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Code of Criminal Procedure, 1898

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

Section 1(2) & 339C—Applicability of the Code to proceedings before Special Tribunals: The Act provides that the provisions of the code shall apply to a case under the Act if they are not inconsistent with its own provisions. Section 339C of the Code being not inconsistent with any provisions of the Act shall apply to the proceedings before Special Tribunals constituted under the Act. Section 339C is intended for expeditious trial; the special statute is intended for “more speedy trial”. If the provision for speedy trial is not applied to trial under the Act, it will bring a situation not intended by the law-makers. Kamruzzaman vs State 42 DLR (AD) 219.

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

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

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

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

Section 4(1)(q)—The meaning assigned to the word “public” strongly indicates that a particular case may also be tried in a place other than the normal place where the sitting of the Court of Sessions takes place. Sayeed Farook Rahman vs Sessions Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157.

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

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

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

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

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

Sections 5(2) & 339D—Where the charge has been framed under section 409 of the Penal Code and section 5(2) of Act II of 1947, and in the absence of any provision for revival of the case on the expiry of the period of 2 years provided in section 8(a) of the Criminal Law Amendment (Amendment) Act there was no legal authority to revive the case under the provision of the Code of Criminal Procedure. Nur Israil Talukder vs State 52 DLR (A D) 51.

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

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

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

Section 9(2)-A special order cannot be restricted to mean a particular situation according to a pre set formula. Sayeed Farook Rahman vs Sessions Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157.
Section 9(2)—Section 9(2) gives the Government the power to direct at what place or places the Court of Sessions shall hold its sitting. Sayeed Farook Rahman vs Sessions Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 31—As a matter of principle, it is not proper that by installments the question of sentence should be considered once in the High Court Division and again in the Appellate Division.
The learned Single Judge of the High Court Division while disposing of the criminal appeal was in seisin of the case both on fact and law and as such, he was competent to reduce the sentence. We do not think that it will be proper in the facts and circumstances of the present case to consider afresh the question of sentence on the ground of old age alone which consideration was there in the High Court Division. Mawlana Abdul Hye vs State, Hatem Ali Howlader vs State 51 DLR (AD) 65.

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

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

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

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

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

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


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


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


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


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


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


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


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


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


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


Section 35(d)—Transitory Provisions, purpose of—Investigation pending immediately before commencement of the Ordinance—Magistrate did not accept the Final Report and directed further investigation—Police on further investigation submitted charge-sheet far beyond the “specified period” of 60 days as stated in section 167(5) and also of 90 days as stated in section 35(d) of the Transitory Provision—Charge-sheet was submitted one year after the Magistrate’s order for further investigation—Accused-respondents, whether entitled to be released—Provision in section 3 5(d) of the Ordinance is not mandatory and intended to save an investigation which had started at the time when there was no time limit for its conclusion—Investigation on which the Police submitted charge-sheet, not governed by section 167, and the charge-sheet not hit by section 167(7)-Consequently the charge-sheet stands. Kazi Abdul Jalil vs Jashem Munshi 43 DLR (AD) 116.

Section 54—Since the detenu was arrested under section 54 of the Code it was incumbent upon the police to produce her before a Magistrate within 24 hours but the police having not done so the right guaranteed to her under of the Constitution has been violated. Mehnaz Sakib vs Bangladesh 52 DLR 526.
Section 54—The provisions of this section shall also apply when a police officer receives any credible information that a person may be concerned in any cognizable offence or has a reasonable suspicion that a man might have com-mitted an act in any place out of Bangladesh which if committed in Bangladesh would have been punishable as an offence. Kalandiar Kabir vs Bangladesh 54 DLR 258.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sections 54 and 167—Provisions of these Sections are to some extent inconsistent with the provisions of the Constitution—To remove the inconsistencies some recommendations as given herein are needed. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.

Sections 54 and 167—”State terrorism”— There are complaints of indiscriminate arrest of innocent persons who are subjected to third degree methods with a view to extracting confessions. This is termed by the Supreme Court of India as “state terrorism” which is no answer to combat terrorism. Saifuzzaman vs State 56 DLR 324.

Sections 61 & 167—An accused cannot be detained in custody of the police for a longer period than under all the circumstances of the case is reasonable and such period must not, without an order of remand by a Magistrate, exceed 24 hours, exclusive of the time necessary for the journey from the place of arrest to the Court of the Magistrate.
In the instant case before us, no incriminating articles, e.g. currency notes, soiled notes or stamps were recovered within the first 24 hours of arrest pursuant to any information given by accused Farook Mahajan, and so it cannot be said with an equal degree of certainty that the unlawful detention of the prisoner without any order of remand beyond 24 hours had no effect on the confession made by him. Faruque Mahajan vs State 49 DLR 47.

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

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

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

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

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

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

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

Sections 87 and 88-From a careful reading of the provisions of sub-section (6) of section 27 of the Act it appears that the lawmakers have consciously excluded the use of the provisions of

sections 87 and 88 of the Code in respect of trial under the Special Powers Act. Sirajul Islam vs State 55 DLR 536.
Sections 87, 88 and 339B—For compelling an absconder accused to be brought to trial coercive power under sections 87 and 88 could be used—Section 339B added to the Code to provide for trial in absentia. This trial in absentia, needs to be held only when all attempts had failed to bring the offender to trial and not just as a matter of course of only, on police showing them in the chalan to be absconders. Lal Mia vs State 42 DLR 15

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

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

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

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

Sections 94 and 160—The contention that action of notice by the respondent No. 3 was violative of Article 35(4) of the Constitution is of no substance since the same were issued in connection with an enquiry as regards the information received against the petitioners. The petitioners are not accused of any offence and, as such, protection under Article 35(4) is not available to them. Abu Siddique vs Ministry of Defence 54 DLR (AD) 154.

Sections 94 and 160-The officers of the Anti-Corruption Bureau in connection with investigation of a complaint to ascertain the truth thereof are authorised to issue notice under section 160 CrPC. Abu Siddique vs Ministry of Defence 54 DLR (AD) 154.

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

Section 94—As section 94 of the Code does not contemplate seizure of any document from the custody of a bank or a banker as defined in the Bankers’ Books Evidence Act, the question of seizure of the bank accounts of Muon and Abdul Momin Tulu by the concerned officers of the defunct Bureau of Anti-Corruption does not arise at all. Tofail Ahmed vs Chairman, Anti-Corruption Commission 62 DLR 33.
Sections 94 & 160—The authority of the Anti-Corruption Officer requiring the petitioners to attend and give statements before him in the interest of an inquiry under the provisions of section 94 of the Code cannot be questioned. Abdul Hafiz vs Director General, Bureau of Anti-Corruption, Bangladesh 51 DLR 72.

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

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

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

Section 96—The submission that by search and seizure no fundamental right of the petitioner is violated is misconceived on the facts of the instant case. Government of Bangladesh vs Husssain MohammadErshad 52 DLR (AD) 162.

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

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

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

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

Section 99A(1)(c)—To forfeit a publication the government is only required to state by notification in the official Gazette the grounds of its opinion, not its satisfaction for formation of opinion. Sadaruddin Ahmed Chisry vs Bangladesh 50 DLR (AD) 119.

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

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

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

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

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

Section 103—Prosecution cannot be disbelieved merely because of the fact that the seizure list witnesses stated that the arms were not recovered in their presence.
Now, the question is whether in a case like this, evidence of the informant and the Investigating Officer can be disbelieved or not. Here, we have found that there is no suggestion from the side of the defence that the informant and the Investigating Officer PW 13 had any enmity with or grudge against the accused persons for which they were falsely implicated in this case. The only suggestion given to the prosecution witness is that the accused persons were falsely implicated by the informant for his personal gain in his service. Rana Madbar vs State 51 DLR 499

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

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

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

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

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

Section 103—Now it is time to review the criminal law, at least to amend section 103 of the Code of Criminal Procedure, 1898, to review the principle that burden of proof never shifts in criminal cases, specially in the cases of corruption, offences against sexual violence, murder of women and children, trafficking in arms, drug, narcotics, women and children. Nasir vs State 62 DLR 49.
Sections 103 & 165—Since the arms were recovered at the instance of the accused, no search was necessary, invoking the application of the provisions provided in law for carrying out a search. No question of following the provisions of sections 103 and 165 of the Criminal Procedure Code and section 25 of the Arms Act therefore arises. Kamruzzaman vs State 47 DLR 416.

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

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

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

Section 144—Status quo is not contemplated in a proceeding under section 144 CrPC. Nazibul Islam vs Dr Amanullah 40 DLR 94.

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

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

Section 145-A proceeding under section 145 CrPC is not a criminal matter. As to proceedings under section 145 CrPC it is erroneous to designate the complainant as an informant, having regard to the provisions of that section. Once an information is brought to the notice of the Magistrate he has to be satisfied that a dispute as to immovable property is likely to cause a breach of the peace. Further proceedings which he starts are not proceedings in the interest of any private party but in the interest of public peace. (See Babu vs Shyam, ILR 1950 All 543). It is, therefore, highly doubtful if a proceeding under section 145 CrPC can properly be termed as a “criminal matter”. Jobeda Khatun vs Momtoz Begum 45 DLR (AD) 31.

Section 145—The jurisdiction of the Magistrate under section 145 CrPC is ousted when the civil Court is seized with the subject matter of dispute. Jobeda Khatun vs Momtaz Begum 45 DLR (AD) 31.
Section 145—Bid money—When it cannot be forfeited—Receiver appointed by the Magistrate being an agent of the Court can attach any condition to the auction held for leasing out the attached property. But in the absence of any such condition attached by him or the Magistrate the part of the bid money deposited cannot be forfeited on the bidder’s failure to deposit the balance money, though the bid can be cancelled and fresh auction held. Amir Hossain Farhad vs DrA Mannan 44 DLR 401.

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

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

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

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

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

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

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

Section 145—Filing of case under section 145 of the Code of Criminal Procedure during pendency of a civil suit between the same parties cannot be said to be proper.
A party to a civil suit, if threatened in his possession, can seek remedy from the civil Court and should not seek such remedy from a criminal Court as civil Court if final arbiter of land disputes. Serajul Islam vs Faziul Haque 47 DLR 480.

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

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

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

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

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

Sections 145, 439A and 561A—The revisional jurisdiction at the instance of the second party respondents under section 561A of the Code of Criminal Procedure does not lie as it is a device of invoking a second revision under the garb of an application under section 561A of the Code of Criminal Procedure which is not maintainable. Shamsuddin alias Shamsuddoha vs Mvi Amjad All 56 DLR (AD) 59.

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

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

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

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

Sections 145 and 146-The Criminal Court exercising the limited summary jurisdiction could regulate the possession of the disputed property. On the failure of the learned Magistrate to ascertain factum of possession in favour of either party direct the parties under section 146 of the Code of Criminal Procedure to go to the Court of competent civil jurisdiction. Shamsuddin vs Mvi AmjadAli 56 DLR (AD) 59.

Sections 145 & 146—Order under section 146 could have been passed only after being satisfied on evidence in the proceeding under section 145 of the Code of Criminal Procedure that neither party could prove his possession in the subject matter of the proceeding and therefore the order passed by the learned magistrate was misconceived and beyond the authority under section 146 of the Code of Criminal Procedure. Bangladesh Co-operative Book Society Ltd vs Md Dastagirul Huq 61 DLR (AD) 62.

Sections 145 and 146(1)—The purpose of the proceeding under section 145 CrPC is to find out the possession of the property. Haji Golam Hossain vs Abdur Rahman Munshi 40 DLR (AD) 196.

Sections 145 and 161—The GD Entry being the earliest in point of time containing facts of the murder though not signed by the information was in fact the First Information Report and the information recorded by the police later on the basis of statement of PW 1 could at best be related as one under section 161 CrPC. Shahjahan vs State 46 DLR 575.
Sections 145 and 561A—As the order of the Civil Court was passed earlier there could not be any proceeding under section 145 of the Code of Criminal Procedure in respect of that property. Abdul Alim vs State 53 DLR (AD) 64.

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

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

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

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

Sections 145 & 561A—When the Civil Court is already seized with the question of regulating possession of the land between the same parties the Magistrate acted without jurisdiction in initiating the proceeding under section 145 CrPC. Abdul Majid Mondal vs State 51 DLR 287.

Section 145(1)—Grounds of satisfaction not stated in the preliminary order—Additional Sessions Judge could inquire whether there were materials on record for such satisfaction and come to a conclusion that the same was not based on materials. Moslem uddin Dhali vs Helaluddin Dhali 41 DLR 120.

Section 145(1)(5)—Subjective satisfaction in passing order under sub-section (1) but not when moved under sub-section 5.
When a Magistrate passes a preliminary order under sub-section (1), he has to exercise a subjective satisfaction with regard to the apprehension of breach of peace. But when he decides to cancel or not to cancel the preliminary order on being moved under sub-section (5), his satisfaction is no longer subjective.
Decision under sub-section (5) is subject to scrutiny on a wider ground than in an order under sub-section (1). This subsequent decision under sub-section (5) is subject to scrutiny by the revisional Court on a wider ground than the Magistrate’s order passed under sub-section (1). Order under sub-section (5) based on objective satisfaction—open to wider challenge on revision. But an order passed under sub-section (5) is based on objective satisfaction and it is open to wider challenge before the revisional Court. Moslemuddin Dhali vs Helaluddin Dhali 41 DLR 120.

Section 145(4) & 561A—When an order of attachment and appointment of receiver was legally made by the Magistrate to prevent serious apprehension of immediate breach of peace, such order is to be restored by setting aside the order of Sessions Judge who illegally set aside the order of the Magistrate in exercise of inherent jurisdiction of High Court Division for securing ends of justice. Alauddin vs State 58 DLR 364.

Section 145(4)—Power in section (4) of section 145 CrPC is an extraordinary power to be exercised in a case of emergency and should not be resorted to as a matter of routine—No apprehension of breach of peace and parties being in joint possession, the order is to be vacated. Gura Miah vs Fazar Ali 42 DLR 70.

Section 145(4)—Before passing any order under sub-section (4) the Court is required to enquire as regards the fact of actual possession of evidence to be adduced by the parties and if the Magistrate does not comply with this mandatory requirement then ex fade the order must be held to be adduced by the parties and if the Magistrate does not comply with this mandatory requirement then ex facie the order must be held to be illegal as in the instant case. Abdul Quddus vs State and Md Mobarak Hussain Ratan 47 DLR 506.

Section 145(5)—Magistrate came to the conclusion that there is apprehension of breach of peace on the basis of a certain material—In revisional jurisdiction a different view may be taken. The Chief Metropolitan Magistrate by his order dated 12-4-87 came to the conclusion that the posting of Ansars is a further material for coming to a conclusion that there is apprehension of breach of peace. Sitting in the revisional jurisdiction from an order under sub-section (5) the learned Additional Sessions Judge was perfectly entitled to take a different view. Moslemuddin Dhali vs Helaluddin Dhali 41 DLR 120.

Section 146—Court’s concern in a proceeding under this section—The basic condition for a proceeding under section 145 of the Code of Criminal Procedure is the existence of a dispute regarding any land, etc. between the trial claimants. The concern of the Court in such a proceeding will therefore be the factum of possession of either claimant at the relevant time and also whether there is any apprehension of breach of peace regarding the possession of the parties and not title or other incidental rights. Abdul Jabbar vs Azizul Haque 46 DLR 416.

Section 147—Removal of obstruction—If the Magistrate, after recording evidence, finds merit in the case, he will pass orders prohibiting interference with the right of using the disputed land as the 1st Party’s pathway. In passing such order the Magistrate has sufficient jurisdiction to pass ancillary orders so as to make his order of prohibition effective and, if necessary, to pass orders for removal of any obstruction in the pathway. Farhad Hossain vs Mainuddin Hossain Chowdhury 46 DLR 127.

Section 154—FIR—delay——The Court has always viewed First Information Report with grave suspicion when there had been unexplained delay in lodging it. It can be presumed that the delay was used for manipulation of the prosecution story. Abdul Latif vs State 44 DLR 492.

Section 154—FIR does not contain detailed facts of the prosecution case. Its main purpose is to give information of a cognizable offence to the public and set the law in action. Ataur Rahman vs State 43 DLR 87.

Section 154—FIR—Effect of departure from FIR story—where the prosecution has a definite case, it must prove the whole of it; partial departure from the prosecution case affects credibility of the witnesses and complete departure makes their testimony to be entirely discarded. Gopal Rajgor vs State 42 DLR 446.

Section 154-A FIR may be lodged by any person for, it is meant just to set the machinery of law in action. Shah Alam vs State 42 DLR (AD) 31.

Section 154—Where FIR does not contain an important statement deposed to by the witnesses, it is clear that there has been subsequent embellishment of the prosecution case which makes it untrustworthy. Nazrul Islam vs State 45 DLR 142.

Section 154—FIR can be used only to corroborate or contradict the maker thereof. There is neither any law nor any principle on the basis of which the testimony of another witness can be ignored or rejected, because the informant had made an omission to mention about the fact which the witness stated in his deposition. State vs Abdus Sattar 43 DLR (AD) 44.

Section 154-The first information report is not a substantive piece of evidence and can be used only for the purpose of corroborating or contradicting the matter thereof, but its value lies in being the earliest version of the prosecution story. Seraj Miah vs State 49 DLR 192.

Section 154––The first information report is not a substantive piece of evidence but it can be used to corroborate the informant or to contradict him. It cannot be used to contradict the evidence of any witness other than the informant. The Court is, of course, entitled to note the conflict between the first recorded version of the prosecution case and the case made out in the course of the trial. State vs Tajul Islam 48 DLR 305.

Section 154-The First Information cannot be treated as the first and the last word of a prosecution case—Weight is to be give to the legal evidence adduced by a witness before the Court at the time of trial. Al Amin vs State 51 DLR 154.

Section 154-When the First Information Report is lodged within minimum possible time, such First Information Report story should not be disbelieved only because of any somersault on the part of the informant.
We have already found that for saving his full brother, the informant suppressed the truth at the time of deposing in the Court and, as such, we are of the view that in this case before us conviction may be given on the basis of the statement made in the First Information Report and on the basis of the evidence of the witnesses who corroborated the First Information Report story. Khorshed vs State 51 DLR 317.

Section 154—The filing of the first information report by the victim’s father that she died after taking poison was no bar to file a second first information report if subsequently it transpires that the death was homicidal in nature. Abdul Khaleque vs State 53 DLR (AD) 102.

Section 154—Publication of a report in a news-paper about commission of a cognizable offence against a particular person is not “information” within the meaning of section 154. Mohammod Hossain, Advocate vs Quamrul Islam Siddique 54 DLR 88.

Section 154—The first information report is a matter of special importance when its maker died shortly after he made it. The FIR is clearly admissible in evidence. This may also be treated as a dying declaration in view of the fact that victim himself dictated the ejahar at a time when his condition was really critical. State vs Rashid Ahmed & others 54 DLR 333.

Section 154—There could not be any second first information report and there could not be any investigation on the strength of such a first information report. Kazi Mahbubuddin Ahmed alias Mahbub vs State, represented by the DC, Dhaka 57DLR 513.

Section 154—The entire period of trial is to be calculated on the basis of the concerned Judge’s working days. On 5 occasions the concerned judge was on leave which are to be excluded from the period of trial. Such period excluded, this case is not hit by section 10 of the said Act., This aspect has not also been raised during the trial before the Judge to count his working days as contemplated in section 10 of Act. State vs Naimul Islam 60 DLR 481.

Section 154-FIR—Delay—Mere delay in lodging a case is not a ground for disbelieving a prosecution case, for there are various circumstances in which lodging any case as to the commission of offence may be delayed. (Per SK Sinha J) Major BazIul Huda vs State 62 DLR (AD) 1.

Section 154-Words ‘মামলা দায়ের’ means institution of a case by submission of a charge- sheet by an officer of the Commission, before the concerned Court and certainly not an first information report as envisaged under section 154 of the Code of Criminal Procedure or a complaint (অভিযোগ) as envisaged under Rule 3 and 4 of the Rules.
The irresistible conclusion is that no sanction will be required to file a complaint (অভিযোগ) either with the Commission or with the police. But sanction from the Commission shall be required both under the unamended and the amended section 32, before institution of a case (মামলা দায়েরের ক্ষেত্রে) in the concerned Court. Anti- Corruption Commission vs Dr Mohiuddin Khan Alamgir 62 DLR (AD) 290.

Sections 154 and 157—‘Information’— News-paper Report—The use of the word ‘information’ in section 157 normally means the information received under section 154 of the Code. In section 157, besides using the word ‘information,’ the expression ‘or otherwise’ has also been used. This cannot empower a police officer to start investigation on the basis of a report published in a news-paper. Mohammod Hossain, Advocate vs Quamrul Islam Siddique 54 DLR 88.
Sections 154 and 157—Receipt of information is not a condition precedent for investigation—The officer-in-charge of a police station can start investigation either on “information” or “otherwise”. Saifuzzaman vs State 56 DLR 324.

Sections 154, 156 & 157—If an officer-in-charge of a police station does not investigate a case, some reasons must be recorded and with such reasons he should notify the informant that he would not investigate into the case. Yasmin Sultana vs Bangladesh 54 DLR 269.

Sections 154, 156 & 157—An officer-in-charge of a police station is legally bound to reduce an information of cognizable offence into a first information report and to start investigation into the case. Yasmin Sultana vs Bangladesh 54 DLR 269.

Sections 154 & 161—The GD Entry being the earliest in point of time containing facts of the murder though not signed by the informant was in fact the First Information Report and the information recorded by the police later on the basis of statement of PW 1 could at best be treated as one under section 161 CrPC. Shahjahan vs State 46 DLR 575.

Sections 154 and 161—The information of commission of a cognisable offence earliest in point of time, on the basis of which law was already set in motion, is the first information report within the meaning of section 154 of the Code and the first information report lodged later on during investigation is a statement of PW 1 under section 161 of the Code and, as such, it is inadmissible. State vs Al Hasib Bin Jamal 59 DLR 653.

Sections 154 & 161—The written information that was handed over by PW Ito the SI (PW 12) of the Sonargaon PS and Investigating Officer at 19-45 hours of 4th March, 1987 and on receipt whereof PW 12 started Sonargaon PS.Case No. 2 dated 4th March, 1987, is in the eye of law not a FIR but a statement in writing by PW 1, whoh heard from PW 2 about the incident, to the Investigating Officer, subsequent to commencement of the investigation and, as such, the same is a statement under section 161 of the CrPC (38 DLR (AD) 311). Ansar (Md) Chan Mia vs State 53 DLR (AD) 115.

Sections 154, 161 & 162—First Information Report is an accusation, an information relating to the commission of cognisable offence reported to the Police by any person with the object of putting the Police in motion in order to investigate. Nure Alam vs State 54 DLR 242.

Sections 154 & 162—The document exhibited as FIR in the case should not be treated as an FIR for the reason that an information as to the murder was lodged earlier and there was a GD Entry thereon, but the same had not been produced. Akhtar Hossain vs State 44 DLR 83.

Section 155—A police officer is not to investigate into a non-cognizable case under section 155 CrPC without the order of a Magistrate of the first or second class. Under the l4w when the police has a report of a non-cognizable offence he is bound to refer the informant to the Magistrate for initiating the process of investigation. Aroj Ali Sarder vs State 41 DLR 306.

Sections 155, 190 & 195-There is nothing in the law to prevent a police officer from making a complaint when some facts come to his knowledge even if he cannot investigate them. Abul Hossain vs State 55 DLR (AD) 125.

Sections 155, 190 & 537—Non cognizable offence—Mere irregularity like investigation by an officer not authorised to investigate a non – cognizable offence does not affect the legality of a proceeding of a Court below Investigation by a police officer in the instant case is an antecedent proceeding. It is neither the foundation stone nor a prerequisite of the proceeding nor a sine qua non of a valid trial in the Court. It is difficult for us to see why such an irregularity, i.e. investigation by an officer not authorised, should affect the proceeding in a Court or prevent the Court from taking cognizance of a non-cognizable offence under clause (a) or (b) of section 190(1) of the Code of Criminal Procedure in the absence of a clear enactment, expressed or implied preventing the Court from doing so. Golam Moula Master vs State 46 DLR 140.

Section 155(2)—There is no legal bar on the part of the police officer receiving an information about a non-cognizable offence in recording the same in the general diary and obtaining permission from a competent Magistrate to investigate into the case. Nasiruddin Kazi vs Aleya Khatun alias Fulu 48 DLR 216.

Section 155(2)—Without complying with the provisions of section 155(2) of the Code the police held investigation of the non-GR case. The subsequent taking of cognizance by the Magistrate is certainly an abuse of the process of the Court. Mohiuddin Ahmed vs State 63 DLR 564

Section 155(2), 241A—The matter should be sent back to the Magistrate for hearing specifically on the point whether the investigation can be proceeded and police report can be submitted under section 509 Penal Code without the permission of the Magistrate. Abul Hossain vs State 53 DLR 402.

Sections 156(3) & 200—There is nothing wrong in the procedure adopted by the Magistrate directing the police to hold investigation treating the petition of complaint as a First Information Report Cases reported in 6 DLR (WP) 205 and 54 Cal 305 are not applicable in the facts of the present case. Yakub Ali vs State 47 DLR (AD) 94.

Sections 156(3) & 190(1)-The prayer made by the accused for holding further investigation against some other persons is, in fact, a prayer cancelling the charge-sheet filed against them. This is nothing but an indirect way of reopening the case by making reinvestigation but there is no provision of law for cancelling the charge-sheet once filed against some accused and accepted by the Magistrate. Sukhil Kumar Sarkar vs Kazi Wazed All @ Subed 47 DLR 252.

Section 157—First Information Report— FIR cannot be substituted for evidence given on oath and when there is no other evidence the facts mentioned in the information could not be relied upon as proof of the offence alleged. Babul vs State 42 DLR (AD) 186.

Section 160—Since there is no reference as to any investigation or inquiry in the notice issued by the police officer asking the petitioner to produce documents the same has been issued in an unauthorised manner. Mohsin Hossain vs Bangladesh 49 DLR 112.

Section 161—The right of cross-examination on the basis of witnesses’ previous statements under section 161 CrPC having not been available, prejudice to the defence could not be ruled out. The right given to the accused of getting copies of the statements under section 161 CrPC is a valuable right. End of justice requires setting aside the conviction. State vs Zahir 45 DLR (AD) 163.

Section 161—The examination of prosecution witnesses under section 161 CrPC after a considerable lapse of time casts serious doubt on the prosecution story. Mom Ullah vs State 40 DLR 443.

Section 161—The investigation officer having not been cross-examined on the question of delay in recording the statement under section 161 CrPC, there is no substance in the contention that the delay should have been taken as a factor to question the veracity of the witnesses concerned. Shadat Ali vs State 44 DLR 217.

Section 161—The trial Court illegally referred to and considered the statements of witnesses recorded under section 161 Criminal Procedure Code, which could only be used to contradict or corroborate the witness. Abu Bakker vs State 49 DLR 480.

Section 161—Due to lapse of time in recording of their statements, witnesses indulge in concoction of the prosecution case, more so when they are inimically disposed to the accused. Moreover, one tainted evidence cannot corroborate another tainted evidence.
In a case where enmity is admitted the evidence of such witnesses are liable to be closely scrutinised and unless there are corroboration by cogent, independent and disinterested witnesses the evidences of such witnesses who are inimically disposed are not accepted as the basis for conviction, particularly in a murder case. State vs Hosen Sheikh @ Hochen 50 DLR 508.

Section 161—Because of belated examination of witness by the Investigating Officer for no plausible reason, possibility of embellishing the prosecution case by the witness cannot be ruled out. State vs Babul Hossain 52 DLR 400.

Section 161—Judges are competent to take judicial notice of the fact about the present condition of law and order situation in the country and, as such, it is not unlikely that a witness will hesitate to tell the truth for fear of his life. Mahmudul Islam vs State 53 DLR (AD) 1.

Section 161—Unusual delay cannot be caused in the matter of noting down statement of a person/witness and mandate of law demands immediate recording of statements when memory of witness remains fresh as human memory is always fleeting. Kazi Mahbubuddin Ahmed alias Mahbub vs State, represented by the DC, Dhaka 57DLR 513.

Section 161—The contradiction of the statement under section 161 of the Code of Criminal Procedure with the ultimate testimony of the PWs made before the trial Court has adverse effect upon the reliance of the prosecution witnesses which reduces the evidentiary value of the testimony of the PWs as adduced at the trial which makes the witness unreliable on the point on which the witness has contradicted. Zamir Ali (Md) vs State 59 DLR 433.

Section 161—Inordinate delay in examining the important prosecution witnesses casts a serious doubt as to the truth of the prosecution case and in the circumstances their evidence cannot be relied on and are to be left out of consideration. State vs Al Hasib Bin Jamal alias Hasib 59 DLR 653.

Section 161—Investigating officer did not assign any reason for the long delay in examining the PWs. Delay in examining the witnesses under section 161 of The Code is fatal to prosecution case and statements of witnesses are required to be left out of consideration. Sahabuddin vs State 61 DLR 54.

Section 161—Under certain circumstances delay of a few days even, may render the testimonies of the prosecution witnesses doubtful but yet there may be cases is which delay of years together may not do so. State vs Resalder Moslem uddin 61 DLR 310

Section 161—Benefit of doubt—It was the failure on the part of the Investigating Officer tO detect all the 5 assailants who had entered inside the jail, otherwise none of them could deserve any sort of lenient attitude from the Court because of their involvement in such a horrendous crime, but these 2 condemned prisoners namely Dafader Marfat Ali Shah and LD Dafader Abul Hashem Mridha cannot be connected with the crime beyond reasonable doubt. Therefore, the two condemned-prisoners are entitled to be acquitted on the principle of benefit of doubt. State vs Resalder Moslemuddin 61 DLR 310.

Section 161—Unexplained delay in recording the statements of eye-witnesses by Investigation Officer casts a doubts as to the truthfulness of their testimonies. They had been given chance of concoction and false implication. Therefore, their evidence should be left out of consideration. When a witness is cross examined bya party calling him, his evidence is not to be rejected either in whole or in part but the whole of evidence so far as it affects both parties favourably or unfavourably must be taken into account and assessed like any other evidence for whatever its worth. Jalaluddin vs State 58 DLR 410.

Section 161—The witness claiming to have seen the occurrence admittedly resides at a far off place—Some time had therefore elapsed to find him and for recording his statement No adverse presumption should be drawn because of the delay in recording his statement. State vs Mokammel Hyeath Khan 58 DLR 373.

Sections 161 & 162—A statement of a witness recorded under section 161 CrPC couldn’t be used as substantive evidence. It can only be utilised under section 162 CrPC to contradict such witness in the manner provided by section 145 of the Act. State vs Nazrul Islam 57 DLR 289.

Sections 161 & 162—Statements made under section 161 CrPC are not substantive evidence. Such statements can only be utilised under section 162 CrPC to contradict the witness in the manner provided by section 145 of the Evidence Act. Abdus Subhan vs State 46 DLR 387.

Sections 161 and 162—An omission from the statement recorded in a boiled form does not amount to contradiction and the alleged contradiction sought to be taken from the omission of the statement cannot, in a particular case, be proved under section 162 of the Code to hold that contradiction in accordance with the provision of section 162 has been established. Abul Kalam Azad alias Ripon vs State 58 DLR (AD) 26.

Sections 161 and 162—When witness is contradicted by a statement recorded by the Police in the course of investigation the only effect that it can have is to reduce the evidentiary value of his testimony in Court and make the witness unreliable on the point on which he is so contradicted. Abul Kalam Azad alias Ripon (Md) vs State 58 DLR (AD) 26.

Sections 161, 164, 173 & 205C—Statement recorded under section 164 of the Code comes within the purview of the word ‘document’ used in section 173 and section 205C and such statements should be transmitted to the Court of Session along with the case record under section 205C. Nurul Islam Manzoor vs State 52 DLR 276.
Sections 161, 164 & 342—The accused failed to discharge his obligation. The certified copies of the statements under sections 161 and 164 of the Code of the maids and others of the house of the accused filed by the accused at the time of examination under section 342 of the Code in support of his case that the deceased committed suicide by hanging are not evidence and, as such, cannot be considered. There is no evidence that the deceased committed suicide by hanging. Moreover the accused’s explanation that the deceased committed suicide by hanging has been proved untrue. It is proved beyond doubt that the deceased was done to death. There is nothing to hold that anybody else besides the accused could cause the death of the deceased. State vs Azam Reza 62 DLR 399.

Sections 161 & 241A—Consideration of the statements made under section 161 of the CrPC while framing of charge or otherwise is a necessary part of the Court’s duty. Shaheb All vs State 52 DLR 366.

Section 162—Test identification—The substantive evidence of a witness as regards identification is the statement made in the court. In order to carry conviction, the evidence should ordinarily show as to how and under what circumstances the witness came to pick out the particular accused person and the details of the part which the accused had played in the crime in question with reasonable particularity. Shamsul Alam vs State 56 DLR 218.

Section 162—Statements made to the Police in course of investigation of an offence started on the basis of FIR are admissible in evidence. Ext I not being statements made in course of investigation to the Police comes within the above provision of law. Nurul Islam vs State 40 DLR 122.

Section 164—The trial Court misdirected itself when he had convicted appellants on the basis of statements of witnesses made under section 164 by treating them as confessional statements. Muslim vs State 47 DLR 185.

Section 164—Statements recorded under section 164 of the Code cannot be treated as substantive evidence of the facts stated therein. Syed Nazakat Hossain alias Ujjal vs State 48 DLR 139.

Section 164—Retraction of confession—Once a confession is found to be true and voluntary, a belated retraction will be of no help to the confessing accused. The necessity even of some sort of corroboration in such cases is not a requirement of law but it is usually desired as a rule of prudence. State vs Tajul Islam 48 DLR 305.

Section 164—It is settled principle that one part of the confession cannot be accepted and other part be rejected. It is an error to split up the confessional statement and use that part only which is favourable to prosecution. State vs Lokman Miah 48 DLR 149.

Section 164-The defect of non-compliance of section 164 CrPC by the Magistrate while recording a statement cannot be cured by his examination in Court. State vs Raisuddin 48 DLR 517.

Section 164—Before a confessional statement is relied upon it must be found that it was not only voluntary but also true. Voluntariness and truth together make it worthy of acceptance. Moslemuddin vs State 48 DLR 588.

Section 164—Confessional statement recorded on a plain paper without the narration of questions and answers and without complying with the provisions of section 164 CrPC becomes inadmissible. The accused was kept in police custody for 3 days preceding his confession and the forwarding report mentions injuries on his person. Confession is involuntary. Alaluddin alias Alauddin vs State 49 DLR 66.

Section 164—Statement of a person recorded under section 164 CrPC is not a substantive piece of evidence of the fact stated therein. Such statements recorded by a Magistrate under section 164 CrPC can only be used for contradicting the maker of it under sections 145 and 155 of the Evidence Act or for the purpose of corroborating him under section 157 of the Act. Seraj Miah vs State 49 DLR 192.

Section 164—The rule of prudence requires that a retracted confession needs corroboration inasmuch as it is open to suspicion. It is unsafe to rely on such confession without corroboration from other sources. Alaluddin alias Alauddin vs State 49 DLR 66.

Section 164-As against the maker himself his confession, whether judicial or extra judicial, whether retracted or not retracted, can validly form the sole basis of his conviction, if the Court believes that it was true and voluntary and was not obtained by torture or coercion. Abul Kashem vs State 49 DLR 573.

Section 164—When the accused were kept in police custody for two days, it was the duty of the Magistrate, who recorded their confession, to put questions as to how they were treated in the police station, why they were making confession and that if they made a confession or not they would not be remanded to police custody. Further, it is found in the record that the Magistrate did not inform the accused persons that he was not a police officer but a Magistrate. On scrutiny we find in the record that magistrate sent the accused persons to the police custody after recording their confessional statements. Therefore, we find the Magistrate had no idea or acumen that it was his legal duty to remove the other, inducement and influence of the police completely from the mind of the accused before recording their confession, So, therefore, we hold that the confessions made by the accused cannot be considered either against the maker or against their co-accused. State vs Abul Hashem 50 DLR 17.

Section 164-Exculpatory statement uncorroborated by any other evidence cannot be the basis of conviction. Abu Jamal vs State 51 DLR 57.

Section 164-There is no hard and fast rule that a retracted confession must be discarded. Retracted confession can form the basis of conviction if it is found true and voluntary. State vs Tota Mia 51 DLR 244.

Section 164—There is no requirement under the law for the Magistrate to inform the confessing accused that whether he confessed his guilt or not he will not be handed over to the police.
The submission of the learned Advocate that the absence of observing the formalities by the Magistrate regarding recording the confessional statements by saying that whether they confess of not they will not be handed over to the police and in view of not reporting of the fact by the confessing accused themselves that they confessed their guilt due to physical torture the submission of the learned Advocate for the appellants appears to have no bearing in this case. Rafiqul Islam @ Rafiq vs State 51 DLR 488.

