleman Biswas and sister Aziron Nessa. The son of Aziron Nessa named Azibor is the plaintiff. After death of Zohura, her property was inherited by her 3 daughters Belunnessa, Lakunnessa and Ripon Nessa and their brother Azibor. Lakunnessa relinquished her share in favour of his brother Azibor and other 2 sisters Belunnessa and Riponnessa transferred their share in favour of defendant No. 1 thereby out of total land 12.02 decimals of land, plaintiff claimed 7.78 decimals of land. On the other hand defendant claimed that suit property was not belonged to Kazem Biswas and is owned by Korimon Nessa. Soleman Biswas and Iman Ali Biswas two annas share each and Aziron Bibi 4 annas as being recorded in the CS khatian, which was their own earned properties. Korimon Bibi died leaving behind husband Soleman Biswas and son Kokai Biswas, who died subsequently before his father Soleman thereby Aziron Bibi as being the sister of Korimon and not got the share as claimed by the plaintiff due to the presence of her son Kokai Biswas. Soleman Ali died leaving behind wife Kalonnessa and one daughter Ohiron-nessa, who is the defendant No. 1 in the suit. Accordingly the defendant Nos. 1, 3-5 will get total share of 9.64 decimals of land.
15. The learned Subordinate Judge while decreeing the suit found that plaintiff contention to the effect that Kokai Biswas was a son of Korimonnessa not been proved by any means. On the contrary the plaintiffs contention that property was belonged to Kazem Biswas and thereafter as per the chronology plaintiffs now inherited, owned and possessed the suit land as claimed by them accordingly he decreed the suit and declared the share of the plaintiffs in 7.56 acres of land. The appellate court upon affirming the said findings of the trial court asserted the said share of the trial court upon modifying as well as reducing the share and gave the share of the plaintiffs in 7.49 acres of land.
16. Initially Mr. Md. Nurul Amin, the learned advocate appearing for the petitioner drawing my attention to the deposition of PW 4 Md. Jeher Ali submits that since the plaintiffs witness has admitted the presence of Kokai as being one of the son of Korimonnessa, which is the mere confirmation of the deposition of the DW 3. But subsequently when going through the record it is detected that in fact Jeher Ali is not the plaintiffs witness rather he was a defence witness and judgment of the court below contains no miss-reading of the evidence, he refrained from placing the above submission. It has been submitted by the learned advocate for the petitioner that by way of submission made by DW 3, defendant has tried to prove that Kokai Biswas is one of the son of Korimon but both the court below upon discussing the evidences has clearly found that this contention was not been proved by any other satisfactory evidence. It has been further argued by the petitioners lawyer that according to the defendants property was owned by Korimonnessa, Azironnessa, Soleman Ali and Iman Ali Biswas by their own earned money and thereby CS khatian was prepared rightly to their names, which has been proved by way of oral testimonies of the defendants but the court below totally over looked this contention of the case. In reply to this contention it has been argued by the defence lawyer that defendant purchased the land of Belunnessa and Reponnessa, the two daughter of Zohura, who is one of the daughter of Aziron, who obtained the property from their father Kazem Ali Biswas as been admitted by the defendants.
17. By producing some CS khatians, which are marked exhibited in court as Exhibit No. 1 and 2 series, plaintiff tried to make out the case that these documents are wrongly been recorded. Showing these documents learned advocate appearing for the opposite party submits that since the documents clearly speaks that property was settled by oral Korfa-pattan, defendant's case has been proved through these documents. Record speaks that DW 2 Awlad Ali was the defendant No. 3 in the suit said about this pattan and stated that- ১৯২৭ সালের রেকর্ড আমি নিজ হাতে করেছি। খানের আমলের রেকর্ড ও নিজে করেছি।... ১৯২৭ সালের রেকর্ডের সময় আমি বাইনি ও দেখিনি। ঐ সময় বুদ্ধিজ্ঞান হয়নি। আমি লেখাপড়া জানিনা। আজিরনের মৃত্যুর সময়, তারিখ ও সাল বলতে পারব না। নালিশী জমি জমিদার সমিরন্নেছা বিবি। মহিউদ্দিন ছমিরনের ওয়ারিশ। মহিউদ্দিনের কাছে খাজনা দিতে হতো। আমার সামনে সিএস রেকর্ডিয় প্রজাগণ বন্দোবস্ত লয়। ২ টাকায় জমায় মূল খতিয়ান নং বলতে পারিনা। অনুমান বিখা ২৫/৩০ জমি হয়। করিম আট আনা, আজিরন চার আনা, ইমন দুই আনা ও সোলেমান দুই আনা বন্দোবস্ত নেয়। কবে নেয় বলতে পারিনা। আমার সামনে ২২ টাকা দিয়ে নেয়। জমিদার, আমি, সোলেমান, ইমন, করিমন ও আর্জিবিবি উপস্থিত ছিল। হারাহারিভাবে কে কত টাকা দেয় বলতে পারিনা। ঐ সময় আমার বয়স ৮/১০ বছর ছিল। (underline given).
18. According to his statement PW 2 Awlad Ali, a man of 80 years, pattan was taken by the CS recorded tenants in his presence from the Jamidar but the record speaks that pattan alleged to have taken since 1320 BS which means more than about ISO years ago pattan was shown to have taken as per the said CS record, when this DW 2 cannot be said was born. Accordingly his above all statements are false and concocted and was given, taking the advantage of wrong recording of the CS Khatian. From the above statements of the DW 2 it has been established and proved that the rent receipt has been submitted by plaintiff, Exhibit No. 4 given by Moin Uddin been found to be correct, who accepted the rent on behalf of the Jamidar.
19. Accordingly above contention of the defendant not been stand rather the plaintiffs contention to the effect that the property was belonged to Kazem Ali Biswas and subsequently acquired by the plaintiffs along with his sisters being found correct on admission.
20. Going through the judgment of the court below, it appears that both the court below upon correct assessment of the evidence on record has ascertained the share of the plaintiffs and thus decreed the suit.
21. The said findings since contains no miss-reading or non-reading of the evidence, the Rule contains no merits.
22. I thus find no merits in this Rule.
23. In the result, the Rule is discharged and the judgment and decree passed by the court below are hereby affirmed.
24. The order of stay granted earlier is hereby recalled and vacated.
Send down the Lower Court records along with the judgment at once.
--- Journal: DLR Volume: 75 Division: HCD Page: 585High Court Division
(Company Matter)
Present:
Mr. Justice Muhammad Khurshid Alam Sarkar
Company Matter No. 349 of 2022
Md. Hossain
Petitioner
VS
Hotel Ramna Ltd. and Ors.
Respondents
Judgement Date : April 06, 2023
Counsels:
Jashimuddin Ahmed, Mohammad Shariful Islam and Lubna Yeasmin, Advocates—For the Petitioner.
Imtiaz Moinul Islam, Advocate—For Amicus Curiae.
Judgment
Muhammad Khurshid Alam Sarkar, J.
1. At the instance of the petitioner, this application has been filed under section 340 read with section 396 of the Companies Act, 1994 (hereinafter referred to as the Companies Act) read with Rules 8 and 263 of the Companies Rules, 2009 for obtaining a declaration from this Court that the dissolution of the company, Hotel Ramna Ltd., is void and, thereby, prays for revival of the company to its original status.
2. The fact of the case, briefly, is that the petitioner is the shareholder-Managing Director and Liquidator of the respondent No. 1-company (Hotel Ramna Ltd.), which was registered on 25-1-1974 as a private company limited by shares with an authorized share capital of Taka 15,00,000 (Taka fifteen lacs) divided into 15,000 (fifteen thousand) ordinary shares of Taka 100 (Taka one hundred) each. The company's registered office is at 78, BCC Road, Dhaka. At the time of incorporation of the company, there were 7 (seven) share-holders and Directors. They were-(1) Mohammad Hossain, Managing Director holding 300 shares, (2) Mrs. Rokeya Begum, Chairman holding 750 shares, (3) Golam Quadir, Director holding 450 shares, (4) Farhana Hossain, Director holding 3,375 shares, (5) Farzana Hossain, Director holding 3,375 shares, (6) Fahmida Hossain, Director holding 3,375 shares and (7) Fahruma Hossain, Director holding 3,375 shares. Total 15,000 shares had been allotted in the names of the above-named shareholders and, thus, the paid up capital of the company is Taka 15,00,000 (Taka fifteen lacs). By this time, two shareholders, namely, Mrs. Rokeya Begum and Golam Quadir died. In the year 2009, the shareholders-Directors decided to wind up the company voluntarily and, accordingly, issued notice on 5-3-2009 to hold a Board Meeting on 11-3-2009. Before holding the Board Meeting, the Directors obtained Solvency Report from the Chartered Accountants Firms MM Hossain & Company on 5-3-2009 and the Directors of the company sworn in affidavit before the Notary Public on 8-3-2009. In the Board Meeting, the date of holding Extra-ordinary General Meeting (EGM) was fixed on 4-4-2009 to resolve the issue of voluntary winding up. On 14-3-2009, notice of EGM was issued and on 4-4-2009 the EGM was held wherein it was resolved that the company be put into voluntary liquidation with effect from 4-4-2009 and Mr. Mohammad Hossain, the Managing Director of the company, was appointed as the Liquidator of the company who, thereafter, informed the Registrar of Joint Stock Company (RJSC) about the special resolution dated 4-4-2009. The public notice was published in Bangladesh Gazette on 12-4-2009 and the Liquidator prepared fit final statement of accounts on 24-10-2009 declaring that "the affairs of the company is finally disposed off" and, on the same date, EGM was held accepting the final statement, Return of which was submitted to RJSC. After elapsing almost 13 years, in the year 2022, the existing shareholders decided to revive the company from liquidation and, for that purpose, the shareholders issued EGM notice on 1-9-2022 and held an EGM on 25-9-2022 wherein it was unanimously resolved that the company would be revived and, for that, an application would be preferred to the Company Bench of the Supreme Court of Bangladesh and, accordingly, the petitioner filed the instant application.
3. Mr. Jashimuddin Ahmed, the learned Advocate appearing for the petitioner, takes this Court through the entire application together with the annexures thereto, and submits that the Company Court has ample power to give ancillary directives in the matter of revival of winding up of a company as if dissolution was void. He next submits that though the facts and circumstances of this case do not fully attract the provisions of sections 340 of the Companies Act, however, a direction to revive the company from the status of liquidation may kindly be passed for securing ends of justice invoking section 340 read with section 396 of the Companies Act, and Rules 8 and 263 of the Companies Rules, 2009 and, also, section 151 of the Code of Civil Procedure, 1908 (CPC).
4. Upon hearing the arguments of the learned Advocate for the petitioner, on perusal of the petitioner's application together with its annexures and having read the relevant laws and citations, it transpired that the first and foremost point to be investigated was--whether section 340 of the Companies Act can be invoked by the petitioner in the scenario of the present case where the company went into liquidation voluntarily without observing the required procedures towards dissolution of the company and, hence, this Court having found it proper to obtain assistances of the learned Advocate/s who are studious and are inquisitive about the provisions of the Companies Act as well as possess sufficient experiences of conducting company matters. Accordingly, Mr. Imtiaz Moinul Islam, Barrister-at-Law, an Advocate of the Supreme Court of Bangladesh was appointed as the Amicus Curie of this Court to assist this Court towards effective disposal of this matter.
5. Mr. Imtiaz Moinul Islam, the learned Amicus Curie, opines that the provisions of section 340 of the Companies Act cannot be invoked to revive the company as it was never dissolved in the first place; hence, no question of declaring the company's dissolution void arises. However, for the purpose of restoration of the company in its original position, if the winding up proceedings are fully stayed by invoking sections 253 and 312 of the Companies Act, the aspired remedy may be granted to the petitioner, he submits. Mr. Islam, by referring to the provisions of sections 253 and 312 of the Companies Act, submits that under the said provisions, the Court has infinite power, including the power to stay any voluntary winding up1 to revive the company to its original state and to make such other Orders as it thinks just. In this connection the learned Amicus Curie refers to a Judgment passed by the High Court of Gujrat, India in the case of Ankil Members Association vs. Vijaysinh Jadeja MANU/GJ/0293/2005, the case of Voluntary Liquidator vs. Registrar of Companies 48 Company Cases 98 and VB Purohit vs. Gadag 56 Company Cases 360. By taking this Court through paragraph 135 of the case of In Re: Sulekha Works Limited MANU/WB/0027/1965: AIR 1965 Cal 98, he submits that the Court has power under Rule 9 of the Indian Companies Rules to make necessary orders for the ends of justice, and since Rules 8 and 263 of the Companies Rules, 2009 are similar provisions to that of Rule 9 of Indian Companies Rules, and since the petitioner invoked those provisions in this case, the case of Sulekha Works helps the petitioner, as in that case, though wrong provision in the cause title was stated just like the case in hand, nonetheless the Court ruled that invoking wrong provision will not bar remedy. By referring to the case of Col. Md. Hashmat Ali (retired) vs. Government of Bangladesh 47 DLR (AD) 1, be submits that our Appellate Division also unequivocally ruled that misquotation or non-quotation of section or Rule will not be a bar to remedy. He next refers to the case of Mofizur Rahman vs. Spectacles Frame 10 BLC 548 and the case of Consumer Testing Laboratories vs. Joint Stock Co. 16 BLC 224 and submits that in our country, the Courts have in proper cases stayed the voluntary winding up altogether and reinstated the company to its original position. He submits that since the petitioner and the company have defaulted to comply with the provisions of sections 289(2), 290, 295 and 296(3), the petitioner has rightly invoked section 396 of the Companies Act and since the petitioner has acted honestly and reasonably, the Court may relieve the petitioner and the company wholly from the liabilities for the defaults.
6. Upon hearing the learned Advocate for the petitioner and the learned Amicus Curie, on perusal of the petitioner's application together with its annexures as well as having read the relevant laws and citations, it appears to me that the following issues are to be adjudicated upon by this Court: (1) whether the present application can be treated as an application under section 340 of the Companies Act, (2) whether the voluntary winding up was completed and final dissolution occurred and (3) if the company had, in fact, not been dissolved, whether this Court can now grant the aspired remedy in favour of the petitioner.
7. In order to adjudicate upon the issue of suitability of the application, let me look at the provisions of section 340 of the Companies Act, which run as follows: 340. Power of Court to declare dissolution of comma void:--(1) Where a company has been dissolved, the Court may, at any time within two years of the date of the dissolution on an application being made for the purpose by liquidator of the company or by any other person who appears to the Court to be interested make an order upon such terms as the Court to the Court to be interested, make an order upon such terms as the Court thinks fit, declaring the dissolution to have been void, and thereupon such proceedings may be taken as might have been taken if the company had not been dissolved. (2)....
8. From a plain reading of the above-quested provisions, it appears that when a company has been fully dissolved as a sequential final consequence of being wound-up and two years of dissolution is yet to be expired, the Liquidator or any other interested person is competent to approach the Company Court for obtaining a declaration that the dissolution is void and, pursuant thereto, if the Court is satisfied about the purpose of filing the application, it can restore the company to its original position with necessary supplemental and consequential Orders and Directions.
9. Therefore, this Court requires to see whether the company was dissolved after going into liquidation. For the said purpose this Court requires to know about the legal provisions employed for winding up of a company. For the said purpose, at first, section 234 of the Companies Act may be quoted: Section 234. Mode of winding up:--(1) The winding up of a company may be either. (i) by the Court; or (ii) voluntary; or (iii) subject to the supervision of the Court. (2) The provisions of this Act with respect to winding up shall apply, to the winding up of a company in any of these modes, unless anything contrary appears.
10. So, from the afore-quoted provisions it is easily understandable that there are as many as 3 (three) modes of winding up of a company, namely, either by the Court or voluntarily or subject to the supervision of the Court.
11. Since the company in question was wound up voluntarily, let me be familiar with the provisions relating to voluntary winding up of a company. Provisions of sections 286 to 344 of the Companies Act regulate the proceedings of voluntary winding up of a company. However, for adjudication of the case in hand, examinations of sections 286 to 290 and 296 will serve the purpose. Section 286 of the Companies Act runs as follows: 286. Circumstances in which company may be wound up voluntarily:--(1) A company may be wound up voluntarily-- (a) when the period, if any, fixed for the duration of the company by the articles expires, or the event, if any, occurs, on the occurrence of which articles provide that the company is to be dissolved and the company in general meeting has passed a resolution requiring the company to be wound up voluntarily; (b) if the company resolves by special resolution that the company be wound up voluntarily; (c) if the company resolves by extra-ordinary resolution to the effect that it cannot by reason of its liabilities continue its business, and that it is advisable to wind up. (2) The expression "resolution for voluntarily winding up" when used hereafter in this Part means a resolution passed under clause (a), clause (b), or clause (c) of this section.
12. From perusal of the provisions of section 286 of the Companies Act, all that this Court understands is that voluntary winding up of a company may take place in the following 3 (three) circumstances; (1) as per the provisions of Articles of Association of a company, when a fixed duration of a company expires or a particular event occurs and, pursuant thereto, the company in its general meeting resolves to wind up the company voluntarily or (2) without any reason, including the ones enumerated in clause (a) and clause (c) of section 261(1) of the Companies Act, the company on its own volition decides to wind up the company by taking special resolution or (3) because of the company's liabilities, when the company finds it appropriate to wind up the company by its extra-ordinary resolution.
13. Then comes sections 287 to 290 of the Companies Act. While section 287 of the Companies Act states that commencement of voluntary winding up will be counted from the time of passing the resolution for voluntary winding up, section 288 of the Companies Act states that the effect of voluntary winding up is cessation of company's business, but the company shall retain its corporate status and powers till it is finally dissolved. And, section 289 of the Companies Act provides the following: 289. Notice of resolution to wind up voluntarily.--(1) Notice of any special resolution or extraordinary resolution for winding up of a company, voluntarily shall be given by the company within ten days of the passing of the same by advertisement in the official Gazette, and also in some news paper, if any circulating in the district where the registered office of the company is situated. (2) If a company makes default in complying with the requirements of this section, it shall be liable to a fine not exceeding on hundred taka for every day during which the default continues; and also every officer of the company who knowingly and wilfully authorises or permits the default shall be liable to a like penalty.
14. It is a mandatory provision that within 10 (ten) days of passing a resolution for voluntary winding up of a company, a notice of the said special resolution or extraordinary resolution must be given through official Gazette, and also through local newspapers if any, in the concerned district, failing which the company and its responsible officers shall be liable to a fine of Taka one hundred for every day, till the default is cured.
15. Section 290 of the Companies Act runs as follows: Declaration of solvency:--(1) Where it is proposed to wind up a company voluntarily, the directors of the company or, in the case of a company having more than two directors, the majority of the directors shall at a meeting of the directors held before the date on which the notice of the meeting at which the resolution of the winding up the company is to be proposed are sent out, make a declaration verified by an affidavit to the effect that they have made a full inquiry into the affairs of the company and that, having so done, they formed the opinion that the company will be able to pay its debts in full within a period, not exceeding three years, from the commencement of the winding up. (2) Such declaration shall be supported by a report of the company's auditors on the company's affairs, and shall have no effect for the purposes of this Act unless it is delivered to the Registrar for registration before the date mentioned in sub-section (1). (3) A winding up, in the case of which a declaration has been made and delivered in accordance with sub-sections (1) and (2), is in this Act referred to as "members voluntary winding up", and, where a declaration has not been made and delivered as aforesaid, is in this Act referred to as "creditors voluntary winding up."
16. Thus, another mandatory requirement for a voluntary winding up proceeding is - to make a declaration in the form of a verified affidavit by the majority shareholders, at a meeting of the Directors held before the date on which the notice of the meeting at which the resolution for the winding up of the company is to be proposed are sent out, having been supported/confirmed by the company's auditors' report that the company is sufficiently solvent to pay its debt within maximum three years. And, in order to make the said declaration effective, the same must be sent to the Registrar within the time stipulated in sub-A-section (1) of section 290 of the Companies Act.
17. Section 296 of the Companies Act runs as follows: 296. Final meeting and dissolution:-- (1) As soon as the affairs of the company are fully wound up, liquidator shall make up an account of the winding up showing how the winding up has been conducted and the property of the company has been disposed of, and thereupon shall call a general meeting of the company for the purpose of laying before it the account, and giving explanation thereof. (2) The meeting shall be called by advertisement specifying the time, place and object thereof and published one month at least before the meeting in the manner specified in sub-section (1) of section 289 for publication of a notice under mat sub-section; (3) Within one week after the meeting the liquidator shall send to the Registrar a copy of the account and shall make a return to him of the holding of the meeting and of its date, and if the copy is not sent or the return is not made in accordance with this sub-section, the liquidator shall be liable to a fine not exceeding one hundred taka for everyday during which the default continues: Provided that, if a quorum is not present at the meeting the liquidator shall in lieu of the said return make a return that the meeting was duly summoned and that no quorum was present thereat, and upon such a return being made the provisions of this sub-section as to the making of the return shall be deemed to have been complied with. (4) The Registrar on receiving the account and either of the returns mentioned in sub-section (3) shall forthwith register them and the company shall be deemed to be dissolved: Provided that the Court may, on the application of the liquidator or of any other person who appears to the Court to be interested, make an order deferring the date at which the dissolution of the company is to effect for such time as the Court thinks fit. (5) It shall be the duty of the person on whose application an order of the Court under sub-section (4) is made, within twenty-one days after the making of the order, to deliver to the Registrar a certified copy of the order for registration and if that person fails so to do he shall be liable to a fine not exceeding one hundred taka for every day during which the default continues.
18. From the above-quoted law, it is apparent that section 296 of the Companies Act provides the duties of the Liquidator and the procedures to be adopted in wrapping up a winding up proceeding towards the dissolution of a company in liquidation. At first, the Liquidator shall come to a findings that the affairs of the company have been fully wound up; then, the Liquidator requires to make a statement/account as to the procedure adopted in conducting the winding up proceeding and the method of disposing of the company's properties, so that the same together with an explanation can be laid before the company's general meeting which requires to be called by advertisement specifying the time, place and object thereof, following the procedures set out in section 289(1) of the Companies Act for publication of the notice and thereafter, a copy of the account and a return as to holding of the meeting shall be sent to the Registrar by the Liquidator within one week after the meeting, and the company shall be deemed to have been dissolved from the date of registering the account and the return by the Registrar.
19. Reverting back to the facts of this case, from the company's record sent by the RJSC, this Court finds that the petitioner and other shareholders on 14-3-2009 issued notice of EGM and the said EGM was held on 4-4-2009 wherein it was resolved that the company be put into voluntarily liquidation with effect from 4-4-2009 and Mr. Mohammad Hossain, the Managing Director, be appointed as the Liquidator of the company.
20. As per section 287 of the Companies Act, thus, voluntary winding up was commenced on 14-3-2009 and winding up proceeding was started on 4-4-2009. The public notice required to be issued under section 289(1) of the Companies Act, advertising voluntary winding up and appointment of liquidator was published in Bangladesh Gazette on 12-4-2009, as evident from Annexure A-1. However, publication in some newspapers is missing in the record, hence, the shareholders are in default as per section 289(2) of the Companies Act. Previous to issuance of the notice of EGM dated 14-3-2009, it is evident from Annexure F that the Directors obtained Solvency Report from the Chartered Accountants Firms MM Hossain & Company on 5-3-2009, and from the Annexure G, it is evident that the Directors of me company sworn in the affidavit before the Notary Public on 8-3-2009 about the company's solvency as required under section 290 of the Companies Act. From Annexure E, it is evident that the Directors held a Board Meeting on 11-3-2009 as per section 290(1) of the Companies Act; however, there is no evidence that as per section 290(2) they delivered the said affidavit to the Registrar for registration, which puts the Directors again at default. After commencement of voluntary winding up, as evident from Annexure K, the Liquidator prepared a final statement of accounts on 24-10-2009 declaring that "the affairs of the company is finally disposed off". Also, on the same date i.e. 24-10-2009, an EGM was apparently held accepting the final statement, as evident from Annexure A-1. Apparently, Return of this EGM was submitted to RJSC which is evident from Annexure A-1. Unfortunately, there is no evidence before the Court that the EGM was called by giving one month's notice through advertisement in the Official Gazette and also in the newspaper of Dhaka District wherein the company's registered office situated as required by section 296(2) read with section 289(1) of the Companies Act. Therefore, the Liquidator is at default as per section 296(3) of the Companies Act. With all the afore-stated non-compliances with the provisions of law, this Court finds that though the company was wound up, but it was not finally dissolved as per section 296(4) of the Companies Act.
21. Having held that the company has never been dissolved, this Court now requires to see whether the company can be restored to a running concern from its present wound-up status.
22. Upon placing the entire Chapter pertaining the winding up matters in tandem with the facts and circumstances of the present case, the learned Amicus Curie submits that the facts of this case attract the provisions of sections 253, 312 and 396 of the Companies Act read with Rules 8 and 263 of the Companies Rules 2009 and, accordingly, this should have been an application under sections 253, 312 and 396 of the Companies Act read with Rules 8 and 263 of the Companies Rules 2009. Let me fust examine the provisions of section 253 of the Companies Act which are quoted below: Section 253. Power of Court to stay winding up:--The Court may, at any time after an order for winding up, on the application of any creditor or contributor, and on proof to the satisfaction of the Court that all proceedings in relation to the winding up ought to be stayed, make an order staying the proceedings, either altogether or for a limited time, on such terms and conditions as the Court thinks fit.
23. Provisions of section 253 of the Companies Act are about stopping the winding up proceeding which is currently marching towards dissolution of the wound-up company. When a company has gone into liquidation by the Order of the Court but yet to be dissolved, and on the application of any creditor or contributor the Court is satisfied that the winding up proceedings should be discontinued sine die or requires to be halted for a certain period, the Court is empowered to pass necessary Orders/Directions to suit the circumstances or compulsion. In other words, when the petitioner being a creditor or contributor satisfies the Court with the proof, meaning with good reasonings, such as, advancing further with the winding up proceeding either (i) shall cause loss to the creditor or contributor or (ii) shall be prejudicial to the overall interest of the company or (iii) shall be against the interest of the country or (iv) shall cause abuse of the process of the Court or (v) is unwarranted for ends of justice etc., section 253 of the Companies Act may be invoked to stay the winding up proceeding for a short or long period. The provision does not clearly invest power in the Company Court to finally dispose of a pending winding up proceeding inasmuch as the word 'stay' connotes an interim measure of adjournment: stopping or bringing a pause in an on-going action. So, clearly the provisions of section 253 of the Companies Act cannot be invoked for dismissing a pending winding up case.
24. In our jurisdiction as well as in the foreign jurisdiction, provisions of section 253 of the Companies Act have been used on the ground enumerated hereinbefore, mostly in a scenario of arising disagreement among the Liquidator, creditor and contributor in reinstating the company from the status of liquidation. In the case of Amin Scales Ltd. vs. Md. Yakut 39 DLR (AD) 201, the Hon'ble Appellate Division made an observation that it will be an abuse of the process of the Court to continue with the winding up proceeding until the dispute as to debt is settled, albeit the Apex Court had not stayed the winding up application. In the case of Dr. Naimur Rahman vs. Shahbazpur Tea Co. Ltd. 43 DLR (AD) 169, the winding up application was opposed by the rival group of the shareholders and, ultimately, when the company Court stayed all further proceedings of the winding up application, the aggrieved party approached the Hon'ble Appellate Division wherein it was held that the Company Court is well-competent to stay winding up proceeding for indefinite period. In the case of Mofizur Rahman vs. Spectacles Frame 10 BLC 548, the company was wound-up on the ground of its inability to pay the debts of Taka 12,00,000. However, when the company managed to pay off the entire debts, the Company Bench presided over by his Lordship Justice Imman Ali recalled the winding up Order pursuant to an application filed by the company under section 253 of the Companies Act which was supported by the petitioner. In the case of Consumer Testing Laboratories Ltd. vs. RJSC 16 BLC 224, a winding up Order was passed by the Company Bench on 24-6-2009 at the instance of all the shareholders (who were 2 in number) of the company. However, when they came up with an application to allow them to resume the business of the company invoking section 253 of the Companies Act, the Company Bench presided over by his Lordship Zubayer Rahman Chowdhury stayed the winding up proceeding altogether.
25. In both the above-mentioned cases (Mofizur Rahman vs. Spectacles Frame 10 BLC 548 and Consumer listing Laboratories Ltd. vs. RISC 16 BLC 224) though their Lordships, in fact, disposed of the winding up case finally, but did not mention anything about exercising the Court's power under section 151 of the CPC. In the case of Mofizur Rahman vs. Spectacles Frame 10 BLC 548 while his Lordship Justice Imman Ali employed the followed expression "Accordingly, the application is allowed. The Order of this Court dated 7-7-2004 winding up the company and appointing a receiver is hereby recalled. The company is reinstated to its original position and the application for winding up is finally disposed of, in the case of Testing Laboratories Ltd. vs. RJSC 16 BLC 224, his Lordship Justice Zubayer Rahman Chowdhury couched the operative part of his Judgment in the following manner "the winding up proceeding in respect of Consumer Testing Laboratories Limited is hereby stayed altogether". His Lordship by the afore-quoted Order, actually, meant final disposal of the winding up proceeding, as can be found from reading the entire Judgment.
26. In the case in hand, however, it is evident from the annexed papers that all the share-holders/contributories have unanimously decided to reinstate the company, and they have no intention to run the company by keeping it's winding up status on hold for indefinite period. So, apparently the provisions of section 253 of the Companies Act do not squarely fit into the facts of the company in question. Section 312.--Power to apply to Court to have questions determined of powers exercised--(1) The liquidator or any contributory or creditor may apply to the Court to determine any question arising in the winding up of a company, or to exercise, as respects the enforcing of calls, staying of proceedings or any other matter all or any of the powers which the Court might exercise if the company were being wound up by the Court. (2) The liquidator or any creditor or contributory may apply for an order setting-aside any attachment, distress or execution put into force against the estate or effects of the company after the commencement of the winding up. (3) The application under sub-section (2) shall be made-- (a) if the attachment, distress or execution is levied or put into force by the High Court Division, to the High Court Division: and (b) if the attachment, distress or execution is levied or put into force by any other Court, to the Court having jurisdiction to wind up the company. (4) The Court, if satisfied that the determination of the question of the required exercise of power or the order applied for will be just and beneficial, may accede wholly or partially to the application on such terms and conditions as it thinks fit, or may make such other order on the application as it thinks just.
27. While sub-section (1) of section 312 of the Companies Act creates options for the Liquidator or any contributory or creditor to approach the Court for determination of any question regarding the powers they have already exercised (such as, enforcing of calls, staying of proceedings or any other matter which are usually the Court's power in winding up of a company), its sub-section (2) entitles the Liquidator or any creditor or contributory to take resort to the Court to stop attachment, distress or execution of the estate of the company in liquidation. And, the Court is invested with the powers to pass any appropriate Order and/or Direction as may be required to mitigate the demand.
28. Therefore, the provisions of sub-section (1) and (2) of section 312 of the Companies Act do not attract the facts and circumstances of the present case.
29. Thus, from a minute reading of the entire provisions governing winding up matters (Part V, sections 234 to 344) of the Companies Act, it appears to this Court that the Company Court is empowered to restore the company in its original position, pursuant to the application filed by the Liquidator Or any interested person under section 340 of the Companies Act, upon being satisfied about the purpose of revival of the wound-up company, only when a company is found to have already been dissolved. However, there is no provision in the Companies Act as to how a wound-up company, which awaits its final dissolution, can be resuscitated to life. While section 253 of the Companies Act creates scope for the wound-up company to be run by obtaining an Order of stay on the winding up proceedings of the company, it does not state anything as to the final disposal of the winding up proceedings. Under the circumstances, this Court has no other option but to resort to the provisions of section 151 of the CPC, in line with the principle laid down in the cases of (1) Shahidul Islam vs. RJSC 24 ALR 365 and (2) Md. Shaiful Islam Sarker vs. RJSC 28 BLC 372.
30. Given the scenario of the case in hand that the petitioner and all other contributories/shareholders of the company are under an impression that they had dissolved the company long ago and, accordingly, they have now invoked section 340 of the Companies Act for revival of the company, and there is no objection from any corner to restore the company in its original position, this Court was primarily inclined to allow the application. But after discovering some non-compliances by the Liquidator in course of the winding up procedure, resulting in non-recognition of its status as a dissolved company, this Court sought assistance of an Amicus Curie, who opined to stay further proceedings of the winding up of this company invoking sections 253, 312 and 396 of the Companies Act together with the Rules 8 and 263 the Companies Rules, instead of invoking section 340 of the Companies Act. However, this Court is happy to accede to the opinion of the learned Amicus Curie as to invocation of section 253 of the Companies Act, but his opinion as to invocation of sections 312 and 396 of the Companies Act read with Rules 8 and 263 of the Companies Rules, 2009 is ignored by this Court, inasmuch as it is the view of this Court that neither the inherent power nor the inherent jurisdiction can be vested in a Court of law by inserting a provision in any sub-ordinate legislation, such as Companies Rules, 2009; rather the provisions of section 151 of the CPC, which is an Act of Parliament, may be resorted to in dealing with the Company Matters.
31. In this case, though most of the legal requirements for dissolving the company were fulfilled, due to not carrying out the required tasks under section 296(3) of the Companies Act the Registrar did not have the occasion to register the Account and the Return. Therefore, this application cannot be treated as an application under section 340 of the Companies Act.
32. In the light of the fact that the company in question, being not finally dissolved, is to be regarded as a wound-up company, and since the petitioner and all other shareholders are praying to this Court for full revival of the company and not merely staying the winding up proceeding for indefinite period, and since there is no direct provision in the Companies Act to resolve the dilemma that is being faced by this Court, I am of the view that the facts and circumstances of this case attract invocation of section 151 of the CPC and, accordingly, this application can be treated as an application under section 253 of the Companies Act read with section 151 of the CPC, as it is ex-facie clear from the pleadings and the prayers of the petition that the shareholders-Directors have decided to reinstate the business of the company and revive it to its original position.