Section 164—A retracted confession cannot be used to base a conviction for murder unless corroborated by credible independent evidence. State vs Manik Bala 41 DLR 435.

Section 164—Statement recorded under section 164 CrPC cannot be used as substantive evidence against the accused person except for contradicting or corroborating its maker. State vs Manik Bala 41 DLR 435.

Section 164-Confessional statement subsequently retracted—To base a conviction for murder upon a refracted confession alone is not safe when the proof of factum of murder is dependent upon that confession. State vs Manik Bala 41 DLR 435.

Section 164-Confession—Question of credibility when part of the occurrence is omitted or suppressed—It cannot be found nor it could be suggested by either the prosecution or the defence why throttling part of the occurrence was omitted or suppressed. Even if it be taken that accused Rina had deliberately suppressed the throttling part of the occurrence in her judicial confession that cannot mean that the confession was not true. Shahjahan Manik vs State 42 DLR 465.

Section 164—Confession—Its nature and credibility—The recording Magistrate having not made any genuine effort to satisfy himself to find out the real character of the confession it casts a serious doubt on the voluntariness of the confession which is the basic requirement of law. Akhtar Hossain alias Babul Akhtar alias Akhtar Ali vs State 44 DLR 83.

Section 164-Confessional statement—Such statement whether retracted or not, if found to be true and voluntary, can form the basis of conviction of the maker.
Confessional statements, credibility of—The UNO stated that he recorded the statements merely in his own language—there is nothing to show that he gave the accused warnings before recording the same, there is nothing to show the time given for reflection, it was not mentioned whether police were present at the time of recording—The Magistrate also did not inform the accused that they would not be sent to police custody after the making of the statements and the Magistrate’s statement as to the presence of PW 5 at the time of recording of the statements is contradictory to that of the latter—the confessional statements, in such facts and circumstances, are neither voluntary nor true. Hafizuddin vs State 42 DLR 397.

Section 164—Conviction can be based solely on confession, if found true and voluntary, though retracted subsequently. Hazrat Ali & Abdur Rahman vs State 42 DLR 177.

Section 164-Confession—Rule of law as opposed to rule of prudence—Whether conviction

can be based on confession if voluntary and true. For ascertaining as to whether the confession is voluntary and true or not the Court has to examine the confession itself and consider the same in the light of the materials on record and broad probabilities of the case. There is no reason to disbelieve the evidence of the learned Magistrate who recorded the confession. No material could be elicited by the defence that the confession was the result of torture and maltreatment and hence it was not voluntary and not true as well. Hazrat Ali & Abdur Rahman vs State 42 DLR 177.

Section 164—Retracted confession—A confession can be taken into evidence, though retracted, if found to be true and voluntary. A belated retraction at the end of the trial would be of no value. State vs Nurul Hoque 45 DLR 306.

Section 164—Statement made by the victim of an offence, when it can have evidentiary value—In the absence of examination of the alleged victim, her statements allegedly made to the police or to the Magistrate cannot be treated as evidence against the accused. As neither the victim girl nor the magistrate was examined, the statements recorded by the latter is not even a secondary evidence and in that view it is no legal evidence to prove the prosecution case. Abul Kashem vs State 43 DLR 420.

Section 164—Confessional statement—The Magistrate having admitted that after recording the confessional statement, the condemned- prisoner was sent back to the police custody, his confessional statement is to be treated as not voluntarily made. State vs Ali Kibria 43 DLR 512.

Section 164—The Magistrate while recording the confession did not record any questions and answers. But then he made real endeavor for coming to the conclusion that the statement was voluntary. The omission to record questions and answers cannot be considered as fatal defects when confession was made duly, though not recorded duly, for want of prescribed form. Facts stated in the confessional statement appear to be consistent with the evidence of PWs. In that view, the confessional statement is true as well. State vs Kalu Bepari 43 DLR 249.

Section 164—Credibility of confessional statement—No substantial compliance would cure the defect of noncompliance with the provisions of section 164 CrPC on material points. Confessional statement in a plain paper without the narration of questions and answers would not, by itself, make it inadmissible in evidence. Certificate given by the Magistrate, who had recorded the confessional statement, as to what had happened, how he warned and gave time for reflection to the person confessing, how yet he insisted on making confession and his admitting the same to be correct and the Magistrate’s j believing the same to be voluntary ought to be treated as conclusive evidence of facts stated J therein unless shown to be otherwise. Abdul Hakim vs State 43 DLR 389.

Section 164—Confessional statement of appellant Dablu runs counter to the prosecution case.
The whole story is inconsistent with the “confessional statement of the appellant—PW 2 changed the version in Court which differs from the FIR about the number of participants in the murder.
Circumstances of the case—PW 4 statement differs from the confessional statement of appellant Dablu rendering it contradictory to each other. Mizazal Islam vs State 41 DLR (AD) 157.

Section 164—The shivering condition in which the accused made confession indicated that he was subjected to threat and torture before he was produced for recording the confession. His conviction though could be based on the retracted confession, even if it was uncorroborated, is illegal when it appears to be neither voluntary nor true. Sanwar Hossain vs State 45 DLR 489.

Section 164—When an accused is under threat of being sent back to the police remand he is likely to make confession out of fear. His statement in such a position should not be considered as voluntary. Nazrul Islam vs State 45 DLR 142.

Section 164-Previous statement, use of—The statement of a witness made u/s 164 CrPC is meant for binding him down to the statement made during investigation. The defence may use it to contradict the witness, whereas the prosecution may use it to corroborate him when he gives evidence in Court (per Shahabuddin Ahmed CJ concurred by MH Rahman & ATM Afzal JJ). Abu Taher Chowdhury vs State 42 DLR (AD) 253.

Section 164-If a statement recorded under this section is true and voluntary, the same alone is sufficient for convicting the confessing accused. Retraction of confession is immaterial once it is found to be voluntary and true. Bakul Chandra Sarker vs State 45 DLR 260.

Section 164-The Magistrate having not followed the requirement of law while recording the alleged confession of the accused and the columns were not properly filled in by him and as such, the genuineness of the confessional statement was rightly challenged. Belal alias Bellal vs State 54 DLR 80.

Section 164—Copies of section 164 CrPC statements cannot be granted to the accused before the filing of the charge-sheet. Mobarak Hossain alias Jewel vs State 54 DLR 135.

Section 164-To allow an accused an access to documents like the statements under section 164 of the Code, before filing charge-sheet, may prejudice the investigation before submission of the police report an accused is not entitled to get copies of the statements recorded under section 164 of the Code. Mobarak Hossain alias Jewel vs State 54 DLR 135.

Section 164-In the attending facts and circumstances of the case when the veracity of the confessional statement is questionable, the same enjoys no presumption of correctness under section 80 of the Evidence Act. Belal alias Bellal vs State 54 DLR 80.

Section 164-Established legal position is that statement under section 164 CrPC can be used against its maker if it is found to be true, voluntary and inculpatory in nature—Statement under section 164 CrPC cannot be used against any other co-accused without any corroborative evidence and circumstances. Zakir Hossain vs State 55 DLR 137.

Section 164—Due to prayer for police remand with petition for recording statements under section 164 CrPC and non asking of any question to the accused that if they confessed or not they would not be sent to the custody of police there will be no reasonable scope to presume that there will be apprehension and lingering fear in the minds of accused of what might happen to them in the event of their going back to police custody. Alam Kabiraj vs State 55 DLR 273.

Section 164—Statement recorded behind the back of the accused the same cannot be treated as substantive evidence against him. Such statement can be used to corroborate or to contradict a statement made in the court in the manner provided in sections 145 and 157 of the Evidence Act. Hobi Sheikh vs State 56 DLR 383.

Section 164-A statement made by a witness under section 164 CrPC can only be used by the accused for the purpose of cross examining in the manner provided by section 145 of the Evidence Act. State vs Nazrul islam @ Nazrul 57 DLR 289.

Section 164-The conviction on confession alone can be maintained if it is found inculpatory in nature, true and voluntary. Gour Chandra Pal vs State 59 DLR 17.

Section 164—The confessional statement could not be said to be voluntary since it was recorded three days after the accused was arrested and certainly after illegal detention in police custody. State vs Md Roushan Mondal 59 DLR 72.

Section 164—The Tribunal appears to have used 164 statement of PW 60 as a piece of evidence. This is a gross illegality. Such statement was recorded by the Magistrate behind the back of the accused persons, it can never be used as substantive evidence against them in any way. State vs Kajal Ahmed Jalali 59 DLR 345.

Section 164—From the confession it transpires that accused Shahjahan made confessional statement being fully aware of its consequence and his repentance led him to make the confession as he killed the mother of his friend. Admittedly, police did not arrest accused Shahjahan who voluntarily surrendered and made the confession at the earliest possible time. During recording of the confessional statement accused Shahjahan did not complain of any torture by the police while in custody and the Magistrate also did not find any marks of assault on the person of accused Shahjahan and no such endorsement is found in Exhibit 6, confession. Shahjahan Ali (Md) @ Md Shahjahan vs State 59 DLR 396.

Section 164-There is no earthly reason to disbelieve the statements of the victim which she also gave under section 164 of the Code. It is also not acceptable to us why a minor girl would give her deposition and statement narrating the involvement of the appellant in such a manner as she has given, if there would have been no forceful abduction by the appellant and that if she went with him on her own. Monir Hossain vs State 59 DLR 416.

Section 164-From the form of the recording statement, it is clear that the Magistrate did not state when she started recording the statement. How much time she allowed the accused for reflection. So, on scrutiny of the above confessional statement, it is difficult for us to hold that the same recorded in full compliance with the provision of 164(3) of the Code of Criminal Procedure and that the same is not voluntary and true. Bashar vs State 60 DLR 347.

Sections 164 & 241A—To frame a charge or to consider an application of the accused person that the charge brought against him is groundless trial Court is not obliged to consider the statements of any witness recorded under section 164 CrPC. Forhad Hossain vs State 50 DLR 337.

Sections 164 & 342—The witnesses deposed disclosing involvement of petitioner Mamun in the meeting of conspiracy and the occurrence of bomb blast resulting in the murder of the two Judges—In his examination under section 342 CrPC he admitted to have committed the offence and he felt proud being able to kill the judges according to the premeditated plan of his leader—His confessional statement and admission before the Court coupled with evidence on record proved the case against him Per Amirul Kabir Chowdhury J dictating the Full Court Judgment. Iftekhar Hasan (Md) @ Al Mamun vs State 59 DLR (AD) 36.

Sections 164, 342 and 364—The Court is required to see not only that the forms under sections 164 and 364 of the Code of Criminal Procedure were complied with but the substance underneath was equally adhered to. There must not be any reason for doubt as to the truth of the statements, be it circumstantial or proved otherwise. In the circumstances it is difficult to deny the accused an opportunity to cross-examine the Magistrate who allegedly recorded the statements. Sadeque @ Sadequr Rahman vs State 61 DLR 498.

Sections 164 & 364-Presumption as to confession—Even though provision is there for making certain presumption in respect of a confession by an accused person produced before a Court taken in accordance with law and purporting to be signed by a Magistrate, having regard to the facts of the case it was injudicious to rely upon such confession without calling the Magistrate as a witness. In respect of a confession the Court is required to see not only that the forms under sections 164 and 364 CrPC were complied with but the substance underneath the law was equally adhered to—There must not be any reason for doubt as to the truth of the statements, be it circumstantial or proved otherwise. In this particular case it is difficult to deny accused appellants an opportunity to cross-examine the Magistrate who allegedly recorded their statements. Babul vs State 42 DLR (AD) 186.

Sections 164 and 364-All the formalities in recording the confessional statement were observed. The magistrate recording the confessional statement was satisfied that the confession was voluntary and free from taint. Facts revealed in confession substantially corroborate the prosecution story. State vs Mizanul Islam 40 DLR 58.

Sections 164 and 364-No hard and fast rule as to the time to be given to the accused for reflection before confession. Ratan Kha vs State 40 DLR 186.

Sections 164 and 364—Confession— Statement not recorded in the language of the maker but in the language of the Magistrate—Accused admitted nothing. State vs Abdur Rashid 40 DLR (AD) 106.
Sections 164 and 364-Giving of remand of the confessing accused after recording his confessional statements is against the principle of law and as such the prosecution cannot get any benefit out of the confessional statements. Shah Alam vs State 52 DLR 566.

Sections 164 & 533—Confession—Noncompliance with provisions for recording confession, effect of—In a case of non-compliance with the provisions of section 164 CrPC on material points, no question of any substantial compliance would arise. Certificate given by the Magistrate as to what had happened, how he warned, gave time for reflection, yet how the accused insisted on making the confessional statement ought to be treated as conclusive evidence of facts therein unless shown to be otherwise.

Section 533 CrPC is the curable section but it would not cure a non-compliance if the error had injured the accused in the defence on merits. Thus, when the statements were not even’ read out to him or could not possibly be read over to him for him to admit or to deny or to examine its correctness or not even shown to him and signed by him, specially when the said are made against his interest and would be used against him, it could not be said that the said would be cured under section 533 CrPC. Abdul Hakim vs State 43 DLR 291.

Sections 164 and 537—The recording Magistrate did not make any genuine effort to find out the real character of the confession.
Omissions in the filling up of many paragraphs cast serious doubt upon the voluntary character of confessional statement.
On a careful perusal of the confessional statement we are satisfied that the recording Magistrate did not make any genuine effort to find out the real character of the confession which he recorded. The omissions to fill up the above mentioned paragraphs are not mere omissions curable under section 537 CrPC and the manner in which the confession was recorded casts serious doubt as to the voluntary character of the statement. Azad Shaikh vs State 41 DLR 62.

Sections 164 & 374—Part of the confessional statement found true may be accepted by the Court to convict the accused rejecting the other part which is not true. There is no merit in the contention that when one part of the confessional statement is rejected, other part, even if true, cannot be accepted.
Learned Sessions Judge could reject a part of the confessional statement if he found the same contrary to other evidence on record. But he could not reject the same on mere surmise and conjecture. A part of the confessional statement favourable to the accused should be given due weight to it unless Court fmds the same not true being contrary to other evidence on record. State vs Afazuddin Sikder 50 DLR 121.

Sections 164,342 & 537—Since the attention of the accused was not drawn to his confessional statement when he was examined under section 342, he is obviously prejudiced. Such defect is not curable under section 537 of the Code. Abu Jamal vs State 51 DLR 57.

Sections 164 & 364—It was injudicious to rely upon confession without calling the Magistrate as a witness. The Court is required to see not only that the forms under sections 164 and 264 CrPC were complied with but the substance underneath the law equally adhered to. Bimal Chandra Das vs State 51 DLR 466.

Sections 164 & 533—The recording of the statement on a foolscap paper and mere omission of endorsement cannot be considered as fatal defect. The breach of the provision of law, if any, is a technical one and by that the evidentiary value of the confessional statement cannot be blown away. The defect is very much curable under section 533 of the Code of Criminal Procedure. Syed Ahmed vs Abdul Khaleque 51 DLR 43.

Section 164(2)—The act of recording confession is a very solemn act and in discharging his duties, the Magistrate must take care to see that the requirements of sub-section (2) of Section 164 are fully satisfied. State vs Babul Miah 63 DLR (AD) 10.

Section 164(3)—It is a mandatory requirement that after recording a confessional statement the recording Magistrate is required to make a memorandum to the confession containing a clause to the effect that he had warned the accused that he was no bound to make a confession, that if he makes a confession, it would be used against him, that the statement was true and voluntary, that it was recorded as per version of the maker and that it was read over to the maker after his statement was recorded which was the true and correct version and it contained a full and true account of statement made by the maker. State vs Babul Miah 63 DLR (AD) 10.

Section 164(3)—It does not appear sufficient questions were put and made understandable to the accused in their own language and proper time for reflection was not given—hence their confessions cannot be deemed to be voluntary or true. State vs Raja Abdul Majid 48 DLR 336.

Section 164(3)-Mere absence of LTI on a particular sheet (though the LTI is available on every sheet except one) and on the face of mentioning of relevant questions before recording the confessional statement informing about the consequence of such confessional statement to the confessing accused the confessional statement Exhibit4 is quite admissible in evidence. Abul Kalam Mollah vs State 51 DLR 544.

Section 164(3)—The provisions of sub section (3) of section 164 is mandatory and therefore he is required to fill up Column 7 of the form for recording confession which is a column for recording a brief statement of the Magistrate’s reason for believing that the statement was voluntarily made. State vs Babul Miah 63 DLR (AD) 10.

Section 164(3)—The confessional statement is not true and voluntary and there is no other direct or circumstantial evidence to substantiate the same, rather the prosecution particularly PW 5 Ohid Miah the alleged eye-witness embellished the prosecution story, the conviction cannot be sustained. Nuru Miah vs State 63 DLR 242.

Sections 164(3) & 364—The provisions under these two sections are mandatory and required to be strictly followed to make the confession voluntary and true and fit for reliance for convicting the accused on his confession. Abdul Hossain vs State 46 DLR 77.

Sections 164(3) and 364—Section 164(3) a mandatory provision of law. The requirement of adherence to the provisions of section 164(3) CrPC is not a mere matter of form but of substance that has to be complied with—Viewed in the light of the principles indicated above we have no hesitation to hold that the recording of the confessional statement Ext. 5(c) was not done in compliance with the requirement of sub-section (3) of section 164 read with section 364 of the Code of Criminal Procedure. Azad Shaikh vs State 41 DLR 62.

Section 164(3)-Corroborative evidence— For corroborative evidence, the Court must look at the broad spectrum of the approver’s version and then find out whether there is other evidence to corroborate and lend assurance to that version. The nature and extent of such corroboration will depend upon the facts and circumstances of each case. Corroboration need not be in the form of ocular testimony of the witnesses and may even be in the form of circumstantial evidence. State vs Md Faziur Rahman Tonmoy 61 DLR 169.

Section 164(3)—In the absence of any evidence concerning the direct participation of Moti in the planning of the occurrence, it is difficult to hold that he had ‘mens rea’ in the commission of the offence. The confessional statement of the accused dated 21-4-1993 (Exhibit 6) does not indicate that the confession-recording Magistrate complied with the mandatory provision of sub-section (3) of section 164 of the Code. State vs Md Faziur Rahman Tonmoy 61 DLR 169.

Section 164(3)—The requirement of adherence to the provisions of section 164(3) of the Code of Criminal Procedure is not a mere matter of form, but substance. Section 164(3) is a mandatory provision of law as has been settled by the Privy Council in the case of Nazir Ahmed vs King Emperor, AIR 1936 PC 253 Before recording a confession a Magistrate is bound to make real and substantial inquiry as to the voluntariness of the confession. In so doing he must put questions to the accused with a view to find out the real object of the confession, whether it is made out of repentance or for any other such good reason or whether it is the result of torture or tutoring by somebody or whether it has been caused by any inducement, threat or promise.
A confessional statement, even if it is partly true or partly false or, in other words, does not disclose the full picture, can be used against the maker and there is no legal bar in upholding the conviction on the basis of such confession. State vs Suman Saha 61 DLR 253.

Sections 164(3) & 553—Procedure mandatory in nature—It is ex facie clear from the Exhibit 7 that the confession-recording Magistrate has not explained to the accused Tonmoy that he is not bound to make any confession and if he does so, it may be used as evidence against him. This is a very vital question to be explained by the confession-making accused. The provision of subsection (3) of section 164 of the Code is mandatory in nature. It appears from column 6 of the Exhibit 7 that the Magistrate put a question to the accused Tonmoy as to whether he is making the confession voluntarily and he has replied in the affirmative. But the non-putting of any question to the effect that the accused Tonmoy is not bound to make any confession and if he does so, it may be used as evidence against him at the trial has rendered the confession involuntary, invalid and unreliable, though it purports to be inculpatory in nature and may be true in some respects. State vs Md Faziur Rahman Tonmoy 61 DLR 169.

Sections 165 & 166(3)—The position of search by police officers of a different jurisdiction has been spelt out in section 166(3) of the Code of Criminal Procedure according to which a police officer is entitled to conduct search within the jurisdiction of another police station, if he has reason to believe that in having the place searched by the police of that place a delay would be accused and as a result evidence would be destroyed.
In such a case presumption of regularity of official acts will be invoked otherwise the purpose of the section will be defeated. If a police officer conducts a search within the limit of another police station, it may be presumed, unless otherwise proved, that reasons have been recorded by that officer that delay would have occasioned and evidence destroyed, if he had waited to have the place searched by police having jurisdiction of the place. Kamruzzaman alias Babul Sikdar vs State 47 DLR 416.

Section 164(3)-When the voluntary character of the confession and truth are accepted it is safe to rely on it. Indeed a confession, if it is voluntary and true and not made under any inducement or threat or promise, is the most patent piece of evidence against the maker. A confession may form the legal basis of conviction if the court is satisfied that it was true and was voluntarily made. Aziz @ Azizul @ Azid vs State (Criminal), 73 DLR (AD) 365


Section 164(3)-If the confessional statement of the appellant made under section 164 of the Code is considered in conjunction with other evidence on record then it cannot be said that his confessional statement is true and voluntary. Shafiqul Islam vs State (Criminal), 73 DLR (AD) 189


Sections 164(3) and 342-If the appellant's age is below 16 years at the time of framing charge his trial is vitiated by the provisions of Children Act, 1974. Shafiqul Islam vs State (Criminal), 73 DLR (AD) 189


Section 167—Order of remand—Its validity—The word ‘forward’ used in section 167 CrPC means ‘act of sending’. Unless the accused is sent to the Magistrate and the Magistrate passing the order of remand without the accused being forwarded to him, the legal requirement is not complied with for the Magistrate to assume jurisdiction to pass the order of remand. The accused must be brought before the Magistrate prior to passing of an order of remand, no matter whether the accused is in police lockup or judicial custody. Aftabur Rahman vs State 45 DLR 593.

Section 167—Law did not provide for automatic stopping of further investigation and release of the accused after expiry of the time limit nor for stopping proceedings by the Sessions Judge or Special Tribunal on such ground. Niamatullah @ Chand (Md) vs State 48 DLR 148.

Section 167—The provisions of section 167 CrPC being a procedural law, there being no express provisions for its prospective operation, shall operate retrospectively. AKM Azizul Islam vs State 9DLR (AD) 115.

Section 167—While producing a person arrested without warrant before the Magistrate, the police officer must state the reasons why the investigation could not be completed within 24 hours and what are the grounds for believing that the information received against him is well- founded. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.

Section 167—The order for detaining in police custody is passed by a Magistrate in exercise of the power given to him under subsection (2) of this section. If the requirements of sub-section (1) are not fulfilled, the Magistrate cannot pass an order under sub-section (2) for detaining a person even in jail not to speak of detention in police custody. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.

Section 167—Though the provisions empower the Magistrate to authorise the detention in police custody, no guideline has been given in sub-sections (2) and (3) as to the circumstances under which detention in police custody may be authorised. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.

Section 167—Entries in the Diary—It is for the Magistrate to decide on certain materials placed before him such as the material contained in the diary relating to the case whether or not the detention of the accused was necessary. In coming to the conclusion the Magistrate has to exercise his judicial mind and only when the Magistrate did apply such a mind, it could be said that the order made for detention is a valid order. Saifuzzaman vs State 56 DLR 324.

Section 167—Remand order should be made in presence of the accused in view of the expression “forwarded” used in sub-section (2) of section 167 of the Code. Saifuzzaman (Md) vs State 56 DLR 324.

Sections 167 & 61—An accused cannot be detained in custody of the police for a longer period than under all the circumstances of the case is reasonable and such period must not, without an order of remand by a Magistrate, exceed 24 hours, exclusive of the time necessary for the journey from the place of arrest to the Court of the Magistrate.
In the instant case before us, no incriminating articles, e.g. currency notes, soiled notes or stamps were recovered within the first 24 hours of arrest pursuant to any information given by accused Farook Mahajan, and so it cannot be said with an equal degree of certainty that the unlawful detention of the prisoner without any order of remand beyond 24 hours had no effect on the confession made by him. Faruque Mahajan and 4 (four) others vs State 49 DLR 47.

Sections 167 & 173—Charge-sheet submitted not upon the revival of the case under section 167 but following the further investigation under section 173 CrPC—The power to make further investigation is available to the police if there has been no order under 167 CrPC stopping the proceeding and releasing the accused after the expiry of the period of investigation under the said section. Shah Alam Chowdhury vs State 42 DLR (AD) 10.

Sections 167, 173, 190 and 561A— Proceeding before a Court starts when the competent Court takes cognizance of an offence on Police report or on a complaint or upon his own knowledge. No proceeding can be said to be pending before the Magistrate in this case as the Police after recording the FIR has not submitted any charge-sheet. Rule for quashing the proceedings is liable to be discharged. Mokbul Hossain vs State 40 DLR 326.

Sections 167 and 364—The statement of the condemned-prisoner having been recorded on the same day after giving him only one hour for reflection of mind and with no assurance that he would not be sent back to police custody, all create a serious doubt as to the true nature of the confessional statement. State vs Harish 54 DLR 473.

Sections 167, 339C and 494-Children are entitled to trial before the Juvenile Courts and positive step should have been made to make their trial in accordance with law of Juvenile Court, not to be tried jointly with the adults. The respondents are directed to comply with the earlier direction and report compliance within six months from date. Bangladesh Legal Aid and Services Trust vs Bangladesh 57 DLR 11.

Section 167(5)—The accused-petitioner did not stand released under section 167(5) on stopping further investigation on the ground of expiry of the limitation of specified or extended period of investigation—Charge-sheet validly submitted in accordance with law. Shah Alam Chowdhuiy vs State 42 DLR 49.

Section 167(5)-Stopping of investigation being subject to order of Sessions Judge, no absolute right, not to speak of any vested right of release, could be created in favour of the accused with the passing of order stopping further investigation by the Magistrate on the expiry of specified or extended time for investigation.

In the case of Mohitullah vs State reported in 38 DLR (AD) 240 it has been held that an accused would be tried in accordance with procedure prevailing on the day trial commenced and if the procedure is changed by the time trial commenced the accused cannot claim vested right to be tried in accordance with the provisions of the repealed procedure. It is well settled that procedural law takes effect retrospectively. In this connection reference nay be made to the case reported in (1994) 14 BLD (AD) 143 (State vs Ana Mia). Sultan Ahmed vs State 47 DLR 196.
Section 167(5)—The effect of the amendment is that the accused may be released on bail by the Magistrate or by the Sessions Judge in case of failure of the Investigating Officer to complete investigating within the specified period. Amalendu Mazumder vs State 49 DLR 204

Section 167(5)—In view of the proviso to this section the period spent awaiting sanction of the government for prosecution of the accused should be added to the statutory period for submission of charge sheet. Saheb Ail Miah vs State 46 DLR 238.

Section 167(5)-At a time when the report to prosecute the petitioner was submitted there was no provision in section 167(5) of the Code of Criminal Procedure for stopping investigation of a case and releasing the accused because of non- completion of investigation within the statutory period and as such, the proceeding cannot be stopped and the accused cannot be released. Bimal Chandra Adhikari vs State 51 DLR 282.

Section 167(5)—After the amendment of the provisions of sub-section (5) of section 167 of the Code in 1992 there is no scope of stopping the investigation on the ground of expiry of time limit specified for investigation. Nazrul Islam vs State 51 DLR 368.

Sections 167(5) & 498—The fixation of the period of investigation is meant for speedy trial of the case and to save the accused from unnecessary harassment in jail custody. But this provision is directory and not mandatory—on the expiry of the period for investigation the accused cannot claim bail as a matter of right. Anwar Hossain (Md) vs State 48 DLR 276.

Sections 167(5), 190(1) & 561A—Quashing of proceeding under Special Powers Act—In matters of cognizance of offence triable exclusively by the Special Tribunal under the Special Powers Act initial cognizance of offence by a Magistrate in the manner provided in the Code of Criminal Procedure has no application.
In an application for quashment of proceeding on the ground of expiry of period of limitation for investigation, the provisions of section 167(5) of the Code applies only to cases in which the Magistrate can take initial cognizance and does not apply to cases exclusively triable by the Tribunal. On this ground the application for quashing is summarily rejected. Mahbubur Rahman vs State 42 DLR 375.

Section 167(6)-Sessions Judge’s power to direct further investigation—The power given to the Sessions Judge under section 167 CrPC is retrospective in nature. He can extend the period of investigation for an indefinite period or direct further investigation from time to time as occasion requires. The legislature has not put any limitation on this power. Anwar Hossain Maji vs State 42 DLR 410.

Section 167(7)—Transitory Provisions, purpose of—Investigation pending immediately before commencement of the Ordinance—Magistrate did not accept the Final Reported directed further investigation—Police on further investigation submitted charge-sheet for beyond the “specified period” of 60 days as stated in sec. 167(5) and also of 90 days as stated in section 35(d) of the Transitory Provision—Charge-sheet was submitted one year after the Magistrate’s order for further investigation—Accused respondents, whether entitled to be released— Provision in Section 35(d) of the Ordinance is not mandatory and intended to save an investigation which had started at the time when there was no time limit for its conclusion—Investigation on which the police submitted charge-sheet, not governed by section 167, and the charge-sheet not hit by section 167(7)—Consequently the charge- sheet stands. Kazi Abdul Jalil vs Jashem Munshi 43 DLR (AD) 116.

Section 167(5)&(7)— Investigation of a case being matter of procedure no vested right accrued in favour of the accused. So, expiry of the time for completion of investigation cannot stop further investigation and release the accused from custody. Kitab Ali Sikdar vs State 47 DLR 509.

Section 167(7A), Proviso and 173(3B)— Revival of the investigation of a Sessions triable case beyond the period of six months of the discharge of the accused-petitioner on submission of final report.
The Police validly and legally further investigated into the case under the provisions of sub-section (3B) of section 173 CrPC with the usual leave of the Chief Metropolitan Magistrate, Dhaka from 14-7-88 as the order dated 6-9-87 duly passed by the Chief Metropolitan Magistrate under section 1 67(7A) CrPC reviving the case for investigation by the Police continued to be fully operative under the law and the Police, therefore, validly submitted charge-sheet No. 196 dated 25-8-88 in accordance with law and the Learned Sessions Judge, Dhaka has also validly taken cognizance of this offence against the accused persons. Shah Alam Chowdhury vs State 42 DLR 49.

Section 167(7), (7A)—Revival of a case after order of stopping investigation and release of the accused whether valid: Nowhere in the two subsections or the proviso it has been indicated that for revival of investigation stopped by the Chief Metropolitan Magistrate the revival within 6 months could not be made by him. In the present case the Chief Metropolitan Magistrate exercised his power to stop the proceeding under subsection (7) but he exercised a different power that was provided by sub-section (7A) for revival of the proceeding. It cannot therefore be said that he exhausted his jurisdiction after the exercise of power to stop proceedings and became functus officio. Md Arab All vs State 42 DLR 524.

Section 167(7A)—Whether Additional District Magistrate is not included within the term “District Magistrate” as contended by the petitioners’ Advocate. Faziul Hoque vs State 41 DLR 477.

Section 167(7A)—Prosecution had no alternative but to approach the District Magistrate for revival of the case under the now repealed provision of sub-section (7A) of section 167 of the Code as no other higher authority was mentioned in the said provisions. Niamatullah @ Chand (Md) vs State 48 DLR (Criminal) 148.

Section 167 (7A)—Ministry of Establishment’s Notification bearing No. MF/JAIII/ VEST/84-377 dated Dhaka 17-10-84 vested all powers of District Magistrate in Additional District Magistrates. Fazlul Hoque vs State 41 DLR 477.

Sections 167(7A) & 339C—On a plain reading of the provision of section 339C the District Magistrate’s authority and jurisdiction arises to revive the case under section 167(7A) on and from the date on which the order of stopping investigation and release of the accused persons is actually passed and not from the date when such order of stopping proceeding and release of the accused should have been passed or deemed to have been passed. Hamizuddin vs State 40 DLR 287.

Section 169—Section 169 of the Code of has not given the Police Officer any power to judge the credibility of the witnesses and to decide the defence plea of alibi. Abdur Rouf vs Jalaluddin 51 DLR (AD) 22.

Sections 169, 202(1), (2B)—Interpretation of statute—Whether order of discharge of the  accused by the Magistrate on receipt of final report (true) is in a way like releasing the accused by the Investigating Officer under section 169 CrPC on the ground of deficiency of evidence. Shah Alam Chowdhury vs State 42 DLR 49.

Section 171(1)(2)—The police officer who has investigated the case shall be responsible for the attendance of witnesses at the trial. Daily Star and Protham Alo Patrika vs State 53 DLR 155.

Section 172—The Case Diary of an Investigating Officer which is not a public document cannot be made public by swearing affidavit. Bangladesh vs Dr Shamima Sultana Rita 54 DLR (AD) 151.

Section 172—A case diary maintained by the Police cannot be treated as substantive evidence but it may be used for the purpose of ascertaining the truth or otherwise of the evidence appearing in the case. Abdus Sukur Miah vs State 48 DLR 228.

Section 173—The Police can file supplementary charge-sheet even after acceptance of the previous charge-sheet. There is no limitation in this regard to taboo in the law. Sultan Ahmed alias Sentu vs State 48 DLR 143.

Section 173—There cannot be any reinvestigation into a case after charge-sheet is submitted. Mubashwir Au vs State 46 DLR 535.

Section 173—There is no provision in the Code of Criminal Procedure entitling the accused persons to file an application to the Magistrate for further investigation or reinvestigation into a case in which charge-sheet has already been submitted against them.
In the case of Sukhil Kumar vs State reported in 47 DLR 252 =15 BLD 311 distinction between further investigation and reinvestigation with reference to earlier decisions was considered and it was held that prayer for further investigation made by the accused persons against whom charge sheet has already been submitted is nothing but a prayer for reinvestigation in the name of further investigation and the same cannot be allowed. We, therefore, find merit in this Rule Shajahan All vs Belayet Hossain 47 DLR 478.

Section 173—In the name of further investigation police cannot make reinvestigation of the case and discharge the accused person against whom charge-sheet has already been submitted. Moslemuddin vs State 47 DLR 420.

Section 173—Section 27 of the Special Powers Act is a departure from the provision if section 173 of the Code of Criminal Procedure— Special Tribunal alone is empowered to take cognizance of the offence on the report of a Police Officer of the rank of Sub-Inspector and hold trial on the same— Sections 26 and 27 of the Special Powers Act provided for special machinery for investigation and trial by special tribunal. Taslima Begum vs State 42 DLR 136.

Section 173-If the investigation officer fails to mention proper section in charge-sheet or in his report, the court is empowered to take cognizance under proper section on consideration of the facts and circumstances of the case. Alauddin vs State 54 DLR 564.

Section 173—There is no scope of filing a final report meaning not sending up any accused for trial and then a separate report for sending up some other accused for trial as one report is sufficient to serve both the purposes. Abdur Rouf @ Rab Howlader vs State 55 DLR 202.

Section 173-After investigation in respect of the relevant allegations the police submit a report under section 173 of the Code. If the report contains sufficient materials for taking cognizance by a Magistrate, it is commonly known as a charge-sheet. But a mere police report has got no bearing on the question of conduct of an accused. Air Marshal Jamaluddin Ahmed (Retd) vs Bangladesh 57 DLR 1.

Section 173—Charge-sheet being a police report is not admissible in evidence and as such the case has no legs to stand. This is nothing but an abuse of the process of the Court and, it can be safely held this case is preposterous one and barred by law and outcome of the evil desire of the then ruling Government being dictated and guided by the Four Parties alliance and, as such, continuation of the proceedings will be an abuse of the process of the Court. Dr Kamal Hossain vs State 63 DLR 204.

Sections 173, 190—There is nothing either in section 173 or in section 190 of the Code providing for ejection or acceptance of a police report. There is also nothing to show that such police report is binding upon a Magistrate. Dilu alias Delwar Hossain vs State, represented by the Deputy Commissioner, 48 DLR 529.

Sections 173 and 190—There is no statutory requirement to lodge suo motu a first information report and register another case thereupon on the result of successful investigation. Abdur Rouf @ Rab Howlader vs State 55 DLR 202.

Sections 173 and 205C—The expression “Police Report” in this section means the report under section 173 of the Code. It is obvious from section 205C that when a Magistrate receives charge-sheet and an accused appears or is brought before him, the Magistrate shall send the case to the Court of Session if it appears to him that the case is exclusively triable by the Court of Session. The Magistrate has no option to decide whether charge-sheet was properly submitted. Ibrahim vs State 53 DLR 533.

Sections 173 & 439A—So far as the direction by the Sessions Judge to hold further investigation into the case is concerned, it is quite lawful; but his direction to submit charge-sheet is clearly without jurisdiction.