33. In the premises noted above, the application deserves positive consideration and, accordingly, the same is allowed.
34. Accordingly, it is ordered that the special resolution taken in EGM dated 4-4-2009 (Annexure-I) for the voluntary winding up the respondent No. 1-company, namely, Hotel Ramna Ltd. and, also, the subsequent actions carried out by the Liquidator thereafter, are hereby quashed and the company, namely, Hotel Ramna Ltd. is hereby revived from liquidation to its original state and, resultantly, the winding up proceeding that had been pending for years is finally disposed of. The petitioner has expressed his willingness to spend an amount of Taka 1,00,000 (Taka one lac) only as part of his company's CSR expenditure. Accordingly, the petitioner is directed to deposit the same through Pay Order (which is to be deposited to the concerned company section) to Fulchari Haji Sattar Trust, Upzailla Road, Kalirbazar, Fulchari, Gaibandha, Bank Account No. 1021012799, Janata Bank, Kalirbazar Branch (Code No. 0959), Fulchari, Gaibandha (Contact number of Branch- 01718-618879, 0542256109) e-mail ib0959@janata bank-bd.com. On furnishing receipt of payment, the order may be drawn up, if so prayed for.
--- Journal: DLR Volume: 75 Division: HCD Page: 596High Court Division
(Civil Appellate Jurisdiction)
Present:
Mr. Justice Md. Mozibur Rahman Miah
And
Mr. Justice Mohi Uddin Shamim
First Miscellaneous Appeal No. 54 of 2022
Louis Drefus Commodities Suisse SA
Appellant
VS
Php Spinning Mills Limited
Respondent
Judgement Date : February 23, 2023
Counsels:
Junayed Ahmed Chowdhury, Sajeda Farisa Kabir, Tanvir Quader and Asif Bin Anwar, Advocates—For the Appellant.
K.M. Tanjib-ul Alam, Ershadul Alam, Md. Abdul Mannan Bhuyean and Md. Shaiful Islam, Advocates—For the Respondent.
Judgment
Mohi Uddin Shamim, J.
1. This miscellaneous appeal is directed against the judgment and order No. 18 dated 17-2-2022 passed by the learned District Judge, Dhaka in Money Execution Case No. 12 of 2019, allowing the application filed by the respondent for refusing recognition and execution of foreign arbitral award dated 13-7-2012 of the International Cotton Association (ICA).
2. The case of the decree-holder-appellant (shortly, the appellant), in short, is that the appellant entered into two contracts dated 30-10-2010 and 3-12-2010 respectively with the Judgment-debtor-respondent (briefly, the respondent) for purchasing about 1500 metric tons (500mt+1,000mt) Burkina Faso Raw Cotton. Under the said contracts, the respondent was bound to open letters of credit (L/Cs) in favour of the appellant within 15-3-2011. But, despite several reminders from the appellant, the respondent failed to open the said L/Cs as per the terms and conditions of the contracts and thereby the respondent clearly violated its contractual obligation. Thus, the dispute arose between the parties relating to the said contracts. In the deed of contracts, there were arbitration clauses and the appellant initiated arbitration proceedings against the respondent before the International Cotton Association Limited (precisely ICA). The appellant then appointed David Wookey as an Arbitrator on its behalf. The ICA by issuing a letter dated 9-2-2012 requested the respondent to appoint an Arbitrator on its behalf within 14 days from the date of receipt thereof, but the respondent failed to nominate its Arbitrator within the stipulated time. Then the president of the ICA had nominated Michael Fairbrother as an Arbitrator on behalf of the respondent. Thereafter, ICA also appointed Andrew Kelley an additional Arbitrator for acting as Chairman of the Arbitral Tribunal. The appellant submitted their statement of claim to the Arbitral Tribunal, but the respondent willingly and with mala-fide intention did not submit any document relating to its defence.
3. Thereafter, on 13-7-2012, the Arbitral Tribunal passed the impugned award in favour of the appellant directing the respondent to pay US $ 5,671,649.95 together with interest thereon. Further case of the appellant is that there was a legal bar in filing the execution case under section 45 of the Arbitration Act, 2001 (hereinafter referred to as the Act) for recognition and enforcement of the said award. When the bar is taken off, the appellant on 25-4-2019 put the foreign award for recognition and enforcement under section 45 of the Act by filing Money Execution Case.
4. The case of the respondent, in brief, is that admittedly, on 30-10-2010 and 3-12-2010, the respondent entered into two contracts with the appellant for purchase of 1,500 MT of Burkina Faso Raw Cotton at the rate of 295 US Cents and 350 US Cents respectively per 1b CFR Chittagong. However, the price of cotton in the international market plummeted drastically and, as such, the local bank (Mercantile Bank), by a letter dated 13-4-2011, refused to issue L/C, since the requested amount in the L/C went much higher than that of the market rate of the cotton. Thereafter, the appellant requested to the respondent for arbitration under the arbitration clause of the agreement. The respondent refused such request and subsequently, filed a Title Suit being Title Suit No. 441 of 2012 in the 4th Court of Joint District Judge, Dhaka along with an application for temporary injunction against the arbitration proceedings. However, the said application was not allowed by the learned Joint District Judge for which the respondent filed a Civil Revision being No. 1471 of 2012 before this Court, whereupon a Rule was issued and an order of ad-interim injunction was passed restraining the arbitrators, the International Cotton Association Limited (shortly, ICA) and the appellant from proceeding with the arbitration proceedings. However, the appellant, in violation of the order of this Court, persuaded with the arbitration proceedings and subsequently, an award was given in favour of the appellant by the Arbitral Tribunal on 13-7-2012 (briefly, the Award) in violation of the order of injunction passed by this Court. Later on, by the judgment and order dated 13-11-2018, this Court disposed of the Rule issued in the said Civil Revision. Meanwhile, the appellant, on 25-4-2019, filed Arbitration Money Execution Case No. 12 of 2019 in the Court of District Judge, Dhaka under section 45 of the Act for recognition and enforcement of the Award.
5. Thereafter, the respondent entered appearance in the Money Execution Case and filed an application under section 46 of the Act for a declaration that the award in question should not be recognized and enforced against the respondent alleging, inter-alia, that the respondent could not comply with the terms and conditions of the contracts, as both the contracts have been frustrated due to prevailing laws of the land, which prohibited the Banks to open the concerned L/Cs. The Arbitral Tribunal has acted wholly without jurisdiction inasmuch as when it passed the so-called award, the Tribunal was restrained from proceeding with the Arbitration Case by an order of injunction dated 27-5-2012 passed by the High Court Division in Bangladesh vide Civil Revision No. 1471 of 2012. The award in question dated 13-7-2012 was obtained in violation of the said order of injunction passed by the competent Court of Bangladesh and the appellant initiated the present Execution Case in Bangladesh to enforce the said award which is a glaring example of utter disrespect towards the Court of Bangladesh and the said award is liable to be refused for recognition and execution as being serious conflicting with the public policy and law of Bangladesh. The Execution Case is also barred by limitation as being filed beyond the statutory period of three years from the date of passing the award in question and prayed for refusing recognition and execution of the foreign Arbitral Award dated 13-7-2012 and dismissing the Money Execution Case.
6. The appellant also filed a written objection against the application filed by the respondent and prayed for rejection of the application.
7. After hearing the parties and perusing the materials available on record, the learned District Judge, Dhaka allowed the application for refusing recognition and execution of foreign arbitral award by the impugned order.
8. Being aggrieved by and dissatisfied with the impugned order dated 17-2-2022 the decree-holder, as appellant, preferred the instant miscellaneous appeal before this Court.
9. Mr. Junayed Ahmed Chowdhury, the learned Advocate for the appellant appearing with Ms. Sajeda Farisa Kabir, Mr. Tanvir Quader and Mr. Asif Bin Anwar, the learned Advocates takes us through the Memo of appeal, the application filed under section 46 of the Act by the respondent, the foreign arbitral award, the impugned order, the other connected materials available on record and then submits that, the learned District Judge in refusing to recognize and execute the award wrongly held that the decree-holder failed to file the execution case under section 45(1) of the Act within the prescribed period of limitation i.e. within three years from the date of passing award, rather they filed the execution case long after six years, nine months and twelve days. He next submits that admittedly, the High Court of Bangladesh passed an order of injunction in a civil revision preferred by the respondent relating to arbitration proceeding on 27-5-2012 on the ground of territorial jurisdiction of the High Court in Bangladesh, the arbitral proceeding was proceeded and ultimately, award was passed. The appellant arrived within the territorial jurisdiction of Bangladesh and voluntarily put the award to the concerned Court in Bangladesh on 5-8-2012 for recognition and execution. The order of injunction granted by the High Court in Bangladesh was vacated on 13-11-2018 and in the meantime, the periods of six years, five months and seventeen days have elapsed from the date of granting injunction by the High Court. He further submits that in the above backdrop, the provision of article 15(1) of the Limitation Act will be applicable in the instant case, wherein, it has been stipulated that in computing the period of limitation prescribed for any application for execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day in which it was issued or made, and the day on which it was withdrawn, shall be excluded. He also submits that the learned District Judge did not consider the territorial nature of an injunction order. Since the provision of Article 15(1) of the Limitation Act is to be applicable for filing the instant award in execution, it was not necessary for the learned District Judge to consider the legality of binding nature of the High Court injunction, which was as a matter of law, regardless of its validity, a binding order on persons within the territorial jurisdiction until it was vacated by the High Court. He, therefore, submits that in passing the impugned order, the learned District Judge did not consider that the High Court injunction was not binding on the appellant, who was residing and acting abroad and until he returned to, or arrived in Bangladesh for the first time and voluntarily put the foreign award to the concerned Court in the territorial jurisdiction of Bangladesh for recognition and execution and therefore, the learned District Judge failed to consider that as soon as the appellant, who remained outside the territorial jurisdiction of Bangladesh at the time of granting injunction by the High Court, arrived within the territorial jurisdiction of Bangladesh and voluntarily put the award to the Bangladeshi court for recognition and execution which is 70 days after passing of the High Court injunction, while the High Court injunction became binding on it and until such an injunction was vacated, the appellant could not put the award for its recognition and execution and thus, the impugned order is liable to be set-aside.
10. Mr. Chowdhury, in support of his submissions, referred to the decisions in the following cases:- i) Ganga Jee vs. Sat Narain Lal and others AIR 1925 All 572; ii) Hulas Singh and others vs. Data Ram and others AIR (30) 1943 All 291; iii) Sitaram Nanasa and others vs. Chunnilalsa Bhagchahdsa Kalal AIR (31) 1944 Nag 155; iv) Sirdar Gurdyal Singh vs. The Rajah of Faridkote, a Judgment of the Privy Council dated 28th July, 1894.
11. In the backdrops of the cases of both the parties as well as the submissions so advanced by the learned Advocate for the appellant, Mr. Tanjib-ul Alam, the learned Advocate for the respondents appearing with Mr. Ershadul Alam, Mr. Md. Abdul Mannan Bhuyean and Mr. Md. Shaiful Islam, the learned Advocates at the first instance raised a question relating to maintainability of the instant miscellaneous appeal contending that the instant appeal has been filed under section 48 of the Act read with section 104 of the Code of Civil Procedure and the same has been registered as 'First Miscellaneous Appeal. But section 48 of the Act is a complete section for filing an appeal against an order passed by the District Judge refusing to recognize and to enforce a foreign award under section 45 of the Act. Therefore, the instant appeal ought to have been registered as 'Arbitration Appeal' and not as 'First Miscellaneous Appeal.' As regards to the question of enforcement and recognition of such award against the public policy of the State as well as in violation of the order of injunction passed by this Court, the learned Advocate for the respondent submits that section 46(1)(b)(ii) of the Act provides that recognition and execution of foreign arbitral awards may be refused, if the Court finds that the same is in conflict with the public policy of Bangladesh. Further, this Court passed an order of ad-interim injunction in Civil Revision No. 1471 of 2012 restraining ICA, the arbitrators and the appellant from proceeding with the arbitration. It is an admitted position that, the appellant had knowledge of passing injunction order and despite that, it proceeded for obtaining award, though the appellant, the ICA and the arbitrators should have refrained themselves from passing the arbitral award. However, they in total disregarding and violating the order of this Court proceeded with the arbitration proceeding and finally passed the award and therefore, the award obtained by violating the order of this Court is in conflict with the public policy of Bangladesh and thus, the appeal is liable to be dismissed. He next submits that, the Import Policy Order 2009-2012 prohibits importing of goods other than at most competitive price and violation of such policy is an offence punishable under section 5 of the Imports and Exports (Control) Act, 1950 and furthermore, it would also be deemed as over invoicing, if not imported at the most competitive rate which was an offence under the then Prevention of Money Laundering Act, 2009 as well as Foreign Exchange Regulation Act, 1947 and all these Acts were framed for protection of national economic interest and object of the various provisions of the said laws are to ensure that the country does not lose foreign exchange, which is very much essential for the economic survival of the State. He further submits that, it would be against the basic principle of equity in allowing the award to be enforced, inasmuch as, the appellant admitted that the award is wrong in law and despite knowing that, arguing for enforcement of award amounts to approbate and reprobate at the same breath and allowing such an appeal would be against the public policy of Bangladesh. As regards to the jurisdiction of the ICA Arbitration Tribunal, Mr. Alam submits that from the decision of the High Court of England and Wales, it transpires that only the By-laws had been included in the arbitration clause and the Rules had not been incorporated and therefore, by adopting the ICA Rules in passing the award, the ICA Arbitration Tribunal has exceeded its jurisdiction, as it contains decisions on matters beyond the scope of the submission to arbitration and therefore, the impugned arbitral award ought not to be recognized or allowed to be enforced. This aspect of illegality is clearly recognized under section 46(1)(a)(iv) and (b)(i) of the Arbitration Act, 2001 as section 36 of the Act provides that, arbitral tribunal is required to decide the dispute in accordance with the rules of law as are designated by the parties as applicable to the substance of the dispute. As regards to the question of limitation i.e. whether the arbitral award is barred by limitation upon which the learned District Judge refused to recognize and to enforce the award, the learned Advocate for the respondent submits that at this stage, it is important to note the arguments forwarded by the learned Advocate for the appellant in support of its assertion that the execution proceedings of the foreign arbitral award is not barred by limitation. This Court passed the anti-suit injunction on 27-5-2012. The arbitral award was passed on 13-7-2012. The appellant allegedly arrived in Bangladesh and voluntarily appeared in Title Suit 441 of 2012 on 5-8-2012 pending in the Court of Joint District Judge, 4th Court, Dhaka by filing Vokalatnama. Finally, the anti-suit injunction was vacated by this Court on 13-11-2018 and the respondent filed an application in Title Suit No. 441 of 2012 seeking an injunction to restrain the appellant from taking any further step in relation to the award and the said application was rejected on 23-4-2019. Therefore, it is the claim of the appellant that the periods from 27-5-2012 to 13-11-2018 (i.e. six years, five months and seventeen days) ought to be excluded pursuant to section 15(1) of the Limitation Act and the periods from 14-3-2019 to 23-4-2019 (i.e. one months and nine days) should also be excluded pursuant to section 14(2) of the Limitation Act. But, it is very unfortunate that in one hand, the appellant is arguing that the anti-suit injunction dated 27-5-2012 is without jurisdiction and on the other hand, the appellant likes to rely on the same injunction in order to affirm that Money Decree Execution Suit No. 12 of 2019 was not barred by limitation and thus, the arbitral award ought to be enforced. Therefore, this is a gross violation of the principle of approbation and reprobation as correctly pointed out in the impugned order. By drawing our attention to the decision of the Appellate Division in the case of Parjatan Corporation and others vs. Md. Mofizur Rahman and another 46 DLR (AD) 46, Mr. Alam further submits that, the appellant ought not to be allowed to rely on the same injunction claiming to be without jurisdiction to affirm that Money Decree Execution Case No. 12 of 2019 is not barred by limitation. Mr. Alam lastly, submits that though for performing the contract in question, PHP-the respondent approached its Bank to open L/C, but, admittedly, the Bank was reluctant to open the L/C due to issuance of Regulations and Circulations by the Bangladesh Bank including Circular No. 2 dated 17-7-2002 issued by the Anti-Money Laundering Department of the Bangladesh Bank which prohibits Banks from opening L/C at a price which is excessively higher than the prevailing market price. Despite that, the respondent tried its level best to open the L/C, but under such state policy matter, the respondent, ultimately, could not open L/C and this non-ability to open L/C by the respondent, the appellant did not incur any financial loss.
12. In reply to the submissions so advanced by the learned Advocate for the respondent, the learned Advocate for the appellant submits that if the respondent was aggrieved, then it should have filed a cross objection under Order XLI, rule 22 of the Code of Civil Procedure (briefly, the Code) before this Court. However, the respondent did not file cross objection against the observations made in the impugned order and moreover, the respondent failed to appear before the Arbitration Tribunal despite receiving repeated requests from the ICA and also did not file the required cross objection under the Code against a clear observation on public policy argument by the learned District Judge and therefore, now, the respondent will have no opportunity to raise any argument challenging the impugned order. He further submitted that, the Foreign Exchange Regulation Act, 1947 (shortly, the FERA) would not render a contract void under section 23 of the Contract Act and that the respondent ought to seek permission from Bangladesh Bank for opening L/C. He submits that the Parliament has chosen not to enact express provisions containing additional civil penalties such as the deprivation of contractual rights within the scheme of the Import Export Act and therefore, the violation will not result in the contracts being rendered void. The learned Advocate for the appellant replied that pursuant to sections 2(4) and 5(4) of the Import Policy Order, 2009-2012, the respondent was required to submit documents of the price of the goods paid or to be paid to Import Control Authority, if there was any issue with respect of competitive rate. He lastly submits that Cottonex Case is silent about the legal impact of any injunction order on a person who is outside the territorial jurisdiction of Bangladesh and thus, Cottonex Case cannot be applied in this case.
13. In discarding the above arguments so advanced by the learned Advocate for the appellant, Mr. Tanjibul Alam submits that as regards filing cross objection, it ought to be noted that Order XLI, rule 22 of the Code contains the wording 'may' as opposed to 'shall.' Therefore, the above provision is a discretionary one, rather than being a mandatory provision. As regards violation of the FERA, Mr. Alam replied that die enforcement of Arbitral Award shall have to be in the light of section 46 of the Arbitration Act and not in the light of section 23 of the Contract Act. Therefore, the argument of the appellant is misleading. In relation to the Import Policy Order, 2009-2012, Mr. Alam replied that the argument of the appellant is misconceived inasmuch that when a criminal sanction is provided for violation of any order framed under Import and Export (Control) Act, 1950, it is implied that any action contravening such provision would be against public policy of Bangladesh and it must not be done. In reply to the provisions of sections 2(4) and 5(4) of the Import Policy Order, 2009-2012, Mr. Alam submits that the argument relating to submit documents of the price of the goods is misconceived, as the submissions of documents under the Import Policy Order and importing at the most competitive rate are two different obligations on the part of the importer and not at all depended on each other. The submission of documents would arise if only the relevant authority seeks information from the importer. As regards to silence about legal impact of an order of injunction in Cottonex Case, Mr. Alam replied that the submission of the appellant is misleading as the real question in this case is whether passing the Arbitral Award in violation of injunction passed by the High Court, which was later recalled and vacated, shall be enforced and recognized in Bangladesh under section 46 of the Arbitration Act, 2001. The argument put forward by the appellant in this regard may be a suitable argument in Civil Revision No. 1471 of 2012 but not in the instant case. The High Court in delivering Cottonex Case duly considered the scope and application of section 46 and rightly concluded that if an award is passed in violation of the order of High Court, whether wrongly or rightly, it would be against public policy of Bangladesh to enforce such an award.
14. We have heard the learned Advocates of both the sides, perused the grounds set forth in the Memo of appeal, the impugned order, the application filed by the respondent for refusing the recognition and execution of the award in question, the foreign arbitral award and the other connected materials on record.
15. In this matter, two contracts dated 30-10-2010 and 3-12-2010 were furnished by the parties for purchasing some raw cotton by the respondent from the appellant. As per contracts, the respondent was under contractual obligation to open L/Cs in favour of the appellant within 15-3-2011, but due to change of legal circumstance in Bangladesh, the respondent could not open the aforesaid L/Cs. As per terms of the contracts, the appellant went on arbitration and appointed Arbitrator on its behalf. The respondent neither appeared in arbitration nor appointed any Arbitrator on its behalf. Then the International Cotton Association Limited (ICA) appointed an Arbitrator on behalf of the respondent. As per terms of the contracts the arbitration proceeding was held in Liverpool, England. Ultimately, on 13-7-2012, the Arbitration Tribunal passed an award in favour of the appellant, directing the respondent to pay US $ 5,671,649.95 with interest to the appellant. It be mentioned here that during arbitration proceeding in England, the respondent preferred a Civil Revision before the High Court Division in Bangladesh and obtained an order of injunction as regards to arbitration proceeding in England restraining the Arbitration Tribunal not to proceed with the arbitration proceeding, which has duly been communicated to the parties concerned including Arbitration Tribunal. Despite the order of injunction passed by the High Court in Bangladesh, the arbitration proceeding was proceeded with on the ground of non binding the order of injunction restraining the Arbitration Tribunal in England due to territorial jurisdiction. Ultimately, the award in question was passed as stated above. All these are the admitted facts of the case and neither of the parties denied those facts. Therefore, these are not the matters in issue to be considered by us. The question to be decided in this matter is whether the award passed by the foreign Arbitration Tribunal has been put for its recognition and execution through execution case before the concerned Court in Bangladesh within the statutory period of limitation.
16. As regards to the submissions of the appellant that by the impugned order the respondent's case upon public policy has been rejected and, as such, there is no scope to argue upon the public policy matter by the respondent without filing a cross objection under Order XLI, rule 22 of the Code, it is the case of the respondent that it is not at all necessary to file a cross objection in order to argue before the Court of Appeal when rule 22 of Order XLI of the Code contains the wording 'may' instead of the wording 'shall.' In view of the above claim and counter claim of the parties, we may refer to the provision of rule 33, Order XLI of the Code, which runs as follows: "The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection: Provided that the Appellate Court shall not make any order under section 65A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order."
17. The plain reading of the above provision, it appears that the said provision empowers the Court to make any such order, which ought to have been passed by the Court whose order or decree is being challenged. Thus, it can be said that the High Court is not precluded from accepting or rejecting the grounds of the respondents. In this connection, reference may be made in the case of Hazrat Ali & others vs. Yakub Ali Khan and others 1983 BLD (AD) 62 wherein it has been held by their Lordships of the Appellate Division as follows:-- "sub-rule (1) of rule 22, Order XLI provides that any respondent though he may not have appealed from any part of the decree, may not only support the decree on any of the grounds decided against him in the Court below, but take any cross-objection to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. The provision is wide enough to enable the respondents to support the decree not only on the points decided in their favour but also on points decided against them. It has already been mentioned above that it was pointed out to the learned Judge that the respondents did not file any appeal, cross-objection as they were not aggrieved by the decree.'
18. Furthermore, the question of public policy under section 46(1)(b)(ii) of the Arbitration Act, 2001 is a discretionary power to be exercised by the Court and whether any cross objection or cross appeal is filed or not, the Court has the jurisdiction to determine the question of public policy in order to exercise its discretionary power under section 46(i)(b)(ii) of the Arbitration Act, 2001.
19. The learned Advocate for the appellant by referring different decisions of different courts, firstly, submitted that the order of injunction passed by the High Court Division is an anti-arbitration injunction and the principle settled in Cottonex Case is inapplicable in the instant case. In order for any anti-arbitration injunction/order of Bangladesh courts to be enforceable, the subject matter, or the arbitrating parties must be within the jurisdiction of Bangladeshi courts. In the event that the seat of arbitration is outside Bangladesh, an ad-interim injunction passed against such an arbitration proceeding shall be out of the court's jurisdiction. Secondly, he submitted that Cottonex judgment's principle of injunction is sub-silentio. The above passages of the Cottonex judgment are silent about the legal impact of an injunction order on a person who is outside the territorial jurisdiction of Bangladesh. It is submitted that the above proposition must be seen in the context of an injunction being applied over a person who is in the territorial jurisdiction of the court granting the anti-arbitration injunction. If a person is outside the territorial jurisdiction of the court, any injunction on that person does not have any effect.
20. It was submitted by the learned Advocate for the appellant that an anti-suit injunction passed by the High Court in Bangladesh does not have any binding effect on the appellant, as the High Court in Bangladesh does not have jurisdiction to pass any such order. As against this, it was submitted by the learned Advocate for the respondents that the argument advanced by the learned Advocate for the appellant amounts to go into the merit of the arbitration which cannot be done at this stage, as the Court should have been confined within the provisions provided in section 46 of the Arbitration Act as has been held by their lordships of a Division Bench of this Court in the case of Cottonex Ansalt 26 BLC 276 and, as such, there is no scope to examine whether the injunction passed by the High Court in Civil Revision No. 1471 of 2012 was passed wrongly or without jurisdiction.
21. Fact remains that earlier High Court Division passed an order of injunction and in violation of which the appellant obtained an arbitral award from a foreign Arbitration Tribunal and subsequently, the appellant sought for recognition and enforcement of the said foreign arbitral award before the Court of the District Judge, Dhaka. The question needs to be determined whether enforcement of such award would be against public policy and whether the other grounds, as provided in section 46 of the Arbitration Act, require refusal of enforcement and recognition of the foreign arbitral award.
22. The appellant has grossly misunderstood the theoretical and practical background and implications of "Anti-Suit Injunction" in the context of conflict of laws, since the appellant is arguing basing on the principles of "territorial nature" of an injunction that the High Court injunction was not binding on the appellant as well as on the foreign Arbitration Tribunal when the ex-parte injunction order was passed on 27-5-2012, because on that date i.e. on 27-5-2012, both the appellant and the Arbitration Tribunal were outside the territory of Bangladesh. It is to be noted here that Anti-Suit Injunction is granted all over the world despite not having territorial jurisdiction. For example, when English Courts grant anti-suit injunction against the proceedings pending before the courts of another jurisdiction, many a times the appellant and Tribunal/Court are outside the territory of the United Kingdom.
23. It may be mentioned here that Supreme Court of the United Kingdom in the case of Ust Kamenogorsk Hydropower Plant JSC (Appellant) vs. AES Ust-Kamenogorsk Hydropower Plant LLP (Respondent) (2013) UKSC 35 at 9 (61) held that- "In some cases where foreign proceedings are brought in breach of an arbitration clause or exclusive choice of court agreement, the appropriate course will be to leave it to the foreign court to recognize and to enforce the parties' agreement on forum. But, in the present case, the foreign court has refused to do so, and done this on a basis which the English Courts are not bound to recognize and on the grounds which are unsustainable under English law which is accepted to govern the arbitration agreement. It follows from the principle laid down above, without prejudice to the rights of the respondent."
24. Here in the instant case, when the order dated 27-5-2012 was passed by the High Court Division of the Supreme Court of Bangladesh, there were two remedies opened to the appellant--firstly, to challenge the jurisdiction of the High Court Division to pass the Anti-Suit Injunction either before the Appellate Division or to apply before the High Court Division for vacating the order and secondly, if the Court of Bangladesh refused the said prayers, then the appellant was to apply for an Anti-Suit Injunction before the English Courts against the proceedings in Bangladesh. However, the appellant without doing so proceeded with the arbitration proceeding in gross violation and showing utter disrespect to the injunction order dated 27-5-2012. Thus, in light of the above, the foreign arbitral award ought not to be enforced, as the same goes against the public policy of Bangladesh as provided in section 46(1)(b)(ii) of the Arbitration Act, 2001.
25. The learned Advocate for the appellant argued that violation of FERA would not render the contract void under section 23 of the Contract Act, 1872 and that the respondent could seek permission from the Bangladesh Bank for opening L/C It be mentioned here that the enforcement of arbitral award shall have to be enforced with the provision of section 46 of the Arbitration Act and not with the provision of section 23 of the Contract Act, 1872. Therefore, the argument so advanced by the learned Advocate for the appellant has got no basis. Further, the appellant has misconstrued the provisions of FERA in arguing that the same does not forbid the making of a contract which may contemplate doing a thing which is contrary to the provisions of the FERA, because that thing can still be done by 'ex-post facto' permission from Bangladesh Bank. Therefore, the appellant argues that it cannot be said that a contract which violates any of the terms of the FERA is 'ex-facie' or 'ab-initio void' or comes within the mischief of a contract prohibited by section 23 of the Contract Act, 1872. In this regard, firstly, it may be mentioned that the obligation for opening L/C at most competitive rate is a requirement under Import Policy Order, which is framed under Import and Export (Control) Act, 1950 and not under FERA, 1947. Thus, the question of seeking permission under FERA does not arise at all and the argument of the appellant has got no manner of application in the instant case. Furthermore, even if for the sake of argument, it is assumed that permission would be required from Bangladesh Bank, such permission is obtained through the L/C opening bank and when the L/C opening bank refuses outright to open the L/C, the question of seeking permission from the Bangladesh Bank under FERA does not arise. Hence, it is immaterial in the present case whether FERA renders the agreement void or not, because in any case the arbitral award is unenforceable.
26. In respect of the Import Policy Order, 2009-2012, it has further been submitted by the appellant that the Parliament has chosen not to enact express provisions containing additional civil penalties such as the deprivation of contractual rights within the scheme of the Import Export Act and therefore, the violation will not result in the contracts being rendered void. Thus, the argument of the appellant is misconceived inasmuch as when a criminal sanction is provided for violation of any order framed under Import and Export (Control) Act, 1950, it is implied that any action contravening such provision would be against public policy of Bangladesh and must not be done. In this regard, it was held in the Cottonex Case that-- "Provisions of the Import Policy Order, 2009-2012 enacted for the national economic interests and object of clause 5(4) of the said order is to ensure that the nation does not lose foreign exchange, which is very much essential for the economic development of the country, thus the said provision safeguards the economic interests of Bangladesh and any contravention of the said provision would be contrary to the public policy of Bangladesh."
27. In view of the above decision, the main issue at hand is whether non-complying with the Import Policy Order, 2009-2012 and Import and Export (Control) Act, 1980 would be contrary to the public policy of Bangladesh and whether it would render the agreement void. Without prejudice to the rights of the respondent, even if the contract is not rendered void, enforcing the award would be contrary to public policy of Bangladesh in light of the aforementioned provisions.
28. Now, let us turn our eyes to the question of limitation as regards to recognition and enforcement of the foreign arbitral award.
29. It is the legal requirement that any foreign arbitral award has to be filed for its recognition and execution under section 45 of the Act within three years from the date of passing the award. In the instant case, the foreign award was passed on 13-7-2012. Therefore, the award in question was to be filed for recognition and execution within the statutory period of limitation i.e. within three years from 13-7-2012. But the award in question was filed for its recognition and execution vide Money Execution Case on 25-4-2019 before the concerned Court i.e. long after six years, nine months and twelve days from the date of passing the award on 13-7-2012 on the plea that there was an embargo or impediment upon the appellant to get the award recognized and executed due to an order of injunction passed by the High Court in Bangladesh.
30. On the above feature of the case, it is to be decided whether the award in question was to be filed within statutory period of three years from the date of passing the award in question or whether it was to be filed after vacating the order of injunction passed earlier by the High Court in Bangladesh i.e. after six years, nine months and twelve days.
31. Admittedly, as per provision of Article 182 of the Limitation Act, an award ought to be filed within three years of the period of limitation. On the contrary, it is the persistent case of the appellant that although the award in question was passed on 13-7-2012 by a foreign Arbitration Tribunal, but there was a legal bar in filing the award for recognition and execution under section 45 of the Act due to a restraint order passed by the High Court in Bangladesh. The said order of injunction was vacated on 13-11-2018, whereupon, the execution case was filed on 25-7-2019. Therefore, in computing the period of limitation, the time spent for the cause of restraint order passed by the High Court must be excluded. Thus, it ought to be deemed that the execution case has been filed within the period of limitation of three years as provided in Article 182 of the Limitation Act and, as such, the execution case is not barred by limitation. In support of the above claim, the learned Advocate has referred to Article 15(1) of the Limitation Act, wherein it has been stipulated that in computing the period of limitation prescribed for any application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, the day on which it was withdrawn, shall be excluded.
32. On the above provision of law, now let us see how far the provision of Article 15(1) of the Limitation Act is applicable in die instant case.
33. In this case, the superfluously spoken injunction order was, admittedly, passed restraining the arbitral proceeding and it was duly communicated to the Arbitral Tribunal in England and the Arbitral Tribunal acknowledged the same. Despite knowing full well about the injunction order, the Arbitral Tribunal proceeded with the arbitration proceeding with a plea that due to territorial jurisdiction, the injunction order passed by High Court in Bangladesh was not binding upon the Tribunal and ultimately, the Tribunal passed the award in question. Therefore, on such very action of the Arbitral Tribunal, the injunction order passed by the High Court in Bangladesh, had become infructuous.
34. From the above position, it clearly appears that the High Court in Bangladesh only restrained the very proceeding of the arbitral proceeding by the alleged order of injunction and not the award in question. Thus, after born of award child out of the restrained proceeding, the restrained order passed by the High Court in Bangladesh had become infructuous and, as such, there is no scope to say that the award in question is illegal. Moreover, the respondent also did not challenge the legality or propriety of the award in question. Therefore, there was no bar or impediment upon the appellant to put the award in execution within the statutory period of three years from the date of passing the award. But, unnecessarily, the appellant inordinately spent a huge time in the name of vacating an infructuous injunction order.