Per Mustafa Kamal J (agreeing): By making absurd comments, uninformed criticisms and vituperative innuendos on the judgments of the Appellate Division the learned Judges have placed themselves well inside the perimeter of contempt of this Court. By openly, blatantly and consciously flouting Article. 111 they have also put themselves within the ambit of steps to refer the matter to the Supreme Judicial Council. Yet we decide to follow the course to caution the learned Judges not to repeat the performance in future.
It will be useful for all to remember that as human beings are not infallible, the judgments of the Appellate Division are too not infallible. Yet in all disciplined and constitutional societies and governments, the pronouncements of the highest Court are given a finality and a binding effect for the simple reason that there must be a finality to litigation at some point and that there must be judicial discipline, the lower judicial hierarchy being bound by the decision of the higher judicial hierarchy. To allow or even to tolerate a breach of this time honored and constitutionally fixed duty is to invite judicial anarchy and judicial indiscipline. This will create confusion in the administration of justice and erode people’s confidence in the orderly and disciplined dispensation of justice under the Constitution. We hope that the learned Judges will appreciate the merit of judicial restraint and will desist in future from the temptation of treading on a beaten path.

Per Latifur Rahman J (agreeing): The pronouncement in respect of the power and jurisdiction of the High Court Division with regard to 561A of Code having been clearly stated in several decisions of this Division, it does not lie in the mouth of the High Court Division to take a contrary view of the same. The judgments of this Division as per the mandate of Article 111 of our Constitution is binding on the High Court Division. It is a clear violation of the Constitutional mandate by the learned Judges of the High Court Division. Is it not a violation of the oath of Office of a Judge to protect and preserve the Constitution of Bangladesh. Sher Ali vs Stale 46DLR (AD) 67.

Section 173(3A) & (3B)—Before conclusion of trial the Investigating Officer may send further report if new and important evidences are available which may be considered by the Court during trial. Rahmatullah vs State 48 DLR 158.

Section 173(3B)—By further investigation the police officer can bring to the notice of the Court additional facts and even prosecute persons against whom charge-sheet was not submitted earlier.
But the police in the name of further investigation cannot exclude the persons against whom charge-sheet had already been submitted. In the present case supplementary charge-sheet having been filed against the FIR named accused persons excluded in the earlier charge-sheet we find no illegality in this case. Ear Ali (Md) vs State 47 DLR 405.

Section 173(3B)—The police may make further investigation in respect of an offence after submission of a report and submit a further report or a supplementary charge-sheet in respect of any accused against whom evidence has been collected during further investigation, but the Magistrate has no power to direct further investigation in respect of accused persons against whom the police has once submitted a charge- sheet just to obtain a final report, nor can the police, after further investigation, submit final report in respect of a person against whom a charge-sheet was once submitted. Golam Mostafa vs State 47 DLR 563.

Section 173(3B)—When it is not provided in the law itself as to under whose order a Police officer may hold further investigation, no illegality was committed by the Police officer concerned in holding further investigation on the order of his superior officer. Idris alias Jamai Idris vs State 52 DLR 184.

Section 173(3B)—A witness once narrating the occurrence without implicating the appellant with the offence in any manner cannot be permitted to depose for the second time with a view to implicating the accused and play double standard. Ruhul Amin Kha vs State 56 DLR 632.

Section 173(3B)—The CID committed no error of law in holding further investigation as per provision of section 173(3B) of the CrPC. Had further investigation been done after the case record was transmitted to the Senior Special Judge after taking cognizance of the offence or passing any order whatsoever then permission of the Special Judge would have been necessary. The police had the power to hold further investigation as per provision of section 173(3B) of the Code as the provision of this section is in no way derogatory to the provision of sub-section 5(6) of the Criminal Law Amendment Act, 1958. Abdus Samad Khan vs State 50 DLR 143.

Section 173(3B)—The provision does not have any scope for the Sessions Judge to direct further investigation by the police. The order of the Sessions Judge directing further investigation on an application by the informant is without jurisdiction and is liable to be set aside. Abdul Malek vs Payer Ahmed Chowdhury and State 46 DLR 455.

Section 173(3B)—The Government’s decision to withdraw a case from the Criminal Investigation Department after withdrawing the earlier order for investigation by the CID is not illegal. Abu Talukder vs Bangladesh 49 DLR (AD) 56.

Section 174—A perusal of section 174 of the Code indicates that the object of the proceeding is merely to ascertain whether a person died under suspicious circumstances or an unnatural death and, if so, what is the apparent cause of death. The question regarding the details of death is foreign to the ambit and scope of proceeding under section 174. Babul Sikder vs State represented by the DC 56 DLR 174.

Sections 176 and 197—Meaning of taking cognizance of offence—Stage of determination of guilt when reaches under section 176 CrPC— difference between “prosecuted” without prior sanction under section 6(5) and “taking cognizance” without prior approval. Matiur Rahman vs State 40 DLR 385.

Sections 177 and 179—Criminal trial — Interpretation of the provisions of section 179 of the Code of Criminal Procedure—Territorial jurisdiction of the Criminal Court—Offence of forgery took place in Noakhali but trial being held in Comilla—In view of the provision of section 179 CrPC the Court of competent Magistrate of Noakhali district where false documents were made and the Court of Additional District Magistrate, Comilla where consequences ensued had both jurisdiction to try the offence of forgery complained of. Jagenath Chandra Bakshi vs State 42 DLR 238.

Sections 177-180—The offence under section 138 of the Act can be completed with the concentration of a number of facts i.e. (i) drawing of the cheque, (ii) presentation of the cheque, (iii) returning of the cheque unpaid by the drawee bank, (iv) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount and (v) failure of the drawer to make payment within 15 days of receipt of the notice. As per provisions of sections 177, 178, 179 and 180 of the Code of Criminal Procedure if the aforesaid five different acts were done in five different localities any of the Courts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under section 138 of the Act and complainant can choose any one of the Courts in whose jurisdiction any of the 5 components of the said offence was done. The legal notice was issued from a lawyer at Chittagong District Bar and the complainant, for encashing the cheques, presented the same at a Bank at dliittagong. As such, on the ground of initiating the proceeding at Chittagong this proceeding cannot be quashed. Abdul Aiim vs Biswajit Dey 59 DLR 236

Section 179—Applicability of section 179 CrPC to the offences defined in section 463 Penal Code—provisions of section 463 PC analyzed. Two essential ingredients of section 463 PC pointed out—both the competent Criminal Courts at Noakhali and Comilla have jurisdiction to try the offence. Jagenath Chandra Bakhi vs State 42 DLR 238.

Section 179(c)—Since in the sequel of the criminal acts of accused Nos. 3 and 4 by way of obtaining signatures of the complainant in blank papers at Jeddah money was withdrawn in Bangladesh, a Criminal Court of competent jurisdiction in Bangladesh can take cognizance in the case in accordance with illustration (c) of section 179 of the Code. Abdus Sattar vs State 50 DLR (AD) 187.

Section 188—It was obligatory on the part of the Magistrate to make a written complaint about the nature of the order made by him which was alleged to have been disobeyed and the manner of violation in order to form an opinion that accused persons have committed an offence punishable under section 188 Penal Code. Abdul Ahad@ Md Abdul Ahad vs State 52 DLR 379.

Sections 188 & 196—The alleged offence having been committed in India, the trial of. the case in question cannot be proceeded with without sanction of the Government for the purpose in view of the proviso to section 188 of the Criminal Procedure Code and sanction obtained in his case under section 196 of the Code cannot do away with the requirement of proviso to section 188.
This sanction however can be accorded by the Government even after cognizance has been taken of the case if it is found desirable. Since the cognizance of the case has been taken upon a petition by an order of the Government in accordance with section 196 of the Code of Criminal Procedure the complaint case itself need not be quashed. In this view of ours we are fortified by the decision in the case of Ranjit vs Sm Parul Hore, and another reported in 1980 CrLJ Noc 57 (Cal); (1979)1 Cal FIN 414. Dr  Taslima Nasrin vs Md Nurul Alam 48 DLR 280.

Section 190—Sessions Judge cannot take cognizance of a case against the accused sent up in the supplementary charge-sheet without cognizance being taken by the Magistrate. Sultan Ahmed alias Sentu vs State 48 DLR 143.

Sections 190 & 436—A Court of Session has no power to take cognizance of any offence as a Court of original jurisdiction and the Magistrate having power to take cognizance of any offence has exclusive power to take cognizance of an offence and to issue process irrespective of any offence, either he has power to hold trial of the case or not. Ziaul Hoque Chowdhury vs State 58 DLR 193.

Section 190(1)(b)—A naraji petition is a complaint for all practical purposes and if a Magistrate having power to take cognizance of the offence is satisfied on examination of the complainant that the complaint discloses an offence he can take cognizance of the offence, against the accused under section 190(1)(b), irrespective of an offence which is exclusively triable by a Court of Session. Ziaul Hoque Chowdhury vs State 58 DLR 193.

Sections 190, 155 & 537—Non cognizable offence—Mere irregularity like investigation by an officer not authorised to investigate a non–cognizable offence does not affect the legality of a proceeding of a Court below.
Investigation by a police officer in the instant case is an antecedent proceeding. It is neither the foundation stone nor a prerequisite of the proceeding nor a sine qua non of a valid trial in the Court. It is difficult for us to see why such an irregularity, i.e. investigation by an officer not authorised, should affect the proceeding in a Court or prevent the Court from taking cognizance of a noncognizable offence under clause (a) or (b) of section 190(1) of the Code of Criminal Procedure in the absence of a clear enactment, expressed or implied preventing the Court from doing so. Golam Moula Master vs State 46 DLR 140.

Sections 190 and 193—Orders passed by the Sessions Judge starting from registering the complaint as petition case upto the orders date directing the Assistant Superintendent of Police for further enquiry are without jurisdiction. Eman Ullah vs Abdul Kader 54 DLR 623.

Sections 190, 195 and 196—198—Provisions in section 195 like the provisions in sections 196-198 CrPC are exceptions to the general and ordinary powers of a criminal Court to take cognizance of an offence under section 190 of the said Code. A private party may be the real victim of the commission of an offence, but he is debarred from making a complaint directly to the Court. Abdul Hai Khan vs State 40 DLR (AD) 226.

Sections 190, 200 and 202—An enquiry or an investigation can be directed by the Magistrate under section 202 of the Code in order to ascertain the nature of the allegation and to decide whether cognizance of the offence should be taken because till then he is in seisin of the case. Golam Rahman vs Md Bazlur Rahman (Babu) 53 DLR 461.

Section 190(1)—Refusal to take cognizance against some of the accused persons amounts to dismissal of the complaint as against them and application filed before the learned District Judge by the complainant is maintainable.
Magistrate’s power of taking cognizance under section 190(1) in all cases, including those exclusively triable by a Court of Sessions, has remained unaffected by (the repeal of the provision for committing the accused to the Court of Sessions. Syed Ahmed vs Habibur Rahman 42 DLR 240.

Sections 190(1) & 156(3)—The prayermade by the accused for holding further investigation against some other persons is, in fact, a prayer cancelling the charge-sheet filed against them. This is nothing but an indirect way of reopening the case by making re-investigation but there is no provision of law for cancelling the charge-sheet once filed against some accused and accepted by the Magistrate. Sukhil Kumar Sarkar vs Kazi Wazed All @ Subed 47 DLR 252.

Sections 190(1)(b) & 200—It appears that the naraji petition has been filed on a complaint but as an application out of apprehension that the Magistrate might accept the recommendation of the Investigation Officer. It is no more than an application to the Magistrate to be cautious and careful in considering the materials before him. Shaban All Mia, Shukur All Khandaker vs State, Md Harmuz All Mollah 48 DLR 55.

Section 90(1)(b)—The Court can, in a given case, regard the police report as a report under section 190(1 )(b) CrPC and take cognizance on that Police Report. (Relied on 10 DLR Dhaka 152). Aroj Ali Sarder vs State 41 DLR 306.

Section 190(1)(c)—Direction to the Upazila Magistrate to take cognizance. Sessions Judge left nothing for the learned Magistrate to do except taking cognizance. Quamruzzaman alias Lal vs State 40 DLR 509.

Section 190(1)(c)—Sessions Judge acted illegally in directing the Upazila “Magistrate to take cognizance of the offence. Quamruzzaman alias Lal vs State 40 DLR 509.

Section 190(1 )(c)—Cognizance of offence by Magistrate—The Magistrate has got wide power under section 190(1 )(c) CrPC to take cognizance of any offence even upon his knowledge or suspicion that an offence has been committed and to pass, in the present case, the impugned order sending the case for judicial enquiry after rejecting the police report and then taking cognizance after receipt of the enquiry report. Abdur Rashid vs State 43 DLR 279.

Section 191—The Magistrate cannot proceed with the trial himself as the offence alleged is triable in the Court of Sessions. Provision of section 191 of the Code is not applicable in the case triable in the Court of Sessions. Hifzur Rahman vs State 50 DLR 325.

Section 193—Section 193 provides that except as otherwise expressly provided no Court of Sessions shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been sent to it by a competent Magistrate. Bangladesh vs Yakub Sardar. 40 DLR (AD) 246.

Sections 193(1), 204, 439 and 439A—Case sent to the Sessions Court by Upazila Magistrate— Sessions Judge recorded some evidence— Prosecutor made an application for sending record to Upazila Court for taking cognizance against some persons allegediy impiicated in the offence, by the witnesses in Sessions Court—Sessions Judge made an order accordingly—Magistrate complied with the order of the Sessions Judge.
Held—Order of Sessions Judge is illegal and consequently cognizance taken of by the Magistrate thereon is illegal—The Court of Sessions or the High Court Division has no jurisdiction to interfere with the discretion of the Magistrate in the matter of taking cognizance of any offence irrespective of the fact whether the offence is triable by a Court of Sessions or not. Abdul Matin vs State 42 DLR 286.

Section 195—The offences alleged to have been committed in connection with proceeding of a Civil Court cannot be tried by any other Court except upon a complaint by the said Court. Syed Ahmed Chowdhury vs Abdur Rashid Mridha and 15 ors 54 DLR 498.

Section 195—Section 195 includes any document produced or given in evidence in the course of a proceeding whether produced or given in evidence by the party who is alleged to have committed the offence or by anyone else. Akkas Ali Molla vs State 55 DLR 296.

Sections 195 and 198—There is no bar for an individual to making a complaint in respect of alleged defamatory statement made in a judicial proceeding—Section 198 CrPC enables an individual to file such complaint. AY Mashiuzzaman vs Shah Alam 41 DLR 180.

Sections 195 & 476—Section 476 is not independent of section 195 of the Code—Section 476 does not abridge or extend the scope of section 195(b) or (c). Abdul Hai Khan vs State 40 DLR (AD) 226.

Sections 195 & 476—When a fraudulent document is not produced in a proceeding before Court private complaint is not barred.
It is absolutely clear that unless the document is filed in Court, the Court cannot make a complaint. In the present case in view of the positive finding of the High Court Division and on the failure of the learned Advocate to show before us that, in fact, the allegedly fraudulent document was produced in Cr Case No.116 of 1983, the private complaint at the instance of the informant is not barred. Shamsuddin Ahmed Chowdhury vs State 49 DLR (AD) 159.

Sections 195 and 476-When a question of right, title and interest relating to any immovable property is in seisin of the Court, the Anti- Corruption Department has no jurisdiction to hold any inquiry under articles 31 and 50 of Anti- Corruption Manual. Humayun Majid vs Bangladesh Bureau of Anti-Corruption 54 DLR 12.

Sections 195 & 561A—In a proceeding where a forged document has been used the Court concerned should make the complaint. The criminal Court should not take cognizance on a private complaint. The want of complaint under section 195 is incurable and the lack of it vitiates the whole trial. Wahida Khan vs Shahar Banoo Ziwar Sultan and State 48 DLR 286.
Section 195(1)—A criminal Court can take cognizance of any offence described in sections 463, 471, 475 and 476 of the Penal Code on the basis of complaint by an aggrieved party when such offence is alleged to have been committed by a party to any mutation proceeding in respect of a document produced in evidence in such proceeding. Shahera Khatun vs State 53 DLR 19.

Section 195(1)(a)—If the officer to complain is the officer also to take cognizance then there is no necessity of filing a written complaint by the same officer to himself for taking cognizance of an offence against the accused persons. Anwar Hossain vs State 48 DLR 89.

Section 195(1)(b)—Proceeding in Court—In view of the decision that a Magistrate acts his judicial capacity while discharging an accused on the basis of a final report by the Police and the reason ings in the majority judgment in 1979 AIR (SC) 777, the offence under section 211 Penal Code was committed in relation to a proceeding in Court and, as such, the bar under section 195(1 )(b) is attracted. Seraj uddowla vs Abdul Kader 45 DLR (AD) 101.

Section 195(1)(b)—Complaint of Court— Requirement—When the Magistrate considered the prayer of the Investigating Officer that he appellant be prosecuted for making a false charge and the prosecution report upon which cognizance was taken shows that the same was filed as directed by the Magistrate it is clear that the prosecution of the appellant was sanctioned by the Magistrate himself and, as such, it could not be said that the cognizance was taken in violation of section 195(1)(b). Serajuddowla vs A Kader 45 DLR (AD) 101.

Section 195(1)(c)—The view taken in AIR 1943 Nagpur 327 “all the High Courts are now agreed that once a forged document is brought then private complaints subsequent to this are barred by section 195 even in respect of anterior forgeries—anterior, that is, to the litigation”—has been consistently followed in 20 DLR Dhaka 66 & other cases. Abdul Hai Khan vs State 40 DLR (AD) 226.

Section 195(1)(c)—Legislature did not intend any anomalous situation that might arise if the trial of one offence may be made dependent upon a possible complaint by the Court while the other offence is tried upon a private complaint. Abdul Hal Khan vs State 40 DLR (AD) 226.

Section 195(1)(c)—Jurisdiction of a criminal Court when barred. Which Court is empowered to take cognizance of offences in the section 195(1)(c) Abdul Hal Khan vs State 40 DLR (AD) 226.

Section 195(1)(c)—No cognizance can be taken against one of the appellants who appears to have forged the document expect on complaint by the Court. Abdul Hal Khan vs State 40 DLR (AD) 226.

Section 195(1)(c)—Private complaint, when incompetent—Ingredients of offence such as forging of a document and making use of such documents in Court by a party to the proceeding if found present in a case then the mandatory provision against filing of a private complaint comes into play. The instant proceeding initiated by the complainant opposite party is a bar under section 195(1)(c) CrPC and the Courts concerned only have sole jurisdiction to make a complaint in the interest ofjustice. Ajit Kumar Sark.er vs Radha Kanta Sarker 44 DLR 533.

Section 195(1)(c)—Prosecution for a document given in evidence—From a perusal if the provision of law it appears that the words “documents produced or given in evidence” contemplate the original documents alleged to be forged and not a certified copy of the same. If the document in question is not produced in Court, but a certified copy of the same is produced, no complaint from the Court is necessary for prosecution of the alleged offenders In view of the decision in the case of Saurnakhsingh vs King AIR 1950 (PC) 31 the absence of complaint cannot stand as a bar to the trial of the accused- petitioner in the present case for forgery relating to the sale deed produced in Court in the earlier SCC suit. Shambhu Nath Saha vs State 43 DLR 660.

Section 195(1)(c)—Stay of proceeding—In the facts of the case as in point of time the civil suit was instituted before the filing of the FIR and the questioned documents in their originals are yet to be produced and examined by the civil Court. The criminal proceeding where the documents are claimed as forged, may, in the interest of justice, be stayed till the disposal of the civil suit. Zakir Hossain vs State 43 DLR (AD) 102.

Section 195(1)(c)—Use of a photo copy of the forged document could not amount to the use of a forged document.
It would appear that the photocopy of the kabala which is said to be forged by the opposite party gave only a clue or inkling to the forgery. The action brought by the opposite party against the petitioner is an action independent of the filing of photocopy of the forged document in the Court of Magistrate. Therefore, it is clear to see that we are not to depart from the views held by the superior Courts including the Privy Council that when the original forged instrument is not used in the Court section 195(i)(c) is no bar to a proceeding for forgery. Moklesur Rahman Sharif vs State, Jamiruddin Sharf47 DLR 229.

Section 195(1)(c)—Words “document produced or given in evidence’ contemplate to produce original document alleged to have been forged and not a photocopy. Abdul Gafür alias Kana Mia vs Md Nurul Islam 56 DLR 519.

Section 195(1)(c)—Forged document produced before a revenue officer not being considered as a Court does not stand as a bar for initiation of a criminal proceeding by the private person for a commission of forgery. Chitta Ranjan Das vs Shashi Mohan Das 56 DLR 276.

Section 195(1)(c)—In the instant case, in the absence of the original document being produced in the proceeding the bar under section 195(1)(c) will not apply. Abdus Sattar Pramanik vs State 56 DLR 452.

Section 195(1)(c)—Since the alleged forged document has been filed in the civil Court which is the subject matter of a suit for Specific Performance of Contract, it is for the concerned Civil Court to lodge any complaint before the criminal Court if it finds the forgery relating to the said document But since the instant proceeding in GR Case No. 190 of 2000 under sections 420/467/ 468/471 has been initiated on private complaint the same cannot continue in view of the provision of section 195(1 )(c). Abur Rahman vs State 59 DLR 683.

Section 195(1)(c) and (4)—Ambit of sub- section (4) of section 195 CrPC—It is therefore clear that the offences referred to in cl.(c) when committed in pursuance of a conspiracy or in the course of the same transaction, will fall within the ambit of sub-section (4) of seãtion 195 including their abetments or attempts independent of the dates of their commissions. Abdul Hye Khan vs State 40 DLR (AD) 226.

Sections 195(1)(c) and 476—Restricted application of clause (c) to be discarded—I Ain, therefore, inclined to think that reading clause (c) with section 476 of the Code, there does not seem to be any compelling reason to restrict the application of the said clause limiting the control of the Court only to few offences committed (pendente lite) as would be the practical result of such interpretation. The clause will be applicable even when the offence alleged is committed by the party to proceeding in any Court before becoming such party if it is produced or given in evidence in such proceeding. Abdul Hye Khan vs State 40 DLR (AD) 226.

Sections 195(1)(a)(b)(c) and 476—There is specified procedure and method for filing complaint by a Court in respect of offences describçd in clauses (a) and (b) but there is no such specified procedure for offences in clause (c) of section 195 CrPC. Abdul Hye Khan vs State 40 DLR (AD) 226.

Sections 195(1)(c), 476 and 561A—No Court can take cognizance of any offence under section 467 of the Penal Code without a complaint in writing by the Court in which the document was given in evidence or by a Court to which the said Court is subordinate. Sona Mia vs State 42 DLR 8.

Section 195(2)—A Revenue Officer holding an inquiry in a mutation proceeding, in the premises, does not become a court as he does not really adjudicate a right and he does not give a decision which is binding on the parties. Shahera Khatun vs State 53 DLR 19.

Section 197—After arrest at dead of night the victim was beaten to death on his way to the Singra Police Station. He was not even shown any warrant of arrest nor any case number. Such an act of the accused-petitioners can never be said to be an act done by them while acting or purporting to act in the discharge of official duty. AbdulAwal vs State 50 DLR 483

Section 197—Previous sanction of the Government is required under section 197 of the Code of Criminal Procedure before commencing any criminal prosecution against the petitioner. Kazi Obaidul Haque vs State 51 DLR 25.

Sections 197—It appears prima facie that Md Mahabubur Rahman, the then Officer-in-Charge of Ramna Police Station on 3-3-2004, fabricated false evidence by way of making a photocopy of a GD Entry, which he attested as true copy of the GD Entry Register. Such an act by the officer-in- charge can be brought within the mischief of sections 193/ 194/195 of the Penal Code, since the evidence was used in the trial to secure conviction of innocent accused for commission of an offence involving the death penalty. It further appears that Ahmad Kamrul Islam Chowdhury, who at the relevant time was engaged in the trial of the instant case as Special Public Prosecutor, Chittagong, took positive steps to testify, to the genuineness of the attested photocopy of the GD Entry declaring that he had seen the original GD document. The falsity of their respective attestation/declaration is evident from a cursory glance at the photocopy which shows the original printed form to be upside down.

Firstly, an Officer-in-Charge of a police station does not fall in this category as Government sanction is not required for his removal from service. Secondly, in the facts and circumstances of the instant case, the provisions of section 197 would not be attracted in any event since the act alleged to have been done constituting an offence was certainly not done while acting or purporting to act in the discharge of his official duty. In no way does the act of fabricating evidence have any nexus with the official duty of the officer concerned as contemplated in section 197 of the said Code. The learned Magistrate is to take a note of this aspect of law accordingly. State vs Sajauddin 60 DLR 188.
Section 197—The evidence of the witness including the report of the inquiry held by a Magistrate leads to irresistible opinion that the offence alleged has not been committed by the accused in the discharge of their official duties and, as such, we do not find any force in the submission of the learned Advocate as to applicability of section 197 of the Code regarding the two petitioners. ASI Md Ayub All Sardar vs State 58 DLR (AD) 13.

Sections 198 and 199— If the provision of section 199 is allowed to be continued, then husband of a woman can compel her to yield to any sexual harassment to attain his personal gain. The provisions of sections 198 and 199 of the Code not only degraded the dignity of a woman, but the same are offending against the fundamental rights of a woman to be treated equally as well as seek protection of law. These two sections may either be deleted from the Code or be modified in a way to ensure that the victim or aggrieved woman herself can launch a prosecution against a person liable to be pro-secuted for committing offence under sections 497 and 498 of the Penal Code. Aftabuddin vs State 63 DLR 235.

Section 200—Taking cognizance of a fresh case without examining the complainant under section 200 of the Code of Criminal Procedure is illegal.
When the naraji does not contain allegation of any offence but is more a protest petition it does not take the nature of a complaint and there is no question of examining the complainant and taking fresh cognizance of any offence. Abu Bakar vs State 47 DLR 527.

Section 200-The Tribunal disposed of the final report not on merit, but mechanically. It is now well established that naraji petition is nothing but a petition of complaint under section 200 of the Code of Criminal Procedure. On receipt of such Naraji petition, the Tribunal may take cognisance against the accused if it is found reasonable and proper or direct further investigation by higher authority or by another agency of investigation. Abdul Halim Md vs State 60 DLR 393.

Section 200-If the naraji petition is filed before an order of discharge has been passed, the Magistrate can take cognizance without examining the complainant if the intention of the appellant appears only to draw the attention of the Magistrate by way of protest, or the Magistrate may treat it as a complaint and examine the complainant, as he thinks fit. Abu Bakar vs State 47DLR 527.

Section 200-Naraji petition—Naraji petition is nothing but a petition of complaint under section 200 of the Code and on receipt of such petition Magistrate may take cognizance against

accused persons or may direct further investigation by the Police. The Magistrate is not bound by the final report and may take cognizance against the accused persons on consideration of materials on record or may direct further investigation on his own motion also. Shahjahan Ali Mondal vs Belayet Hossain 47 DLR 478.
Section 200—There is no question of prejudice to the accused-petitioner due to the irregularity of non-examination of the complainant by the Magistrate under this section before he transferred the case for judicial enquiry. Kazi Rashidur Rahman vs Md Giasuddin 48 DLR 299.

Section 200—A second prosecution of the same accused is permissible if his order of discharge was not passed earlier on merits. Nurul Hoque vs Bazal Ahmed 48 DLR 327.

Section 200—If cognizance is taken on the basis of a fresh complaint there can be no objection to the proceedings at all and in a proper case an application for revival also may amount to a fresh complaint. Nurul Hoque vs Bazal Ahmed 48 DLR 327.

Section 200-A Naraji petition is a fresh complaint and a Magistrate is competent to take cognizance on the basis of a naraji petition by complying with the requirements of the Code.
By passing the order of discharge of the accused-petitioner from custody at the instance of $ie police the Magistrate did not become functus fficio and his order of discharge of the accused-petitioner from the custody at the instance of the lice cannot operate as a bar to take cognizance against the accused-petitioner. Nurul Hoque vs Bazal Ahmed 48 DLR 327.

Section 200-Since there is no requirement of law to record reasons for taking cognizance we find no illegality in those orders on that count. Shinepukur Holding Ltd vs Security Exchange Commission 50 DLR 291.

Section 200—Use of the word “report” in this section in contradiction to the word “complaint” used in section 200 of the Code appears to be significant. The word “report” presupposes enquiry or investigation and without making enquiry or investigation a report cannot be prepared and submitted. Shinepukur Holding Ltd vs Security Exchange Commission 50 DLR 291.

Section 200-Both the Magistrate and the Sessions Judge committed error of law resulting in miscarriage of justice by rejecting the Naraji petition and discharging the accused opposite parties on the basis of the police report. The Magistrate ought to have held an inquiry on the Naraji petition before rejecting the case. Jalaluddin Bhuiyan vs Abdur Rouf 51 DLR 408.

Sections 200 and 190—An enquiry or investigation can be directed by the Magistrate under section 202 of the Code in order to ascertain the nature of the allegation and to decide whether cognizance of the offence should be taken because till then he is in seisin of the case. It is wrong to say that simply because the case was started on a petition of complaint, the Special Tribunal constituted under the Special Powers Act would have no jurisdiction to try the case, if it is otherwise triable under the Act. Golam Rahman vs Md Bazlur Rahman (Babu) 53 DLR 566.

Sections 200 & 202—Judicial inquiry held after police report and upon a naraji petition is permissible under provision of section 202 of the Code and it does not amount to reopening of a case. After receiving the petition of complaint the learned Magistrate proceeded under section 202 of the Code of Criminal Procedure and himself held the judicial inquiry and in that inquiry as the complainant was examined, the action of the learned Magistrate has not vitiated the proceedings in any way for not examining the complainant immediately after filing of Naraji petition. In view of our discussion above, we therefore find no merit in this Rule. Dilu alias Delwar Hossain vs State, represented by the Deputy Cornmissioner 48 DLR 529.

Sections 200 and 202—Either there must be some information before police officer about commission of a cognizable offence or there must be a formal complaint before a Magistrate for starting orholding investigation in a case of cognizable offence. Mohammod Hossain, Advocate vs Quamrul Islam Siddique 54 DLR 88.
Sections 200 & 202—In order to bring home the charge under section 420, it is necessary for the prosecution to prove beyond reasonable doubt that the representation made by the accused was known to him to be false and that acting on that false representation, the complainant purchased the land in question. Abul Kashem vs State 59 DLR 1.

Sections 200 & 202—[n the judicial enquiry the complainant was examined and thereafter, having found a prima facie case against the petitioner, the Magistrate took cognisance. In such a position the Magistrate committed no illegality in taking cognisance against the peti-tioner without examining the complainant under section 200 of the Code. Nirode Baran Barua vs Mrinal Kanti Das 59 DLR 456.

Sections 200, 202 & 561A—When a naraji petition was filed the same petition should have been treated as petition of complaint and the learned Magistrate was required to act in accordance with provisions laid down in section 200 or 202 of the CrPC. Abul Hossain vs State 52 DLR 222.

Sections 200, 202, 204 and 205C—Jurisdiction of the Magistrate in cases exclusively triable by a Court of Session. Whether the Sessions Judge has jurisdiction to direct the Magistrate to send the case to him after its dismissal by the Magistrate. Bangladesh vs Yakub Sardar 40 DLR (AD) 246.

Sections 200 & 204 1(A) & 1(B)— From the language of sub-section (IA) and (TB) of section 204 of the Code it is clear that taking of cognizance under section 200 of the Code will not be illegal if list of witnesses and copy of the complaint are not filed before issuance of the process of warrant of arrest or summons. Shinepukur Holding Ltd vs Security Exchange Commission 50 DLR 291.

Sections 200 & 561A—The purpose of examination of the complainant under section 200 CrPC is to see whether is sufficient ground for proceeding and not whether there here is sufficient ground for conviction. Whether the evidence is adequate for supporting conviction can only be determined at the trial and not at the stage of enquiry. Allegations made in the petition of complaint having made out a prima facie case of cheating against the accused-appellant, it is not a fit case to quash the proceeding at the present stage. SA Sultan vs State 44 DLR (AD) 139.

Section 202—If the prosecution failed to prove that the accused killed the victim on account of dowry, the trial of the accused by the Bishesh Adalat would be without jurisdiction and the proper course would be to send the case back on remand for fresh trial under the general law. State vs MdAbu Taher 56 DLR 556.

Sections 202 and 241A—Before framing charge, a Magistrate is required to hear the parties and consider documents submitted along with the record of the case by the prosecution. Abul Kalam Azad vs State 52 DLR 583.

Sections 202(1), (2A)—Under section 202(1) and proviso to section 202(2A) of the Code of Criminal Procedure in a case exclusively triable by the Court of Sessions, a Magistrate for the purpose of ascertaining the truth or falsehood of the complaint is to consider the evidence in order to find whether prima facie case is made out or not, but he cannot assess the evidence as if in a trial. Syed Ahmed vs Habibur Rahman 42 DLR 240.
Sections 202 and 561A—The Sessions Judge had no jurisdiction to direct the Magistrate for taking cognizance. Even he could not make observation that there was evidence against the petitioner. Basiran Bewa vs State 56 DLR 553.

Sections 202(2B), 241A & 265C—Dis- charge under the provisions of these sections is of different character than the discharge of the accused under sub-section (2B) of section 202 where discharge is made before taking of the cognizance.
In our view there is no scope for making further enquiry after discharge if the accused under sections 241A or 265C of the Code as the same is made after taking cognizance. Moreover at the time of hearing under section 241 A or under section 265C the Court considers the record of the case, the documents submitted therewith and the submissions made by both parties. So, all necessary materials are before the Court and as the order is passed on consideration of all such materials, there is no scope for passing any order for holding further inquiry. But there is scope for further enquiry when accused is discharged under the provision of sub-section (2B) of section 202 of the Code as the said order is made before taking of the cognizance. Abdul Hal vs State 50 DLR 551.

Section 203—Complaint filed for prosecution of defamation against a party who made such statement in a judicial proceeding—Complaint dismissed under section 203 of the Code of Criminal Procedure without either admitting the complaint petition or examining the complainant. AY Mashiuzzaman vs Shah Alam 41 DLR 180.

Sections 203 and 439A—Whether the Sessions Judge has got power under section 439A, Criminal Procedure Code or any other provision of the Code to direct a Magistrate to send the case to him for trial when the Magistrate dismissed the complaint under section 203 of the Code. Bangladesh vs Yakub Sardar 40 DLR (AD) 246.

Sections 203, 204(3) & 436—The order of dismissal of the complaint passed under sections 203 and 204 (3) CrPC does not amount to discharge. So for a further enquiry in such a case no notice to the accused is necessary.
The principle, that an order prejudicial to an accused should not be made, without giving him an opportunity to be heard, has no application where the accused is not discharged. A revisional application before the learned Sessions Judge at the instance of an aggrieved complainant against an order of dismissal of a complaint by the Magistrate can be gone into without notice to the accused. Sirajudullah vs State 48 DLR 76.

Sections 203, 205(1) & 436—Neither the Sessions Judge nor the High Court Division is invested with any power to direct any Magistrate to take cognizance of a case.
Their power is strictly limited to directing a further enquiry into the petition of complaint. It will be for the Magistrate concerned to take or not to take cognizance after the result of further enquiry. After the dismissal of the petition of complaint under section 203 CrPC the informant respondent’s remedy was to approach the higher Court under section 436 CrPC for further enquiry into his petition of complaint. The penultimate order of the High Court Division in directing the Chief Metropolitan Magistrate to take cognizance of the offence and to issue process in accordance with section 205(1) CrPC is not sustainable. Yusuf A Hossain vs KM Rezaul Ferdous 48 DLR (AD) 53.

Sections 203 and 241A—A decision regarding framing of charge cannot be made without considering the inquiry report. Abul Kalam Azad vs State 52 DLR 583.

Sections 203, 204 and 436—Since the Magistrate accepted the final reports and discharged the accused person as per provisions of law and since specific remedies have been provided in the Code against such discharge, the Magistrate has become functus officio and has no power to revive the proceeding. Rasharaj Sarker vs State 52 DLR 598.

Sections 203, 205(1), 436 and 561A— Sessions Judge cannot direct the Magistrate to take cognizance of a case. The power of Sessions Judge is limited to directing a further enquiry into it. It will be for the Magistrate concerned to take or not to take cognizance after the further enquiry. A Rouf vs State 52 DLR 395.

Sections 204(3), 435 and 436-Provisions under which Courts are competent to direct the Magistrate.—The Sessions Judge and, for that purpose, the District Magistrate, Chief Metropolitan Magistrate and the High Court Division, got power under section 435 CrPC to call for the record of any case pending before any Magistrate and direct the Magistrate under section 436 to make further enquiry into any complaint which has been dismissed under section 203 or subsection (3) of section 204 CrPC. Bangladesh vs Yakub Sardar 40 DLR (AD) 246.

Section 205—Section 205 CrPC was and is applicable only to cases in which summons has been issued although expressions in Chapter XVII are meant for cases in which summons is issued and warrant is issued. Hazi Hafeez vs Abdul Mabud 41 DLR 321.