35. In such view of the matter, we are of the view that the provision of Article 15(1) of the Limitation Act is not applicable by excluding the period of injunction order and vacating thereof by the High Court and the statutory period of three years for filing the award in execution under Article 181 of the Limitation Act is fully applicable. It is curious enough that in one breath, the appellant claims that the injunction order passed by the High Court in Bangladesh was not binding upon the foreign Arbitration Tribunal as well as upon the appellant, as the appellant resides and acts in abroad and in another breath, the appellant claims that the order of injunction passed by the High Court was binding upon it to put the award for recognition and execution and until and unless it's vacated, the appellant cannot file the execution case for recognition and execution of the award in question. There is hardly any scope to accept and/or consider such double standard adopted by a party in calculating the limitation for filing a case.
36. Moreover, from the impugned order, it appears that the learned District Judge took a pain to pass an elaborate and vivid order considering the pros and cons of the case wherein, he has rightly held that the order of injunction passed by the High Court Division was not binding upon the appellant to file the execution case for recognition and execution of award in question under the provision of article 181 of the Limitation Act.
37. We have gone through the decisions so referred to by the learned Advocate for the appellant and considered those at large. On careful consideration of the decisions, it appears to us that the facts and circumstances of the instant case are quite difference than those of the referred cases. Therefore, there is no scope of application of the principles settled in those cases with the instant case.
38. In view of the discussions made in the forgoing paragraphs vis-a-vis. the provision of the Limitation Act, we find no merit in the submissions of the learned Advocate for the appellant and we find merit and force in the submissions of the learned Advocate for the respondent.
In the result, the appeal is dismissed.
Communicate the judgment to the Court concerned at once.
--- Journal: DLR Volume: 75 Division: HCD Page: 625High Court Division
(Civil Revisional Jurisdiction)
Present:
Mr. Justice Sheikh Abdul Awal
Civil Rule 351 (Review) (R) of 2014
Abdur Razzak Miah (Md.) and Ors.
Petitioner
VS
Khursheda Ayub and Ors.
Respondents
Judgement Date : January 08, 2023
Counsels:
Md. Ruhul Quddus Kazal and Md. Khalilur Rahman, Advocates—For the Petitioner.
Md. Jashim Uddin, Advocate—For the Respondents.
Judgment
Sheikh Abdul Awal, J.
1. This Rule was issued calling upon the opposite party No. 1 to show cause as to why the impugned judgment and decree dated 21-3-2012 (decree signed on 31-3-2013) passed by a single bench of the High Court Division in Civil Revision No. 233 of 2008 should not reviewed and/or such other or further order or orders passed as to this Court may seem fit and proper.
2. Material facts of the case, briefly, are that predecessor of the present petitioners, Abdur Razzak as plaintiff filed Title Suit No. 82 of 2000 before the learned Senior Assistant Judge, Chandpur impleading the opposite party No. 1 and others as defendants praying the following reliefs: (ক) আরজির বর্ণিতরূপ প্রকার ও অবস্থাধীনের প্রমাণাধী গ্রহণে ১নং বিবাদীর নামীয় বিগত ১১-৩-৭৬ ইং তারিখের রেজিস্ট্রিকৃত ২৫৭২ ও ২৫৭৩ নং ছাব কবল দলিল দ্বয় এবং বিগত ১৮-১১-৯৮ ইং তারিখের রেজিস্ট্রিকৃত ৬৩৭৭ নং দান পত্র দলিল সম্পূর্ণ বে-আইনী যোগসাজসী, তঞ্চকতামূলক এবং বাদী ও মোঃ বিবাদীগণ প্রতি অবাধ্যকর অকার্যকর বলিয়া পৃথক পৃথক তিনটি ঘোষণা প্রচারের ডিক্রি দিতে। (খ) অত্রাদালতের ৬৭/১৯৯৬ নং স্বত্ব মোকদ্দমায় বিগত ২৭-৪-৯৮ ইং তারিখের একতরফা ডিক্রি সম্পূর্ণ বে-আইনী, তঞ্চকতামূলক অকার্যকরী এবং বাদী ও মোঃ বিবাদীগণ প্রতি অবাধ্যকর হওয়া মর্মে ঘোষণার ডিক্রি দিতে। (গ) ২/৩ নং বিবাদীকৃত বিগত ২৭-৭-২০০০ ইং তারিখে ও বিগত ৭-৮-২০০০ ইং তারিখের সীমানা নির্ধারণের নোটিশ সম্পূর্ণ বে-আইনী ক্ষমতা বহিঃভূত যোগসাজসিক তঞ্চকতা মূলক বলিয়া অপর এক ঘোষণার ডিক্রি দিতে, (ঘ) সম্যক আদালতের ব্যয় জের ইত্যাদি পাওয়ার এবং ( ) আদালতের ন্যায় বিচার ও প্রমাণিক অবস্থায় বাদী অপর যে যে প্রতিকার ও উপকার পাইতে পারে তাহাও বাদীকে বিবাদীগণ বিরুদ্ধে ডিক্রি দিতে হুজুরের মর্জি হয়।
3. The plaintiffs' case in short is that the land measuring an area of 14.63 acre under 1SS Kaladi Mouza in CS khatian No. 539 was originally belonged to one Kamala Kanta, who executed an will in favour of his first wife's son Jagabandu Saha and second wife's son Bindaban Saha and Jagabandhu's son Lalit Mohon, Kamini Kumar, Ram Kumar and Prashanna Kumar on 9-10-1896 but during the district settlement operation the land was not recorded as per the will and the same was wrongly recorded in the name of Jagabandhu Saha as 15 anna share and rest one and recorded in the name of Nabadip Chandra Saha and others. After the death of Jagabandhu Saha his aforesaid 4 sons became the owners of the land and the rest land belonged to Nabadip Chandra Saha and others. As per the will the sons of Jagabandhu got 0.42 acres of land along with dwelling house under plot No. 582 and were possessing the same by amicable settlement. In this background Lalit Mohon filed partition suit before the Subordinate Judge, 3rd Court, Comilla being civil Suit No. 58 of 1931. Ultimately, the said suit was decreed on compromise. After the death of Kamini, Chintahoran and Gopal became the 11 owners of the land and after the death of Lalita Mohon Hira Lal Saha and others became the owners of the land and got 0.0105 acres of land each in the dwelling house. After the death of the Ammirita Lal, his 5 sons Ananda Gopal Saha and others became the owner of his land. Ram Kumar sold his share by agreement in favour of Annada Sundari, who became the owner of the land by virtue of decree passed in Title Suit No. 198 of 1983. Brindaban Saha gifted his entire property to his wife Hemangani Saha by a deed of gift registered on 1-2-1936. SA Khatian was correctly recorded in their names. Hemangani gave her property to her daughter's husband Reboti Mohan through a will dated 18-8-1969 which was Probated on 12-8-1974. Rebati Mohan sold 0.13 acres out of 0.42 acres from his share to the plaintiff by a registered deed No. 8524 dated 29-5-76. After purchasing the land the plaintiff constructed houses thereon and possessing the same by living and letting out the same. The defendant No. 10 gifted his share to his wife, predecessor of the defendant Nos. 11-13 and defendant No. 7 exchanged their share of the dwelling house with a land of defendant No. 8 and 9. Chintaharan Saha gifted his property to defendant No. 4 on 08-12-1975 and also gifted to defendant No. 5. The plaintiff and defendant Nos. 4-14 are owning and possessing the suit land for more than 12 years by paying rents thereof. The sons of Lalit Mohan Joshoda Lal Saha and others left the country for India before 1965 and their share in the land thereupon, vested in the Government and after the death of Lalit Mohan his heirs Oninda Gopal and others left the country for India before 1965 and their shares also became vested property by operation of law. Jagabandhu's son Prashanna Kumar also left this country for India before 1965 and his share also became vested property. Defendant No. 1 purchased 0.0021 acres of land from Shakhi Gopal but with an ill motive submitted a prayer to AC land Matlab Upazilla for demarcation of 0.11 acres land claiming 0.890 acres out of the suit land, Subsequently AC land illegally issued a notice to the defendants for demarcation on 07-8-2000. On enquiry, the plaintiff came to know about the sale deed in favour of defendant No. 1 by Shakti Gopal and the ex parte decree dated 27-4-98 passed in suit No. 67 of 1996 by which the defendants claimed their title falsely and hence, the suit.
4. Defendant Nos. 1, 2, 3 and 15 entered appearance in the suit and filed written statements denying all the materials allegation made in the plaint contending, inter-alia, that the suit is not maintainable. The plaintiff filed the suit on false averments and, as such, the suit is liable to be dismissed.
5. At the trial both the parties led evidence both oral and documentary to prove their respective cases.
6. The trial Court upon hearing the parties and on considering the materials on record by its judgment and decree dated 24-2-2004 decreed the suit in favour of the plaintiff.
7. Against which the defendant No. 1 preferred Title Appeal No. 26 of 2004 before the learned District Judge, Chandpur, which was subsequently transmitted to the Court of the learned Joint District Judge, 2nd Court, Chandpur for disposal, who by the judgment and decree dated 25-3-2008 dismissed the appeal and affirmed the judgment and decree of the trial Court below.
8. Aggrieved defendant No. 1 Khorsheda Ayub then preferred this revision application and obtained the present rule.
9. Ultimately, a single bench of this Court heard the revision and by the impugned judgment and decree dated 21-3-2012 (decree signed on 31-3-2013) made the Rule absolute.
10. The plaintiff, thereupon, preferred this review petition before this Court and obtained the present Rule.
11. Mr. Md. Ruhul Quddus Kazal, the learned Advocate appearing for the review-petitioners in the course of argument takes me through the impugned judgment and other materials on record and then criticized the impugned judgment on various ground. Firstly, the predecessor of the present petitioner (Md. Abdur Razzak Miah) filed certified copy of the will dated 09-11-1896 as well as judgment and decree of Partition Suit No. 58 of 1931 and other documents of title which have been duly considered by the learned Judge of the Appellate Court below although those documents were not exhibited by the courts below but a single Bench of this Court while deciding the Civil Revision wrongly observed that the plaintiff did not produce any document of title which is error apparent on the face of the record and as such, the impugned Judgment and order is required to be reviewed for ends of Justice. The learned Advocate further submits that the learned author judge of the impugned judgment failed to consider that before preparation of CS record, the suit land along with other land was transferred by original owner, Kamala Kanta infavour of his two sons namely Zogobandhu, Brindaban and four grandsons namely-Lolita Motion, Kamini Kumar, Ram Kumar Saha and Prosonna Kumar Saha which was acted upon in Partition suit No. 58 of 193 land the said fact is also admitted by DW 1 (Ayub Ali) but the learned author judge of the impugned judgment without considering any documents submitted by the plaintiff passed the impugned Judgment and order and as such, there is a sufficient reason for Review of the Judgment.
12. Mr. Md. Ruhul Quddus, further submits that the Court of appeal below as the last court of fact considering the evidences on record rightly gave finding that the plaintiff was able to prove his genealogy but the learned author judge of the impugned judgment only considering the CS Khatian wrongly gave finding that plaintiffs genealogy are not supported by any evidence which is error apparent on the face of the record. The learned Advocate further points out that the plaintiff filed a series of documents to prove his case but due to mistake of his engaged Advocate in the trial court below those documents were not exhibited though the same have been considered by the learned Judge of the Appellate court below but the learned author judge of the impugned judgment neither considered those documents nor sent the case back on remand for considering and exhibiting those documents. The learned Advocate further points out that the present suit is not a suit for declaration of title and, as such, cited schedule to the plaint is enough for passing the judgment, as prayed for but the learned author judge of the impugned judgment most illegally considering the suit as declaration of title passed the impugned judgment and order which is error apparent on the face of the record. Lastly, Mr. Md. Ruhul Quddus submits that the plaintiff and the defendant Nos. 4-14 have been in possession of 0.32 acre land, the Government possessed 0.089 acre land and the defendant No. 1 is owner of 0.0021 acre land out of 0.42 acre land although she claimed total 0.12 acre land by the sale deed Nos. 2572, 2573 dated 11-3-76 and deed of gift No. 6377 dated 18-11-98 and hence, the suit but the learned author judge of the impugned judgment wrongly gave finding that the plaintiff claimed the entire 0.42 acre land which are cogent and sufficient causes for allowing the review. The learned Advocate to fortify his arguments has relied on the decisions reported in 12 BLT (HC) 512, 15 BLT (HC) 370, 36 DLR 1 and 7 BLT (AD) 151.
13. Mr. Md. Jashim Uddin, the learned Advocate appearing on behalf of the defendant-petitioner-opposite parties, on the other hand, opposes the Rule and supports the impugned judgment and order, which was according to him just, correct and proper. He submits that the grounds taken in the review petition is totally and thoroughly misconceived inasmuch as a single Bench of this Court on due consideration of the entire evidence and materials on record rightly passed the impugned judgment and decree dated 21-3-2012 and that there is no error of law apparent on the face of the impugned judgment and decree of this Court. The learned Advocate finally submits that the grounds taken in the revisional application as well as the submission as advanced by the learned Advocate for the petitioners are based on bundle of facts which cannot be subject matter of review petition.
14. Having heard the learned Advocates for both the sides, perused the review application, judgment of the High Court Division including the judgments of 2 (two) Courts below and other materials on record.
15. Now, to deal with the contentions raised by the learned Advocates for the respective parties, let me decide first whether there is any error apparent on the face of the record.
16. In this case it is found that the revisional application was decided ex-parte. Mr. Ruhul Quddus Kazal submits that due to death of the predecessor of the present petitioners they could not be present before the Court, when the case was taken up for hearing and it is on record that no notices was properly served upon them.
17. In reply, Mr. Jashim, the learned Advocate for the defendant-opposite party submits, it is on record that notices was served in hanging and, as such, it cannot be said that no notice was served upon the petitioners.
18. On scrutiny of the impugned judgment, it is found that a single bench of this Court on due consideration of the evidence and materials on record observed that--"Claiming that the suit property originally belonged to Kamala Kanta and said Kamala Kanta made a will in the year 1896 and probate was made thereafter but no document of will as well as the document of probate has been produce before the Court. The learned author judge of the impugned judgment also observed "the plaintiff did not produce any document of their title and, as such, they are not entitled to challenge the decree passed in Title Suit No. 67 of 1996."
19. On perusal of the record, it appears that the plaintiff filed those documents relating to his title although those documents were not exhibited and consequently, those documents were not admitted in evidence. Therefore, I find nothing to suggest that impugned decision recorded by the Court suffers from an error of law and fact apparent on the face of the record.
20. A single Bench of this Court by his impugned judgment and decree dated 21-3-2012 reversed the judgments of two courts below. While reversing the judgments of two courts the learned Judge of this Court observed as follows: "as such the schedule as has been mentioned in the plaint is not identical to determine the suit property and, as such, the mandatory provision of Order 7 Rule 3 of the Code of Civil Procedure has not been complied and, as such, the plaintiff is not entitled to get any decree but both the Court below failed to consider the same thereby committed an error of law resulting in an error in the decision occasioning failure of justice."
21. The above quoted findings certainly indicate that the learned author Judge considered all aspects of the matter and thereafter, recorded the reasons for rejection.
22. On going through the impugned judgment passed by a single Bench of this Court, I find that this Court on due consideration of the entire evidence and materials on record justly decided the Revision on merit. The grounds taken in the application for review are based on bundle of facts which can never be allowed to be utilized as an opportunity for rehearing a matter which is closed by a decision recorded by a Judge of this Court. Therefore, I find no substance in either of the contentions as raised by the learned Advocate for the petitioners. The decisions cited by the learned Advocate for the petitioners are distinguishable on facts.
23. No jurisdiction is available to a court to interfere with a judgment on the ground that there is absence of proper assessment of the evidence record. There being specific finding and decision in the impugned judgment on all issues relying the documents admitted in evidence after considering the materials on record, the same point cannot be a ground for review. It is by now well settled that review lies on patent error but no such patent error could be pointed out in the impugned judgment.
24. In view of my discussions made in the forgoing paragraphs it is by now clear that the instant Rule must fail.
25. In the result the rule is discharged without any order as to cost.
Let a copy of this judgment along with lower Courts' record be sent down at once.
--- Journal: DLR Volume: 75 Division: HCD Page: 633High Court Division
(Writ Jurisdiction)
Present:
Ms. Justice Kashefa Hussain
And
Ms. Justice Kazi Zinat Hoque
Writ Petition Nos. 10003 and 10427 of 2020
Abdul Latif Helaly
Petitioner
VS
Government of Bangladesh and Ors.
Respondents
Judgement Date : January 11, 2023
Counsels:
Md. Salahuddin Dolon, Senior Advocate, Muhammad Mizanur Rahman, S.M. Mahidul Islam Sajib Shamsun Nahar Nely, Md. Tofayal Ahmad and Umme Aiman Jarib, Advocates—For the Petitioner.
Noor Us Sadik Chowdhury, D.A.G., Sayeda Sabina Ahmed Moli and Farida Parvin Flora, A.A.Gs.—For the Respondents.
Judgment
Kashefa Hussain, J.
1. These two Rules are taken up together since they involve similar questions of law and fact and therefore are now being disposed of by a single judgment.
2. Rule was issued in Writ Petition No. 10003 of 2020 in following terms:- "Rule nisi was issued calling upon the respondents to show cause as to why the Memo No. 25.39.0000.009.12.147G(3).14.3099 dated 10.12.2020 issued by the respondent No. 3 (Annexure-F) should not be declared to have been made without lawful authority and is of no legal effect and/or pass such other and further order or orders passed as to this Court may seem fit and proper."
3. Rule was issued in Writ Petition No. 10427 of 2020 in following terms:- "Rule nisi was issued calling upon the respondents to show cause as to why they should not be directed to consider the promotion of the petitioner to the post of Chief Engineer, RAJUK with retrospective effect from the date of his eligibility as he has fulfilled the requisite qualifications prescribed in the Rajdhani Unnayan Kattripokko (Officers and Employees) Service Rules, 2013, should not be passed and/or pass such other and further order or orders passed as to this Court may seem fit and proper."
4. For purpose of disposal of these two writ petitions for sake of convenience we are inclined to draw upon Writ Petition No. 10427 of 2021.
5. The petitioner Abdul Latif Helaly son of Mohammad Kalu Mia, Chief Engineer (Current Charge), Rajdhani Unnayan Kattripokko, RAJUK Bhaban, Dhaka is a citizen of Bangladesh.
6. The respondent No. 1 is the Secretary, Ministry of Housing and Public Works, Bangladesh Secretariat, Dhaka-1000, the respondent No. 2 is the Chairman, Rajdhani Unnayan Kattripokko, RAJUK Bhaban, Dhaka, the respondent No. 3 is the Director (Admin), Rajdhani Unnayan Kattripokko, RAJUK Bhaban, Dhaka and the respondent No. 4 is Ujjal Mollick, Superintending Engineer, Purtho Circle-3, Rajdhani Unnayan Kattripokko, RAJUK Bhaban, Dhaka.
7. The petitioner's case inter alia is that the petitioner joined the Rajdhani Unnayan Kattripokko (RAJUK) (Hereinafter referred to as "the Department") as Assistant Engineer on 19.10.2000 and since then he has been discharging his duties with the highest satisfaction of the department till date with legal as well as legitimate expectation to be promoted to the highest post of the department. That due to satisfactory/extraordinary performance and for his unblemished service records the petitioner was promoted to the post of Executive Engineer vide an order dated 06.07.2006 and Superintendent Engineer on 12.11.2013 and accordingly he had joined in the said post on the same date and since then he had been discharging his duties with the highest satisfaction of the authority. That to govern and prescribe the terms and conditions of the services of the petitioner the Government promulgated the Rajdhani Unnayan Kattripokko (Officers and Employees) Service Rules, 2013 vide SRO No. 294-Ain/2013 which was also notified in the official gazette dated 04.09.2013. It is further stated that in the Rules of 2013 it has been prescribed that the post of Chief Engineer would be filled up by way of promotion from amongst the Superintendent Engineer having 05 (five) years experience or by way of deputation or by direct recruitment. That for making regular promotion of the officers and employees of RAJUK a gradation list was approved of by the concerned authority on 31.07.2019. It is inescapably evident from Serial-4 of the aforesaid gradation list dated 31.07.2019 that the petitioner stands in Serial 3 of the gradation list and on the other hand the Respondent No. 4 stands in Serial-5. That after fulfilling the requisite qualifications under the Rule of 2013 the petitioner and another made application to the Ministry of Housing and Public Works for making promotion to the post of Chief Engineer and accordingly the concerned Ministry vide memo dated 18.03.2019 directed the RAJUK to promote the petitioner to the post of Chief Engineer on current charge. It is further stated that in pursuance of the aforesaid memo, the petitioner was given current charge of Chief Engineer on 21.03.2019 and he had joined on 25.03.2019. That while the petitioner have been discharging the functions of Chief Engineer on current charge with the highest satisfaction of the concerned ministry, all on a sudden the Respondent No. 4 vide memo No. 25.39.0000.009.12.147G(3).14.3099 dated 10.12.2020 released the petitioner from the post of Chief Engineer and in his place the respondent No. 4 i.e. Mr. Ujjal Mollick was given current charge without assigning any reason and without approval of the Administrative Ministry. That the instant memo No. 25.39.0000.009.12.147G(3).14.3099 dated 10.12.2020 is illegal, arbitrary, mala fide and without jurisdiction inasmuch as the respondent No. 3 have no legal authority to act beyond the direction of the respondent No. 4. Because it is clearly evident from the memo dated 18.03.2019 that the Administrative Ministry directed the RAJUK to give current charge of Chief Engineer to the petitioner who is senior to the respondent No. 4 in the gradation list therefore, it cannot pass an order overriding the decision of the higher authority and replace a senior officer by a junior officer. Therefore from the aforesaid order it clear that the respondents would never promote the petitioner if they are not mandated by an order of the court. That the petitioner has all the requisite qualifications to be promoted to the post of Chief Engineer which post he has been holding on current charge for almost two years. As such he is entitled to be considered for promotion to the post of Chief Engineer in accordance with law. That the petitioner is the senior most Superintendent Engineer and he was given current charge on 21.03.2019 taking into consideration his seniority, unblemished service records and overall contribution. Therefore, it is his legal vested and indefeasible right to be regularized/promoted in the same post by way of promotion ahead of anyone but which right has been denied to him in an arbitrary and mala fide manner. The respondents has been running the department on current charge without granting promotion to the eligible and senior persons. Thus the respondents may be directed to consider the promotion of the petitioner at once. That the action and denial of the respondents is illegal and without lawful authority inasmuch as violative of Memo No. somo (bidhi-1)/s-11/92-30(150) dated 05.02.1992 of the Ministry of public Administration. Because when eligible candidates are not found for promotion then due to exigencies of the situation order of current charge can be made, but in the instant case a junior most officer has been given current charge though the petitioner was available for promotion with all requisite qualifications. That no question has ever been raised from the authority about the performance of the petitioner while he was holding the post for almost 21 (twenty one) months and it has also not been said that the petitioner was disqualified to be promoted. Therefore replacing him from the post by a junior engineer is not only illegal but also disgraceful as well tentamounting to some sort of punishment without commission of any offence. Thus the respondents may be directed to fill up the post of the Chief Engineer on the basis of regular promotion instead of current charge. That promotion is not bounty of the employer but it is valuable service right of the employee which allows him an advancement in career and an employee joins in his service seeing promotional opportunities in his entire career. Therefore, where his promotional post is illegally filled up by a junior officer on current charge it destroys his urge to work and professionalism. It is further stated that ultimately the frustration created in the minds of the incumbents affect the whole department and ultimately the country. Therefore, to protect the petitioner and the employees of RAJUK from injustice and insecurity the respondents may be directed to fill up the post of Chief Engineer on the basis of regular promotion instead of current charge. That the petitioner has obtained all the requisite qualifications to be promoted as Chief Engineer long time back. But the respondents in a mala fide and arbitrary manner have been filling up the post of Chief Engineer on current charge repeatedly and been depriving the aspirants for the post of Chief Engineer by promotion who have been waiting for a long time. Therefore the respondents are however inspite of the eligibility of the petitioner to be promoted to the post of chief engineer rather brought him back to his previous position from current charge and caused grave injustice. Furthermore upon giving a junior officer current charge, hence being aggrieved by such arbitrary conduct of the respondents the petitioner filed the instant writ petition.
8. Learned Senior Advocate Mr. Salauddin Dolon along with learned Advocate Mr. Muhammad Mizanur Rahman, Learned Advocate Ms. Shamsun Nahar Nely, learned Advocate Mr. S.M. Mahidul Islam Sajib, Learned Advocate Mr. Md. Tofayal Ahmed, Learned Advocate Ms. Umme Aiman Jarib appeared for the petitioner.
9. While learned Advocate Mr. Imam Hasan appeared for the respondent No. 2. Learned D.A.G. Mr. Noor Us Sadik Chowdhury, Ms. Syeda Sabina Ahmed Moli, A.A.G. along with Ms. Farida Parvin Flora, A.A.G. appeared for the respondent No. 1. Learned Advocate Mr. Lutfor Rahman along with learned Advocate Mr. M. Nazrul Islam Khandaker, Learned Advocate Mr. Mohammad Anwarul Islam appeared for the respondent No. 4.
10. Learned Senior Advocate Mr. Salahuddin Dolon for the petitioner submits that the respondent No. 2 RAJUK upon withdrawing the petitioner from his current charge and putting him back to his original post caused grave injustice to the petitioner. He submits that therefore such conduct of the respondents is not sustainable and needs interference from this court. He submits that as per the relevant laws and rules the petitioner is lawfully eligible to be promoted to the post of chief engineer while he was in current charge, but the respondents instead of promoting him most arbitrarily rather practically demoted him. He continues that more over the respondents committed gross injustice by appointing another person in current charge who is junior to the petitioner. He submits that the fact that the other person is junior to him is evident from the records. He submits that the conduct of the respondents clearly enough shows the respondent No. 2's mala fide intention to accommodate a junior officer in current charge in the petitioner's place. He contends that such blatant and mala fide conduct in withdrawing the petitioner from the current charge is unlawful and arbitrary.
11. In support of his claim of the petitioner's eligibility to be promoted to the post of chief engineer while he was continuing in current charge, he takes us to the relevant rules pertaining to পদোন্নতি which is annexure-C of writ petition No. 10427 of 2020. He takes us to the তফসিল বিধি ২(৭) দ্রষ্টব্য। wherefrom he points out to serial No. 1 which lays down the criteria to be promoted to the post of chief engineer. He shows us the criteria of promotion which has been categorically laid for post of chief engineer wherefrom he persistently points out that the petitioner has fulfilled all the criterias and requisites for eligibility to be promoted as chief engineer. He submits that in case of পদোন্নতি (promotion) the petitioner for purpose of promotion to post of chief engineer fulfills the requisite qualifications serving as superintendent engineer for a period of 5 years. He assails that the petitioner has clearly fulfilled all the qualifications including his service of 5 years as superintendent engineer. In support of his contention he takes us to Annexure-D of the writ petition wherefrom he particularly draws our attention to the column তত্ত্ববধায়ক প্রকৌশলী (সিভিল) From the list of the superintendent engineers he shows us that the petitioner জনাব আব্দুল লতিফ হেলালী in serial No. 3 was appointed as superintendent engineer (civil) on 12.11.2013. He submits that therefore on 12.11.2018 the petitioner completed the period and acquired the requisite qualification to be promoted as chief engineer. He contends that on the face of the factual position, the whimsical conduct of the respondents sending the petitioner from the current charge back to his original post as superintendent engineer is completely unlawful and violative of the fundamental rights of the petitioner. He reassails that the petitioner has all the requisite qualifications to be promoted to the post of chief engineer. He continues that therefore the petitioner's case falls within the doctrine of legitimate acceptation including relying upon the relevant service rules of 2013 (Annexure-C).
12. Next he submits on the issue of the respondents designating the respondent No. 4 in the current charge upon withdrawing the petitioner from the current charge back to his original post as superintendent engineer. He again draws upon Annexure-D and points out that the respondent No. 4 was appointed as superintendent engineer on 21.04.2016 that is after three years of the petitioner being appointed as superintendent Engineer. He submits that therefore the respondents by their act of withdrawing the petitioner from current charge while posting Respondent No. 4 in current charge violated the provisions of Article 29 of the Constitution by designating a junior officer in current charge upon withdrawing a senior officer from the same. He submits that the principle of equality has been grossly violated by the respondents only to accommodate a junior officer. He agitates that therefore such action of the respondent is without lawful authority and the impugned order in writ petition No. 10003 of 2020 passed by the respondents is not sustainable and must be declared to without lawful authority.
13. Upon summing up his submissions he contends that therefore the petitioner ought to be considered for promotion to the post of chief engineer and his right falls within the doctrine of legitimate expectation read with the Rajdhani Unnayan Kattripokko (Officers and Employees) Service Rules, 2013 (Annexure-C). He agitates that moreover the appointment of the respondent No. 4 in current charge ought to be cancelled since it is blatantly discriminative and flouts the equality principle of the constitution. He concludes his submissions upon assertion that the Rule bears no merit ought to be made absolute for ends of justice.
14. On the other hand learned Advocate Mr. Md. Imam Hasan for the respondent No. 2 by way of filling affidavit in opposition opposes the rule. He argues that no legitimate expectation of the petitioner arises to be promoted to the post of chief engineer since promotion is not a vested right in itself rather depends on several other factual issues. Upon controverting the contention of the petitioner he takes us to Annexure-D of writ petition No. 10427 of 2020. From Annexure-D of writ petition No. 10427 of 2020 he persuades out that it appears from Annexure-D column 6 that the petitioner and the others including the respondent No. 4 were initially appointed and joined in the post of Assistant Engineer (work charge) on the same day that is on 09.07.2001. He argues that therefore since the petitioner and the respondent No. 4 including others joined on the same date that is on 9.7.2001 consequently they are on the same footing and the petitioner is not senior to the respondent No. 4. Не argues that therefore there has been no violation of Article 29 in withdrawing the petitioner from his current charge and further there has been no illegality in posting the respondent No. 4 in his current charge.
15. He now takes us to some factual allegations which has been reflected in the affidavit in opposition filed by the respondent No. 4. He draws upon the affidavit in opposition filed by the respondent No. 4 wherefrom he attempts to show that there are some factual allegations against the petitioner. Relying on these factual allegations he contends on the unsatisfactory service record of the petitioner and argues that consequently no legitimate expectation nor statutory right arises to be considered for promotion. In support of his submissions he draws upon Annexure - X4 and X6 of the affidavit in opposition filed by the respondent No. 4. From Annexure-X4 and X6 it appears that two show cause notices were issued upon the petitioner on 25.06.2020 and 10.12.2020 respectively. He points out that it appears from the show cause notices that there are allegations of negligence and misconduct of the petitioner in course of his service. He next takes us to Annexure-X11 which is an enquiry report. He submits that it also appears that the enquiry was conducted against the petitioner to investigate into allegations of his repeated misconduct in his service. He submits that therefore the petitioner on the face of materials particularly of Annexures-X4, X6 and X11 that it is revealed the petitioner does not have any legitimate expectation to be granted promotion.
16. He reiterates that withdrawing the petitioner from the current charge of chief engineer is within the ambits of law since 'current charge' by its very nature contemplates a temporary post and does not imply any permanent position. Relying on his arguments and the affidavit in opposition filed by the respondent No. 2 and also relying on the materials filed by the respondent No. 4, he concludes his submissions upon assertion that no statutory right of the petitioner has been violated nor any fundamental right under Article 29 of the Constitution has been violated and the Rule bears no merit ought to be discharged for ends of justice.
17. Learned Advocate for the opposite party No. 4 also opposes the Rule by way of affidavit in opposition and substantively supports the arguments of the learned Advocate for the respondent No. 2. He also asserts that the respondents did not commit any illegally by appointing the respondent No. 4 in the current charge given that the very nature of a posting in "current charge" is of temporary nature and does not contemplate a permanent position. He submits that writ shall not lie while challenging withdrawal or appointment of or from the current charge of chief engineer whatsoever since it is by its very nature a temporary arrangement only and does not create any vested right.
18. He further also draws upon the Annexures X4, X6 and X11 and points out that it appears from these materials that the petitioner's service record is not unblemished and argues that therefore no vested right nor fundamental right of the petitioner has been infringed. He concludes his submissions upon assertion that the Rule bears no merit ought to be discharged for ends of justice.
19. We have heard the learned Counsels perused the application and materials before us. In writ petition No. 10427 of 2020 the petitioner has substantively challenged the action of the respondents withdrawing the petitioner from his current charge and placing him back to his earlier post of superintendent engineer. The petitioner has further challenged the respondent's inaction in not considering the promotion of the petitioner in post of Chief Engineer. In support of his arguments he draws upon some documents which has been annexed thereto.