Section 205-Considering the hardship of the female accused in attending the Court at Naichiti from Jessore the Magistrate may consider their prayer for appearing in Court through lawyer. Salam Mollick vs State 48 DLR 329.

Section 205C—Under the newly added provisions of section 205C jurisdiction has been vested in the Magistrate to examine the police report or other materials on record and if it appears to the Magistrate that the offence as disclosed from such materials is triable exclusively by the court of Sessions he is empowered to send the case to such court. Maksudur Rahman Hilaly vs State 47 DLR 314.

Section 205C—From a reading of thisj section, it is found that there is any dead-end time limit for producing those documents in Court. Nurul Islam Manzoor vs State 52 DLR 276.

Section 205D(3)-The Druta Bichar Tribunal shall hold simultaneous trial of the accused persons in the complaint case and shall dispose of the cases in accordance with sub-section (3) of section 205D which is equally applicable to it. It shall conclude the trial of the police case first and postpone the delivery of the judgment till the trial of the complaint case is concluded and then it will decide which accused persons are involved in the killing of the victim and shall deliver judgment accordingly. If the court finds one set of accused persons or any one of them is involved in the killing it shall acquit the accused persons in the other case. The judgment of the Sessions Judge and the High Court Division are set-aside. We direct the Chief Metropolitan Magistrate to transmit the case record to the Druta Bichar Tribunal for simultaneous trial of the ease with Druta Bichar Tribunal Case, The Druta Bichar Tribunal shall use the post-mortem report and other alamats seized in the police case in this case also. Siddiqur Rahman (Md) vs SM Maola Reza (Criminal), 73 DLR (AD) 205

Section 221—Charge—Charge is a precise formulation of the specific accusation made against a person who is entitled to know its nature at the very earliest stage. Abdur Razzaque @ Geda vs State 48 DLR 457.

Sections 221 & 222—The failure of the trial Court in not mentioning the particulars which are required to be mentioned under sections 221 and 222 of the Code while framing charge deprived the accused proper defence and, as such, the error has occasioned failure of justice. Bashir Kha vs State 50 DLR 199.

Sections 221 & 232—Charge——charge under section 201 Penal Code was framed against the appellants and although no charge under sections 302/34 Penal Code was framed they were convicted thereunder. Conviction without such a charge being framed is illegal. Muslim vs State 47 DLR 185.

Sections 221 & 537—A charge is an important step in a criminal proceeding and the accused is answerable to the charges levelled against him. The object of framing charge is to ensure that the accused may have as full particulars as are possible of the accusation brought against him. Defect in framing charge is not curable under section 537 of the CrPC. Moslem All Mollah alias Moslem Molla vs State 48 DLR 427.

Section 222(2)—The entire proceedings against the accused appellants are vitiated for defect of charge due to non-compliance of section 222(2) proviso of the Code of Criminal Procedure. Abul Khair vs State 58 DLR 500.

Sections 222(2), 234(I) & 537—Charges framed in violation of the mandatory provision of section 234(1) read with section 222 (2) of the CrPC is an illegality not curable under section 537 of the Code and, as such, the impugned conviction and sentence are set aside. Abul Kalam Azad vs State 48 DLR 294.

Sections 225 & 535—Defect in charge curable—When the FIR and the evidence have given the exact time of the occurrence, a misstatement in the charge as to the time of the occurrence cannot mislead the accused in his defence and the trial cannot be said to have been vitiated in view of the provision under sections 225 & 535 CrPC. Abdul Hashem Master vs State 44 DLR 159.

Section 227—Where there is no non-obstante clause the jurisdiction of the court, constituted under the Code of Criminal Procedure cannot be taken away or barred—the court below committed no illegality in taking cognizance or framing of charge under the general provision of law. Moniruzzaman vs ANM Didar-e-Alam 54 DLR 445.
Section 227—The Court under section 227 of the Code of Criminal Procedure is competent to alter or amend the charge at any stage of the proceeding before pronouncement of judgment. Nasim (Md) vs State 57 DLR 546.

Sections 227, 241A & 242—The case having been sent to the Special Judge after taking of cognizance by the Senior Special Judge there is no illegality in the adding of a fresh charge by the former. HM Ershad vs State 45 DLR 534.

Section 227(1)—The Court is competent to add or alter charge if situation arises and the materials placed before it reveals justification. HM Ershad vs State 45 DLR 533.

Section 232—The accused has been prejudiced by absenée of charge or framing of the charge at a belated stage. Section 232 CrPC contemplates a new trial or remanding of the case to the trial Court in such a situation. It is too late now to direct a retrial after a long lapse of time. Abdur Razzaque @ Geda vs State 48 DLR 457.

Section 233—দুটি খুনের জন্য আসামীদের বিরুদ্ধে একটি চার্জ গঠন করা হয়েছে । ইহা আইনসংগত হয় নাই । দুটি হত্যার জন্য পৃথক পৃথক ভাবে চার্জ গঠন করতে হবে । Abdul Aziz vs Sekendar Ali 111.

Section 233—The element of continuity of action was also present in the instant case in that the petitioner and others encircled the house of the victims and that thereafter petitioner and some others entered into the hut of the victims and caused injuries by sharp cutting weapons in consequence whereof the death occurred. In this state of the matter it can in no way be said that the offences or, in other words, causing death of the two persons by the petitioner and others was not committed or done in the course of the “same transaction” or in one transaction. Delower Hossain Khan vs State 54 DLR (AD) 101.

Section 233—The object of this section is to save the accused from being embarrassed in his defence if distinct offences are tried together in one case. The legislature has engrafted certain exceptions to the provision contained in section 234, 235, 236 and 239. Zahed Hossain vs State 60 DLR 386.

Section 234—The period of one year is available in section 234 of the Code of Criminal Procedure but it is absent in section 6(1B) of the Criminal Law Amendment Act and thereby in view of the provision laid down in section 6(1) of the Criminal Law Amendment Act, 1958 section 6(1 B) excludes the application of section 234 which relates to the period of the commission of the alleged offence. Habibur Rahman Molla vs State 61 DLR 1.

Section 234—Mis-joinder of charges—One charge both under sections 460 and 302/34 Penal Code framed against all the accused is defective and conviction thereunder is set aside. Abdul Quddus vs State 44 DLR 441.

Sections 234 and 236—Applicability of sections 234 & 236 Manner of—Section 234 and section 236 apply to cases where one person may be dealt with at one trial for more than one offence while section 239 applies to the trial of more persons than one jointly. Where two incidents are independent and wholly unconnected with each other, no joint trial is permitted. Lal Mia vs State 40 DLR 377.

Sections 234-236—Mis-joinder of charge— When the accused have been charged under sections 302/34 Penal Code on the allegation that they committed murder in furtherance of common intention, the addition of section 460 Penal Code in the charge is materially defective. The accused having been convicted and sentenced under sections 302/34 their, conviction and sentence at the same time under section 460 in the same case is bad in law and should be set aside. Khelu Mia vs State 43 DLR 573.

Sections 234 and 561A—The contention that there cannot be three separate cases out of single transaction and the petitioners cannot be put on trial in three separate cases arising out of one transaction is of no substance. Abul Fazal (Md) alias Abul Fazal alias Badal vs State 53 DLR (AD) 100.

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

Sections 235 and 239—The provisions of section 235 and 239 of the Code vest a discretion with the Court to try offences of the kinds indicated therein jointly in the circumstances mentioned, but there is nothing in them to indicate that the Court is bound to try such offences or persons together. (Per Siddiqur Rahman Miah I agreeing). Zahed Hossain (Md) vs State 61 DLR 386.

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

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

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

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

Sections 236, 237, 238 & 337—The accused raised no objection on the score of defect in charge at any stage of the trial. The objection raised for the first time in the Appellate Division is not entertainable by virtue of explanation appended to section 537 of the Code of Criminal Procedure. Rajib Kamrul Hasan vs State 53 DLR (AD) 50.

Section 236 & 237—An offence under a particular section if not proved but some other offence is made out by the prosecution, the accused persons can be very well convicted and sentenced for the other offences proved before the court through legal evidence. Al-Amin vs State 51 DLR 154.

Sections 236 & 237—When an accused is charged under sections 302 and 134 Penal Code his conviction under section 201 Penal Code is legal. Kalu vs State 45 DLR (AD) 161.

Sections 236, 237, 238, 417 and 423—A fmding of acquittal can be converted into one of conviction only in an appeal under section 417 which being in accord with section 423 CrPC is the correct view taken in Bawa Singh’s case. Mofizuddin vs State 40 DLR (AD) 286.

Section 237—In view of the provisions of section 237 of the Code of Criminal Procedure the conviction of the petitioner under section 381 is maintainable although he was charged under section 408 but not under section 381 of Penal Code.

In view of the provisions of section 237 CrPC and being in respectful agreement with the pronouncements of the learned Judges, I am of the view that although in this case the petitioner was charged under section 408 of the Penal Code and not under section 381 of the Penal Code still his conviction under section 381 of the Penal Code is quite maintainable as the petitioner was fully aware of the nature of accusation against him and had the opportunity to meet the elements of offence punishable under section 381 of the Penal Code and he was not also prejudiced by conviction under section 381 of the Penal Code. Mahbubul Alam vs State 41 DLR 7.

Section 237—Where an accused person is charged with one offence and it appears in evidence that he committed a different offence for which he might have been charged in respect of a single act or series of acts, then, subject to absence of prejudice, the accused may be convicted of the offence, which he is shown to have committed although he was not charged with it. Parveen vs State 51 DLR 473.

Section 237—The trial Court committed gross mistake in passing sentence under different penal provisions with which the convicted accused persons were not even charged with. Alam vs State 54 DLR 298.

Section 237—Law is well settled that if an offence under a section is proved though not charged the accused can be convicted for the offence proved on the strength of the provision of section 237 of The Code. State vs Ershad Au Sikder 56 DLR 305.

Sections 237 and 238—Appellate Court can alter the conviction for other offence for which no charge was made. Jahangir Hossain vs State 40 DLR 545.

Section 238—An offence to be a minor offence to a major one must be a cognate offence to the major one, having the main ingredients in common. State vs Sree Ranjit Kumar Pramanik 45 DLR 660.

Section 238—An offence under section 342 of the Penal Code which is not included in the schedule of the Special Powers Act cannot be the basis of conviction as the same is a non-schedule offence. Had the original offence charged been one under Penal Code then the learned Judges by application of section 238 of the Penal Code could come to a finding that the offence constitutes a minor offence and in that view could have convicted the appellant under a minor offence, but here the original offence charged was exclusively triable by the Special Tribunal and in that view the alteration of the conviction from a schedule offence to an offence which is only referable under Penal Code is not legally permissible. Abdur Rahman vs State 51 DLR (AD) 33.

Section 238(2)—It is true that no charge was framed against the accused under section 25B(2) but in view of the provisions of section 29 of the Special Powers Act and sub-section (2) of section 238 of the Code of Criminal Procedure, he may be convicted under sub-section (2) of section 25B of the Special Powers Act, 1974. Shamsul Haque vs State 49 DLR 528.

Section 239—Mis-joinder of charges— Validity of trial—In a case where it is found that the trial is vitiated by misjoinder, then in the eye of law there has been no valid trial and therefore an accused cannot be acquitted after setting aside conviction. State vs Constable Lal Mia 44 DLR (AD) 277.

Section 239—Joinder of charges—Sameness of transaction—Circumstances which must bear on the determination whether certain acts or events constitute a single transaction in each individual case are proximity of time, proximity of place, continuity of action and community of purpose or design. Which factor or factors shall be given relative importance depends on the facts of each case. State vs Constable Lal Mia 44 DLR (A D) 277.

Sections 239 & 537—Sameness of transaction—Defect—If there is good evidence that the transaction was one and the same, then mere absence of certain links in the accusation will not make the trial illegal. If at all it is a defect which is curable under section 537 CrPC. State vs Constable Lal Mia 44 DLR (AD) 277.

Section 241, 241A—Forgery—fabrication of bank record taking recourse to forgery and using the same as genuine by deceitful means for taking pecuniary advantage for themselves and for others—Prima facie case made out against the accused—Order of discharge of the accused (Shafiqul Islam) shows total non-application of judicial mind of the Special Judge to the materials on record. Provision of section 241A is to be strictly followed. An order of discharge can be made only when no case is made out against the accused. State vs Shafiqul Islam 40 DLR 310.

Section 241A—Magistrate cannot discharge accused persons on the plea of alibi that they were at different places at the time of commission of offences alleged by the prosecution—Magistrate’s “finding” in this regard is based on no evidence. Mere submission of some papers supporting alibi is neither sufficient nor admissible as the stage of adducing defence evidence was not yet come. Magistrate’s order of discharge was not sustainable as it was based on gross misconception of law. Nannu Gazi vs Awlad Hossain  43 DLR (AD) 63.

Section 241A—This provision casts a duty on the Judge to discharge the accused when there is no ground for proceeding with the case and his order must record reasons therefor. HM Ershad vs State 45 DLR 533.

Section 241A—Trial Court has a wide power regarding framing of charge. This cannot be interfered with lightly either by the revisional court or the appellate Court. Forhad Hossain vs State 50 DLR 337.

Section 241A—At the stage of framing the charge the Magistrate is to consider documents of the prosecution and not those of the defence which could form part of the record after the charge is framed. Additional Sessions Judge on consideration of some documents produced by the accused opposite party before him came to the conclusion that the charge was groundless. Accused opposite party could not produce such document before the trial begins and the learned Additional Sessions Judge was not justified in considering those documents to pass the impugned order. Additional Sessions Judge acted illegally in passing the impugned order relying upon the documents filed by the accused-opposite party for the first time before him. Mahbuba Akter vs Mozemmel Hoque 47 DLR 404.

Section 241A—The time of producing defence alibi is during the trial and after the prosecution has adduced its own evidence and they must be given a chance to prove their case. Jalaluddin Bhuiyan vs Abdur Rouf 51 DLR 408.

Sections 241A & 164—To frame a charge or to consider an application of the accused person that the charge brought against him is groundless trial Court is not obliged to consider the statements of any witness recorded under section 164 CrPC. Forhad Hossain vs State 50 DLR 337.

Sections 241A and 242—Court is to record the reasons for discharging the accused under section 241A of the Code, but no such reasons are required to be recorded in farming charge against the accused as per provisions of section 242 of the Code. The Special Judge framed charge against the accused-petitioner after hearing both the parties and being satisfied that there was ground for framing of charge. No illegality in framing of charge against the accused-petitioner and there is no ground of setting aside the impugned order. Amanullah vs State 62 DLR 382.

Sections 241A, 265B & 265C—The Sessions Judge is directed to allow the Advocates of the accused to go through the papers and documents upon which the prosecution will rely for framing charges in the case. Hossain Mohammad Ershad [former President Lieutenant General (Rtd)] vs State 48 DLR 95.

Sections 241A & 439A—The accused-petitioner, if he would have felt aggrieved, against the order passed by the Magistrate framing charge against him, could have invoked the jurisdiction of the Sessions Judge under section 439A for the relief. The inherent jurisdiction of the High Court Division has been wrongly invoked. Rustom All Matubbar alias Alam vs Mohammad Salahuddin 50 DLR 301.

Sections 241A & 265C—অভিযোগ গঠন বিষয়ে শুনানীর সময় আসামীর দাখীলী প্রমাণ তথা দলিল পত্র বিবেচনা করা যায় না এবং তার ভিত্তিতে আসামীর বিরদ্ধে মামলা বাতিল করা যায় না । Nazrul Islam vs State 50 DLR 103.

Sections 241A, 265C & 561A—An accused can only prefer an application under section 561A for quashing the proceeding if he becomes previously unsuccessful in his application either under section 265C or 241A, otherwise his application for quashing shall be premature.

Section 265C speaks of discharge of an accused in a trial before Court of Sessions. Section 241A speaks of discharge in a trial by a magistrate. These sections indicate that when an accused is brought for trial before a Court of law the Court upon hearing the parties and on consideration of the record of the case and the documents may discharge the accused. These sections have nothing to do with quashing of a proceeding. Section 561A is an independent inherent power of the High Court Division of the Supreme Court and this power can be exercised in case of abuse of process of Court and for securing the ends of justice and or to give effect to any order under the Code ref. Latifa Akhter vs State 51 DLR (AD) 159.

Section 241A, 439, 439A and 561A—Even a party unsuccessful in a revision before the Sessions Judge may invoke the jurisdiction of this Court under section 561A of the Code of Criminal Procedure. Matiur Rahman vs Nuru Sikdar 56 DLR 246.

Sections 241A & 242—The trying Magistrate is required to exercise his own independent judgment and to see whether there is a prima facie case to proceed with the trial. The report of the judicial Magistrate cannot be binding on the trying Magistrate. Abul Ahsan Joardar vs Kazi Misbahul Alam 45 DLR 606.

Sections 241A & 242—The trial Court has a wide power to frame charges and this cannot be interfered with by the Revisional Court by way of giving direction for altering a charge or framing a charge. Sharful Islam vs Billal Hossain and the State 45 DLR 722.

Sections 241A & 242—The Court has jurisdiction to pass an order of discharge if it was satisfied that the charge was groundless for which it was to give reasons but if it framed charge it was not required of the Court to record reasons. HM Ershad vs State 45 DLR 533.

Section 242—Consideration of the statements made under section 161 CrPC while framing of charge or otherwise is a necessary part of the Court’s duty. HM Ershadvs State 45 DLR 533.

Section 242—Consideration of the statements made under section 161 CrPC while framing of charge or otherwise is a necessary part of the Court’s duty. Saber Ahmed vs Manzur Mia 35 DLR 213 & State vs Md Safikul Islam 40 DLR 310 relied. NM Ershad vs State 45 DLR 533.

Sections 243 and 537—Violation of the mandatory requirements of section 243 in recording the individual statements of the accuseds either in their language or in words as nearly as expressed by them is not curable by Section 537. Conviction and sentence are not sustainable in law accordingly. Ali Newaj Bhuiyan vs State 40 DLR 398.

Sections 243 & 537—The alleged admission of guilt was not recorded as nearly as possible in the words used by the accused. Section 243 CrPC is mandatory, the violation of which causes prejudice to the accused and is not curable under section 537 CrPC. The order of conviction and sentence as against the appellant on the basis of such so-called admission of guilt cannot therefore be sustained in law and the same should therefore be set aside in the interest ofjustice and the case should be sent back on remand to the trial Court to hold that trial afresh from the stage of framing the accusation or charge again after hearing the parties and considering the materials on record in accordance with the law in the light of the observations made above. Saheb Ali Miah vs State 46 DLR 238.

Section 245(1)—The prosecution having not taken any steps the learned Magistrate rightly acquitted the respondents under section 245(1) of the Code of Criminal Procedure. Mobarak Ali vs Mobaswir Ali 49 DLR (AD) 36.

Section 247—The Magistrate had no reason to adjourn hearing of the case as neither the complainant or his advocate appeared and took any steps whatsoever. The Magistrate was therefore bound to acquit the respondent. Ayub Ali Bangali vs Mia Manir Ahmed 46 DLR 330.

Section 247—Summons must be issued for securing the attendance of the accused on the day appointed for hearing of the case. Shajib vs Md Abdul Khaleque Akand 51 DLR (AD) 119.

Section 247—Interpretation of Statute— Words “Summons” and “Warrant”—Meaning of —Whether they convey different meanings though they are different modes of process to compel appearance—Whether there is scope to interpret the “summons” to include “warrant”— Court cannot put a word in legislation which is not there. Hazi Hafez vs Abdul Mobud 41 DLR 321.

Section 247—Section 247 CrPC shall apply to a case in which summons has been issued on complaint and shall not apply to a case in which warrant has been issued though on complaint. Hazi Hafez vs Abdul Mabud 41 DLR 321.

Section 247, Proviso—Complainant petitioner a Deputy Attorney-General of Bangladesh Government, busy with official matters could not present himself in the Court of Magistrate and pray for adjournment. His witnesses were examined and cross-examined but no adjournment was given though the petitioner was entitled to such privilege. His petition was not rejected but simply stated therein “Not admitted”;

Held—The Magistrate’s order is not sustainable in law. Sultan Ahmed vs Golam Mostofa 41 DLR 219.

Section 247—Appraisal of evidence—Complainant petitioner’s evidence was discredited because, in the opinion of the Magistrate, he had not filed any GD entry about the incident alleged by him.
Held—This is not necessary at all in law. Sultan Ahmed vs Golam Mostofa 41 DLR 219.

Section 247—Learned Magistrate did not base his finding on proper appreciation of evidence on record and was rather biased against the petitioner for reasons not known. Sultan Ahmed vs Golam Mostafa 41 DLR 219.

Section 247—Applicability of section 247 CrPC—Case to be originated from a petition of complaint and summons to be issued following the complaint—But warrant was issued in the present complaint case and the necessary condition such as issuance of summons for the application of the section is absent—After amendment there is no distinction between summons case and warrant case at the trial stage. Hazi Hafez Md Shamsul Islam vs Abdul Mabud 41 DLR 321.

Section 247—Acquittal—Accused present but complainant absent in Court—complainant filed an application for adjournment through his advocate—No order was passed by the Magistrate on the adjournment application—He acquitted the accused of all charges—The order of acquittal was not in keeping with law. Md Musa Khan vs Farookh Hossain 42 DLR 257.

Section 247—A complaint case ought not to be dismissed for non-appearance of the complainant on an adjourned date unless his attendance in the court is specially required on that date or unless the Court is convinced that the complainant is not keen about prosecuting his case. A Jabber Howlader vs Ali Akbar Howlader and State 52 DLR 329.

Section 247—It is necessary for the Magistrate before dismissing the complaint to see whether the complainant had been dilatory in the prosecution of the case or not. GM Morshed vs City Bank Ltd 56 DLR 205.

Section 247—Power to dismiss the case is undoubtedly there when the complainant is found absent but that power must be exercised judicially and it must be seen and considered having regard to the circumstances of a given case. Tofael Ahmed vs Chand Mia, State 56 DLR 614.

Section 247—When evidence was closed, statement under section 342 CrPC was recorded after due examination of the accused and the case reached the stage of argument, acquittal of the accused under section 247 CrPC was not proper judicial exercise of the power. Tofael Ahmed vs Chand Mia, State 56 DLR 614.

Sections 247 and 403—Acquittal under section 247 CrPC will bar fresh complaint or trial under section 403 CrPC. Tofael Ahmed vs Chand Mia, State 56 DLR 614.

Sections 247 & 403—Acquittal of the accused under section 247 CrPC is not an acquittal within the meaning of section 403 of the Code and cannot bar a fresh prosecution. Gadahar Namadas vs Joytun Akhtar 47 DLR 313.

Section 247(2)—It was for the Magistrate to ascertain before dismissing the petition of complaint whether the complainant was notified properly or whether she took delay dalling tactics in order to harass the accused inspite of receipt of notice issued by the court. Nabiran Bibi vs Md Panna Miah 52 DLR 394.

Sections 249, 339C(4) & 403—Fresh proceeding on self-same facts against the same accused persons after a proceeding is stopped and the accused is released—When a proceeding is stopped without a judgment either of acquittal or of conviction and the accused is released, it does not operate either as acquittal or discharge—the same proceeding is not revivable unless there is legislative intent to that effect. Section 339C(4) was inserted providing for revival within 90 days those proceedings of which trial was stopped—In the present case, more than 90 days having elapsed before the Ordinance came into force and revival of the proceeding being out of question, there was no legal bar against fresh prosecution on same allegations. Taking cognizance for the second time must however depend on facts and related considerations of each case—Fresh cognizance should not be taken where there is default in taking revival proceeding without sufficient cause. Niamat Ali Sheikh vs Begum Enayetur Noor 42 DLR (AD) 250.

Section 250—The Assistant Sessions Judge acted beyond jurisdiction in making the impugned order under section 250 CrPC as the offence under section 382 Penal Code is triable by Court of Sessions, and not by a Magistrate. The offence under section 382 of the Penal Code being triable by a Court of Sessions and not by a Magistrate the Assistant Sessions Judge acted beyond his jurisdiction in making the impugned order inasmuch as, provisions of section 250 of the Code of Criminal Procedure do not relate to an offence which is not triable by the Magistrate. Karimdad vs Abul Hossain 40 DLR 441.

Section 250-Section 250 CrPC empowers only a Magistrate to invoke the said provisions while trying a case by him he finds that the accusations are false and either frivolous or vexatious and the same does not empower an Asstt. Sessions Judge. Karimdad vs Abul Hossain 40 DLR 441.

Section 265A—ln sessions cases of this nature it is the Public Prosecutor who represents the State as provided under section 265A of the Code of Criminal Procedure. In such cases the role of an Investigation Officer is that of a witness. If such an application is to be filed it ought to have been filed through the Public Prosecutor. Rahmatullah vs State 48 DLR 158.

Section 265B—From a scrutiny of this section it does not appear that the section requires the actual production of documents before the court. Securities and Exchange Commission vs Abu Tyeb 55 DLR (AD) 47.

Sections 265B, 265C, 265D & 265E— Sections 265B, 265C, 265D and 265E form a composite session and steps to be taken under these sections are to be taken in the same session. No question arises of fixing another date for taking steps under section 265C or of separate hearing under section 265C of the Code. Securities and Exchange Commission vs Abu Tyeb 55 DLR (AD) 47.

Section 265C—ln discharging an accused under section 265C of the Code, the Court is obliged to record the reasons for so doing, which reasons should be reasonable. Ferdousi Islam vs Nur Mohammad Kha 54 DLR 418.

Section 265C—The admitted position is that the respondent was the Chairman of the Company and she was never involved in the business of stock brokerage—In the absence of any allegation in the complaint-petition, the High Court Division rightly discharged the respondent from the charge. Securities and Exchange Commission, represented by its Chairman vs Runa N Alam 57 DLR (AD) 161.

Section 265C—The accused has no scope to have any shelter under Section 265C of the Code since a prime facie case has already been disclosed against him. Md Lokman @ Lokman vs State 63 DLR (AD) 156.

Sections 265C, 241A & 202(2B)—Discharge under the provisions of these sections is of different character than the discharge of the accused under sub-section (2B) of section 202 where discharge is made before taking of the cognizance. In our view there is no scope for making further enquiry after discharge if the accused under sections 241A or 265C of the Code as the same is made after taking cognizance. Moreover at the time of hearing under section 241A or under section 265C the court considers the record of the case, the documents submitted therewith and the submissions made by both parties. So, all necessary materials are before the court and as the order is passed on consideration of all such materials, there is no scope for passing any order for holding further inquiry. But there is scope for further enquiry when accused is discharged under the provision of sub-section (2B) of section 202 of the Code as the said order is made before taking of the cognizance. Abdul Hai vs State 50 DLR 551.

Section 265C and 265D—While framing charge against the accused the trial Court is to apply independent judicial mind to the facts and circumstances of the case and the materials on record, particularly the First Information Report, so as to be satisfied that innocent persons are not harassed unnecessarily. Khandaker Md Moniruzzaman vs State 47 DLR 341.

Sections 265C, 265D & 439—High Court Division under section 439 of the Code of Criminal Procedure having supervisory jurisdiction can scrutinise and go into facts to examine the propriety of the orders passed under section 265C or 265D of the Code. Jobaida Rashid vs State, represented by the Deputy Commissioner; Dhaka 49 DLR 373.

Section 265C & 265D—Sections 265C and 265D are abridged substitutions of the now repealed chapter XVIII of the Code of Criminal Procedure and these cast a duty upon the Sessions Judge to apply his judicial mind in considering the materials collected by the prosecution in order to come to a decision whether charge should be framed. Jobaida Rashid vs Stale, represented by the Deputy Commissioner; Dhaka 49 DLR 373.

Sections 265C, 265D & 221-223—আসামী পক্ষ থেকে মামলা অব্যাহতি দেয়ার জন্নে কোন দরখাস্ত দেয়া হোক বা না হোক আসামীর বিররদ্ধে অভিযোগ গঠন করা হবে কি না সে সম্পর্কে ২৬৫ সি ও ২৬৫ ডি ধারার বিধান অনুযায়ী দায়রা আদালত তথা যে কোন ট্রাইবুনালের দায়িত্ব হচ্ছে  উপরোক্ত বিষয় বিবেচনা করে এবং পদক্ষের বক্তব্য শুনে সঠিক সিদ্ধান্ত উপনীত হওয়া । শুধুমাত্র এজাহারে নাম উল্লেখ থাকলে এবং আসামীর বিরুদ্ধে পুলিশ অভিযোগপত্র দাখিল করলে বা অভিযোগের দরখাস্তে আসামীর নাম উল্লেখ থাকলেই তার বিরুদ্ধে যান্ত্রিক ভাবে অভিযোগ গঠন করা সমীচীন নয় । Nazrul Islam vs State 50 DLR 103.

Sections 265C & 561A—We do not find any reason to quash the instant criminal case by involving our inherent jurisdiction under section 561A CrPC as the Code under section 265C provides for an alternative remedy. Salahuddin vs State 51 DLR 299.

Section 265C & 265D—The Tribunal without considering the facts and circumstances and materials on record and applying its judicial mind to the provisions of section 265C and 265D of the Code of Criminal Procedure framed charge mechanically. The impugned order framing charges against the accused is thus liable to be set aside. Ruhul Amin Kha vs State 56 DLR 632.

Sections 265C and 435/439—The order of the Additional Sessions Judge discharging the accused is not based on correct appreciation of the facts disclosed in the first information report and charge-sheet, and therefore, it suffers from illegality. Abdur Rahman Kha vs Stale 56 DLR 213.

Sections 256C and 265D—The provisions of section 265C and 265D are mandatory. A duty is cast upon the Court to scrutinise the record and the document submitted there before discharging or framing a charge in a case as the case may be. Just because name of a particular person is mentioned in the FIR or charge-sheet is not sufficient to frame charge against him or frame charge mechanically so that innocent person may not be harassed on false and vexatious allegations. Debobrota Baiddya Debu vs State 58 DLR 71.

Sections 265C & 561A—Procedural law is generally applied retrospectively, hi the cases here neither cognizance has been taken nor charge framed. As such it cannot be said that proceeding was pending before the Magistrate, when the law comes into operation. Shafiqul Islam vs State 61 DLR 280

Sections 265C & 561A—Whether the accused received the legal notice or not, it is merely a disputed question of fact and the same should be decided in trial. The plea of the accused is nothing but the defence plea. Be that as it may, the proposition of law is now well settled that on the basis of defence plea or materials the criminal proceedings should not be stifled before trial, when there is aprimafacie case for going for trial. Shamsul Alam vs State 60 DLR 677.

Section 265C-There is no scope to consider the extraneous or defence materials at the time of framing of charge. Stale vs Kamrul alias Kamruzzaman (Criminal), 73 DLR (AD) 224

Section 265D—Statements made under sections 164 and 161 CPC are documents on record within the meaning of section 265D. State vs Auranga @ KM Hemayatuddin 46 DLR 524.

Sections 265E and 412—There is no bar to the acceptance of the plea of guilty, even cases involving capital punishment or imprisonment for life—But no conviction should normally be based on the plea of guilty. The practice has been that the plea of guilty in such cases is not usually accepted. It is desirable for the Court to record the evidence and judge the case in the light of the evidence so recorded. Sheikh Mujibur Rahman @ Razibulla vs State 58 DLR 393.

Sections 265E and 412—An accused person who pleads guilty and is convicted has no right of appeal except as to the extent or legality of the sentence. ‘Where the facts alleged by the prosecution do not amount to an offence, the plea of guilty of an accused cannot stand in the way of his acquittal and section 412 of the Code cannot bar an appeal from his conviction. Sheikh Mujibur Rahman @ Razibulla vs State 58 DLR 393.

Section 265G—The mere fact that witnesses examined were not mentioned in the FIR is no ground for disbelieving them. Siraj Mal vs State 45 DLR 688.

Sections 265G & 37—Submission of sentence for confirmation—the order of conviction under section 302 Penal Code by the Sessions Judge on the basis of part of the evidence recorded by an Assistant Sessions Judge, who is not competent to hold trial under that sections is illegal. The death reference is rejected and the case is sent back for re-trial of the condemned- prisoner in accordance with law and in the light of observations made. State vs Imdad Au Bepari 42 DLR 428.

Section 288 [omitted by Ordinance XLIX of 1978]—Two ways of making the previous recognition of the accused admissible in evidence. Rules stated in 1925 AIR (All) 223 have been relied on by the State (Respondent).
One way, being by putting in his statement before the committing Magistrate under section 288 CrPC and “The other method is to elicit from the witness at the trial a statement that he identified certain persons at the jail and that the persons whom he there identified were persons whom he had seen taking part in the dacoity. Ratan Kha vs State 40 DLR 186.

—Principle of identification of an accused by witness in dock when there was a previous TI parade—Circumstances when a witness cannot possibly identify the accused in dock stated. Ratio decidendi in 1925 AIR (All) 223 approved. We are in respectful agreement with the ratio decidendi reported in 1925 AIR (All) 223.

—It is well-settled that the evidence that a witness gives in the witness box is the substantive evidence and it is always desirable that the witness should be able to identify the accused persons in dock when there was a previous TI Parade, but owing to lapse of time and other compelling reasons it may not be possible for the witness to identify the accused persons in dock. Ratan Kha vs State 40 DLR 186.

—Failure of witnesses to identify accused persons who are strangers to the witnesses— Identification if made without naming them Court’s duty to sift evidence in that circumstance—Any statement, express or implied, made by a witness identifying the accuseds but without naming them, it qualifies as substantive evidence—Test of. Ratan Kha vs State 40 DLR 186.

—Improbable suggestion categorically denied by PWs. That the appellants were taken either to the house of the informant or to the police barrack first and were shown to the PWs 1- 3 before the TI parade has no leg to stand upon. Ratan Kha vs State 40 DLR 186.

Sections 337, 335 and 339(1)—Certificate of the Public Prosecutor necessary for the prosecution of a person who has earlier accepted pardon. This section of the Code provides that a person who earlier accepted the pardon may be tried for the offence in respect of which the pardon was tendered, if the Public Prosecutor certifies that in his opinion the person has either wilfully concealed anything essential or had given false evidence and has not complied with the condition on which the tender was made. This implies that the whole basis for the prosecution of a person to whom pardon has been tendered under section 337 or 338 of the Code for the offence in respect of which the pardon was tendered is a certificate by the Public Prosecutor that in his opinion the person who has accepted the pardon has either wilfully concealed anything essential or had given false evidences and has not complied with the condition on which the tender was made. Angur vs State 41 DLR 66.

—Prosecution of approver who has not [complied with the condition on which pardon wasreceived. Angur vs State 41 DLR 66.

Sections 337, 338, 342 and 494—Unless the ditions are attached before allowing his application, it cannot be said that the accused has been legally pardoned for examining him as an accomplice. Therefore, attachment of terms of which he has been tendered is a condition precedent in allowing an application under section 338. State vs Ershad Ali Sikder 56 DLR 185.

Section 339B—The High Court Division did not give any finding on this point of circulation of the newspaper. Since it is a question of fact about the sufficiency or otherwise of circulation of the newspaper this cannot be raised at this stage. State vs Anowar Hossain Pinto alias Anowar Hossain 61 DLR (AD) 108.

Section 339(1)—The defects pointed out above are not cured by the provisions of the said section of the Code. Here in the present case before us the prosecutor who conducted the earlier sessions case in the 4th Court of Assistant Sessions Judge Mymensingh has not issued any certificate as required under sub-section (1) of section 339 CrPC and there is also no finding that the approver has broken the condition on which the pardon was tendered which is sine qua non for prosecuting an approver. In that view of the matter we are of the view that section 537 has no manner of application in this case. Angur vs State 41 DLR 66.

Section 339(1)—No material available to conclude that TI parade was conducted legally. Appellant entitled to benefit of doubt. From the materials on record it is also found that this appellant was produced before the Court on 4-6-78 for the first time and thereafter was produced in Court on various occasions before the holding of the TI Parade on 11-6-79 and definitely therefore, it was possible for the witnesses like PW 3 Joynal to see the appellant in Court. In such circumstances of the case the identification by PW 3 in the TI Parade is found to be quite unreliable and without any significance.  Furthermore, the Magistrate who conducted the TI Parade has not been examined during the trial. There is no material before the Court to find definitely that the TI parade was conducted legally and after observing legal formalities. In view of the above it is found that the identification of appellant Angur by PW 3 Joynal is very much unreliable and the appellant is entitled to the benefit of doubt. Angur vs State 41 DLR 66.

Section 339(1)—Conviction of the appellant who was identified by PW 3 who saw the appellant earlier while deposing as PW 7 in the case is not sustainable. Angur vs State 41 DLR 66.