20. To assess the merits of the case we have examined the materials before us. We initially draw our attention to Annexure-C of the Writ petition No. 10427 of 2020. We particularly draw our attention to the schedule which lays down the criteria and requisite qualifications necessary to be considered for promotion to the post of Chief Engineer. The schedule is reproduced below:
| ক্রমিক নম্বর |
পদের নাম |
সরাসরি নিয়োগের জন্য সর্বোচ্চ বয়সসীমা |
নিয়োগ পদ্ধতি | প্রয়োজনীয় যোগ্যতা |
|---|---|---|---|---|
| ১ | ২ | ৩ | ৪ | ৫ |
| ১ | প্রধান প্রকৌশলী |
৪৫ বৎসর | পদোন্নতির মাধ্যমে, তবে পদোন্নতিযোগ্য প্রার্থী পাওয়া না গেলে প্রেষণে বদলীর মাধ্যমে: পদোন্নতিযোগ্য ও প্রেষণে বদলীর মাধ্যমে নিয়োগযোগ্য প্রার্থী পাওয়া না গেলে সরাসরি নিয়োগের মাধ্যমে |
পদোন্নতির ক্ষেত্রে: তত্ত্ববধায়ক প্রকৌশলী পদে অন্যূন ৫ (পাঁচ) বৎসরের চাকুরি প্রেষণের ক্ষেত্রে: সরকারি কোন বিভাগ বা সংস্থায় অতিরিক্ত প্রধান প্রকৌশলী অথবা সিভিল ইঞ্জিনিয়ারিং এ স্নাতক ডিগ্রীসহ সমপদমর্য্যার কর্মকর্তা। সরাসরি নিয়োগের ক্ষেত্রে সিভিল ইঞ্জিনিয়ারিং বিবয়ে দ্বিতীয় শ্রেণীর স্নাতক ডিগ্রীসহ প্রকৌশলী হিসাবে সরকারি, আধা-সরকারি অথবা স্বায়ত্তশাসিত প্রতিষ্ঠানে ১৫ (পনের) বৎসরের চাকুরির অভিজ্ঞতা। |
21. It appears from the schedule that the requisite qualifications to be considered to the promotion পদোন্নতি of the Chief Engineer is to be in service as superintendent engineer of a period of not less than 5 (five) years in cases of promotion. There are some other categories of appointment to the post of chief engineer which include those in deputation (প্রেবণে) and direct appointment (সরাসরি নিয়োগ). Needless to state that the second two criterias are not relevant for us in this case. It clearly appears that to be considered for promotion to the post of chief engineer, the candidate must serve a minimum of 5 (five) years as superintendent engineer.
22. Next we have than examined annexure-D of the writ petition No. 10427 of 2020 and particularly drew our attention to column No. 4. The petitioner's name appears in serial No. 3. From serial No. 3 it appears that the petitioner was appointed on 12.11.2013 as superintendent engineer. Therefore his 5 (five) years experience to be considered for promotion was obviously complete on 11.11.2018. It is seen from the documents that on 10.12.2020 (Annexure-F in writ petition No. 10427 of 2020) that the petitioner was withdrawn from his position in his current charge and restored back to his position as superintendent engineer.
23. It is our considered view particularly relying upon some decisions of our Apex court including in the case of Bangladesh Bank Vs. Sukamal Sinha 21 BLC (AD) (2016) 212 and also relying upon some judgments passed inter alia in writ Petition No. 8251 of 2019 in which one of us is a party that promotion is not an inherent vested right. But however to be considered for promotion may be a vested right depending on the requisition qualifications. Moreover in pursuance of the doctrine legitimate expectation, since apparently the petitioner seems to have the requisite qualifications to be considered for promotion to the post, therefore the respondents in the instant case owe a legal duty to the petitioner inter alia to consider him for promotion relying on the relevant laws and Rules.
24. Regarding the issue of factual allegations the respondents alleged that the petitioner is guilty arising out of allegations of negligence and consequently misconduct in his service. In support the respondents took us to a few documents by way of Annexure-X-4, X-6 and X-1 1 of the affidavit in opposition filed by the respondent No. 4. Annexure-X-4 is the show cause notice issued upon the petitioner dated 25.06.2020 by the respondent No. 2. Annexure-X-6 is the second show cause notice dated 10.12.2020 issued again by the respondent No. 2 upon the petitioner as to why certain steps shall not be taken against him for negligence in service amounting to misconduct. The relevant portion of annexure-x-4 is 'আচরণ দায়িত্ব পালনে অবহেলা ও অসদাচরণের শামিল।" The respondents also relied upon Annexure-X-11 which is apparently an enquiry report.
25. The overall contention of the respondent is that since there are allegations of negligence amounting to misconduct therefore the service record of the petitioner is not unblemished. Relying on those allegations the Respondents argue that consequently no fundamental right whatsoever of the petitioner has been infringed in not considering him for promotion.
26. For proper assessment of these factual issues we have drawn upon Annexure-X5 and Annexure-X12 of the affidavit in opposition filed by the respondent No. 4. From annexure-X5 dated 15.09.2020 and annexure-X12 dated 29.10.2021 it appears that whatever may have been the allegations against the petitioner but however in both the documents annexures X5 and X-12 it appears that he was granted অব্যাহতি exoneration therefrom. Therefore it is clear that whatever may have been the allegations against him nevertheless there are no pending allegations against him anymore. Moreover we have also drawn upon the enquiry report which is annexure-X-11 of the affidavit in opposition filed by the respondent No. 4 which is the তদন্ত প্রতিবেদন dated 15.12.2021. We have particularly drawn ourselves to the overall conclusion pursuant to the enquiry. It appears from the report that the respondents themselves upon investigation found that the petitioner was not guilty of the allegations against him. The relevant portion of the enquiry report is reproduced hereunder: "পর্যালোচনা: উপর্যুক্ত বক্তব্য, হাজিরা শীট ও অন্যান্য স্বাক্ষীগণের বক্তব্য পর্যালোচনায় প্রতীয়মান হয় যে গত ০৬/১২/২০২১ খ্রি: তারিখ বিকাল ৪.৫৬ মিনিটে চেয়ারম্যান মহোদয়ের ফোন কলের সময় জনাব আব্দুল লতিফ হেলালী, তত্ত্বাবধায়ক প্রকৌশলী (সিভিল) প্রকৃত পক্ষেই আরবান রেজিলেন্স প্রজেক্টের ইলেকট্রনিক কন্সট্রাকশন পারমিটিং সিস্টেম (ECPS) মিটিংয়ে ছিলেন। তার বক্তব্য অনুযায়ী মোবাইল কোনটি সাইলেন্ট মুডে থাকায় ফোন রিসিভ করতে পারেননি। পরবর্তীতে চেয়ারম্যান মহোদয়কে কল ব্যাক করে বিষয়টি অবহিত করেন। তবে দায়িত্ব পালনের ক্ষেত্রে জনাব আব্দুল লতিফ হেলালী, তত্ত্বাবধায়ক প্রকৌশলী (সিভিল), রাজউক কে আরো সচেতন হওয়া উচিৎ ছিল।
27. From the পর্যালোচনা it also appears to us that whatever allegations were alleged against him however we do not find any prima-facie negligence in official conduct.
28. Such being the position we are of the considered view that the factual allegations against the petitioner were not proved to be correct. Particularly pursuant to the অব্যাহতি (exoneration) which was granted by the respondents themselves and also pursuant to the observation in the enquiry report Annexure-X11.
29. Therefore by annexure-C which is the relevant Service Rules of 2013 and upon comparison of Annexure-C (Service Rules) and Annexure-D which is the gradation list, it appears that the petitioner has all the requisite qualifications necessary to have acquired a legitimate expectation to be considered for promotion.
30. The learned Advocate for the respondents argued at one stage that no fundamental rights under Article 29 of the Constitution has been violated since the petitioner and the respondent No. 4 were initially appointed in their post on the same day in the year 2001. On this issue our considered view is that whatever the date of initial appointment of the petitioner may be, but so far as the question of promotion is concerned we must rely on Annexure-C which lays down the criteria of minimum 5 (five) years experience in the post of superintendent engineer for promotion as Chief Engineer. It is clear from Annexure-C that the requisite qualification to be considered for promotion for post of Chief Engineer is a minimum service of 5 years as superintendent engineer and which the instant petitioner has completed in the said post.
31. We are however of the considered view that 'current charge' is a temporary position and in the service Rules of 2013 there is no specific criteria for appointment in current charge. The term 'current charge' contemplate the temporary nature of the position. Such being the position our opinion is that we ought not to interfere with the appointment of the respondent No. 4 in current charge.
32. We are inclined to distinguish writ petition No. 10003 of 2020 from writ petition No. 10427 of 2020. In Writ Petition No. 10427 of 2020 the petitioner challenged the conduct of the respondents in not considering him for his promotion. We are of the considered view that so far as the petitioner's eligibility is concerned, the petitioner is eligible to be considered for promotion to the post of the chief engineer since he has acquired the requisite qualifications of minimum 5 years service in the post of superintendent engineer and which is admitted and evident from the materials.
33. Such being the position we are inclined to dispose of both the rules with the observations made above and with directions to the respondent No. 2.
34. In the result, these two Rules are disposed of.
35. The respondent No. 2 is hereby directed to follow the relevant rules and procedure and other procedures whatsoever and shall consider the petitioner for promotion to the post of Chief Engineer in accordance with the relevant laws and Rules within a period of 60 (sixty) days of receiving this judgment.
36. Communicate this judgment at once.
--- Journal: DLR Volume: 75 Division: HCD Page: 652High Court Division
(Writ Jurisdiction)
Present:
Mr. Justice Md. Ashfaqul Islam
And
Mr. Justice Mohammad Ali
Writ Petition No. 12293 of 2018
Kazi Ertaza Hassan
Petitioner
VS
Government of Bangladesh and Ors.
Respondents
Judgement Date : March 18, 2021
Counsels:
A.M. Aminuddin, Senior Advocate with Mohammad Saifuddin Khokon, Jotirmoy Barua, Md. Shahjahan and Md. Matiur Rahman, Advocates—For the Petitioner.
Ajmalul Hossain QC, Senior Advocate with Abdullah Al Hady, Aziz Ullah Emon, Khalid Mohammad Saifullah and Syed Hasan Zobair, Advocates—For the Respondents.
Judgment
Md. Ashfaqul Islam, J.
1. We are delivering this judgment at the verge of the golden jubilee of independence of Bangladesh. Only after a few days the country is going to celebrate 50 years of its independence. The protagonist of the judgment is none other than the legend of all time, Father of the Nation Bangabandhu Sheikh Mujibur Rahman, who lives as the greatest Bengali of a thousand years.
2. At the instance of the petitioner Dr. Kazi Ertaza Hassan who is the Chairperson of "Bangladesh Human Rights Development Commission", this Rule under adjudication, issued on 02.10.2018, was in the following terms: "Let a Rule Nisi be issued calling upon the respondents to show cause as to why the action of the respondents in distorting the history of Bangladesh by not including the photograph of the father of the Nation Bangabandhu Sheikh Mujibur Rahman and including the photographs of Ayub Khan, the then president of Pakistan and Monayem Khan, Governor of the then East Pakistan Khan's in the book namely, "Bangladesh Banker Etihash" should not be declared to have been done without lawful authority and is of no legal effect and/or such other or further order or orders passed as to this court may seem fit and proper."
3. At the time of issuance of the Rule this Court directed respondent No. 1, the Secretary, Ministry of Finance to form an inquiry committee for holding an inquiry and to submit the compliance within 30 days before this Court.
4. The background leading to the Rule stated in the writ petition is that a news item published in The Asian Age dated 16.09.2018, wherein, it has been stated that not a single photograph of the Father of the Nation Bangabandhu Sheikh Mujibur Rahman have been printed in the book namely "বাংলাদেশ ব্যাংকের ইতিহাস" whereas four photographs of Pakistani Ruler Ayub Khan and East Pakistan's Governor Monayem Khan found place there. It has also been mentioned in the aforesaid news items that non inclusion of the photograph of "Bangabandhu" in the said book is wilful and a conspiracy against the Government (Annexure-'B' and 'B-1'). It has also distorted the history.
5. It has been further stated that even after knowing all these facts, the respondents did not take any steps to include any photograph of "Bangabandhu" ignoring their obligatory duties.
6. It has also been stated that the book "বাংলাদেশ ব্যাংকের ইতিহাস" (hereinafter referred to as the book) has some astonishing omissions and some alarming inclusions as the book contains no photographs of the father of the Nation Bangabandhu Sheikh Mujibur Rahman and his role in creation of the Bangladesh Bank. On the other hand the Pakistani Dictator Ayub Khan and Monayem Khan, the Autocratic Governor of East Pakistan both of whom were against the birth of Bangladesh, however, are brought to life through prominent photographs which is painful and alarming.
7. It has been stated in particular that in chapter 2 page 51 of the said book under caption "বাংলাদেশের স্বাধীনতা ও বাংলাদেশ ব্যাংক" the declaration of independence in the historic speech of the father of the Nation, Bangabandhu Sheikh Mujibur Rahman, 7th March, 1971, declaration of independence, 26th March, 1971 and the proclamation of independence 10 Day of April, 1971 have not been inserted properly. The petitioner having been aggrieved that by ignoring the same on the book of the History Bangladesh Bank and by including the photographs of Pakistani Ruler Ayub Khan and East Pakistan's Governor Monayem Khan a distortion of history of the independence of Bangladesh have been done and as such, action of the respondents in so doing in the said book namely "বাংলাদেশ ব্যাংকের ইতিহাস" should be declared to be done without lawful authority having no legal effect. Under the circumstances having been actuated by this situation the petitioner moved this division and obtained the present Rule and the direction as aforesaid.
8. Mr. A.M Aminuddin, the learned Senior Advocate appearing with Mr. Mohammad Saifuddin Khokon, Mr. Jotirmoy Barua, Mr. Md. Shahjahan and Mr. Md. Matiur Rahman the learned Advocate(s) for the petitioner after placing the petition and by filing a written argument asserted and narrated what has been already stated in the terms of the Rule as it is.
9. It is their submissions that the respondents organized the book unveiling programme on 25th March 2018 which is a National Mourning day. The Respondents intentionally excluded the photograph of the Father of the Nation from the book and included four photographs of Pakistani Ruler Ayub Khan and East Pakistan's Governor Monayem Khan which is absolutely malafide on the part of the Respondents. The Respondents by their conduct have undermined the spirit of our liberation war and distorted the glorious history of liberation. Therefore, the petitioner strongly prays for appropriate action against the Respondents.
10. It was further submitted that according to the statement of respondent No. 4, Fazle Kabir, the Governor, Bangladesh Bank the publication of the book was cancelled on 31.10.2018. After cancellation of the publication, the Respondents had neither made any public announcement nor published any notification in any daily newspaper or in the electronic media saying that the publication of the book "বাংলাদেশ ব্যাংকের ইতিহাস" has been cancelled. The petitioner purchased the book out of his own interest and until filing of the instant writ petition had not seen any public notice published by the Respondents withdrawing the book or cancelling the publication in any manner. Therefore, the petitioner being a conscious citizen of the country and being politically interested person has every right to agitate the matter of distortion of history before this Court.
11. They have further submitted that it is evident from the compliance report filed by the Respondent No. 1 that they have committed a palpable wrong by not including the photographs of the Father of the Nation Bangabandhu Sheikh Mujibur Rahman and hence intervention by this Court is very much necessary to prevent this sort of detestable deed in future distorting our history. The petitioner therefore, prays for imposing punishment upon the respondents for their wilful action of not including photographs of the Father of the Nation.
12. They have further submitted that eventually the respondent No. 1&4 through their compliance and supplementary affidavit admitted that they have printed 2000 copies of the book on 02.08.2019, they managed to recall 250 books out of 2000 and now they have 1529 books in their stock. It means in total 471 copies of the book are still with the readers with distorted fact of our history of liberation war. The petitioner further submits that even a single copy of the book that has been sold with the aforesaid distorted facts of non inclusion is enough to prove their illegal action which warrants action to be taken against the respondents. Therefore, the action of the respondents in not including the photograph of Bangabandhu Sheikh Mujibur Rahman in the "Bangladesh Banker Etihash" should be declared to have been done without lawful authority and is of no legal effect.
13. On the other hand, by filing affidavit of compliance, affidavit-in- opposition and also a written argument Mr. Ajmalul Haque QC, the learned Senior Advocate appearing for the respondent No. 4 after making elaborate submissions candidly concedes that he will not cross sword on the point of the maintainability of this writ petition. He submitted that this writ petition is maintainable. Therefore, the submissions those have been categorized questioning the maintainability of the writ petition on that score is not required to be addressed by this Division.