Section 339(1)—Non-compliance of section 339(1) CrPC by the APP. In the present case before us the Assistant Public Prosecutor who conducted the case before the Assistant Sessions Judge, 4th Court, Mymensingh has not issued any certificate regarding his opinion as contemplated under sub-section (1) of section 339 of the Code of Criminal Procedure. Angur vs State 41 DLR 66.

The petition for prosecuting the appellant (approver) by the successor APP cannot be termed as a certificate contemplated under section 339(1) of the Code. The Assistant Public Prosecutor who conducted the case before the Assistant Sessions Judge, 4th Court, Mymensingh filed a petition before the trial Court on 8-12-82 praying for the prosecution of the present appellant (Approver) as, according to him, the appellant has not fulfilled the conditions on which pardon was tendered and accepted. The learned Assistant Sessions Judge on the basis of this petition directed for framing charge against the appellant. This petition dated 8-12-82 and the petition dated 23-3-85 submitted by successor APP Mr. Khan at Kishoreganj cannot be termed as a certificate issued by the Public Prosecutor as contemplated under section 339(1) of the Code. Angur vs State 41 DLR 66.

Section 339(1)—Condition for tendering pardon—Enmity between the approver and the other two accused—Whether such pardon is a pardon on condition. Furthermore, from the perusal of the record it is found that as regards the condition for tendering pardon it is at best a pardon on the condition that the approver will speak the truth and in this case he has spoken the truth by saying that he implicated accused Jamir and Sattar as he had litigation and disputes with them and, on the other hand, none of the other witnesses said that accused Jamir and Sattar participated in the dacoity or were present there. Angur vs State 41 DLR 66.

Sections 339(1) & 537—Certificate required under section 339(1) CrPC. If not complied with section 537 has no manner of application. The defects pointed out above are not cured by the provisions of the said section of the Code. Here in the present case before us the prosecutor who conducted the earlier sessions case in the 4th Court of Assistant Sessions Judge, Mymensingh has not issued any certificate as required under sub-section (1) of section 339 CrPC and there is also no Finding that the approver has broken the condition on which the pardon was tendered which is sine qua non for prosecuting an approver. In that view of the matter, we are of the view that section 537 has no manner of application in this case. Angur vs State 41 DLR 66.

Section 339(1)(2)(3)(4)(6)—Time for disposal of criminal cases—”Working days” mean “working days of a particular Judge or a Magistrate” and not the “working days of a particular Court”. Aminul Huq vs State 40 DLR 144.

Section 339B—Frequent adjournment of criminal trial—Court’s duly in the matter— Disinterested witnesses are losing interest to appear before the Court to avoid harassment of going to court again and again. It is desirable in the interest of administration of justice that witnesses be summoned on a day when the Court is in a position to examine them. No adjournment at the instance of any party should be allowed causing inconvenience to witnesses. Practice of adjourning criminal trial frequently on the prayer of the defence in spite of appearance of prosecution witnesses on the ground of absence of any accused overlooking provision of section 339B CrPC is contrary to law and should be discontinued. Mahbubur Rahman Khan vs State 45 DLR

Section 339B—Accused facing trial on capital charge—Entitled to be defended by a lawyer even if the trial is held in absentia— Court’s responsibility to appoint a lawyer to defend—Section 339B CrPC does not come in conflict with the rule of PR Manual—Cardinal principle of criminal administration of justice stated. State vs Jahaur Ali 42 DLR 94.

Section 339B—The appellants were tried in absentia although they were in custody in connection with another case and not produced in the present case for no fault of their own. In such a position prayer for fresh trial is not entertainable. Muslim vs State 47 DLR 185.

Section 339B, sub-section (1)—Failure to publish the order in at least one Bengali daily news-paper is violative of the provision of section 339B CrPC and also of principle of natural justice. Moktar Ahmed vs Hazi Farid Alam 42 DLR 162.

Sections 339B(2) & 512—Since section 339B(2) provides for absentia trial, section 512 has no application in the case of an accused who appeared before the court but thereafter absconded. Baharuddin vs State 47 DLR 61.

Section 339C—Provisions of this section s not merely a procedural law. It is a law vesting the accused with a right which could not be taken away by a subsequent amendment if the law. Abu Sufian vs State 45 DLR 610.

Section 339C—Section 29 of the Special Powers Act makes the Code of Criminal Procedure applicable to the proceedings of the Special Tribunal—the time-limit imposed by section 339C CrPC will also apply to the procee-dings of Special Tribunal. Chand Miah vs State 42 DLR 97.

Section 339C—”Working days” for disposal of criminal cases—stopping proceedings for release of the accused—”Working lays” of the Court—”Working days” shall bç understood to mean the “Working days” during which the learned judge will hold the charge of the trial Court—A Division Bench of the High Court Division rightly excluded the period of 53 days from the statutory period for the trial s the Additional District Judge held the charge of the District and Sessions Judge for 53 days which were not treated as “Working days” for the trial Court. The application for quashing the proceedings rightly rejected. Abul Kashem vs State 40 DLR (AD) 97.

Section 339C read with Ordinance No. 37 of 1983 (coming into force on 8-8-1983 extending the time-limit upto 30-6-1985 in his case and later on fmally upto 30-9-1985) Charge-sheet was submitted on 16-6-83 before SDM who in due course forwarded the record to the Sessions Judge for trial. The case comes within the ambit of the lime limit of the Ordinance No. 37 of 1983 which was intended to save such trials. Construction put to the Ordinance by the HC Division is not correct to conclude that this case is “not pending” on the date of commencement of the Ordinance. State vs Madhu Mridha 40 DLR (AD) 99.

Section 339C—Concluding a trial beyond time—The Sessions Judge having received the case for disposal on 8-12-84 and delivered his judgment on 29-9-87 long after the expiry of the stipulated time for disposal of the case the trial was without jurisdiction and the conviction illegal in view of the provision of section 339C. Abdul Quddus vs State 44 DLR 441.

Section 339C—The provision of this section does not show legislative intention to permit exclusion of the days of adjournment taken by the defence or non-production of the accused in a case on the ground of illness. Motiar Rahman vs State 47 DLR 593.

Section 339C, 339D(b)—Section 339C and 339D(b) of the Code are inconsistent with the provision of section 8 of the Ordinance and due to this inconsistency these two provisions 339C and 339D(b) are not applicable in the cases revived under the Ordinance. “Working days” of the Court as provided in section 339D(b) cannot be brought into the ambit of section 8 of the Ordinance. The provisions of section 8 provided that trial of such cases must be concluded within two years from the date of commencement of the Ordinance. In the present case it appears that the case was revived on 17-2- 87 and in view of the provision of section 8 the trial ought to have been concluded within 20-1- 87. But the trial Court failed to conclude the trial within that period and when the petitioner approached the court for stopping the proceeding his prayer was rejected applying the section 339D(b). But in view of the above the provision of section 339D(b) has no manner of application. Abdul Nur Mehidi vs State 46 DLR 303.

Section 339C(6)(b)—The trial could not be held for 26 working days of the Tribunal as the accused after being released on bail remained absent. The absence is on his own peril and he cannot take advantage of his own wrong so as to ask for deduction of 26 working days. Humayun Kabir vs State 46 DLR 410.

Section 339C—Non-working days of a particular judge for reasons beyond his control like unsuitable working condition in the Court room should be excluded while computing the working days. Abdul Motaleb Shaque vs State 47 DLR 24.

Section 339C—The days on which the case was adjourned due to default of the accused should not be considered as working days, otherwise it will be easy for the accused to stretch the trial beyond the statutory period. Abdul Motaleb Shaque vs State 47 DLR 24.

Section 339C—The whole purpose of unamended section 339C was to whip up the prosecution and activise the trial Court so as not to delay the trial of a case unnecessarily. Abdul Wadud vs Slate 48 DLR (AD) 6.

Section 339C—The Sessions Judge made a mistake in holding that after receipt of records of the case for trial in December 1988 by his predecessor, a fresh period of 270 days will start for him to complete the trial since he had taken charge of the Sessions Division in January 1991. Section 339C referred to an office, not a person. Abdul Wadud vs State 48 DLR (AD) 6.

Section 339C, 339D(b)—Section 339C and 339D(b) of the Code are inconsistent with the provision of section 8 of the Ordinance and due to this inconsistency these two provisions 339C and 338D(b) are not applicable in the cases revived under the Ordinance. Abdul Nur Mehedi vs State 46 DLR 303.

Sections 339C(1)(4)(6), 435 and 439— Section 339C(4) does not provide for abating any case nor does it provide for acquittal of the accused but merely provides for stopping the trial of the case and releasing the accused’ person— Impugned order by the learned Magistrate suffers from manifest illegality as only 22 days out of 30 extended days have passed—339C(6) provides for counting of working days in determining the time for disposal of cases. Sultan Ahmed vs Golam Mostafa 40 DLR 85.

Section 339C(2)(3)(4)(6)—Time for completion of trial of Sessions case within the statutory period of 270 days including the extended time— Case pending before the sessions Judge, Narail since 12-12-1985—After examination of one witness the petitioner filed a petition under section 339C(4) of the Code for release of the accused petitioner on he ground that the specified period of 240 lays and extended time of 30 days totalling 270 working days for trial of the accused petitioner had already elapsed—Dictionary meaning of the word is not a safe guide for interpreting an expression in a statute—Calculation sheet showed that more than 361 working days of the court had passed from 12-12-85 to 30-3-87 and the number of 361 days excluded only holidays and Fridays but not the days during which the Sessions Judge could not sit in court when the Court was open— “Working days” shall be interpreted as ‘working days” of the Judge and not of the Court—Non- working days of a particular Judge for reasons beyond his control should be excluded from the “working days” when counted. Ekramul Hoq vs State 40 DLR 139.

Section 339C(4)—It was incumbent upon the Special Tribunal to allow the accused to go on bail when it could not complete the trial within the time provided. RaJIq Hasan alias Biplob vs State represented by the Deputy Commissioner 48 DLR  274.

Sections 339C(4) & 497—Besides inordinate delay in prosecuting the trial of the case and the provision of section 339C(4) of the Code, the fact that the appellant has been suffering from enlarged prostate gland and problems in his urinary track attracts the proviso to section 497 CrPC for consideration to enlarge the accused on bail. Captain (Retd) Nurul Huda vs State 55 DLR (AD) 33.

Sections 339C(4) and 498—Even in a non- bailable offence the accused is entitled to be enlarged on bail unless the Court decides otherwise assigning reasons which are relevant to the fact of the case. Captain (Retd) Nurul Huda vs State 55 DLR (AD) 33.

Sections 339C(4) & 498—The prosecution could not give plausible reason for inordinate delay in proceeding with the case—This circumstance can be considered as a ground for granting bail to an accused. Captain (Retd) Nurul Huda vs State 55 DLR (AD) 33.

Sections 339C(4) & D—Revival of a case— By the use of expressions in an unambiguous manner the legislature has left absolutely no doubt that the limitation regarding making an application by the Government to the court for revival of the relevant case shallrun from the date on which the court concerned actually stopped the proceedings and not from the date on which the proceedings of the trial of the case should have been stopped. AHM Kamaluddin vs State 43 DLR 294.

Section 339C, sub-section (6)—Criminal trial—”Working days” to be counted in determining the time for disposal of criminal cases— “Working days” mean the days on which a Judge works as such. So, the days when the learned Sessions Judge was on leave and outside the stations should not be regarded as “Working days” of the learned Sessions Judge. The court is of the opinion that these days should be excluded while computing the time required for disposal of the sessions case. This being the legal position 150 days did not expire in the present case and application for stopping of the proceeding of the sessions case and for release of the accused petitioners has rightly been rejected. Akbar Au vs State 40 DLR 29.

Section 339D—Revival of a case under section 339D. Under the scheme of the Code itself, the Public Prosecutor is competent to file application for revival of a ease on behalf of the Government without any authority or instruction whatsoever. Dr SM Abu Taher vs State 42 DLR 138.

Section 339D—The petitioner being the full brother of the deceased victim and a charge-sheet prosecution witness, is no doubt an aggrieved person and competent to file the application for revival of the case. Abdus Sobhan vs Ali Akbar 47 DLR 598.

Section 339D—A Public Prosecutor represents the State in a case “of which he has charge” which is under enquiry, trial or appeal. Any action taken by the Public Prosecutor in such a case particularly when a case has been stopped due to expiry of the time-limit (which law has since been repealed) will be deemed to be an action on behalf of the Government so long as the Government do not disown it. Alimuddin vs State 49 DLR (AD) 118.

Section 339D—Where a case is revived under section 339D(1) whether the statutory period of 240 days should be counted from the date the case was received by the trial Court after revival or from the date of revival? A careful examination of all the sub-sections of section 339D will show that the sub-section (5) of section 339D reconciles section 339D(4) with section 339C(2) by laying down in an unambiguous language that the starting point of computation of the statutory period in a case revived under section 339D(1) is the date of revival which, according to sub-section 5 of section 339D, is deemed to be dated on which the case is received for trial. Belayet Hossain vs State 46 DLR 413.

Section 339(4)—Working days should be understood to mean actual working days during which the learned Judge holds the Court. Nurul Islam Monzoor vs State 53 DLR 59.

Section 339(4)—There is no absolute direction to allow bail, even in case of failure to complete the trial within the statutory period, as the mandate, if any, for allowing bail is subjected by the words, “unless for reasons to be recorded in writing, the Court otherwise directs”. Nurul Islam Monzoor vs State 53 DLR 59.

Section 340—An Advocate to defend an undefended accused charged with capital offence should be appointed well in time to enable him to study the case and the lawyer should be of sufficient standing and able to render assistance. He should be provided with papers which are ordinarily allowed to the accused. The deficiencies as on the record are due to the appointment of State lawyer without giving him sufficient time to prepare the case. This has seriously prejudiced the accused persons and their defence was materially affected. The State defence lawyer could not to justice to the case of the absconding accused who have been sentenced to death. The impugned order of the learned Sessions Judge convicting and sentencing condemned-prisoner Hanif and convict Waliur to death under sections 302/34 of the Penal Code is set aside and they are directed to be tried of the charge already framed. The case is sent back on remand for fresh trial in the light of the observation made. State vs Hanif Gani 45 DLR 400.

Section 340—The requirement of law is that irrespective of whether the accused is absconding or not he is as of right entitled to be represented and defended by a lawyer appointed by the court and the trial Court must ensure that it has been done before the commencement of the trial or else the trial and the resultant conviction and sentence would be vitiated. Mobarak Ali vs Bangladesh 50 DLR 10.

Section 340—The condemned-prisoner was in custody and he was produced before the court from time to time but he was not represented by any lawyer of his choice. So it was the duty of the court to appoint a lawyer at the cost of the state to defend the condemned-prisoner as the offence was punishable with death. State vs Rabiul Hossain alias Rob 52 DLR 370.

Section 340-Right of an accused to be defended by a lawyer in a case charged under section 302 of the Penal Code being punishable with death is, an inalienable right guaranteed in the law of our land and if any trial takes place refusing such fundamental right the trial is a misnomer and the judgment passed convicting an accused is no judgment in the eye of law. Babu Khan vs State 55 DLR 547.

Section 340-Right of an accused to be defended by a lawyer in a case charged under section 302 of the Penal Code being punishable with death is an inalienable right guaranteed in the law of our land and if any trial takes place refusing such fundamental right, the trial is a misnomer and the judgment passed convicting an accused is no judgment in the eye of law. Abdul Hannan vs State 61 DLR 713.

Sections 340, 342, 343—A self-confessed accused may be treated as an approver but who does not participate in the criminal act along with others cannot be accepted as an accomplice. State vs Ershad Ali Sikder 56 DLR 185.

Sections 340(1) & 352—Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader. The law has not given any authority to the learned Sessions Judge to limit the appointment of lawyer by each accused. The order limiting the appointment of lawyer by each accused is absolutely without jurisdiction. Section 352 of the Code of Criminal Procedure provides that the learned Judge of the court will consider the accommodation of the general public in the Court room. If one accused engages for himself one hundred lawyers, the lawyers are entitled to defend the accused and as regards sitting arrangement the Judge will control, but he cannot pass any order limiting the appointment of lawyer. Hossain Mohammad Ershad [former President Lieutenant General (Retd) vs State 48 DLR 95.

Section 340(3)—As the accused has right to know about the prosecution’s evidence so the prosecution should have right to know about the accused’s evidence before trial. Ali Akbar vs State 51 DLR 268.

Section 342—Appellant’s attention having been not drawn to the confessional statement, the confessional statement cannot be used against him.
While examining this appellant under section 342 of the Code the trial Court has also not drawn the attention of appellant to the confessional statement made by him. In such circumstances also the confessional statement cannot be used against the appellant. The trial court also should not state anything regarding any incriminating evidence against the appellant under section 342 CrPC. Angur vs State 41 DLR 66.

Section 342—There being nothing on record to show that the main aspects of the confessional statement of the accused was brought to his notice he was certainly prejudiced and, as such, the statement could not be used against him. Kabir vs State 45 DLR 755.

Section 342—The accused appellant was asked questions during statement under section 342 CrPC with the preconceived notion that he was already found guilty under sections 395/397 of the Penal Code. This type of questions being against all norms of procedure of criminal jurisprudence are highly prejudicial to the accused. Abu Taleb vs State 41 DLR 239.

Section 342—No question relating to bloodstained cloth or injury in the hand was put to the condemned-prisoner. This circumstance has no basis to base conviction.
It is surprising that though some of the PWs alleged to have seen the said blood-stained shirt, no attempt was made even by the police to seize the same and also to examine the said blood by any chemical examiner. Further, in the examination under section 342 CrPC no question relating to such blood-stained cloth or injury in the hand was put to the condemned-prisoner. So, this circumstance has no basis and the same has not been established at all by any reliable evidence. State vs Badsha Mollah 41 DLR 11.

Section 342—Provisions of section 342 having not been followed strictly, Exhibit 5, the confessional statement, was wrongly relied upon.
Since the officer who conducted the test identification parade was not examined by the prosecution, the test identification report is not admissible in evidence.

So far as accused appellant Amir Hossain is concerned since his confessional statement has not been mentioned in his examination under section 342 of the Code of Criminal Procedure he cannot be convicted relying upon his confessional statement.

Since the prosecution can neither rely upon his confessional statement nor take advantage of the evidence of identifying witnesses there is no other legal evidence against accused Amir Hossajn to sustain his conviction under sections 395/397 of the Penal Code. Amir Hossain vs State 41 DLR 32.

Section 342-Non spelling out of details of the confession to the appellant at the time of his examination under section 342 of the Code, he has not been prejudiced in any way. Khorshed (Md) vs State (Criminal), 73 DLR (AD) 83

Section 342—A statement of the accused under section 342 CrPC is meant for giving him an opportunity to explain the circumstances appearing against him in the evidence adduced by the prosecution—This is entirely for the benefit of the accused and the accused only—This statement cannot be used by the Court against him, nor is the prosecution permitted to use it to fill up any gap left in the prosecution evidence. Relied on (1923) ILR Lah 50. Shah Alam vs State 42 DLR (AD) 31.

Section 342—One of important items for linking up the accused with the crime, namely the sandal, was not at all put to the accused as a circumstance appearing in the case against him while he was examined under section 342 CrPC. Mizazul Islam vs State 41 DLR (AD) 157.

Section 342—The trial Court failed to take into consideration along with evidence on record the accused’s written reply giving vivid description of the highhandedness of BDR personnel in support of their defence that they were implicated in the case at the instance of their rival businessmen. Subodh Ranjan vs State 45 DLR 521.

Section 342—Presence at the place and time of murder—reasonable doubt as to guilt—In his examination under section 342 CrPC, though all the evidence against him were brought to his notice to prove the charge of murder, accused Kashem did not explain away his presence with co-accused Abbas at the place and time of the murder to raise doubt in the mind of the Court about his guilt, not to speak of raising any reasonable doubt. Abul Kashem vs State 42 DLR 378.

Section 342—Allegation of torture made in statement recorded under section 342 CrPC—No reliance can be placed on the belated allegation of torture by police in obtaining confession in the absence of materials on record to substantiate the same. Hazrat Ali & Abdur Rahman vs State 42 DLR 177.

Section 342—Conviction of co-accused who has not confessed—Circumstances show the accused Shahjahan Manik had intimacy with accused Rina and this put them on visiting terms and the visits had strengthened his intimacy with Rina. Their guilty conscience is also evident from the false plea in their statements made under section 342 CrPC that they did not know each other. Shahjahan Manik vs State 42 DLR 465.

Section 342—The provision of this section is meant for giving the accused an opportunity to explain the circumstances appearing against him. There is no merit in the contention that the appellate Court acted illegally in relying on his statement under section 342. Abdul Karim vs Shamsul Alam 45 DLR 578.

Section 342—Omission to examine the accused under this section is not curable under section 537. After the prosecution closes its evidence the court shall examine the accused and ask them whether they will adduce any evidence in defence. Omission to do so vitiates the conviction if such omission has prejudiced the accused in their defence. The conviction is set aside and it is directed that the accused be examined under section 342 CrPC by the trial Court and thereupon the case be disposed of according to law. A Gafur vs Jogesh Chandra Roy 43 DLR (AD) 62.

Section 342—Non-mentioning of memo of TI parade, the basis of conviction of the accused appellant in his examination under section 342 CrPC, has definitely prejudiced him inasmuch as, in absence of the same he could not explain the matter showing his innocence. Mizanur Rahman vs State 49 DLR 83.

Section 342—The only evidence of involvement of the accused appellants comes from their confessional statements, but during their examinaion under section 342 CrPC the confessional statements were not put up before them and they were denied the opportunities of offering any explanation on the same. This has prejudiced the appellants in their defence. Abul Kashem vs State 49 DLR 573.

Section 342—Nothing was put before the accused about the alleged confession while examining them under section 342 CrPC and for this non-compliance of the mandatory provision, the accused persons have been seriously prejudiced. Abul Hossain vs State 46 DLR 77.

Sections 342 & 537—When confessional statement is found to be true and voluntary and it gets corroboration from some other evidence, the appellant had not been prejudiced for non- mentioning of his confession in his examination under section 342 CrPC. This irregularity or omission is curable under section 537 CPC in the facts of the case and the same has not vitiated the trial. Abul Khayer vs State 46 DLR 212.

Section 342—Non-mentioning of memo of TI parade, the basis of conviction of the accused appellant in his examination under section 342 CrPC, has definitely prejudiced him inasmuch as, in absence of the same he could not explain the matter showing his innocence thereto. Mizanur Rahman vs State 49 DLR 83.

Section 342—The only evidence of involvement of the accused appellants comes from their confessional statements, but during their examination under section 342 CrPC the confessional statements were not put up before them and they were denied the opportunities of offering any explanation on the same. This has prejudiced the appellants in their defence. Abul Kashem vs State 49 DLR 573.

Section 342—The trial Court is under an obligation to properly comply with the requirement of law so as to avoid any possible prejudice to the accused on this Count. Nurul Alam Chowdhury vs State 125.

Section 342—The provision of section 342 CrPC has been codified providing opportunity to the accused to make out his case of innocence. As he was denied the right to present his case for no fault of his own, the accused was seriously prejudiced in his trial. The order of his conviction is quashed. Shahidul vs State 51 DLR 222.

Section 342—Incriminating circumstances appearing in the evidence of PW 1 complainant having not been pointed out to the accused he is likely to be gravely prejudiced in his defence. Nibash Chandra vs Dipali Rani 52 DLR 87.

Section 342—This provision of law is intended for the benefit of the accused. The trial Court is under an obligation to properly comply with the requirement of law so as to avoid any possible prejudice to the accused on this count. Nurul Islam Chowdhury vs State 52 DLR 397.

Section 342—The accused-appellant took some alibi in retraction petition but when he did not adduce any evidence in support of his alibi he did not discharge his burden to prove the alibi. 43 DLR (AD) 63, Nannu Gazi vs Awlad Hossain ref. Shahjahan vs State 53 DLR 268.

Section 342—Incriminating evidence or circumstances sought to be proved by the prosecution must be put to the accused during examination under section 342 CrPC otherwise it would cause miscarriage of justice. State vs Monu Miah 54 DLR (AD) 60.

Section 342—Since the petitioner has admitted his guilt no examination under section 342 of the Code of Criminal Procedure is required while convicting and sentencing the accused on the basis of the same. Jashimuddin vs State 56 DLR (AD) 223.

Section 342—The dying declaration, if be treated as true, cannot form the basis of conviction, as it was not referred to the accused while examined under section 342 of the Code. Noor Hossain vs State 55 DLR 557.

Section 342—The examination of the accused under section 342 of the Code is not a mere formality it is the fundamental principle of law that the attention of the accused must be drawn to the evidence on record in a precise manner—Any dying declaration and confessional statement of any accused person must be stated to the accused to enable them to resist the case of prosecution. State vs Kabel Molla 55 DLR 108.

Section 342—Trial will not be vitiated if there is no question of prejudice due to any flaw in the examination under section 342 CrPC. Zakir Hossain vs State 55 DLR 137.

Section 342—Non-consideration of written statement and documents and papers in support of written statement by trial Judge and his absolute silence on those caused a prejudice of a grave nature to the convict. Kazi Mahbubuddin Ahmed alias Mahbub vs State, represented by the DC, Dhaka 57 DLR 513.

Section 342—Section 342 of the Code being a mandatory provision of procedural law the departure from the principles of the section causes grave prejudice to the accused. In this case the accused having not been given any opportunity to explain the circumstances, the order of their conviction is liable to be set aside. Mohiruddin Mondal vs State 57 DLR 779.

Section 342—৩৪২ ধারার বিধান হচ্ছে সাক্ষীদের  আসামীর বিরুদ্ধে যে তথ্য প্রকাশ পায় তা বিচারক দ্বারা আসামীর দৃষ্টিগোচরে এনে তাকে তা ব্যাখ্যা করার সুযোগ দেয়ার জন্য তাকে প্রয়োজনীয় প্রশ্ন করা । আসামী দোষী কি নির্দোষী তা জিজ্ঞাসা করা উক্ত বিধানের উদ্দেশে নয় । Abdul Razzak Talukder vs State, represented by the Deputy Commissioner Barisal 51 DLR 83.

Section 342—যেহেতু আসামী পক্ষে বিজ্ঞ এডভোকেট ৩৪২ ধারায় আসামীকে একটি পূর্ণভাবে প্রশ্ন করা সম্পর্কে কোন প্রশ্ন উত্থাপন করেননি সে জন্নে আমরা ৩৪২ ধারায় আসামীকে প্রশ্ন করা ত্রুটিপূর্ণও বলে সে সম্পর্কে কোন সিদ্ধান্ত দেয়ার প্রয়োজনীয়তা দেখি না । তা ছাড়া আসামী ঘটনা সম্পূর্ণ অস্বীকার করে ছাফাই সাক্ষী দেয়ায় তদ্রুপ ত্রুটিপূর্ণ প্রশ্নের দ্বারা আসামী বিচারে ক্ষতিগ্রস্থ হয়েছে বলেও আমরা মনে করি না । Abdul Razzak Talukder vs State, represented by the Deputy Commissioner, Barisal 51 DLR 83.

Section 342—The accused retracted his confession during his examination under section 342 CrPC—Such belated retraction of confession always creates doubt about its genuineness. State vs Mokammel Hyeath Khan 58 DLR 373.

Section 342—The essence of section 342 CrPC is to enable the accused to comprehend the allegations and evidences levelled against him for the purpose of affording him a good defence by bringing and pointing at only the incriminating materials that exist against him. He cannot be vexed with long series of questions. Ibrahim vs State 58 DLR 598.

Section 342—It appears that while examining the accused-appellants under section 342 of the Code of Criminal Procedure the trial Court failed to put the incriminating evidence against the accused-appellants for the purpose of enabling them to explain any circumstance and thereby the accused-appellants have been prejudiced. Shahid Mia vs State 60 DLR 371.

Section 342—It is well settled that at the time of examination of the accused under section 342 of the Code of Criminal Procedure his attention must be drawn to the incriminating evidence or circumstances sought to be proved against him, otherwise he would be prejudiced (vide 54 DLR (AD) 60. A Wahab vs State 60 DLR 34.

Section 342—Written statement submitted by the appellant when he was examined under section 342 of the Code of Criminal Procedure is not evidence within the meaning of section 3 of the Evidence Act. Such statement is to be considered along with the evidence and the circumstances and if the statement gets support from the evidence on record due weight may be given on it. [Vide 42 DLR (AD) 31]. Thus such statement cannot be the sole basis of conviction. Hasan Md vs State 60 DLR 56.

Section 342—It is the fundamental principle of law that the attention of the accused must be drawn to the evidence on record in a precise manner. Kazi Ranimul Islam vs State 62 DLR 6.

Section 342—Sending back the case on remand for fresh trial from the stage of the examination of the accused under section 342 of the Code for the purpose of bring the incriminating evidence including the confessional statement to the attention of the appellant cannot be taken as giving of undue privilege to the prosecution to fill up any lacuna. Rather, remand of the case to the trial Court is for removing a procedural defect only which was caused for non-application of the mind of the trial judge. If such type of procedural defect is not allowed to be cured and the accused is acquitted for such procedural defect that will cause great injustice to the informant side who brought the matter before the Court of law for justice. Sohel Sanaullah @ Sohel Sanaullah vs State 63 DLR (AD) 105.

Sections 342 & 537—Omission of charge as to common intention—Non-mentioning of section 34, Penal Code during his examination under section 342 CrPC has not in any manner prejudiced the accused in their defence. It is a mere irregularity which is curable and there has been no failure of justice for such non-mentioning. Abul Kashem vs State 42 DLR 378.

Sections 342, 164 & 537—Since the attention of the accused was not drawn to his confessional statement when he was examined under section 342, he is obviously prejudiced. Such defect is not curable under section 537 of the Code. Abu Jamal vs State 51 DLR 57.

Section 344—Stay of proceeding—In the facts of the case as in point of time the civil suit was instituted before the filing of the FIR and the questioned documents in their originals are yet to be produced and examined by the civil Court. The criminal proceeding, where the documents are claimed as forged, may, in the interest of justice, be stayed till the disposal of the civil suit. Zakir Hossain vs State 43 DLR (AD) 102.

Section 344-In view of the provisions of section 344 of the Code, it appears necessary that the trial of the CR Case No. 2969 of 2004, now pending in the Court of Metropolitan Magistrate, be postponed for a limited period facilitating the disposal of the OC Suit No. 110 of 2002 for Specific Performance of Contract based on Bainapatra dated 10-4-2001 between the parties. Hanjf vs State 60 DLR 634.

Section 344—Refusal of prayer for ad- interim stay while issuing Rule in criminal revision. When appellant clearly stated before the High Court Division while obtaining the Rule that she gave birth to a child just five months ago and it would be injurious to her health as also to the baby if both were to be placed under any type of custody at that critical stage it was not a judicious and sound exercise of discretion to refuse the said stay. Azima Begum vs Yusuf Khan 43 DLR (AD) 53.

Section 344-Prayer for stay of judgment in criminal case on the ground of pendency of civil suit—Section 344 CrPC authorises the Court to adjourn a trial. That a judgment in a criminal court is pronounced “after the termination of the trial” is provided in section 366 CrPC. Therefore, the prayer for stay of delivery of judgment under section 344 was misconceived. HM Ershad vs State 44 DLR (AD) 145.

Section 344-Power to postpone proceedings—Applicability of such power to postpone judgment in a criminal case pending disposal of a civil suit—The application under section 344 CrPC had been moved at a belated stage after the evidence was closed and the trial came to an end. Only because the judgment remains to be delivered, the application does not appear to be one as contemplated under section 344. In fact the petitioner knew of this and prayed for adjournment of the judgment, not of the trial. The application at this stage does not appear to be maintainable. HM Ershad vs State 44 DLR 116.

Section 344-Stay of criminal proceedings—Remand—A case and counter case over the self-same occurrence are to be tried by the same Court one after another. The judgment in both the cases is to be pronounced on the same date by the same Magistrate so that there is no conflicting decision and the parties are not prejudiced. The impugned judgment and order is set aside and the case remanded back to the Magistrate with direction to try CR Case No. 155 of 1989 and CR case No. 152 of 1989 by the same Magistrate giving opportunity to the parties to adduce their evidence and keeping the evidence already recorded in Cr Case No. 155 of 1989 intact. Sharif vs Md Obaidur Rahman 43 DLR 66.

Section 344-The custody spoken of is jail custody. The Magistrate can remand an accused person to custody for a term not exceeding 15 days at a time provided that sufficient evidence has been collected to raise a suspicion that the accused may have committed an offence. Saifuzzaman vs State 56 DLR 324.

Section 344—Stay of proceeding in criminal matter when not entertainable—The proceeding under section 138 of the Negotiable Instruments Act appears to be quite independent in nature with a very limited scope for adjudication which is not at all related to the issues involved in the Civil Suit. Moreover, at the fag end of trial of the criminal case, such an application praying for stay order was not at all justified and entertainable. Zafar Ahmed vs Mir Iftekharuddin 61 DLR 732.

Section 344—Magistrate can make such order of remand in the absence of the accused if he is seriously ill and cannot be produced in Court. Saifuzzaman vs State 56 DLR 324.

Section 344—The accused had already been taken to police remand twice, yet there is nothing before the court to show the outcome of such remand—The respondents are directed not to go for further remand of the accused and in case of the ongoing remand he should not be subjected to physical torture of any kind. Ministry of Home Affairs 56 DLR 620.

Section 344—It is desirable that for ends of justice as well as to avoid any future complication all the counter-cases be tried by same Judge one after another which may not prejudice the parties. Tareq Shamsul Khan alias Himu vs State 56 DLR 622.

Section 345(2) An offence under sections 406 and 408 of the Penal Code can be compounded only by the owner of the property in respect of which breach of trust has been committed. The informant was neither the owner or trustee nor had any function in the administration of the trust. He was simply the Vice-President of the Mosque of the trust. By no stretch of the imagination could he be said to have any proprietary interest in the trust property. Simply it can be stated that he is not the owner of the property in question. Not being the owner of the trust property, the informant did not have the capacity to compound the case. Nurul Alam vs Saleha Khatoon (Criminal), 73 DLR (AD) 153

Section 349A—Sessions Judge acted illegally in deciding the case upon the evidence recorded by the Special Martial law Court. This was the precise argument made on behalf of the respondents in the High Court Division which should have been upheld but the High Court Division misdirected itself in relying upon paragraph 4 of the Proclamation of Withdrawal of Martial Law dated 10-11-86. Although the reason was wrong but its conclusion was right that the order of conviction and sentence was illegal and without jurisdiction. Martial Law Court. State vs Golam Mostafa 49 DLR (AD) 32.

Sections 364 & 164—It was injudicious to rely upon confession without calling the Magistrate as a witness. The Court is required to see not only that the forms under sections 164 and 264 CrPC were complied with but the substance underneath the law equally adhered to. Bimal Chandra Das alias Vim vs State 51 DLR 466.

Sections 364 & 164(3)—The provisions under these two sections are mandatory and required to be strictly followed to make the confession voluntary and true and fit for reliance for convicting the accused on his confession. Abul Hossain vs State 46 DLR 77.

Section 367—There has not been any miscarriage of justice caused by non-compliance with the provisions of section 367 CrPC while acquitting the accused persons by the Magistrate though his judgment was not in proper form. Nurul Huda vs Bhashanu Sardar 40 DLR (AD) 256.

Section 367—Judgment—Writing of a proper judgment—If the trial Court’s judgment is such that it cannot be termed as a judgment as per requirement of this section, hence an order of writing a proper judgment may be necessary– When the entire matter is open to the criminal Appellate Court which is required by law to assess the evidence independently and come to its finding, then merely because there has been some omission made by the Trial Court in not considering a piece or pieces of evidence, would hardly offer a valid ground for sending the case on remand for a proper judgment. Md Moslehuddin vs State 42 DLR (AD) 160.

Section 367—Remand—As a general rule an order for retrial would be proper if the trial in the lower Court was vitiated by illegality or irregularity or for other reason. Md Moslehuddin vs Slate 42 DLR (AD) 142.

Section 367—The sentence of only 3 days for the offence punishable under section 475 is shockingly inadequate, as such, the order of enhancement of sentence passed by the appellate Court needs no interference. At the same time, the punishment awarded by the appellate Court but not prescribed by section 471 of the Code is reduced on the ground discussed. Abdul Ahad vs State 58 DLR 311.

Section 367 as amended by the Law Reforms Ordinance (XLIX of 1978), Section 2 and Schedule thereto read with the Penal Code(XLV of 1860), Section 302.

Substitution of sub-section (5) of section 367 CrPC by the Law Reforms Ordinance—Effect of change on sentencing—Previously death sentence was the normal sentence for murder and the court was required to give reasons if the lesser sentence of life imprisonment was given—After the substitution now reasons have to be given in either case—A death sentence is to be justified in as much in the same way as in the case of lesser sentence of life term imprisonment. Abed Ali vs Slate 42 DLR (AD) 171.