14. The respondent Nos. 1 to 6 unequivocally have stated in their affidavits that it was a bonafide mistake on the part of the Bangladesh Bank for not including the photographs of the Father of the Nation in the book "বাংলাদেশ ব্যাংকের ইতিহাস" As per direction of this court at the time of the issuance of the Rule, the respondent No. 1, have submitted compliance on 04.02.2019 wherein they have admitted that "বাংলাদেশ ব্যাংকের ইতিহাস বইয়ে জাতির পিতা বঙ্গবন্ধু শেখ মুজিবর রহমান এর ছবি না ছাপানোর বিষয়ে সম্পাদনা কমিটির সদস্য জনাব শুভংকর সাহা, জনাব জোবায়দা আফরোজ বলেন, বাংলাদেশ ব্যাংকের সাথে সংশ্লিষ্ট জাতির পিতা বঙ্গবন্ধু শেখ মুজিবুর রহমান এর ছবি খুঁজেছেন কিন্তু টিম বঙ্গবন্ধুর ছবি সংগ্রহ করতে পারেননি। এ কারণে ছবি ছাপাতে পারেননি। বাংলাদেশ ব্যাংকের ইতিহাস গ্রন্থটি পরীক্ষাশে দেখা যায় যে, রাষ্ট্রপতির আদেশ নং ১২৭/৭২ মূলে বাংলাদেশ ব্যাংক প্রতিষ্ঠিত হয়। রাষ্ট্রপতির আদেশ মূলে বাংলাদেশ ব্যাংক প্রতিষ্ঠিত হওয়ায় জাতির পিতা বঙ্গবন্ধু শেখ মুজিবুর রহমান এর ছবি বইয়ে অর্ভূক্ত করা আবশ্যক ছিল। এছাড়া জাতির পিতা বঙ্গবন্ধু শেখ মুজিবুর রহমান কর্তৃক স্বাধীনতার ঘোষণায় সাড়া দিয়ে বাংলাদেশের মহান স্বাধীনতা অর্জনের লক্ষ্যে পাকিশনি হানাদার বাহিনীর বিরুদ্ধে দীর্ঘ ৯ মাস রক্তক্ষয়ী মুক্তিযুদ্ধের মাধ্যমে ৩০ লাখ শহীদের রক্ত এবং দুই লাখ মা-বোনের সম্ভ্রমের বিনিময়ে বাংলাদেশ স্বাধীন হয়। বইটির দ্বিতীয় অধ্যায়ে 'বাংলাদেশের স্বাধীনতা ও বাংলাদেশ ব্যাংক' এর ইতিহাস বর্ণনা করা হয়েছে বিধায় স্বাধীন বাংলাদেশের স্থপতি জাতির পিতা বঙ্গবন্ধ শেখ মুজিবুর রহমান এর মুক্তিযুদ্ধ সংশ্লিষ্ট অথবা বঙ্গবন্ধুর অন্য যে কোন ছবি বইয়ে অর্ভূক্ত করা যেতো। কাজেই, বাংলাদেশ ব্যাংকের সাথে সংশ্লিষ্ট বঙ্গবন্ধুর ছবি খুঁজে না পাওয়ার যে যুক্তি উত্থাপন করা হয়েছে তা মোটেই গ্রহণযোগ্য নহে। বাংলাদেশ ব্যাংকের ইতিহাস, বইয়ে জাতির পিতা বঙ্গবন্ধুর শেখ মুজিবর রহমান এর ছবি না ছাপানোর বিষয়ে সম্পাদনা কমিটির সদস্য জনাব শুভংকর সাহা, নির্বাহী পরিচালক (অবঃ), বাংলাদেশ ব্যাংক তার বক্তব্যে স্বীকার করেছেন যে, বাংলাদেশ ব্যাংকের সাথে সংশ্লিষ্টবিহীন বঙ্গবন্ধুর যে কোন ছবি বইটির আলোকচিত্র অংশে সন্নিবেশ করা যেত। বিষয়টি সংশ্লিষ্ট কারো মনে আসেনি। সেটি সংশ্লিষ্ট সকলের ভুল মর্মে তিনি স্বীকার করেছেন। এতে বাংলাদেশ ব্যাংকের ইতিহাস বইয়ে জাতির পিতা বঙ্গবন্ধু শেখ মুজিবুর রহমান এর ছবি না দেয়ায় বাংলাদেশের ইতিহাস সঠিকভাবে উপস্থাপিত হয়নি মর্মে প্রতীয়মান হয়।"
15. It is apparent from the aforesaid admission in the affidavit in compliance filed by the respondent No. 1 that the respondents have committed gross mistake in not including the name of the father of the nation Bangabandhu Sheik Mujibur Rahman in the said publication.
16. Further in the inquiry report at page 24 it has been stated: "বাংলাদেশ ব্যাংকের ইতিহাস বই প্রণয়নে ও প্রকাশনার সাথে সংশ্লিষ্ট কমিটি ও কর্মকর্তা/ব্যক্তিদের বক্তব্য এবং রেকর্ডপত্র পরীক্ষাশে কমিটির মতামত নিম্নরূপঃ ৮.১ জাতির পিতা বঙ্গবন্ধু শেখ মুজিবুর রহমান বাংলাদেশ ব্যাংকের নামকরণ করেন। বাংলাদেশ ব্যাংক প্রতিষ্ঠিত হয় পি.ও নং- ১২৭/৭২ মূলে। গ্রন্থটির দ্বিতীয় অধ্যায়ে মহান মুক্তিযুদ্ধের ইতিহাস বিবৃত রয়েছে। এ কারনে স্বাধীন বাংলাদেশের স্থপতি হিসেবে জাতির পিতা বঙ্গবন্ধু শেখ মুজিবর রহমান এর ছবি বাংলাদেশ ব্যাংকের ইতিহাস বইয়ে অর্ভূক্ত করা আবশ্যক ছিল। বাংলাদেশ ব্যাংক সংশিষ্ট বঙ্গবন্ধুর ছবি খুঁজে পাওয়া যায়নি- এ যুক্তিতে বঙ্গবন্ধুর ছবি বইয়ে অর্ভুক্ত না করার বিষয়টি অনাকাঙ্খিত ও অনভিপ্রেত। গ্রন্থটি জাতির পিতা বঙ্গবন্ধু শেখ মুজিবর রহমান এর ছবি অম্পৃক্ত না করায় ইতিহাস বিকৃত হয়েছে মর্মে কমিটি মনে করে (কার্যপরিধি-ক)।
17. Upon conclusion of the inquiry into the matter the inquiry committee opined that by not including of the photographs of the Father of the Nation in the said book a distortion of the history have been committed. It further contended that the respondents No. 4 by supplementary affidavit dated 09.04.2019 submitted internal communication of the Department of Communication of Publication (DCP) dated 02.04.2019 wherein at paragraph 3 and 4 it was admitted that "০৩। ডিসেম্বর ২০১৭ তে প্রকাশিত "বাংলাদেশ ব্যাংকের ইতিহাস" গ্রন্থটির প্রকাশনা বাংলাদেশ ব্যাংক কর্তৃপক্ষ ৩১.১০.২০১৮ তারিখে বাতিল করেন এবং এ গ্রন্থের বিতরণকৃত কপি ফেরত আনার নির্দেশ প্রদান করেন। এ নির্দেশের প্রেক্ষিতে ডিপার্টমেন্ট অব কমিউনিকেশন্স এন্ড পাবলিকেশন্স (ডিসিপি) কর্তৃক গ্রন্থের বিতরণকৃত কপি ফেরত আনার পদক্ষেপ গ্রহণ করা হয়। অদ্য ০২.০৪.২০১৯ তারিখ পর্যন উক্ত গ্রন্থের ২৫০ (দুইশত পঞ্চাশ) কপি ফেরত আনা সম্ভব হয়েছে। উল্লেখ্য, এ প্রকাশনার বিতরণকৃত কপি ফেরত আনার কার্যক্রম এখনো অব্যাহত রয়েছে। ০৪। বর্তমানে ডিপার্টমেন্ট অব কমিউনিকেশন্স এন্ড পাবলিকেশন্স (ডিসিপি)-এ অত্র ইতিহাস গ্রন্থের মোট মুদ্রণকৃত ২০০০ (দুই হাজার) কপির মধ্যে ১৫২৯ (পনেরশত উনত্রিশ) কপি সংরক্ষিত আছে" যা ব্যাংক কর্তৃপক্ষের অনুমোদনক্রমে বাতিল করা হয়েছে। এ বিষয়টি এফিডেভিট আকারে আদালতে পেশ করার জন্য আইন বিভাগের মাধ্যমে সংশ্লিষ্ট আইনজীবীকে জানিয়ে দেয়া যেতে পারে। উল্লেখ্য, এ তথ্য প্রদানে ব্যাংক কর্তৃপক্ষের অনুমোদন রয়েছে।"
18. It is evident from the aforesaid internal communication of the Respondents that the publication was cancelled almost after one month from the date of issuance of the Rule Nisi in the instant writ petition. Thereby, it is clear that they have not given enough effort to rectify the mistake despite knowing that there is a gross distortion of the history in the aforesaid book.
19. Be that as it may we have heard the Counsel appearing for the petitioner and the respondents at length. In our anxiety we have gone through each and every word of the writ petition, affidavit-in-opposition, supplementary affidavit-in-opposition and other materials on record meticulously and with precision. From a plain reading of all these affidavits-in-opposition it appears that all of them are trying to impress upon us that before issuance of the Rule on 02.10.2018 all the respondents have taken steps in this regard and collected the books in question and they have admitted that a palpable wrong has been committed on behalf of Bangladesh Bank in the publication of the said book where the photographs of the Father of the Nation did not find its place. It is our feeling and at the same time our view that on whatever manner the respondents tried to convince that by mistake the omission, as it has been seen was done, was not at all wilful and an ordinary mistake. Our question is why this sort of act of such an impact should not be viewed that simply due to gross negligence that was committed. We cannot reconcile why a book of this kind when decided by Bangladesh Bank to be published with so many persons who were involved in compiling and editing the book this unpardonable omission took place which is really unfortunate.
20. However, at one point of time of hearing, we directed the respondents that all the books so far collected should be destroyed in presence of the learned Counsel of the petitioner. It reminds us that late Mr. Mahbubey Alam who was the Attorney General at that time appeared for respondent No. 1 who also assertively submitted that this kind of callousness should not be viewed with impunity.
21. However, the leaned Senior Advocate Mr. Ajmalul Haque QC personally took ambit and on several occasions he appeared and assured us that they have already destroyed all those copies after collection which have already been circulated and finally by affidavit dated 18.08.2020 has drawn our notice on paragraph 6 of the said affidavit wherein it has been stated that on 25.02.2020 from 12:00 pm to 5:00 pm in presence of the members of the committee in presence of learned Advocate Mr. Syed Hasan Zobair destroyed 1597 copies of "বাংলাদেশ ব্যাংকের ইতিহাস" books by cutting into pieces at Olympic Products Printing and Packaging, 165, Arambag, Motijheel, Dhaka. Thereafter, 357 copies were destroyed after 01.03.2020 as per Court's order. Thus (1597+357) copies i.e. 1954 copies were destroyed till date. In the meantime, again Bangladesh Bank collected 22 copies including the learned Advocates' copies by providing them (the advocates contesting the writ petition for Bangladesh Bank) the photocopies of the book. It is mentioned here that 2 copies are kept in the Court's files and 2 copies are kept in the petitioner's file i.e. 4 copies will be collected by providing photocopies of the same. Subsequently, these 26 copies will be destroyed soon. Thus, almost all the copies will be destroyed in compliance with the Court's order. The Deputy Director on 12.08.2020 communicated the report for submitting before the Court (Annexure- 'XVII').
22. Further Mr. Hassan Zobair also informed us that on 01.09.2020 further 22 copies of the books have been destroyed. However, for better understanding we reproduce the Annexure-XVII below: "০১। উপর্যুক্ত বিষয়ে আইন বিভাগের ০৩.০৩.২০২০ তারিখের সূত্র নং- আইন- ১৫৭৩/২০২০-৫৫৭ এর মাধ্যমে আইনজীবী এডভোকেট সৈয়দ হাসান যুবাইর কর্তৃক ০২.০৩.২০২০ তারিখে প্রেরিত ই-মেইল দ্রষ্টব্য। ০২। মহামান্য আদালতের নির্দেশনা মোতাবেক ডিসেম্বর ২০১৭-তে প্রকাশিত 'বাংলাদেশ ব্যাংকের ইতিহাস" গ্রন্থের ১৫৯৭ কপি বিগত ২৫.০২.২০২০ তারিখে ধ্বংস করা হয়েছে। মহামান্য আদালতের ০১.০৩.২০২০ তারিখের শুনানী মোতাবেক উক্ত গ্রন্থের অবশিষ্ট কপি সংগ্রহপূর্বক তা ধ্বংস করে মহামান্য আদালতকে অবহিত করতে Judgment প্রদান করার প্রেক্ষিতে ইতোমধ্যে সংগৃহীত উক্ত গন্থের আরো ৩৫৭ কপি গভর্নর মহোদয় কর্তৃক ১৮.০২.২০২০ তারিখে গঠিত উক্ত ইতিহাস গ্রন্থ ধ্বংস কমিটি দ্বারা একই প্রক্রিয়ায় ধ্বংস করা হয়েছে। এ পর্যন উক্ত গ্রন্থের মোট ১৯৫৪ (১৫৯৭+৩৫৭) কপি ধ্বংস করা হয়েছে। ০৩। আদালতের আদেশ মোতাবেক ডিসেম্বর ২০১৭-তে প্রকাশিত "বাংলাদেশ ব্যাংকের ইতিহাস" গ্রন্থের ফটোকপি বাদি/বিবাদীর আইনজীবী এবং কোর্টের রেকর্ডে রক্ষিত কপির জ্বলে ফটোকপি সংরক্ষণ করার লক্ষ্যে উক্ত গ্রন্থের ০৪(চার) কপি ফটোকপি আইন বিভাগের মাধ্যমে ইতোমধ্যে যথাযথভাবে প্রেরণ করা হয়েছে। COVID-19 মহামারীর কারণে মহামান্য আদালতের কার্যক্রম বন্ধ থাকায় কপিগুলি সংগ্রহ করা সম্ভব হয়নি। এ পর্যায়ে বাদি/বিবাদীর আইনজীবী এবং কোর্টের রেকর্ডের ০৪ (চার) কপি ফেরত পাওয়া সাপেক্ষে ইতোমধ্যে সংগৃহীত ২২ কপিসহ মোট ২৬ কপি পূর্বের ন্যায় ধ্বংসপূর্বক যথাশীঘ্র সম্ভব এতদসংশ্লিষ্ট নথিসহ এফিডেভিট আকারে সংশ্লিষ্ট আইনজীবীর মাধ্যমে মহামান্য আদালতে উপস্থাপন করা হবে।"
23. We have already mentioned that the said publication not only trembled our judicial conscience but also hurt our feelings to observe these entire untoward event that took place and subsequently those were taken care of in the manner as we have stated above. Certainly, we find force in the submissions of the learned Attorney General that this sort of act should not be tolerated at any point and not to be viewed with impunity.
24. Let us glean some relevant insights from the celebrated publication on the father of the Nation Bangabandhu Sheikh Mujibur Rahman's Autobiography, THE UNFINISHED MEMOIRS (The University Press Limited, UPL, Bangladesh, 2012) wherein the Hon'ble Prime Minister Sheikh Hasina's Preface enshrines the following notes on traits and tenets of her father's immaculate personality:- "How for the sake of the country and its people a man can sacrifice everything, risk his very life, and endure endless torture in prison. We discover a personality who gave up the prospects of happiness, comfort, relaxation, wealth-everything. How he had forsaken all for the sake of ordinary people......... Throughout his life, the cause of his people was dearest to his heart. Their sufferings would sadden him. The only vow he ever took was to bring smiles on the faces of Bengal's impoverished people and build a golden Bengal. He believed that by enjoying their basic rights to food, clothing, accommodation, education and health they would be able to lead an honourable life. The one thought that was constant in his mind was freeing them from the shackles of poverty. That is why he gave up all comforts and happiness and fought ceaselessly and selflessly to attain the rights of his people through a continuous campaign till he was able to bring freedom to the Bengali nation. He was able to establish the Bengalis as a heroic race in the eyes of the world and create an independent and sovereign country. He was able to make the dream of freedom that Bengalis had been dreaming for a thousand years come true."
25. We want to share something relevant and very much pertinent in the context of this decision we are going to deliver. "That was not the best of time" as opposed to the same of Charles Dickens in his all time famous novel 'A Tale of two Cities'. It was in the year of 2008. Democracy in the country was limping. A notification bearing memo No. 05.01.2001//114 dated 3rd August 2002 was challenged from the Bar before the High Court Division. The said notification negated and cancelled observance of 15th August, as the National Mourning Day. Rule was made absolute and the same was reported in 28 BLD 412 (Mr. Mozammel Haque vs. Government of Bangladesh and others) where fortunately one of us (Justice Md. Ashfaqul Islam) was a party. In that decision, we came down heavily and set aside the impugned notification negating and cancelling observance of 15th August as the National Mourning Day holding the same to have been passed without lawful authority and is of no legal effect. In the said celebrated Judgment we observed: "Before parting with the matter, we must put on record that Bangabandhu Sheikh Mujibur Rahman is now history beyond the reach of the mortal beings. His voice still reverberates in the hearts of millions. The nation may not find common ground to share the achievements in the struggle and victory of the nationhood but cannot be denied the right to remember in all solemnity the day of dastardly killing of the founder of the Republic. It would be minimum tribute due to the legend."
26. That was a really a daunting and almost a greatest thing to be achieved at the point of time but even in that period of time the feelings of the people was respected and the judgment was delivered on 27th July 2008 and the then government on the next day declared 15th August as the National Mourning day. The People of ours carry this feeling which should not be impaired at any cost from any corner at any point of time. However, our considered view is that since the act for which this matter has been brought before this Division as discussed above has been well taken of as per our direction and almost all the copies of the book in question have been destroyed by now and subsequent rectified correct printed version of the book has also been submitted before us, the act impugned against for the said reasons accordingly stands purged.
With these observations and discussions the Rule is disposed of.
Communicate at once.
Mohammad Ali, J.
27. I agree.