Sections 367 & 424—The Additional Sessions Judge sitting on appeal did not apply his mind at all in order to come to an independent decision. He came to the conclusion “found nothing illegal in the impugned order” just after quoting in his judgment some portions of the judgment of the trial Court. In such a position, no Rule need be issued—the case is sent back for delivering a proper judgment. Ekram All Fakir vs Abdus Samad Biswas 47 DLR 53.

Sections 367 and 424—While disposing of a criminal appeal, the appellate Court must consider at least the material evidence of the case and arrive at independent findings on all material points at issue. Mere saying that it concurred with the findings of the trial Court is not sufficient to meet the requirements of law. Yasin Mollah vs State 53 DLR 99.

Sections 367, 439A and 561A—The revisional court is competent to direct the trial Court to write a fresh judgment in a case where the trial court has failed to discuss and assess the evidence and written its judgment without trying to determine the fact in issue. Abul Hossain vs State 56 DLR 12.

Section 367(1)—Mere stating by the Appellate Court that the appeal is dismissed on merit and the order of conviction and sentence is confirmed without considering the evidence on record and the cases of the parties cannot be said to be a judgment on merit. Abul Basher vs State 40 DLR 248.

Section 367(1)—Section 367(1) relates to Criminal Court of original jurisdiction but the same has been made to apply to the Appellate Court except the High Court Division by reasons of section 424 CrPC. Abul Basher vs State 40 DLR 248.

Section 367-A judgment has a significant social and civic function. After hearing the facts of case, evidence, law points, arguments, the Court will be in a position to pronounce the conviction or acquittal. The purpose for writing good judgment depends much on adherence of the independence, impartiality, fairness and competence, Failure to do so, spirit of judgment will be dying behind the close door. The soul of a judgment are the reasons for arriving at the findings. Before recording finding on a charge, the relevant evidence must be considered and discussed the submissions made on behalf of the parties. The method of arriving at a conclusion is the most important part writing judgment. Anti-Corruption Commission vs (Criminal), 73 DLR (AD) Omar Faruk 218

Section 369—Review—Application praying for review of judgment passed in a criminal case is totally contrary to the provisions of section 369. Samad Ahmed vs State 45 DLR 394.

Section 369—Judgment in criminal case after it is signed cannot be altered or reviewed except to correct clerical error. There is no question of correcting clerical error in rehearing the matter by setting aside judgment already pronounced and signed. Serajul Islam vs Faziul Hoque 47 DLR 480.

Section 369—The provision of section 369 of Code of Criminal Procedure clearly bars alteration of a judgment in a Criminal matter where it is already signed excepting to correct clerical error if any. Mostafa Aminur Rashid vs State 51 DLR 543.

Sections 374 and 376-The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal". There is no justification to commute the death penalty to imprisonment for life. Khorshed (Md) vs State (Criminal), 73 DLR (AD) 83


Section 374—Commutation of sentence— extenuating circumstances for commutation — condemned-prisoners are under peril of death sentence for almost 3 years suffering agony and torments and thereby partially purged their guilt. Their life may be spared. Sentence of death commuted to one of imprisonment for life. Abul Kashem vs State 42 DLR 378.


Section 374—Accused Rina is a young woman aged 24 with an infant and she confessed expressing repentance. Both the convicts suffered pangs of death sentence for about 3½ years. There are extenuating circumstances for sparing them from the extreme punishment of death. Shahjahan Manik vs State 42 DLR 465.

Section 374—Commutation—Delay by itself is no extenuating circumstance for commuting the sentence. There must be other circumstances of a compelling nature which together with delay will merit commutation. Abdul Khair vs State 44 DLR (AD) 225.

Section 374—Commutation of sentence—In the instant case there is an immediate voluntary confession. The accused could have taken a plea of innocence but being repentant he made rather an open breast of everything and may be asking for mercy of God. This aspect of his character needs be kept in view and then the delay in hearing this reference had not been done by him but he had suffered the agony all these 6 years. Abdur Rahman Syed vs State 44 DLR 556.

Section 374—A death reference made by the Court of Session may be disposed of even if the condemned accused is absconding. State vs Abdul Khaleque 46 DLR 353.

Section 374—Commutation of death sentence—In consideration of the evidence that the appellant is a young man of 35 and initially he had no premeditation to murder, ends of justice would be met if he is sentenced to imprisonment for life. Accordingly, the sentence of death is commuted to imprisonment for life. Mojibur Rahman Gazi vs State 46 DLR 423.

Section 374—Since the words “as if the sentences were passed by him” appearing in paragraph 3 of the Proclamation relate to execution of sentence of death, they need be given an interpretation favourable to the condemned- prisoners. Pursuant to such interpretation the Sessions Judge is under an obligation to follow the provision of section 374 CrPC and make a reference to the High Court Division for execution of the sentence passed by the Martial Law Court before issuing warrant therefor. Abdul Baset vs Bangladesh 47 DLR 203.

Section 374—There is no bar to hear the death reference against an accused absconding from the inception of the case. State vs Balai Chandra Sarker 47 DLR 467.

Section 374-The extenuating circumstances like lack of premediation, sudden quarrel and in the heat of passion, he inflicted the injuries which nevertheless falls within the purview of section 302 of the Penal Code. In our view accused Abdul Aziz Mina if be sentenced to imprisonment for life ends of justice would be met. In such view of the matter we alter the death penalty to that of imprisonment for life. Abdul Aziz Mina vs State 48 DLR 382.

Section 374—The frenzied form of extreme love drove the accused to commit the crime. His body and soul should not be exterminated. We reduce the sentence of death penalty to that of imprisonment for life. State vs Abul Kalam Azad 48 DLR 103

Section 374-The murder was not committed by a vicious macho male Before causing death of his wife the appellant suffered for some time from a bitter sense of being wronged by his wayward wife In this case ends of justice will sufficiently be met if the sentence of death is commuted to one of life imprisonment. Zahiruddin vs State 47 DLR (AD) 92.

Section 374—The sentence of death being too harsh for a young man and in the facts of the case is reduced to imprisonment for life. State vs Md Shamim alias Shamim Sikder 53 DLR 439.

Section 374-Though leave was obtained on 12-7-93, yet the office of the Attorney-General did not take any step to get the appeal heard and it remained pending for more than eight years. Under the circumstances the quantum of punishment must be minus that eight years. State vs Abdul Barek 54 DLR (AD) 28.

Section 374-When everything has been proved beyond all reasonable doubt mere long delay in the disposal of the case cannot by itself be a ground to commute the sentence. Giasuddin vs State 54 DLR (AD) 146.

Section 374-Merely because certain years have passed in reaching finality to the judgment of the Court of Additional Sessions Judge the same cannot be the ground for commuting the sentence of death where death was caused for no reason. Abdul Bashir alias Bashu vs State 56 DLR (AD) 207.

Section 374-Sentence other than death will be against the mandate of Legislature and also will be not only grave injustice to the victim of crime but also will encourage a criminal. State vs Moslem 55 DLR 116.

Section 374-The two petitioners being members of the Police Establishment, they are meant for maintaining law and order in the country. But the offence they committed is a heinous one and, as such, they were rightly served, sentencing them to death and so no leniency ought to have been shown to them. We are unable to see eye to eye to the order of modification of their sentence. ASI Md Ayub Ali Sardar vs State 58 DLR (AD) 13.

Section 374-The Deputy Attorney-General could not offer any explanation for non-filing of the GD Entry nor could he controvert the argument of the defence lawyer regarding leaving of the police station by the police personnel for arrest of a dacoit without any command certificate and any arms whatsoever. Nor the prosecution could offer any explanation regarding non-examination of the SI, a vital witness in the case. All these facts create a strong doubt about the truth of the prosecution story. State vs Mukul @ Swapan 58 DLR 40.

Section 374—The prosecution has been able to bring home the charge under section 302 of the Penal Code against the accused-person. He deserves extreme punishment in the present case— The trial Court has not committed any mistake in recording conviction and awarding capital sentence. Accordingly, the impugned judgment and order of conviction and sentence does not call for interference. State vs Maku Rabi Das 58 DLR 229.

Section 374—In view of the fact that the condemned-prisoner has been experiencing the agony of death in his death cell for more than 3 years, it is proper to commute his sentence of death to imprisonment for life. State vs Md Ershad Ali Sikder 55 DLR 672.

Section 374—It is, also, not possible to lay down any cut and dried formula in imposing proper sentence but the object of sentencing should be to see that the crime does not go unpunished and the society have the satisfaction that justice has been done. In imposing sentence both mitigating and aggravating circumstances are to be taken into consideration and a corelationship has to be drawn up. State vs Mir Hossain alias Mira 56 DLR 124.

Section 374—Non-appealing accused Nizamuddin, has not filed any appeal and he is still in custody. Justice must not be stopped to the deprivation of anyone and its flow be allowed to continue, so that every-body may share justice equally. In that view of the matter, the entire order of conviction and sentence be set aside and the non-appealing accused is also entitled to get the benefit of the order. Zamir Ali (Md) vs State 59 DLR 433.

Section 374—Accused Fazilutennessa made a confessional statement which was not only true but also voluntary. A person confesses from remorse. Therefore, she could realise what she had done with her husband, Moreover, she has been languishing in the condemned cell since 14- 2-2000—the above fact is a mitigating circumstance and, as such, her death sentence should be commuted to orte for imprisonment for life. State vs Saiful Islam 56 DLR 376.

Section 374-The mere fact that the victim luckily survived for weeks on account of treatment in the hospital is no ground to award lesser sentence. ErshadAli Sikder vs State 57 DLR (AD)75.

Section 374—Imposition of proper and appropriate sentence is amalgam of many factors, such as nature of offence, circumstances mitigating and aggravating. A balance sheet of aggravating and mitigating circumstances has to be drawn up before subjecting a person to a sentence. State vs Anjuara Khatun 57 DLR 277.

Section 374—Punishment— Mitigating circumstance— The case does not show that the accused used any heavy or sharp cutting or lethal weapon or acted with cruelty in committing the murder. There is also nothing on record that the murder was preplanned and cold-blooded. The accused-appellant is sentenced to suffer imprisonment for life for the offence under section 302 of the Penal Code. Rafiqul Islam Mollah vs State 57 DLR 581.

Section 374—Delay in disposal—The appellants never made any endeavour to dispose of the appeals either in the High Court Division or in the Appellate Division. It was the State that frequently prayed for fixation of the death reference in the High Court Division and on its prayer a Bench was constituted for hearing the death reference. After the death reference was disposed of by the High Court Division, the appellants after filing leave petitions did not take any step for hearing of their petitions. It was only on the prayer of the State that the leave petitions were heard and the appeals were also heard. Major Bazlul Huda vs State 62 DLR (AD) 1.

Section 374—The death of the victim was due to asphyxia resulting from exerting pressure on the throat, neck, head and facial region, which was ante-mortem and homicidal in nature and it is ex-facie clear that the petitioner strangled the victim with the intention of causing her death and there is no circumstances that may impel the Court to take a lenient view in commuting the death sentence as there is no mitigating or extenuating circumstances on record for the purpose of commutation of the death sentence, rather all the circumstances are aggravating. Alam Uddin vs State 62 DLR (AD) 281.

Sections 374 & 164—Part of the confessional statement found true may be accepted by the court to convict the accused rejecting the other part which is not true. There is no merit in the contention that when one part of the confessional statement is rejected, other part, even if true, cannot be accepted.
Learned Sessions Judge could reject a part of the confessional statement iF he found the same contrary to other evidence on record. But he could not reject the same on mere surmise and conjecture. A part of the confessional statement favourable to the accused should be given due weight to it unless Court finds the same not true being contrary to other evidence on record. State vs Afazuddin Sikder 50 DLR 121.

Sections 374-376—There was quarrel between the accused and his mother on the day preceding the occurrence as he pressed for sale of a cow and the sale proceeds and the quarrel led to the occurrence of murder—this apart he is a young man of only 20—In such circumstances his death sentence is commuted to that of life imprisonment. State vs Md Jamaluddin 50 DLR 67.

Section 376—Sentence—Commutation of death sentence—Delay of about two years or so in the disposal of the Death Reference Cases and the Jail Appeal in the High Court Division, cannot by itself be a ground for awarding lesser sentence. Abed Ali vs State 42 DLR (AD) 171.

Section 376-There is nothing or record to show that there was (any real) love between the appellant and deceased Dilara. The appellant being not a jilted lover, it is difficult to commute the sentence of death to one of imprisonment for life. Further, soon before the occurrence there was no provocation from the prosecution side and there was no occasion for the appellant to show any emotional imbalance and disequilibrium. On the contrary, the evidence on record shows that the appellant with a premeditated and pre-planned manner entered into the hut of the deceased with a dagger and killed her. The trial Court as also the High Court Division found no mitigating circumstances. Nor did we. Abdul Quddus vs State 43 DLR (AD) 234.

Section 376 It is the duty of the Court to respond to the cry of the society and to settle what would be a deterrent punishment for an abominable punishment. Two widows, having had no male member of their families and had been maintaining their livelihood by selling sarees in different villages, were somehow brought in a field in the late night and the convicts not only raped them but also killed them mercilessly. Both the victims died with a painful death. Considering the nature of crimes, we do not find any mitigating circumstances to commute the sentence. Aziz @ Azizul @ Azid vs State (Criminal), 73 DLR (AD) 365

Section 376—Death sentence, commutation of—Death sentence not executed after more than four years from the date of confinnation of the sentence. Appellant suffered a prolonged agony for laches of others. Death sentence commuted to one of life imprisonment. Wajear Rahman Moral vs State 43 DLR (AD) 25.

Section 376—The condemned-prisoners being in the cell for 4 years 7 months in the agony of death sentence hanging over their neck, their death sentence is commuted to life imprisonment. State vs Kamal Ahmed 49 DLR 381.

Section 376—Provocation in the mind of the condemned-prisoner which was a continuous one because of illicit intimacy between the deceased and the wife of the condemned-prisoner led to the killing of the deceased victim. So the sentence of death should be altered into sentence of imprisonment for life. Shahjahan vs State 51 DLR 373.

Section 376—Since this is not the rarest of the rare cases, ends of justice will be met if the sentence of death of accused Kashem is converted into one of imprisonment for life. State vs Anowar Hossain Pinto alias Anowar Hossain 61 DLR (AD) 108.

Section 376—In view of the omissions and laches on the part of the State defence lawyer, the submission of the learned Advocate on point of sentence deserves consideration. State vs Md Khosbar Ali 52 DLR 633.

Section 376—The convict is a young man of 24 years and there is nothing on record that he is a habitual dacoit—He has been suffering the agony of death sentence for the last 3 years— Therefore, ends of justice would be met if the sentence is reduced and commuted to one of imprisonment for life. State vs Rafiqul Islam 55 DLR 61.

Section 376—Commutation of death sentence—Mere delay is not a legal ground for commutation of a sentence. (Per Md Tafazzul Islam J). Major Bazlul Huda vs State 62 DLR (AD) 1.

Section 376—Commutation of death sentence —There is no merit in the contention that uncontrolled and unguided discretion of the Judges to impose capital punishment or imprisonment for life is hit by Article 14 of the Constitution. If the Law has given to the Judge a wide discretion in the matter of sentence to be exercised by him after balancing all the aggravating and mitigating circumstances of the crime it will be impossible to say that there would be at all any discrimination since facts and circumstances one case can hardly be the same as the facts and circumstances of another. Major Baziul Huda vs State 62 DLR (AD) 1.

Section 376-According to our provision the Court has been left’ with the discretion on the facts of the given case whether or not a set sentence of death should be awarded, and in case of awarding a sentence of death the Court is required to assign reason. The Court is of course keeping in mind while awarding the extreme sentence whether there is mitigating circumstances to exercise such discretion. The mitigating circumstances in the exercise of Courts discretion as analysed in Jogmohan’s case (AIR 1971 SC 500) are undoubtedly relevant circumstance and might be given weight in the determination of sentence. (Per SK Sinha J).Major Baziul Huda vs State 62 DLR (AD) 1.

Section 376—Although there is no evidence against all the accused persons of directly participating in the carnage but it should be borne in mind that for the killing of the sitting President, all the accused persons with a view to attainment of the object played different roles. Without jointly operating in concert the criminal object could not have been executed. It was not possible to bring about the result of the criminal object without support of all. In view of the matter, all the conspirators who actually participated and acted the crime do not deserve any leniency in the matter of sentence. (Per 5K Sinha J) Major Bazlul Huda vs State 62 DLR (AD) 1.

Section 376—Communtation of death sentence—The accused is not a hardened criminal. The death of the deceased was caused by him in sequel of bitter matrimonial relationship. The caused the haematoma with any hard substance on the occipital region of the head of the deceased which resulted her instantaneous death. The accused has three minor children and an invalid first wife. Justice will be met if the sentence of death awarded to the accused is commuted to imprisonment for life. State vs Azam Reza 62 DLR 399.

Section 376(a)—The fact that the condemned-prisoner committed the murder under influence of some provocation should not be ignored while considering the question of sentence. State vs Hamida Khatun 50 DLR 517.

Section 376(a)—Since Hamida did not play the principal role in murdering her husband and there is no evidence to show that she along with Abu Taher planned in advance to kill her husband in furtherance of common intention, ends of justice would be met if the sentence of death is reduced to one of imprisonment for life. State vs Hamida Khatun 50 DLR 517.

Sections 378 & 429—Hearing of the case by a Third Judge—The language used in sections 378 and 429 of the Code is almost identical. It is said that in hearing a reference or an appeal if the Judges are equally divided in opinion thereon, the case with their opinions shall be laid before a third Judge for hearing, and the third Judge after hearing ‘as he thinks fit’ would deliver his opinion, and the judgment and order would follow such opinion. The expressions “as he thinks fit” used in both the sections are significant. It is the third Judge to decide on what points or in respect of whom he shall hear arguments. This postulates that the third Judge is completely free in resolving the difference as he thinks fit. If he does not think to hear the arguments in respect of any accused of whom the Judges are not divided in their opinions, he may decline to do so. The use of the words “equally divided” in both the sections means the Judges differ in their opinions, in respect of complicity of an accused or on the charge framed against him or them or on any particular point it can be inferred that they are equally divided but in a case where the Judges concur each other in respect of a particular accused and in respect of the offence charged, it can not be said that Judges are equally divided in respect of the accused charged with. Major Bazlul Huda vs State 62 DLR (AD) 1.

Section 386—Fine imposed upon an accused in a criminal proceeding is of the nature of a financial punishment as distinguished from physical punishment and it must be paid by him under all normal circumstances. Ali Hossain vs State 52 DLR 282.

Section 386-Fine is a charge upon the assets of the convict as a public dues and it continues to be so even after his death and it is recoverable from his successor-in-interest under the provisions of section 386 of the Code. Ali Hossain vs State 52 DLR 282.

Section 386-Fine imposed by the Criminal Court upon an accused is of the nature of a financial punishment as distinguished from physical punishment and it must be realised from him under all normal circumstances. The accused has no option in the matter. Rowshan Ali vs State 52 DLR 510.

Section 392—Changing of sections without putting the same before him prevented the appellant from cross-examining the witnesses and giving any counter-defence. Such sort of changes without giving the accused any opportunity for expressing his views is against natural justice and contrary to the established principles of justice delivery system. Abdul Kader vs State 60 DLR 457.

Section 401-Courts have the jurisdiction in certain circumstances to pass an order directing that the accused shall not be entitled to the benefit of Penal Code, the Code of Criminal Procedure and the Jail Code in respect of commutation, deduction and remission and the details of such authority of the Court have been explained. Ataur Mridha alias Ataurvs State (Criminal), 73 DLR (AD) 298

Section 401—Empowers the Government to remit and suspend a sentence passed by a Court but for such remission and suspension of sentence the order of conviction is not reversed. It remains in force, but the convict due to an order of rem ission and suspension passed under section 401 CrPC is not to serve out the period of sentence so suspended and is not to pay the fine so remitted. Nasiruddin Miah vs State 40 DLR 244.

Sections 401 and 423—In ease of an appeal from an order of acquittal, the Court may refuse the prayer of withdrawal of the appeal as it may find on hearing the appeal on merit that the order appealed is illegal and calls for an order of conviction. Nasiruddin Miah vs State 40 DLR 244.

Section 403—Double Jeopardy—The accused is going to be prosecuted in respect of an offence which did not occur during the earlier transaction nor the present case arose out of the same fact and for the present offence he was not tried previously. In such a position the doctrine of autrefois acquit and autrefois convict or of the Code as to double jeopardy is not applicable in the present case. HM Ershad vs State 45 DLR 534.

Section 403—The statutory provisions recognise the Rule against double jeopardy and the principle of res judicata should apply to criminal proceedings in the same way as to civil proceedings but there being no conviction in the cases under reference, the principle of double jeopardy does not apply. Parveen vs State 51 DLR 473.

Section 403(1)—The whole basis of section 403(1) of the Code as well as Article 35(2) is that the first trial should have been before a Court competent to hear and determine the case and to record a verdict of conviction or acquittal—if the court is not so competent, the whole trial is null and void and it cannot be said that there was any conviction or acquittal in force such a trial does not bar a subsequent trial of the accused. Muhammadullah vs Sessions Judge 52 DLR 374.

Section 403(2)—Trial of an accused for one distinct offence will not stand in the way of his subsequent trial for the other distinct offence as specifically provided by sub-section (2) of section 403.
The former trial for unauthorised possession of the firearms will not be a bar to the subsequent trial for the offence of robbery, even if the same firearms have been used while committing the robbery. The trial of the petitioners in this case is perfectly lawful. Arfan Ali vs State 42 DLR (AD) 22.

Sections 404, 410, 417, 418, 422 & 423— The Code drew no distinction between an appeal against an acquittal and an appeal against a conviction, as regards the powers of the High Court. Dilruba Aktar vs AHM Mohsin 55 DLR 568.

Section 408—Appeal will lie to the Court of Sessions if the Assistant Sessions Judge deemed to be an Additional Sessions Judge passes a sentence of imprisonment for a term of five years or less. Section 408 has full force and application. Nurul Huda vs Baharuddin 41 DLR 395.

Sections 408, 417A & 423—Except under the provisions of section 41 7A of the Code there is no other provision for filing appeal for enhancement of sentence. In an appeal from a conviction, sentence may be reduced by an appellate Court but sentence can be enhanced only in an appeal for enhancement of sentence and that can be done after giving the accused an opportunity of showing cause against enhancement. Moktar Ali Bepari vs State 51 DLR 439.

Section 409—An Assistant Sessions iu1e deemed to be appointed as Additional Sessions Judge has the limited power of passing higher sentences except a Death Sentence in those sessions cases which are now triable by him by deeming and treating him to be an Additional Sessions Judge, consequent upon the changes brought. He shall not be deemed to be an Additional Sessions Judge for all the purposes under the Code, eg for hearing appeals, revisions, references and reviews if they are made over or transferred to him by the Sessions Judge. Under section 409 the Sessions Judge can transfer the hearing of an appeal only to an Additional Sessions Judge and not to an Assistant Sessions Judge deemed to have been appointed as an Additional Sessions Judge. The dismissal in the instant appeal by the Assistant Sessions Judge and refusal of interference by the High Court Division in revision are therefore illegal. The appeal against conviction is therefore allowed and it is directed that the Sessions Judge may himself dispose of the appeal or transfer it to an Additional Sessions Judge for disposal. Abdul Kashem vs State 43 DLR (AD) 77.

Sections 409, 410, 435, 436, 438 and 439A—Under section 409 the Sessions Judge can transfer the hearing of an appeal only to an Additional Sessions Judge and not to an Assistant Sessions Judge. Section 410 has also full force and any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge may appeal to the High Court Division. This section has no reference to an Assistant Sessions Judge deemed to have been appointed as an Additional Sessions Judge. The same applies to sections 435, 436, 438 and 439A. Nurul Huda vs Baharuddin 41 DLR 395.

Section 410—Non-appealing—accused— Benefit of acquittal—In the face of clear illegality committed by the learned Additional Sessions Judge in convicting all the 3 accused of the offence under section 396 of the Penal Code, if we do not record an order of acquittal in favour of accused Fazlul Huq, the non-appealing accused, it means that we are allowing an illegal order to perpetuate. In that view of the matter, we hold the entire order of conviction and sentence be set aside and the absenting accused Faziul Huq is also entitled to get the benefit of this order. Arzan Iman Ali vs State 48 DLR 287.

Section 410—The High Court Division sitting in appeal was bound to give due weight to the opinion of the trial Court with regard to the credibility and demeanour of the witnesses. State vs Abdus Sattar 43 DLR (AD) 44.

Sections 410—423 read with—Employment of Labour (Standing Orders) Act (VIII of 1965)— Section 26.
Order of sentence passed by the Labour Court under the provisions of Employment of Labour (Standing Orders) Act is not appealable to the appellate authority under the Code of Criminal Procedure as there is no provision for such appeal under the Employment of Labour (Standing Orders) Act. Jagodish Chandra Dutta vs MH Azad 41DLR 257.

Section 410—Accused Ali Mia, though did not prefer any appeal against his conviction and sentence, there is no reason to keep him is custody on the basis of illegal evidence. Shah Alam and others vs State 52 DLR 567.

Section 410—The date of conviction and sentence pronounced by the trial Court should not be taken to be the starting point for the disqualification against the convict sitting Member on account of such conviction in a criminal case involving moral turpitude. HM Ershad vs Abdul Muqtadir Chowdhury 53 DLR 569.

Section 410-It is surprising to find the peculiar way of disposal of criminal appeal by the High Court Division that shirked responsibility misdirecting themselves and shouldered the same on Allah. This sort of disposal of criminal appeal is unknown to our criminal jurisprudence, this unwarranted method of administration of justice is disapproved. State vs Kh Zillul Bari 57 DLR (AD) 129.

Section 412—The right of appeal of a convicted accused is taken away if the court accepted the plea of guilty and convicted him on such plea. Ayar @ Ayaruddin vs State 56 DLR 494.

Section 417—Review of evidence—The reason given by the Judges of the High Court Division to disregard the evidence of PWs 2, 3 & 4 relying only upon the evidence of PW 7 is rather artificial. In an appeal by the State against acquittal it is quite open to the Court to review the evidence in order to see whether finding on which acquittal is based is perverse being in wanton disregard of good and unblemished evidence given by other witnesses. State vs Ashraf Ali 43 DLR (AD) 83.

Section 417(1)(2)-Under section 417(1) and (2) only the government or the complainant may file appeal against an order of acquittal. The informant could only file a revision against the order of the Chief Metropolitan Magistrate, but in this case a person who was not the complainant has filed an appeal which is not contemplated under the law. Nurul Alam vs Saleha Khatoon (Criminal), 73 DLR (AD) 153

Section 417—As a matter of practice the High Court Division normally grants bail to the  persons who are acquitted after a full-fledged trial when the State prefers an appeal against the order of acquittal. Abdul Hafez Howlader alias Habibur Rahman vs State 51 DLR (AD) 67.

Sections 417, 418 and 423—Provisions under these sections give to the High Court Division full power to review the evidence upon which the order of acquittal was founded—No limitation should be placed upon that power. Shah Alam vs State 42 DLR (AD) 31.

Sections 417 and 439(4)(5)—Petitioner acquitted of the charge of dacoity by the trial Judge—Government had not preferred any appeal under section 417 CrPC—Section 439 CrPC does not authorise High Court Division to convert a finding of acquittal into one of conviction. Held— the Rule issued suo motu by the High Court Division was without jurisdiction. Jalal Uddin vs Bilkis Rahman & State 42 DLR 107.

Section 417—On an appeal for acquittal the appellate Court is not entitled to interfere with the decision of the trial Court on facts unless it has acted perversely or otherwise improperly. Dilruba Aktar vs AHM Mohsin 55 DLR 568.

Section 417—The Code drew no distinction between an appeal from an acquittal and an appeal from a conviction and no such distinction could be imposed by judicial decision. Dilruba Aktar vs AHM Mohsin 55 DLR 568.

Section 417—Before an order of acquittal is reversed it must be shown that the judgment is not only unreasonable or manifestly wrong but it is also manifestly perverse and unless such a finding can be made on the basis of materials on record the order of acquittal should not be interfered. State vs Wasikur Rahman 58 DLR (AD) 60.

Sections 417 & 423—In an appeal from acquittal, the appellate Court in exercise of its appellate authority is not entitled to interfere with the decisions unless those suffer from manifest illegality, legal infirmity and perversity rendering a positive miscarriage of justice. Dilruba Aktar vs AHM Mohsin 55 DLR 568.

Section 417(1)—Finding of acquittal cannot be said to be perverse if it is not absolutely against the evidence. State vs Shamima Arshad 52 DLR 617.

Section 417(1)(a)—Maintainability of appeal by witness against order of acquittal—The State under section 417(1)(a) of the Code is authorised to present an appeal against an order of acquittal passed by the Court of Sessions. But in the present case, the appeal was not preferred by the State. The appeal was filed before the High Court Division by a witness who is also the petitioner in the present petition for leave to appeal. Hence this leave petition is not maintainable in law. Fazar Ali Manik Chan vs Fazar Ali 43 DLR (AD) 129.

Sections 417(1)(b) & 439A—Where the State has not filed any appeal against the order of acquittal passed by a Magistrate in a police case the informant is competent under section 439A of the Code to prefer revision before the Sessions Judge who can look into the legality or propriety of the order of acquittal. Abu Taher vs Hasina Begum 50 DLR 19.

Section 417(3)—The special limitation provided in sub-section (3) of section 417 CrPC is applicable in a case where a complainant intends to file an appeal before the High Court Division against order of acquittal passed in a case upon a petition of complaint. Dr MA Mazed vs Bangladesh 56 DLR (AD) 198.

Section 417(3)—A case registered upon lodging of an Ejaher and culminating in charge- sheet and thereupon person(s) recommended by the police for prosecution was put on trial and the trial ends in acquittal and thereupon if Government files an appeal the ‘special limitation’ provided by section 417(3) of CrPC shall have no manner of application. Dr MA Mazed vs Bangladesh 56 DLR (AD) 198.

Section 417A—Appeal by informant— Competency—The contention that an appeal at the instance of an informant from an inadequate sentence lies under section 417A has no substance. Abdul Aziz vs State 44 DLR 594.

Section 417A—That all judgment, whether conviction or acquittal are appealable under section 30(1) of the Special Powers Act. Under sub-section (1) of section 27, criminal cases coming within the ambit of the Special Powers Act can only be initiated on a report in writing made by a police officer not below the rank of Sub-Inspector So no private party has any right to initiate such cases. Section 30 seems to cover appeals by a the State. Therefore, this appeal is not maintainable under section 417(1) of CrPC. State vs Wanur Rahman 40 DLR 346.

Section 417A(2)—Section 417A(2) of the Code appeal lies to the appellate Court against the sentence on the ground of inadequacy. The appellate Court was the Court of Sessions but no appeal was filed before the Court of Sessions rather it was filed, long after the limitation, before the High Court Division. The very appeal was incompetent and the High Court Division acted illegally in entertaining the appeal and therefore, the judgment of the High Court Division is liable to be set aside.
In an appeal a sentence may not be enhanced whereas this may be done in revision and secondly that in revision and acquittal shall not be converted into a conviction, whereas this may be done in an appeal against an acquittal. Every other power, whether procedural or final, is equally exercisable in appeal as it may be exercised in revision by the High Court Division. GMM Rahman vs State 62 DLR (AD) 410.

Section 420—The proviso to sub-section (1) of section 421 does not apply to appeals presented under section 420 of the Code. In the case of jail appeals the court can summarily dismiss the appeal on perusal of the papers without calling upon the appellant to appear. Ayar @ Ayaruddin vs State 56 DLR 494.

Section 420—The Inspector-General of Prisons is to circulate and get notified this judgment to every superintendent of jails all over the country within seven days for compliance so that the jail appeals of less privileged prisoners are communicated to the appropriate appellate Courts in the light of directions given. Ayar @ Ayaruddin vs State 56 DLR 44.

Section 420-When a prisoner in jail applies through the Superintendent of Jail for a copy of the judgment in order to prefer an appeal, it is superintendent’s business to procure and forward a copy applied for and to arrange that this is done. Ayar @ Ayaruddin vs State 56 DLR 494.

Section 421—In a case of absentia trial, limitation shall run from the date of knowledge of the judgment and not from the date of judgment. Jamal Ahmed alias Jamal vs State 58 DLR 419.

Section 422—Once the complaint has ended in conviction it was the State that came into picture and the State had to be given notice to sustain the conviction and complainant had no right to be given notice. Kamal Miah vs State 50 DLR 224.

Section 422—A criminal appeal cannot be dismissed on technical grounds once it is admitted for hearing by the court. After admission, a criminal appeal can be disposed of only on merit. Kamal Miah vs State 50 DLR 224.

Section 423—In view of the fact that the two foreigner-appellants have made a clean breast of their offence and never tried to beat the law by any smart manoeuvre and they have begged mercy of the court from the very beginning the sentence of the two foreigner appellants be reduced from life imprisonment to rigorous imprisonment for 7 years. Major (Retd) Ashrafuddin Sekander vs State 50 DLR (AD) 108.

Section 423—When it is found after a full trial that there was a mis-trial or trial without jurisdiction, the Court of appeal before directing a fresh trial by an appropriate Court should also see whether such direction should at all be given in the facts and circumstances of a particular case.
If it is found that there was no legal evidence to support the conviction then in that case it would be wholly wrong to direct a retrial because it would then be an useless exercise. Further, the prosecution should not be given a chance to fill up its lacuna by bringing new evidence which it did not or could not produce in the first trial. Asiman Begum vs State, represented by the Depuly Commissioner 51 DLR (AD) 18.

Section 423—If it is found that the accused had suffered a substantial part of the sentence imposed upon him or her in the mis-trial, the Court may not for ends of justice direct a retrial.
There is no question that the Court has undoubted right to direct a retrial where there has not been a trial in accordance with law. We are of the view that having regard to the facts and circumstances of the case and particularly in view of the fact that in the meantime (during pendency of appeal in this Court) the appellant has continued to suffer imprisonment, it is a fit and proper case in which the High Court Division should consider the case on merit also and then pass whatever order or orders it thinks appropriate in the interest of justice. Asiman Begum vs State, represented by the Deputy Commissioner 51 DLR (AD) 18.

Section 423—Though a lawyer was appointed to defend the absconding accused, the appointment did not serve the purpose—The accused should be given an opportunity to defend himself properly by cross-examining the PWs and for that purpose the case is liable to be sent back to the trial Court. Ismail vs State 51 DLR 497.

Section 423—In view of long detention of the appellants from the date of their arrest the prayer for commutation of sentence in respect of fine may be allowed. Rafiqul Islam @.Rafiq vs State 51 DLR 488.

Section 423—The appellants had to undergo the rituals of a protracted trial and the agonies arising out of the order of conviction and sentence passed and by now much of their sins has been expiated by way of burning of the heart during this long period. Court in therefore, inclined to take a lenient view in awarding sentence to them. Ali Hossain vs State 52 DLR 282.

Section 423—If a person is intended to be tried and punished with enhanced punishment or with punishment of a different kind as being a previous offender, the particulars of the previous conviction should be stated in the charge. The prosecution did not lead any evidence that the appellants were previously convicted persons. In that view, the Assistant Sessions Judge has awarded a harsh sentence to them. Bura Yunus vs State 59 DLR 549.

Section 423—The appellant had already undergone the ordeal of trial and after the conviction during pendency of the appeal before this Court continued to suffer imprisonment which was imposed on him in the mistrial, so in the interest of justice a retrial should not be directed. Goutam Chandra Das alias Goutam Kumar Das vs State 55 DLR 527.

Sections 423 & 424—There has not been an elaborate discussion of the evidence on record. It is needless to say that a duty is cast upon the lower appellate Court to write out a proper judgment on facts while disposing of an appeal. Abdul Khaleque Master vs State 52 DLR (AD) 54.

Section, 423(1)(a)(b)—A finding of acquittal can be converted into one of conviction only under clause (a) of sub-section (1) of section 423 CrPC. The suo motu Rule is without jurisdiction. Jalaluddin vs Bilkis Rahman and State 42 DLR 107.

Section 423(i)(b)—Since the prosecution has totally failed to prove its case against any of the accused persons, non-appealing co-accused is also acquitted of the charge under section 382 Penal Code. Mofizul Islam vs State 54 DLR 221.

Section 423(1)(b)—When sentence of fine is imposed in addition to sentence of imprisonment, this will amount to enhancement of sentence. The appellate Court may enhance the sentence but such enhancement cannot be made unless the accused is given an opportunity of showing cause against such enhancement. Mizanur Rahman vs Surma Khatun 50 DLR 559.

Section 423(1)(b)(2)—Acquittal converted into conviction under section 423 CrPC—No interference in the absence of appeal against acquittal. Mofizuddin vs State 40 DLR (AD) 286.

Section 423(1)(b)(2)—The Appellate Court has jurisdiction under section 423(1)(b)(2) of Code of the Criminal Procedure to reverse an order of acquittal purporting to “alter the finding” of conviction. Mofizuddin vs State 40 DLR (AD) 286.

Sections 424 & 367—The Additional Sessions Judge sitting on appeal did not apply his mind at all in order to come to an independent decision. He came to the conclusion “found nothing illegal in the impugned order” just after quoting in his judgment some portions of the judgment of the trial Court. In such a position, no Rule need be issued—the case is sent back for delivering a proper judgment. Ekram Ali Fakir vs Abdus Samad Biswas 47 DLR 53.

Section 426—Bail after conviction—The accused could obtain bail from the Appellate Court or from the High Court Division and not from the trial Court which became functus officio after the filing and disposal of appeal against conviction. Dulal vs State 43 DLR 321.

Section 426—Bail—Suspension of sentence pending appeal—Release of appellants on bail— Sentence being in excess of one year Sessions Judge was not competent to grant such bail. Saidur Rahman vs State 40 DLR (AD) 281.

Section 426—Bail—Condition for the bail is quite reasonable and can be complied with by the person seeking bail without any difficulty but payment of fine involving huge amount of money as a condition for bail may not be possible— Impugned order of payment of fine as a condition for the bail is not supportable either in law or on the principle of reasonableness. Iqbal vs State 41 DLR (AD) 111.

Section 426—In cases of short term imprisonment, the judge should better dispose of the appeal very expeditiously failing which he may consider the question of bail (if raised again). Mahbub vs State 46 DLR (AD) 143.

Section 426—Bail in a pending appeal— The matter of granting bail by the High Court Division, during the period of emergency, in a pending appeal filed by the convict who has been convicted and sentenced under the provision of Anti-Corruption Commission Act, 2004 in case of short sentence not exceeding 3 years, when the appeal could not be disposed of within 90 working days for no fault of the appellant and/or in the case of serious illness endangering life to be certified by duly constituted Medical Board, may consider the matter of granting bail in an appropriate case in an appeal. Government of Bangladesh vs Sabera Aman 62 DLR (AD) 246.

Section 426–Bail in a pending appeal—The convict-appellant has been suffering from multifarious illness endangering life “at his advanced age of 58 years and he needs specialized, continuous and supervised treatment in a stress less condition”. Accordingly, on the ground of serious illness endangering life the convict- appellant may enlarged on bail. Iqbal Hasan Mahmood vs State 63 DLR 286.

Sections 426 & 497—Though the appellate Court including this court may enlarge a convict on bail for reasons to be recorded by it such a convict is not entitled to be released on bail if he is sentenced to suffer imprisonment for life.
Appellate Division in some cases opined that a convict may be enlarged on bail if there is no chance of disposal of the appeal within the period of his sentence. A convict who is sentenced to imprisonment for life does not fall within the pronouncement of the Appellate Division. Bail granted to appellant-opposite-party Abdul Momin Sarder on 11-1-96 is cancelled and he is directed to surrender to his bail bond forthwith. State vs Abdul Momin Sardar 50 DLR 588.

Section 428—Additional evidence—Section 428 may be resorted to when such evidence either was not available at the trial or the party concerned was prevented from producing it, either by circumstances beyond its control or by reason of misunderstanding or mistake. Rajab Ali Zulfiqar vs State 45 DLR 705.

Section 428—The purpose of this section is to allow additional evidence at the appellate stage only and not to give an opportunity to the prosecution to fill up the lacuna in its case. Bakul vs State 47 DLR 486.

Sections 428 & 561A—As the present application is an application under section 561A, there is no scope of taking further evidence under section 428 of the Code of Criminal Procedure. Shuinya @ Suruj Ali vs State 53 DLR 527.

Section 431—The power of the Court of law to reconsider fine which the deceased appeallant was entitled and if the right is taken away that will be denial of the principle of natural justice of the heirs and legal representative which their predecessor had. S Taibur Rahman vs State 55 DLR 709.

Sections 432, 424 and 367(1)—It is well- settled principle of law that for disposal of Criminal Appeal presence of an Advocate is not essential and the Appellate Court can dispose of the appeal on mere writing a judgment according to provisions of section 667(1) of CrPC. Abdul Basher vs State 40 DLR 248.

Section 435—A Court is undoubtedly inferior to another Court when an appeal lies from the former to the latter, State vs Auranga @ KM Hemayatuddin 46 DLR 524.

Section 435—Right of heirs of deceased complainant to proceed with the complainant’s case—The complainant in the criminal case under section 447 claimed ownership and possession of the land in question. On his death during the pendency of the revision case arising out of the matter his wife having stepped into his shoes so far as it relates to his properties, she is required to be brought on record to protect her interest in the land. Dr Md Abdul Baten vs State 43 DLR 60.

Sections 435 and 436—Sessions Judge called for records of the case triable under the provisions of the Special Powers Act from the Court of the Magistrate in exercise of his power, under sections 435 and 436 CrPC and took cognizance of the offence after converting himself into a Special Tribunal—This is not contemplated by law. Satya Ranjan Sarda vs State 42 DLR 142.

Sections 435/439—A second revisional application by the self-same party is not barred to challenge an illegal order after dismissal of his earlier revisional application for default and not on merit. Learned Advocate for the petitioners did not argue on the question of merit of the impugned order. So his contention as to limitation in the facts and circumstances of the case does not appeal to us. In the above facts and circumstances were are of the view that revisional application filed beyond the period of limitation though should not be encouraged, cannot debar the Court from setting aside an illegal order of the subordinate Court in the interest of justice. Anower Hossain vs Md Idrish Miah 48 DLR 295

Sections 435 and 439—Interpretation of Statute—The expression “if the accused is in confinement” in section 439 CrPC is used as a condition precedent to bail. Abdus Samad vs State 41 DLR 291.

Sections 435/439—An application under section 439 of the Code of Criminal Procedure by an informant in a Sessions Case against order of discharging an accused is maintainable in spite of the position that the State has not filed such application. Abdur Rahman Kha vs State 56 DLR 213.

Sections 435, 438 and 439A—The legislature has consciously kept section 438 alive although the Sessions Judges have been invested with the powers under section 439A to make final orders enabling the litigants to choose the forum as to whether he would resort to the forum under section 438 or under section 439A with the risk of finality of the order that may be passed. Abdul Ahad@ Md Abdul Ahadvs State 52 DLR 379.

Sections 435 & 439—Revisional Power, scope of—Question whether the law laid own in I section 5(1)(e) of the Act, 1947 and section 4 of the Anti-Corruption Act, 1957 is discriminatory and violative of the provisions of the Constitution is not within the scope of the present Rule to be determined. HM Ershad vs State 45 DLR 533.

Sections 435 and 439—To be released on bail a person must be in custody or in some sort of confinement. Abdus Samad vs State 41 DLR 291.

Sections 435/439 and 561A—The High Court Division exercising power under section 561A of the Code is not supposed to embark upon an inquiry to ascertain sufficiency, reliability and admissibility of evidence—However, if a conviction order is passed absolutely without any legal evidence, it can be looked into in the present forum to secure ends of justice. Rezia Khatun vs State 56 DLR 208.

Sections 435, 439 & 561A—Power under sections 439 and 561A is different in nature— Section 439 read with section 435 refers to inferior Court under High Court Division— Exercise of power under section 561A is not limited to the inferior Court only. Jagodish Chandra Dutta vs MH Azad 41 DLR 257.

Sections 435 & 439A—The law should not be stretched too far so that big companies against whom serious allegation of foul play concerning national economy is being made can themselves overtake the law by ingenious contentions. It is true that in criminal matters the accused should get all protection under the law but it is also important that the law should not be stretched too far so that big companies against whom serious allegation of foul play concerning national economy is being made before the Court by a statutory authority can themselves overtake the law by resourceful enterprise in raising ingenious contentions in order to frustrate the prosecution on the threshold. The Court must strike a balance. We are of the view that the learned Sessions Judge failed to maintain that balance which has been restored by the High Court Division. Shinepukur Holdings Ltd vs Beximco Pharmaceuticals Ltd 50 DLR (AD) 189.

Sections 435, 438 & 439A—The Sessions Judge would have been well-advised to reject the revision petitions upon the view that the objection as to alleged lack of authority should be raised before the Court taking cognizance. Shinepukur Holdings Ltd vs Beximco Pharmaceuticals Ltd 50 DLR (AD) 189.

Sections 435, 438 & 439A—When the SEC was making a complaint of fraudulent acts against certain companies and their directors on the basis of an enquiry undertaken by an expert committee, a Court would be well-advised not to try to be more expert at the complaint stage because otherwise it will be an example of nipping the prosecution in the bud. Shinepukur Holdings Ltd vs Beximco Pharmaceuticals Ltd 50 DLR (AD) 189.

Section 436—Sessions Judge’s power to order enquiry—The Sessions Judge commits no illegality in setting aside the order of discharge of the accused passed by the Magistrate and in directing the latter to send the case record to the Court of the Sessions Judge along with statements recorded by the police. The order is within the scope of section 436 CrPC. But the Sessions Judge’s further order giving direction to send the accused for trial being in excess of his jurisdiction cannot be sustained. The Magistrate is left with his absolute discretion in the matter of taking cognizance of the offence and sending the accused-petitioners to the Court of Sessions for trial after holding further enquiry according to law. Motaleb vs State 43 DLR 519.

Section 436—When the order of discharge has been made without entering into the merit of the case, a fresh complaint or a fresh first information report against the same accused person can be maintainable, when fresh materials come forward which were not available at the time of previous investigation or enquiry. Rasharaj Sarker vs State 52 DLR 598.

Section 436-Sessions Judge’s power to order inquiry—The jurisdiction of the Sessions Judge is wide enough to direct further inquiry by a Magistrate. If the Sessions Judge directs to make further inquiry by the Magistrate by holding a judicial inquiry it is fully within the express power given to the Sessions Judge under section 436 CrPC. Farid Ahmed vs State 44 DLR 30.

Section 436-The Magistrate seemed to have acted within his jurisdiction to decide, on assessment of evidence on record, whether all or some of the accused are to be sent for trial. The order of the Sessions Judge having the effect of directing the Magistrate to tale cognizance octhe 8 accused against whom the latter found no prima facie case is not within the scope of further inquiry contemplated under section 436 CrPC. Mohibar Rahman vs Kuti Miah 44 DLR 112.

Section 436-Sessions Judge re-assessed the evidence recorded by the Magistrate under section 202(2A) of the CrPC and apparently took cognizance of the case himself against the petitioners directing further enquiry into the matter by way of securing their attendance and ordering them to be sent up under section 205 CrPC before his court to stand trial.
Held—Order of the learned Sessions Judge is not contemplated in section 436 of the Code of Criminal Procedure and, as such, he acted illegally in interfering with the order of the learned Magistrate as such. Syed Ahmed vs Habibur Rahman 42 DLR 240.

Section 436-There is also no force in the contention that once the accused has been made party in the revisional application he acquires a right to be heard.
As provision under section 436 only directs notice in a case where a person has been discharged and not in the case of an accused to whom no process has been issued under section 204 and when the complaint has been dismissed without a notice to him. Sirajudullah vs State 48 DLR 76.

Sections 436, 439A and 561A—If any one is aggrieved by an order of discharge passed by a Magistrate, he can move the Superior Court under section 436 of the Code of Criminal Procedure for further enquiry but the Superior Court cannot direct the Magistrate to take cognisance of a case irrespective of the fact whether it is triable by a Magistrate or exclusively by the Court of Sessions. The Superior Coufl can merely order for further enquiry but cannot direct for taking cognisance of the offence. Jalaluddin vs State 60 DLR 581.

Sections 436, 204(3) & 203—The order of dismissal of the complaint passed under sections 203 and 204(3) CrPC does not amount to discharge. So for a further enquiry in such a case no notice to the accused is necessary. The principle, that an order prejudicial to an accused should not be made, without giving him – an opportunity to be heard, has no application where the accused is not discharged. A revisional application before the learned Sessions Judge at the instance of an aggrieved complainant against an order of dismissal of a complaint by the Magistrate can be gone into without notice to the accused. Sirajudullah vs State 48 DLR 76.

Sections 436, 205(1) & 203—Neither the Sessions Judge nor the High Court Division is invested with any power to direct any Magistrate to take cognizance of a case.
Their power is strictly limited to directing a further enquiry into the petition of complaint. It will be for the Magistrate concerned to take or not to take cognizance after the result of further enquiry. After the dismissal of the petition of complaint under section 203 CrPC the informant- respondents remedy was to approach the higher Court under section 436 CrPC for further enquiry into his petition of complaint. The penultimate order of the High Court Division in directing the Chief Metropolitan Magistrate to take cognizance of the offence and to issue process in accordance with section 205(1) CrPC is not sustainable. Yusuf A Hossain vs KM Rezaul Ferdous 48 DLR (AD) 53.

Sections 436, 439 and 439A—Sessions Judge’s power to direct further, enquiry under section 436 CrPC on dismissal of complaint on an erroneous view of law. Bangladesh vs Yakub Sardar 40 DLR (AD) 246.

Sections 437 & 439—Right of heirs of deceased complainant to proceed with the complainant’s case—The complainant in the criminal case under section 447 claimed ownership and possession of the land in question. On his death during the pendency of the revision case arising out of the matter his wife having stepped into his shoes so far as it relates to his properties, she is required to be brought on record to protect her interest in the land. Dr Md Abdul Baten vs State 43 DLR 60.

Sections 436, 439A & 561A—Question raised in this Rule could very well be raised before the Sessions Judge and the Sessions Judge could set aside the order of the Magistrate framing charge against the petitioner if there was mont in the contention raised by the petitioner and after such discharge there was no scope for directing further enquiry under section 436 of the Code. Since this question was not noticed at the time of issuance of the Rule discharge of the same without considering merit of the same may cause undue hardship and unnecessary harassment to the petitioner. So this Court decided merit of the Rule which is otherwise not maintainable. Abdul Hai vs State 50 DLR 551.

Section 438—When the Magistrate has only called for the case diary for his perusal upon allegations made in the naraji petition that the same will show a prima facie case against the accused, the reference prayed for against the step is premature. Nurul Hoque vs Bazal Ahmed 48 DLR 327.

Section 438—Sessions Judges have been given revisional powers to make final orders but simultaneously their powers to make recommendation to the High Court Division for orders under section 438 have also been kept intact. Abdul Ahad vs State 52 DLR 379.

Sections 438 & 439A—Though Sessions Judge has got power to make a reference to the High Court Division, it is not necessary now to make such a reference if the revisional application before him is to set aside any order of the Magistrate as he is competent enough to set aside such order. Farhad Hossain vs Mainuddin Hossain Chowdhury 46 DLR 127.

Sections 438, 439A & 561A—Reference— Since the petitioner could not make out a case of quashing of the proceedings and since no such power is vested in the Sessions Judge the impugned order refusing to make a reference to the High Court Division suffers from no illegality. Farhad Hossain vs Mainuddin Hossain Chowdhury 46 DLR 127.

Section 439—The jurisdiction of a Single Judge to hear a revisional application against an order of acquittal passed in a case involving an offence punishable with sentence of imprisonment exceeding one year is barred. Ahsan Sarfun Nur vs Nurul Islam 42 DLR (AD) 90.

Section 439—Refusal of prayer for ad-interim stay while issuing Rule in criminal revision. When appellant clearly stated before the High Court Division while obtaining the Rule that she gave birth to a child just five months ago and it would be injurious to her health as also to the baby if both were to be placed under any type of custody at that critical stage it was not a judicious and sound exercise of discretion to refuse the said stay. Azima Begum vs Yusuf Khan 43 DLR (AD) 53.

Section 439—Revision against order of acquittal—When the appellate Court and the High Court Division upon evidence and circumstances which is not unreasonable or perverse refused to believe the prosecution case, this court merely because a different view is possible of the evidence does not interfere with an order of acquittal. Abdul Hamid Mollah vs Ali Mollah 44 DLR (AD) 223.

Section 439—Leave order was granted to examine the powers under section 439 CrPC as interpreted by the High Court Division. Kashem Ali vs State 40 DLR (AD) 294.

Section 439—High Court Division made three propositions in defining the area for exercise of its power and authority. Kashem Ali vs State 40 DLR (AD) 294.

Section 439—Administration of Criminal Justice with the change of time and circumstances attending the same—High Court Division to be a little more scrutinising even in a case of acquittal —whether misappreciation of evidence is never a sufficient ground for interfering with an acquittal. Kashem Ali vs State 40 DLR (AD) 294.

Section 439—Direction for filing a separate application for bail while moving a revisional application whether proper—When the appellants were already on bail granted by the lower Appellate Court, the direction that has been given after rejecting the prayer for bail is not proper and is not in keeping with the normal practice and; procedure that is traditionally followed in the High Court Division in revision. In that view o the matter, the appellants will remain on bail already granted, till disposal of the revision case. Baneanzuddin Ahmed vs State 43 DLR (AD) 12

Section 439—Application for condonation delay in filing an appeal under the Special Powers Act is not maintainable. And such an appeal when time-barred cannot be treated as a revisional application under CrPC. Shamsul Haque vs State 43 DLR 247.

Section 439—The remand order amounts to a double jeopardy for the petitioners and offers a chance to the prosecution to remedy its lacuna. Such a remand should not be made. Fazal vs State 43 DLR 40.

Section 439—Application for condonation of delay in filing an appeal under the Special Powers Act is not maintainable. And such an appeal when time-barred cannot be treated as a revisional application under CrPC. Shamsul Haque vs State 43 DLR 247.

Section 439—The remand order amounts to a double jeopardy for the petitioners and offers a chance to the prosecution to remedy its lacuna. Such a remand should not be made. Fazal vs State 43 DLR 40.

Section 439—High Court Division in exercise of its power under section 439 CrPC has no jurisdiction to review any order of the Labour Court passed under section 26 of the Employment of Labour (Standing Orders) Act.
The application on which the instant Rule was issued and was filed under section 439 of the Code of Criminal Procedure. We, therefore, find that this Court has no jurisdiction to review any order of the Labour Court passed under section 26 of the Employment of Labour (Standing Orders) Act, 1965. Jagodish Chandra Dutta vs MH Azad 41 DLR 257.

Section 439—This Court for rectification of injustice may also go into facts, if in the determination of any question of facts, onus is wrongly placed upon any party or an incorrect principle has been applied in determining the question of fact or any material piece of evidence has been ignored or due to misconception of law, a wrong view has been taken by the court below.
This court having paternal and supervisory jurisdiction can certainly, in the interest of justice, scrutinise and go into facts and examine the propriety of the impugned order or finding in question. In this view of ours, we are supported by a number of decisions of this court reported in 35 DLR (AD) 127 (Shafiqur Rahman vs Nurul Islam Chowdhury), 18 DLR (SC) 289 (Feroze Khan vs Captain Ghulam Nabi Khan), 15 DLR (SC) 150 (Muhammad Sami Ullah Khan vs State). Khandakar Md Moniruzzaman vs State 47 DLR 341.

Section 439—The acquittal of co-accused whose case stands on the same footing as that of the appellants’ cannot be a ground for their acquittal when there is sufficient evidence on record justifying their conviction. A suo motu Rule is issued against acquitted accused to show cause why the order of their acquittal shall not be set aside and be not convicted like the appellants as they too appear to be involved in the offences proved against the appellants. Abdul Ali vs State 46 DLR 338.

Section 439—In exercise of revisional jurisdiction High Court Division can in appropriate cases disturb findings of fact. Moslem All Mollah alias Moslem Molla vs State 48 DLR 427

Section 439—নিম্ন আদালত সাক্ষ্য প্রমাণ বিবেচনা করে যে সিদ্ধান্তে উপনীত হয়েছেন তার সাথে দ্বিমত পোষণ করলেই রিভিসন মামলার আসামীদের খালাসের আদেশ বাতিল করে দিয়ে মামলা পুনঃ বিচারে পাঠান সঠিক নয় । শুধুমাত্র নিম্ন আদালতের সিদ্ধান্ত স্পষ্টতঃ ভ্রমাত্বক বা নায়ভ্রস্ট হলে বা নথি অস্পস্ট হলে বা আদালতের এখতিয়ার ত্রুটি পূর্ণ হলেই খালাসের আদেশ বাতিল করে দিয়ে মামলা পুনঃবিচারে পাঠান উচিত । Abdul Aziz vs Sekendar Ali 50 DLR 111.

Section 439—The High Court Division may also suo motu call for the record of the courts subordinate to it and set aside any order passed by such courts in any legal proceeding which has caused miscarriage of justice. Reazuddin Ahmed vs State 49 DLR (AD) 64.

Section 439—It is to be borne in mind that the High Court Division does not function as a court of revision for permitting the guilty person to escape the just reward of their misdoing on the ground of an unsubstantial technicality. Whether or not the High Court Division will exercise its Revisional jurisdiction in a given case must depend upon the facts and circumstances of that case only. Syed Ahmed vs Abdul Khaleque 51 DLR 43.

Section 439—Merely because the court deciding a revision may arrive at a different conclusion would be justifiable in reversing the decision of the trial Court unless it is possible to demonstrate with certainty that none of the grounds upon which trial Court acquitted the accused is at all supportable. Ali Akbar vs State 51 DLR 268.

Section 439—The judgment of the trial Court lacks in certain essential findings in respect of the offence but this by itself cannot be a sufficient ground for acquittal of the accused persons on appeal of in the face of evidence on record proving their guilt. Jahiruddin Ahmed vs Yasinuddin 52 DLR 97.

Section 439—As a rule of practice Court regards 60 days as the period of limitation for filing a criminal revision. In spite of this, nothing prevents the Court from entertaining a revisional application filed beyond 60 days when the applicant can satisfy the Court that he was prevented by any sufficient cause from filing the revision earlier. Khadem Ali vs State 52 DLR 281.

Section 439—A Court may cancel the bail granted either by itself or by a Court subordinate to it when allegations for cancellation are made by giving substantive proof of overt act on the part of the accused against the prosecution witness and not merely on vague, wild and general allegations. Mainuddin Chowdhury & others vs State 53 DLR 416.

Section 439—Any person could bring to the notice of Court an illegality or material irregularity in the conduct of judicial proceedings by invoking revisional powers of the High Court Division under section 439 of the Code. Abdur Rahman Kha vs State 56 DLR 213.

Section 439—In the instant case, there is no cogent reason to send the case back on remand on the flimsy ground that the prosecution has failed to file Kabinnama properly. Hence, retrial be allowed for ends of justice. Ashraful Alam State 57 DLR 718.

Section 439—The revisional court does not interfere with the concurrent findings of fact save in exceptional circumstances as when a question of law of general public importance arises or a decision shocks the conscience of the Court. Montu vs State 57 DLR 504.

Section 439—The revisional court is to look into the question whether there has been gross negligence on the part of the petitioner or inordinate delay in moving the revision application. Khaled Ahmed Chowdhury vs State 57 DLR 694.

Section 439—Court can take suo motu cognisance of the matter under section 439, CrPC and set aside the conviction and sentence of other accused persons even though they were tried and convicted and sentenced in absentia and could not prefer any appeal. Abdus Sattar @ A. Sattar @ Sottar vs State 58 DLR 415.

Section 439—In view of the fact that the petitioner was aged only 17 at the time of occurrence and there is no specific act of violence attributed to him, the maximum sentence awardable under the section is felt to be inappropriate and unwarranted. Rafiqul Islam vs State 58 DLR 362.

Sections 439 & 439A—Revisional power of the High Court Division—It is true that the party in a revision case under section 439A is debarred from agitating his point before the High Court Division under section 439 of the Code, but the power has not been restricted by any clause of section 439 or by any law if it is considered necessary to prevent the abuse of the process of the Court. The order of the Sessions Judge being not in accordance with law requires interference and the aid of section 561A of the Code can be appropriately invoked there being no scope for a second revision. Dr Md Abdul Baten vs State 43 DLR 60.

Sections 439 & 435—The Additional Sessions Judge did not point out any illegality or irregularity in recording the evidence of witnesses examined by the prosecution or in the trial Court’s refusal to examine any witness produced. In such circumstances there was no justification for the Judge to make order permitting to examine witnesses at the time of fresh trial on remand that was ordered. Shamsul Haque Bhuiyan vs State 49 DLR 37.

Sections 439 & 561A—Session 561A has been put under Chapter XLVI of the Code as “Miscellaneous;” so an application under this section must be registered as a miscellaneous case and not as a revision case under section 439(1) or under both sections. Sher Ali vs State 46 DLR (AD) 67.

Sections 439, 439A & 561A—Propriety of exercising jurisdiction under section 561A CrPC to quash Magistrate’s order drawing up proceeding under section 145 CrPC—As the High Court Division’s revisional jurisdiction is concurrent with that of the Sessions Judge and although the High Court Division could decline to interfere for not moving the Sessions Judge, the interference that has been made cannot be said to be without jurisdiction. Jurisdiction under section 561A CrPC is not ousted in the presence of the revisional jurisdiction of the Sessions Judge under section 439A of the Code. The only question will be, has any case been made out either under section 439 or 561A of the Code? The answer will vary from case to case. Samirun Nessa vs Kamaluddin 43 DLR (AD) 175.

Sections 439 & 497—Since the petitioner did not get any opportunity to resist the application for cancellation of his bail and to present his case for maintaining the order granting him bail, the impugned order cancelling bail is set aside and the court in seisin of the case is directed to consider the matter afresh. Harun vs State 51 DLR 33.

Sections 439, 497(5) & 498—Section 497(5) gives power to High Court Division to cancel bail to accused admitted on bail. Section 498 of the code does not empower High Court Division or Court of Sessions again to admit an accused on bail after his cancellation of bail. In the event of cancellation of bail by a Court of Session the accused again cannot invoke jurisdiction under section 498 of the Code and the remedy that lay for him is invoking Revisional Power under section 439 of the Code. Mohashin Ali Pramanik vs State 55 DLR 259.

Sections 439 & 498—Whenever a matter is brought to the notice of High Court Division and High Court Division is satisfied that a case is made out for exercising Revisional power suo moto, it can always do so in the interest of justice and can treat an incompetent proceeding to be a proceeding under section 439 of the Code. Mohashin Ali Pramanik vs State 55 DLR 259.

Sections 439(4) and 439A(2)—No Second revision lies in view of the law in Sections 439(4) and 439(A)(2) of the CrPC. The purported distinction sought to be drawn by the learned Judge of the High Court Division was mis-conceived and the obiter was unwarranted. Hazi Golam Hossain vs Abdur Rahman Munshi 40 DLR (AD) 196.

Sections 439(4) & 561A—Under section 561A the exercise of inherent power is not restricted by any clause like section 439—The Court can exercise this power.
So we think it proper to exercise the inherent power under section 561A the exercise of which is not restricted by any clause like section 439. In section 439 of the Code there is a bar, as subsection (4) of the section provides to the effect that in an appealable case the party who has right to appeal cannot invoke section 439. But there is no such restriction in section 561A. Khalilur Rahman vs State 41 DLR 385.
Sections 439(4) & 439A—The idea of the High Court Division that both the courts—one under section 439(4), the other under section 439A—are equal in power and the judgment of one is the judgment of another, appears to be grotesque displaying perversity of thought. Sher Ali (Md) vs State 46 DLR (AD) 67.

Sections 439(4) & 561A—As there is nothing in the impugned order requiring to prevent abuse of the process of the Court or to secure the ends of justice, the revisional application is barred under the amended provision of section 439(4) of the CrPC. Anower Hossain vs Md Idrish Miah 48 DLR 295.

Section 439(4)—Scope of a revision against an order of acquittal is very limited in view of the provision of sub-section (4) of section 439 of the Code and decisions of the higher courts.
If the informant could prefer an appeal on the failure of the state to do so then the result could have been otherwise. Moreover, complainant has been given a limited right of appeal against an order of acquittal under the amended sub-section (2) of section 417 of the Code only on the ground of error of law. In such circumstances informant should also be given right to prefer appeal like the complainant and both of them right of appeal on the grounds of error of fact as well. Ali Akbar State 51 DLR 268.

Sections 439(4), 439A & 561A—No Court can claim inherent jurisdiction to exercise power expressly taken away by legislation.
Where there is an express provision in the Code barring the exercise of a particular jurisdiction (as under section 439) of this Court the jurisdiction may not be exercised under a general provision of the Code as under section 561A of the Code. In this connection reference may be made to the case of Kumar Singh Chhayor vs Emperor reported in AIR 1946 (Privy Council) 169 (172) wherein the Privy Council held that “no court can claim inherent jurisdiction to exercise powers expressly taken away by legislation” The instant application is hit by both sections 439A(2) and 439A of the Code. Abdul Jalil vs State 47 DLR 167.

Sections 439(4), 439A & 561A—The Sessions Judge’s decision is not final in relation to a person who has not filed the revisional application to the Sessions Judge but has been impleaded therein as opposite party. He is free to go to any appropriate forum to challenge the Sessions Judge’s decision. But he cannot go to the High Court Division with another revisional application, as such, an application—better known as second revision—is expressly barred by section 439.
Though the High Court Division cannot entertain any application under section 439(1) from a decision of the Sessions Judge under section 439A, still it can interfere with the Sessions Judge’s order by invoking its inherent for the limited purposes as set out in that, section namely, ‘to give effect to any order under Code, or to prevent abuse of the process of any court or otherwise to secure ends of justice’. Sher Ali vs State 46 DLR (AD) 67.

Sections 439A—Jurisdiction of the Sessions Judge under section 439A is co-extensive with the revisional jurisdiction of this Court in all matters except quashing a proceeding.
After the insertion of section 439A Sessions Judge in exercise of revisional power can set aside any order of the subordinate Criminal Court in addition to directing further enquiry under section 436 of the Code but cannot quash a proceeding. Abdul Hai vs State 50 DLR 551.

Section 439A—Where the State does not file any appeal against the order of acquittal in a police case the informant is competent to prefer revision before the Sessions Judge who can look into the legality or propriety of the order of acquittal. But the Court of revision cannot convert a finding of acquittal into a finding of conviction. Amjad Hossain vs State 49 DLR 64.

Sections 439A & 173—So far as the direction by the Sessions Judge to hold further investigation into the case is concerned, it is quite lawful; but his direction to submit charge-sheet is clearly without jurisdiction.

Per Mustafa Kamal J (agreeing): By making absurd comments, uninformed criticisms and vituperative innuendos on the judgments of the Appellate Division the learned Judges have placed themselves well inside the perimeter of contempt of this court. By openly, blatantly and consciously flouting Article. 111 they have also put themselves within the Ain bit of steps to refer the matter to the Supreme Judicial Council. Yet we decide to follow the course to caution the learned Judges not to repeat the performance in future.

It will be useful for all to remember that as human beings are not infallible, the judgments of the Appellate Division are too not infallible. Yet in all disciplined and constitutional societies and governments, the pronouncements of the highest Court are given a finality and a binding effect for the simple reason that there must be a finality to litigation at some point and that there must be judicial discipline, the lower judicial hierarchy being bound by the decision of the higher judicial hierarchy. To allow or even to tolerate a breach of this time-honoured and constitutionally fixed duty is to invite judicial anarchy and judicial indiscipline. This will create confusion in the administration of is justice and erode people’s confidence in the orderly and disciplined dispensation of justice under the Constitution. We hope that the learned Judges will appreciate the merit of judicial restraint and will desist in future from the temptation of treading on a beaten path.
Per Latfur Rahman J (agreeing): The pronouncement in respect of the power and jurisdiction of the High Court Division with regard to 561A of Code having been clearly stated in several decisions of this Division, it does not lie in the mouth of the High Court Division to take a contrary view of the same. The judgments of this Division as per the mandate of Article 111 of our Constitution is binding on the High Court Division. It is a clear violation of the Constitutional mandate by the learned Judges of the High Court Division. Is it not a violation of the oath of Office of a Judge to protect and preserve the Constitution of Bangladesh? Sher All vs State 46 DLR (AD) 67.

Sections 439 & 439A—A second revision does not lie under section 439 of the Code against the judgment and order of the Sessions Judge passed under section 439A of the Code as the same has been made an absolute bar under sub-section (4) of section 439 of the Code. Mariam Begum vs State 53 DLR 226.

Sections 439A & 561A—lnherent jurisdiction whether available to one losing in revision— The inherent jurisdiction of the High Court Division will be available even to a party who has lost in revision before the Sessions Judge. But it must be clearly borne in mind that the powers under section 561A being extraordinary in nature, should be exercised sparingly and where such exercise is essential and justified by the tests specially laid down in the provision itself. Aminul Islam vs Mujibur Rahman 45 DLR (AD) 9.

Sections 439A & 561A—Sessions Judge acted illegally and without jurisdiction in quashing the proceeding of the case pending in the Court of Sadar Upazila Magistrate in exercise of his power under section 439A of the Code of Criminal Procedure because the power of quashing a proceeding is available only under section 561A CrPC. Zahurullah vs Nurul Islam 48 DLR 386.

Sections 439A & 561A—Revisional jurisdiction of the High Court Division—Revision in a case arising out of section 145 CrPC. A party who has been unsuccessful in revision under section 439A CrPC is not totally debarred from invoking the jurisdiction of the High Court Division under section 561A. The opening words of this latter section—”Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court Division” repels any contention of such debarment. Aminul Islam vs Mujibur Rahman 44 DLR (AD) 56.

Section 440—Under section 440 of the Code a party or his Advocate has no right to be heard by a court exercising revisional power and it is the discretion of the court to hear such a party or his advocate.
If an Advocate fails to appear at the time of hearing of a criminal revision for whatever reason, this court cannot allow him to be heard by reopening the matter setting aside a judgment already pronounced and signed. Serajul Islam vs Faziul Hoque 47 DLR 480.

Section 465—When in a trial before the Court of Sessions it is made to appear to the Court that the accused facing the trial is of unsound mind and consequently incapable of making his defence, the court is required to enquire into the question of insanity, if necessary by taking evidence, to satisfy itself whether he is fit to make his defence. State vs Abdus Samad @ Samad Ali 54 DLR 590.

Section 465-The provisions of the section are mandatory and failure of the Court in this regard rendered the entire subsequent proceedings illegal and is of no legal effect which would vitiate the conviction and sentence. Wally Ahmed alias Babi vs State 58 DLR 433.

Sections 467 and 471—Complaint not having been made by a competent court, the criminal proceeding under sections 467 and 471 of the Penal Code has to be quashed. Sona Mia vs State 42 DLR 8.

Section 471(1)—When the accused comes within the definition of a ‘criminal lunatic’ he is liable to be detained in any asylum. Nikhil Chandra Halder vs State 54 DLR 148.

Section 476—Rule issued by the High Court Division on the appellants and two advocates to show cause why complaint should not be lodged against them under section 476 CrPC was m1e absolute against the appellants who then appealed. High Court Division issued a suo motu Rule in Criminal Revision No. 43 of 1986, upon the appellants and two Advocates to show cause as to why a complaint should not be lodged against them under section 476 of the Code of Criminal Procedure as they appeared to have practised fraud upon the Court by filing a false petition of compromise. The Rule against the appellants was made absolute, but it was discharged against the two Advocates. Hence this appeal. Abdul Gafur vs State 41 DLR (AD) 127.

Section 476-A Tribunal constituted under section 26 of the Special Powers Act is also required to follow the provisions of section 476 of the Code of Criminal Procedure if it likes to proceed against any witness of a case for commission of offence under section 193 of the Penal Code. Idris Miah (Md) vs State 50 DLR 629.

Section 476-A Tribunal constituted under section 26 of the Special Powers Act is also required to follow the provisions of section 476 of the Code of Criminal Procedure if it likes to proceed against any witness of a case for commission of offence under section 193 of the Penal Code. Idris Miah vs State 50 DLR 629.

Section 476-The Court has enough power to lodge complaint without holding any enquiry when from the proved facts he is prima fade satisfied that an offence has been committed before him in a proceeding or in relation thereto even without hearing the party complained against. Naogaon Rice Mills Ltd vs Pubali Bank Ltd 56 DLR 543.

Section 476—It appears that under the provision of section 476 of the Code of Criminal Procedure any court is empowered to send for appropriate steps against a person who is alleged to have created a forged document and submitted the same in a proceeding as an evidence in order to obtain a legal benefit out of the said forged document. But before embarking upon the provision of section 476 of the Code of Criminal Procedure it is the precondition of the provision that the proceeding in which the forged document has been filed must have been ended and any application under section 476, Code of Criminal Procedure filed by any party before that court cannot be considered unless the proceeding in which the said forged document has been filed has ended. Noor Alam Hossain vs State 59 DLR 322.

Section 476—The provision laid down in section 476 of the Code does not make the preliminary inquiry an obligatory one, rather it is left to the court making it discretionary which should be judicially exercised. Abu Yousuf vs State 62 DLR 421.

Sections 480 and 482—The Tribunal shall have the same powers as vested in a Civil Court for the purpose of inquiry and every enquiry as such shall be-deemed to be judicial proceeding within the meaning of sections 193 and 228 of the Penal Code—A Tribunal shall be deemed to be a Civil Court for the purposes of sections 480 and 482 CrPC. Muhammad Raushan Ali vs Bangladesh Bar Council 42 DLR 201.

Section 488—Provision of the Family Courts Ordinance 1985 have not taken away the power of a Magistrate to order for maintenance under section 488 CrPC. The Sessions Judge committed error of law in setting aside the order of maintenance passed by the Magistrate.

It can safely be presumed that our law makers while promulgating Ordinance No. XVIII of 1985 had in view the provisions of the Family Court Act of Pakistan and in spite of that the word ‘suit’ was specifically and unambiguously used in section 5 instead of the word ‘matters’ which has been used in the Pakistan law. The term ‘matters’ has wider meaning than the term ‘suit’ and the former term definitely includes civil suits as well as criminal or quasi-criminal proceedings. And in spite of that, section 20 as quoted above appearing in the Pakistan law made specific provision for vesting the judges of the family Courts which the power under section 488 CrPC. Meher Negar vs Mojibur Rahman 47 DLR 18.

Section 488—Family Courts can entertain, try and dispose of any suit relating to or arising out of maintenance but as section 488 CrPC does not empower the Magistrate to entertain, try and dispose of any suit i.e. any matter of civil nature, power of Magistrate under section 488 CrPC has not been ousted consequent to the establishment of the Family Courts, Rezaul Karim vs Rashida Begum 48 DLR 416.

Section 488—Plaintiffs suit for enhanced maintenance for her daughter under the Ordinance upon fresh cause of action is maintainable notwithstanding the earlier order of the Magistrate in exercise of jurisdiction under section 488 CrPC. Kowsar Chowdhury vs Latifa Sultana 54 DLR175.

Section 488—Order of maintenance of wife and son—the purpose of the Family Courts Ordinance is to provide for speedy disposal of family matters by the same forum. There will be anomaly and multiplicity of proceedings if, in spite of the establishment of Family Courts, the Magistrate continues to entertain cases for maintenance. Provisions made in the Family Courts Ordinance have ousted the jurisdiction of the Magistrates to entertain application for maintenance which is a family court matter. Md Abdul Khaleque vs Selina Begum 42 DLR 450.

Section 491—High Court may pass an order under section 491 CrPC at any time. The phrases “illegally” or “improperly” used in the sub-section (b) of section 491 of the Code mean that when a person is not detained within the provisions of any law, the detention becomes an illegal detention. The scope of section 491 CrPC is wider than the scope of constitutional provision. (Article 102 of the Constitution). Syeda Rezia Begum vs Bangladesh 40 DLR 210.

Section 491—And Constitution of Bangladesh (as amended upto date) Article 102—Court’s duty to hear the matter and pronounce its decision at the earliest without waiting for Advisory Board’s report regarding the legality or otherwise of the detenu’s detention beyond the scope of the Special Powers Act.

In view of the clear provisions of section 491 CrPC (as well as under Article 102 of the Constitution) it is the duty of this Court to hear the matter giving opportunity to both the parties to make their written and oral submissions and pronounce its decision as early as possible without waiting for the Advisory Board to report its opinion to the Government regarding the question whether the detenu is being illegally detained beyond the scope of the Special Powers Act, 1974. Dr Md Habibullah vs Secretary, Ministry of Home Affairs 41 DLR 160.

Section 491—Production of victim girl before the Upazila Court for determination of age and also in the matter of her custody.
In the matter of guardianship and custody of the person of a minor the court may put the minor in the custody of an appropriate person for the minor’s welfare or may keep the minor in neutral custody. Sukhendra Chandra Das vs Secretary Ministry of Home Affairs 42 DLR 79.

Section 491—Habeas Corpus—Extension of detention after expiry of initial period of detention —Order dated 22-5-1989 by the Ministry of Home Affairs was made after the expiry of 30 days from the date of first order of detention by the Additional District Magistrate. The Government have not been authorised to extend the period of detention with retrospective effect. The detenu is therefore detained under an illegal order of detention and is directed to be released forthwith. Momtaz Sultana vs Secretary Ministry of Home Affairs 42 DLR 457.

Section 491—Determination of age of a person in custody for the purpose of her guardianship—Isolated statement of her father in such a case in respect of her age cannot be accepted as true unless it is supported by “corroborative evidence. If a girl is found below 16 and taken away without the consent of the guardian then it will be an offence and the guardian will be entitled to her custody. Even if it is presumed that at time of occurrence of her kidnapping the detenu was minor but now when she is found major the Court has no jurisdiction to, compel her to go with her father. Manindra Kumar Malakar vs Ministry of Home Affairs 43 DLR 71.

Section 491—Directions of the nature of a Habeas Corpus, scope of—The argument that the scope of section 491 CrPC is narrower than that of Article 102 of the Constitution has no force. Its scope is not hedged by constitutional limitation. In constitutional provision it is to be seen whether the detenu is being held without any lawful authority and in a matter under section 491 it is only required to be seen whether the detention order is illegal and/or improper. Pearu Md Ferdous Alam Khan for Serajul Alam Khan (Detenu) vs State 44 DLR 603.

Section 491—The High Court Division can exercise its jurisdiction not only in declaring the detention of the detenu illegal but also declaring the proceedings upon which the detenu was held in detention to be illegal and void. State vs Deputy Commissioner Satkhira. 45 DLR 643.

Section 491—Judicial custody—Dispute over custody of alleged victim girl—Why father is refused to have her custody—A girl has been kept now in judicial custody though she is neither an accused or a witness in the relevant case. The custody or detention of a victim girl is different from that of a criminal or a political detenu. Judicial custody has the complexion of the custody of a guardian. This custody is necessary for giving the girl a chance to make up her mind and develop her independent opinion free from external influence. The facts and circumstances of each case will determine as to how and when the inherent discretion of the court for judicial is to be exercised. Dr Kazi Mozammel Haque vs State 45 DLR 197.

Section 491—The girl’s age at the time of occurrence may be relevant for the alleged offence committed but for the purpose of custody the girl’s present age is more pertinent. Nurunnahar Khatun vs State 46 DLR 112.

Section 491— When there has been a judgment and conviction passed by a Court, the High Court cannot interfere under section 491 on the ground of discovery of irregularities.

Section 491 of the Code of Criminal Procedure could come into play only when there was an illegal detention by an Executive Order by private individuals or even by a Court if the Court had no jurisdiction to try the case. A court having jurisdiction to try a case has a jurisdiction also to arrive at its own conclusion however wrong. Bakul Miah vs Government of Bangladesh, represented by the Secretary, Ministry of Home Affairs, Bangladesh Secretariat, Dhaka 46 DLR 530.

Section 491—Judicial custody of victim girl —As soon as the girl attains the age of 18 years from 1-12-1978 she must be released from thea judicial custody on her own bond even if the criminal case in which she is kept in custody remains pending. Hasina Begum vs State 48 DLR 300.

Section 491—When it is found fro4 materials on record that the alleged victim girl is aged above 16 and not an accused in the case, the order of her judicial custody is set aside and the Deputy Commissioner is directed to set her at liberty. Tarapada Sarker vs State 49 DLR 360.

Section 491—In the appeal against the order of bail the matter of custody of the victim girl was not to be decided. The Court should have considered the Miscellaneous Case filed by the appellant under section 491 CrPC on merit. Bashu Dev Chatterjee vs Umme Salma 51 DLR (AD) 238.

Section 491—The Judges were not sitting in appeal or revision as would entitle them to proceed with the matter even in the absence of the parties. The only course open was to dismiss the Miscellaneous Case for default of the petitioner. Bashu Dev Chatterjee vs Umme Salma 51 DLR (AD) 238.

Section 491—Having considered all aspects of the matter it will be in the best interest of the girl if she is released from custody and given to the care of her father. it is also necessary to see that the accused does not feel prejudiced at the trial because of the girl remaining under the care of the informant. The accused will be at liberty to pray before the trial Court for her production in Court if it is found necessary. Bashu Dev Chatterjee vs Umme Salma 51 DLR (AD) 238.

Section 491—Primary evidence being there that the girl is minor and that she is the victim of an offence it is right and proper that the girl should stay with her parents rather than be given to the family of the accused. The girl cannot be allowed to make her own choice because, prima facie, it appears that she is a minor. Jharna Rani Saha vs Khondaker Zayedul Hoque alias Jahangir 52 DLR (AD) 66.

Section 491—When a person was put into judicial custody by an order of a competent court of law unless that order is set aside detention cannot be considered as illegal. Tarun Karmaker vs State 53 DLR 135.

Section 491—In view of the provisions of section 491(1)(b) the present application under section 491 is not maintainable as the detenu was put into custody by an order of the Sessions Judge and as the same order is still in force. Tarun Karmaker vs State and ors 53 DLR 135.

Section 491—There are five clauses under sub-section(1) and there are 3 sub-sections in this section but none empower the Court to determine the question of custody of any minor. Tarun Karmaker vs State 53 DLR 135.

Section 491—When there is only an ad interim bail and that too for a limited period this Court is not inclined to interfere in the matter. Bangladesh vs Md Naziur Rahman 54 DLR (AD) 157.

Section 491—An order of detention passed on fictitious vague and indefinite grounds and founded on colourable satisfaction affecting the right of a citizen, and not in the larger interest of the society and public at large, must be quashed. Aftab Hossain (Md) vs Bangladesh 54 DLR 266.

Section 491—The detenu Rahat having been detained to abstain himself from perpetrating torture/repression in the locality of Kamrangirchar under Nadim Group terrorists, of the detention order is well-grounded in the fact and circumstances of the case. Abul Member and Abul Hassain vs Secretary, Ministry of Home Affairs 54 DLR 392.

Section 491—An application under this section cannot be rejected on the ground that no statement has been made as to the locus standi of the petitioner to challenge the order of detention or as to how the petitioner is aggrieved by the order of detention, if full particulars of the detenu and the detention are there. Zilaluddin (Md) vs Secretary, Ministry of Home Affairs 54 DLR 625.

Section 491—An application under section 491 of the Code of Criminal Procedure is maintainable for custody of a minor to see that the minor is not held illegally and in an improper manner. Abdul Majid Sarker vs State 55 DLR (AD) 1.

Section 491—A preventive detention is the deprivation of the liberty of a citizen, which right should not be taken away in an arbitrary manner. So this Court enjoys power to review the actions of the detaining authority under Articles 102(2)(b)(i) of the Constitution and under section 491 of the Code. Anwar Hossain vs State 55 DLR 643.

Section 491—The right to obtain a direction under section 491 of the Code in the nature of a habeas corpus is a statutory right on the grounds recognised in the section and a part of the statutory right has become a part of the fundamental right guaranteed in Part III of the Constitution. Anwar Hossain vs State 55 DLR 643.

Section 491—Whenever any authority is invested with a legal authority to make an order of detention to the prejudice of another person, such authority has the concomitant duty of acting judicially in making such an order on the basis of decision of consideration of some materials by observing the rule of natural justice. Anwar Hossain vs State 55 DLR 643.

Section 491—Detenu Nazma Akhter now aged 20 having been detained in the safe custody of “Nirapad Abason” since against her will prayer for her release from safe custody is allowed., her detention being improper and illegal. Jatio Mahila Ainjibi Samity vs Bangladesh 59 DLR 447.

Section 491(3)—If after examining the material on the basis of which executive authority detained a person under the provisions of any law this court finds that there is no justification for detention, sub-section (3) of section 491 of the Code will not stand as a bar to declare the detention of the detenu as illegal. Pranajit Barua vs State 50 DLR 399.

Section 492—The terms of appointment of the writ petitioner was solely based on confidence and satisfaction of the Government as to service he was rendering. The moment there is absence of confidence and satisfaction, it was within the domain of the Government to terminate the appointment. Secretary, Ministry of Law, Justice & Parliamentary Affairs vs Md Borhan Uddin 56 DLR (AD) 131.

Section 492—When Government feels necessity of terminating appointment of a Public Prosecutor, questioning legality of termination of such appointment by a person claiming to be the informant of or the witness in the case can hardly; be considered legally well conceived. SM Jillur Rahman vs Bangladesh 56 DLR (AD) 127.

Sections 492 and 493—Interpretation of Statute—Public Prosecutor occupies a solemn and unique position in the Code of Criminal Procedure. Dr SM Abu Taher vs State 42 DLR 138.

Sections 492 and 493—Appointment of Public Prosecutor and authority of the PubIic. Prosecutor to conduct a case before any Court without written authority of the Government. Dr SM Abu Taher vs State 42 DLR 138.

Section 493—Public Prosecutor has authority to file an application for revival of a case, proceeding of which were stopped for failure to conclude trial within the time limit. Taheruddin vs State 47 DLR 255.

Section 493—When imputation is made directly or indirectly for removal of a public prosecutor natural justice requires that he must be given an opportunity to explain. Borhan Uddin (Md), Advocate vs Secretary, Ministry of Law, Justice and Parliamentary Affairs 52 DLR 81.

Section 494—Withdrawal from prosecution of any person (before charge is framed or after charge is framed) before pronouncement of the judgment—effect of—Words “consent of the Court” occurring in section 494 CrPC—Interpretation of—Court is to see whether the public prosecutor who has a duty under section 494 CrPC to file an application for withdrawal from prosecution has in fact placed cogent and relevant materials for consideration of a court of law—The Court granting “consent” must not accord its consent as a matter of course but must apply its mind to the ground taken in the application for withdrawal by the Public Prosecutor. Abdul Hakim Chowdhury vs Ruhul Amin & State 40 DLR 259.

Section 494—Consent being one of a Court of law, the Court must consider the ground for its satisfaction for according consent and also for the higher Court to examine the propriety and legality of the order. Abdul Hakim Chowdhury vs Ruhul Amin & State 40 DLR 259.

Section 494—Trial Court’s passing of the impugned order of withdrawal as a matter of course without any application ofjudicial mind to any material on record. Abdul Hakim Chowdhury vs Ruhul Amin 40 DLR 259.

Section 494—The terms “consent” is a legal term and is of wider import which means “acquiesce in” or “agree to”. Abdul Hakim Chowdhury vs Ruhul Amin 40 DLR 259.

Section 494–In a case of revival under section 339D, the Court is not to determine anything judicially—Court not to search for Government instruction which prompted the Public Prosecutor to file application for revival. Dr SM Abu Taher vs State 42 DLR 138.

Section 494-The learned Assistant Sessions Judge having not granted the consent for withdrawal by the impugned order on consideration of any cogent ground or materials the same is not only illegal but contrary to the well established principles of criminal justice and liable to be quashed. Shamsul Alam vs State 47 DLR 476.

Section 494-The Magistrate accorded permission for withdrawal simply on the ground that the Government had instructed the Deputy Commissioner concerned for taking steps for withdrawal of the case. Such mechanical order of withdrawal is contrary to the provision of section 494 of the Code. The Magistrate is directed to proceed with the case in accordance with law. Altaf Hossain vs Kobed Ali 49 DLR 589.

Section 494-The trial Court having not accorded sanction for withdrawal of the case it cannot be said that the petitioners have acquired a vested right. Further, section 494 of the Code gives the authority only to a public prosecutor to file an application for withdrawal and, as such, the accused have no right to file an application for withdrawal. Apart from this the Tribunal after recording proper reasons have refused to accord consent for withdrawal of the case and, as such, no lawful grievance can be made on the merit as well. Abdul Khaleque vs Md Hanf 49 DLR (AD) 134.

Section 494—The offence under section 376 is not-compoundable and, as such, there is no question of withdrawal. Sorbesh Ali vs Jarina Begum 49 DLR (AD) 143.

Section 494—Withdrawal from the prosecution is subject to consent by the trial Judge and when the accused persons are still absconding the discretion ought not to have been exercised. Sreemall Prativa Rani Dey (Tirtha) vs Dr Mohammad Yousuf Chittagong Medical College 52 DLR (AD) 8.

Section 494-The consent mentioned in section 494 of the Code is not to be given mechanically. The Court is to exercise its function judicially before giving such consent which implies that the Court will have to examine the materials on which the Government decides withdrawal of a case. Sreemati Prativa Rani Dey (tirtha) vs Dr Mohammad Yousuf Chittagong Medical College 52 DLR (AD) 8.

Section 494-The court is required to exercise judicially the function of according consent for withdrawal of any accused from prosecution—The consent should not be given mechanically. Loskor Md Mostan Billah vs State 56 DLR 199.

Section 494-Withdrawal from prosecution —The judgment and order of the Tribunal Judge refusing to give consent to withdraw of the accused from prosecution cannot be found fault with nor there is any error in the judgment of the High Court Division. State vs Md Amir Hamza 57 DLR (AD) 26.

Section 494-Though section 494 confers on the Public Prosecutor a wide power to withdraw from the prosecution, and the Court has j to exercise its power in relation to the facts and circumstances of the case in furtherance of cause of justice rather than as a hindrance to the object of the law. Moezuddin (Md) vs State 59 DLR 222.

Section 494-The Additional Sessions Judge consented to the withdrawal from the prosecution of the accused opposite party No. 1 merely on the ground that the Ministry of Home Affairs decided to withdraw from the prosecution. The order cannot be said to be a legal one and the samei s liable to be interfered with. Moezuddin vs State 59 DLR 222.

Section 494-Judicial exercise of the discretion means consideration of all the facts and circumstances of the case available to the Court and also of the grounds on which the withdrawal is sought. The very word “consent” occurring in section 494 of the Code clearly indicates that it is not to be considered lightly on the application of the Public Prosecutor without a careful and proper scrutiny of the grounds on which the application is based. Shamsun Nahar vs State 60 DLR 1.

Sections 494 & 439—Consent mention in section 494 of the Code is not to be given mechanically. The court is to exercise its function judicially before giving such consent which implies that the court will have to examine the materials on which the Government decides on withdrawal of a case. ‘Consent’, as used in the section, means a consent freely given by a Court. Since the act of giving consent by the Court is a judicial act, the court is entitled to ask the Public Prosecutor the reasons for his withdrawal in order to judicially come to a decision. Badar Biswas vs State 57 DLR 770.

Section 497— Bail—This section enjoins upon the Court to exercise judicial discretion in the matter of granting bail for ascertaining whether the materials placed before the court by the prosecution are of such a tangible nature that if left unrebutted, they may lead to the inference of guilt of the accused. In the present case there is no other materials on record other than the FIR and mere allegations thereof. The court thus committed an error in refusing bail in this case. AKM Mosharraf Hossain vs State 44 DLR (AD) 246.

Section 497—As soon as the accused appears or brought before the Court and prays for bail the Sessions Judge should dispose of his application. If the Sessions Judge fails to dispose of the same there is no scope for allowing the accused to continue on the bail granted by the Magistrate, he is to be sent to jail custody.
We have noticed in many cases that such orders allowing the accused to continue as before were written by the bench clerks and merely intialled by the Sessions Judges and allowing the accused to remain at large for long time delaying commencement of the trials. The sooner these practices of issuing notices and/or allowing the accused to continue as before are discontinued it is better for speedy trial of the Sessions cases. Sessions Judges should stop the practice of putting initials on such important orders written by the bench clerks. Sohail Thakur vs State 51 DLR 199.

Section 497—Additional Sessions Judge is not bound by the bail granted by the Sessions Judge. If he refuses bail to an accused who was earlier granted bail by the Sessions Judge that cannot be construed as cancellation of bail granted by the Sessions Judge. Sohail Thakur vs State 51 DLR 199.

Section 497—”Save in accordance with law” as mentioned in Article 32 not only refers to criminal law but also civil law which provides for arrest and detention, namely, for recovery of decretal dues and public dues. State vs Faisal Alam Ansari 53 DLR (AD) 43.

Section 497—Section 497 of the Code of Criminal Procedure is a procedural law and the accused having alleged to have committed a substantive offence of murder his liberty is curtailed. State vs Faisal Alam Ansari 53 DLR (AD) 43.

Sections 497 & 498—Vires of the law has not been challenged in this case and therefore, we are not called upon to decide the Constitutionality of the law. Every law has a presumption of its Constitutionality. State vs Moyezuddin Sikder 60 DLR (AD) 82.

Sections 497 and 498—Bail—A person is not automatically debarred from getting bail merely because his name was mentioned in the charge-sheet. Liaqat Sharif vs State 40 DLR 506.

Section 498—Order for conditional bail is illegal and not proper. AHM Siddique vs State 45 DLR (AD) 8.

Section 498—Considering the statements under section 161 of the Code of Criminal Procedure wherein no specific overt act involving the appellants with the killing of the victim is found the appellants are granted bail and if the trial starts the Sessions Judge will be free to take them into custody during trial. Abdul Matin vs State 44 DLR (AD) 8.

Section 498— Bail—It is not the prima facie case against the accused but reasonable grounds’ for believing that he has been guilty which prohibits granting of bail. The onus is on the prosecution to disclose those reasonable grounds. Court has to examine the data available in the case to find out whether reasonable grounds exist to connect the accused with the crime alleged. Shaikh Shahidul Islam vs State 44 DLR (AD) 192.

Section 498— Bail—Refusal of bail in a case of murder in which the accused was earlier exempted from trial—In view of Sessions Judge’s findings that non-submission of charge-sheet against the petitioner earlier was without valid reason, that he is a powerful man in the locality and there is a possibility of his influencing the witnesses has substance—there is no compelling reason to enlarge the petitioner on bail. ASM Abdur Rob vs State 44 DLR 205.

Section 498—Sentence for one year—The Court ought to have exercised discretion in granting bail to the appellants in view of the short sentence of imprisonment. Saimuddin vs State 43 DLR (AD) 151.

Section 498—Bail in a case where the sentence is of short duration—In the present case the – sentence is of two years and the disposal of the appeal in question normally takes time. In that circumstances the High Court Division ought to have exercised judicial discretion in the matter of granting bail to the appellants. The judicial discretion having not been properly exercised in the facts of the case the order is set aside and the appeal allowed. Dhanu Mia vs State 43 DLR (AD) 119.

Section 498—High Court Division criminal revision cancelled the appellant’s when there was no new material before it and no allegation of tampering with the evidence. Co-accused against whom cognizance of a murder case has already been taken is already on bail. High Court Division did not exercise its judicial discretion properly in cancelling the appellant’s bail—Appellants to remain on bail already granted by Upazila Magistrate. Bakul Howlader vs State 43 DLR (AD) 14.

Section 498— Bail—Incriminating facts disclosed in the FIR after due inquiry by the inspecting team are reasonable grounds for believing that the petitioner is guilty of criminal breach of trust. The Session Judge has rightly rejected the petition for bail. Mustafizur Rahman vs State 45 DLR 227.

Section 498—Bail—When there is hardly any chance of abscondance of the appellant in the peculiar circumstances, the Court has found that he is entitled to bail—Appeal allowed. We need not consider the appellant’s contentions with regard to the order of conviction. In the peculiar circumstances of the case we think the appeallant is entitled to bail particularly where there is hardly any chance of abscondance. The respondent found it difficult to oppose the appellant’s prayer. SM Shajahan Ali Tara vs State 41 DLR (AD) 112.

Section 498—Anticipatory bail- Circumstances when such bail was granted by the High Court Division. The police went to the residence of the petitioner to arrest him on the basis of a case started upon a newspaper report. He was a candidate for the National Assembly election. His political rivals and enemies were bent upon defeating him by putting him in confinement through the help of the police. In such circumstances, the prayer for anticipatory bail was granted. Zulfiqur Ali Bhutto vs State 43 DLR 312.

Section 498-Bail—there was a free fight between the parties; the accused are in jail for 9 months, the case has not been sent to proper court for trial as yet and both sides have case against each other on the self-same matter—Hence it will not be unreasonable to enlarge the petitioners on bail till the trial starts when the trial Court will see whether they should continue on the same bail. Shahidullah vs State 42 DLR 394.

Section 498-There is no evidentiary value of confessional statement of the co-accused if not corroborated by the evidence. Serious view is also taken for violation of the direction not to arrest or harass the petitioner by a Division Bench of this Court in Writ Petition No. 3073 of 2006 for two months but the petitioner has been arrested before expiry of that period. The opposite party must explain it. Considering the above facts, the petitioner is enlarged on bail. Badrud Doza vs State 58 DLR 529.

Sections 498 and 517—An application for disposal of seized articles can be filed under section 517 of the Code before the proper Court after conclusion of trial. The High Court Division acted illegally and without jurisdiction in releasing the seized goods at the time of issuance of Rule in an application under section 498 of the Code. State vs Abdur Rahim 58 DLR (AD) 65.

Section 498—Successive bail petition, propriety of—The Judges were not right in taking the view that once a petition for bail is rejected no further application can be made and the remedy lies only in an appeal. It is also not right to say than an application for bail could not be filed before the Vacation Judge and that he had no jurisdiction to grant interim bail (when he was himself a party to the rejection of bail for the same accused earlier by the Division Bench). At the most, it may be said that it was indiscreet on the part of the Vacation Judge to grant bail in the facts of the case.
In the application for bail before the Vacation Bench, it was not mentioned that prayers for bail had been refused earlier. For this suppression of fact alone the ad interim bail could have been cancelled. MA Wahab vs State 42 DLR (AD) 223.

Section 498—Bail matter—High Court Division admitted a criminal appeal but rejected the prayer for bail pending disposal of the appeal—Ad interim bail granted by tle Appellate Division at leave stage for two months cannot be allowed to continue indefinitely—ad-interim bail extended for six months more and meanwhile parties are directed to make sincere effoils for disposal of the appeals—on expiry of the extended period, prayer for bail is to be moved before the High Court Division. Azizul Hoq vs State 42 DLR (AD) 284.

Section 498—The law permits granting of bail even in a case where there are such reasonable ground for refusing bail, in the case of any woman or any sick or infirm person.
However, the respondent has not been granted bail upon these considerations but upon the view that there are no reasonable grounds for believing that she has been guilty of the offence alleged. The learned Attorney-General could not refer to any principle which has been allegedly violated by the High Court Division nor to any fact which has either been ignored or wrongly relied upon. State vs Jobaida Rashid 49 DLR (AD) 119.

Section 498-An earlier application for bail having been rejected on merits discarding the ground taken therein similar application subsequently filed without any new ground cannot be considered. Subsequent application must contain the information clearly about the earlier application(s) together with prominent heading such as second application or other application and so on and further that such application must be filed before the Bench which had rejected the earlier prayer(s), if of course that Bench is not in the meantime dissolved. MA Malik vs State 48 DLR 18.

Section 498—The accused-petitioner is enlarged on anticipatory bail as it appears that the informant’s father is an influential man having easy access to the local executive authorities and in the facts of the case the apprehension of harassment cannot be ruled out. MA Malik vs State 48 DLR 18.

Section 498—Anticipatory bail—As the petitioner is not named in the FIR and the police were after him, they are directed not to arrest him, and if arrested, he should be enlarged on bail immediately. He is directed to surrender then to the Magistrate and pray for regular bail. Abdul Wadud vs State 48 DLR 599.

Section 498—Bail in pending trial—The Magistrate ordered for further investigation and the investigation is still pending. It is not certain j when the police will submit report after further investigation and when the case may be sent for trial. Considering the facts and circumstances the petitioner may be enlarged on bail. Shahed Reza Shamim vs State 49 DLR 116.

Section 498-Restrictive order imposed by the District Magistrate upon liberty of movement of the petitioner enlarged by the High Court Division on anticipatory bail is stayed and the Magistrate’s conduct is deprecated. Ahad Miah vs State 49 DLR 200.

Section 498-The petitioner, being a lady in custody for a considerable period of time and there being absence of materials that her husband holding illegal fire-arms in their residence, has absconded, she is enlarged on bail. Jobaida Rashid, wife of Khandaker Abdur Rashid vs State 49 DLR 189.

Section 498-Mere naming the accused in the charge-sheet without any prima facie material and the mere fact that in the occurrence the Head of the State with his family has been murdered and that this is a sensational case cannot be a ground for refusal of bail. Jobaida Rashid, wife of Khandaker Abdur Rashid vs State 49 DLR 229.

Section 498— Ordinarily when the petition is not pressed by the Advocate for the petitioner the same is rejected without expressing opinion. Since a Division Bench has already expressed opinion on the application and the judges differed in their opinion the difference should be resolved. There is no scope for not pressing the petition after it had been pressed and opinion expressed by the Division Bench. Belayet Hossain Sharif vs State 50 DLR 242.

Section 498—Merely because a person is respectable, influential or highly placed in the society by reason of his being rich or educated or politically connected or otherwise holding important post or office he cannot avoid the due course of the law to appear before the courts below and use High Court Division as a substitute of the subordinate courts. Belayet Hossain Sharif vs State 50 DLR 242.

Section 498—Power of granting anticipatory bail is very sparingly used by this Court to save a citizen from unnecessary harassment and humiliation in the hands of police on flimsy ground or with ulterior motive or out of political design. This power cannot be exercised in each and every case as a substitute to the exercise of such power by the court below. A person cannot be enlarged on anticipatory bail how high so ever he may be unless conditions for granting such bail are satisfied. Belayet Hossain Sharif vs State 50 DLR 242.

Section 498-Since the petitioner has meanwhile been enlarged on bail by the trial Court, the merit of the case is not touched while deciding the question of entitlement to anticipatory bail. Belayet Hossain Sharif vs State 50 DLR 242.

Section 498-In view of long detention of the accused petitioner for about two years without knowing when the trial of the case can be concluded and in view of the fact that some of the accused persons standing on the same footing have already been granted bail, the accused- petitioner should be granted bail. MA Sattar vs State 50 DLR 258.

Section 498-Anticipatory Bail—the offence with which the petitioner has been accused of being punishable with death or imprisonment for life anticipatory bail cannot be granted though he is an elected Chairman. Abdur Rahman Molla vs State 50 DLR 401.

Section 498— The petitioners of the respective Rule could not satisfy with cogent reason and materials the cause for not surrendering before the Court below. Orders of ad interim anticipatory bail granted by this Court are recalled and the petitioners are directed to surrender to their respective bail bond. Dr Mominur Rahman alias Zinna vs State 50 DLR 577.

Section 498—Anticipatory bail—The spouses are at loggerheads both having taken recourse to court. There is possibility of the respondent husband being harassed. It is, therefore, difficult to hold that the High Court Division has granted him bail unreasonably or unfairly. State vs MA Malik 47 DLR (AD) 33.

Section 498—Anticipatory bail—by the High Court Division directly is not granted as a matter of course except in exceptional cases such as physical inability to appear before the court of first instance, fear and lack of personal safety, lack of confidence and like circumstances (ref. Sadeq Ali’s case, 18 DLR (SC) 393.

In the instant case we find the proceeding to be at an initial stage. No charge has yet been framed and two of the petitioners are ladies and most of the accused are quite elderly citizens of the country and some of them are suffering from heart trouble. These facts along with the order attending facts and circumstances of his peculiar case, unique in nature in our history, would call for an exercise of the power of this Court granting bail and more so when the matter of bail on merits has been examined by this Court in extension before the lawyers of both sides. Jahanara Imam vs State 46 DLR 315.

Section 498—If the trial is not concluded within a reasonable time, the petitioner can pray for bail in the appropriate court. Emran Hossain vs State 1 DLR (AD) 137.

Section 498—ln an appeal against a short sentence bail should be ordinarily granted in exercise of a proper discretion because usually it takes time to hear the appeal.
The learned Judge would be justified in refusing bail if he could ensure the disposal of the appeal within a reasonable time, i.e., within 3-6 months, otherwise the refusal of bail will be manifestly unjust. It is difficult to appreciate why not even stay of realisation of fine was granted which is usually allowed. It seems that there has not been a sufficient realization of the purpose of appeal, nor of the guidance given by this Division in the cited case. Alaluddin vs State 51 DLR (AD) 162.

Section 498—The basic conception of the word “bail” is release of a person from the custody of police and delivery into the hands of sureties, who undertake to produce him in Court whenever required to do so.
An accused person is said, at common law, to be admitted to bail, when he is released from the, custody of the officers of the Court and is entrusted to the custody of persons known as his sureties who are bound to produce him to answer at a specified time and place, the charge against him and who in default of so doing are liable to forfeit such sum as is specified when bail is granted.

Per Latfur Rahman J (agreeing): By anticipatory bail we mean bail in anticipation of arrest. The distinction is that bail is granted after arrest and anticipatory bail is granted in anticipation of arrest, and therefore, effective at the very moment of arrest. In other words, unlike a post-arrest order of bail, it is a pre-arrest order of release. State vs Abdul Wahab Shah Chowdhury 51 DLR (AD) 242.

Section 498—On principle it is true that in case of concurrent jurisdiction the lower Court  should be moved first but it is not a hidebound rule.

Per Latfur Rahman J (agreeing): Section 498 of the Code speaks of the High Court Division or Court of Sessions and, as such, I hold that an accused person may seek bail in either of the Courts at his option. I do not find any justification in curtailing the power of the superior Court, keeping the same to the Court subordinate to it. State vs Abdul Wahab Shah Chowdhury 51 DLR (AD) 242.

Section 498—If the power under section 498 is held to be subject to section 497 then the High Court Division will be precluded from considering the malafide nature of a proceeding in a particular case merely because there is a prima facie allegation of an offence punishable with death or imprisonment for life.
A prayer for pre-arrest bail should be considered without any feeling of fetter of section 497 at the first instance but the general principle as laid down in that section should always be there at the back of the mind of the Court, particularly the nature of allegation made against the accused in a particular case involving him with the offence. State vs Abdul Wahab Shah Chowdhury 51 DLR (AD) 242.

Section 498—Pre-arrest bail is an exception to the general law and the Court will always bear in mind the caution of SA Rahman J in the case of Muhammad Ayub reported in 19 DLR (SC) 38.
Generally speaking the main circumstances as would entitle an order for extraordinary remedy of pre-arrest bail is the perception of the Court upon the facts and materials disclosed by the petitioner before it that the criminal proceeding which is being or has been launched against him is being or has been taken with an ulterior motive, political or otherwise, for harassing the accused and not for securing justice, in a particular case. State vs Abdul Wahab Shah Chowdhury 51 DLR (AD) 242.

Section 498—Prayer for anticipatory bail may also be considered may occur if it is proved that on account of public commotion or other circumstances it is not possible for the petitioner to appear before the lower Court. State vs Abdul Wahab Shah Chowdhuty 51 DLR (AD) 242.

Section 498—It may even be possible to successfully make a prayer for bail on merit in the facts of a particular case but that alone can never be a ground for granting a prayer for pre-arrest bail.
This prayer, extraordinary as it is, can only be considered, as already stated, when it appears to the Court that the purpose of the alleged proceeding as far as the accused is concerned, is not what it purports to be, but to achieve a collateral purpose by abusing the process of law, such as, harassment, humiliation, etc. of the accused which cannot be permitted. State vs Abdul Wahab Shah Chowdhury 51 DLR (AD) 242.

Section 498—It is the duty of the accused to surrender before the Court in which his case is pending. He cannot continue on anticipatory bail even after submission of the charge-sheet and taking of cognizance of offence by the Court. Probir Kumar Chowdhury vs State 51 DLR 42.

Section 498—It is for the trial Court to piece together all the fragments of the evidence. Reading the statements under sections 164 and 161 CrPC there appears now reasonable grounds that the petitioner may be parties to a criminal conspiracy for killing the 4 leaders in jail. So the prayer for bail is rejected. KM Obaidur Rahman vs State 51 DLR 51.

Section 498—Ordinarily when warrant of arrest is issued against a person or a person is wanted in connection with a non-bailable offence of serious nature he is not entitled to get anticipatory bail. In this view, the ad interim anticipatory bail is recalled and the petitioners are directed to surrender to the Court below. Mir Shahidul Islam vs State 51 DLR 506.

Section 498—When on the face of it prosecution case appears to be absurd and preposterous it would be unjust to refuse bail however serious and grave the allegation may be, because in a free and civil society liberty of a citizen can neither be circumscribed nor made subservient to of capricious enforcers of law, more so, when incarceration without trial stretches over a year and a half, without any date for hearing in sight. Kawsar Alam Khan vs State 52 DLR 298.

Section 498—A Member of Parliament being enlarged on bail cannot avoid appearance before the trial Court simply on the plea that the Parliament is in session. KM Obaidur Rahman vs State 55 DLR (AD) 6.

Section 498—The question of granting or refusing bail depends upon the particular circumstances of each case and the mere fact that an offence is punishable with death or life imprisonment is not by itself sufficient to refuse bail. Captain (Retd) Nurul Huda vs State 55 DLR (AD) 33.

Section 498—The grant of bail is the discretion of the court and the Court could consider the exercise of discretion if it is satisfied in the facts and circumstances of the case that the trial cannot be concluded within the specified time. Captain (Retd) Nurul Huda vs State 55 DLR (AD) 33.

Section 498―The petitioner has been made an accused for alleged acts of forgery in creating affidavit and kabinnama and the subject matter of Criminal Proceeding has become, also, a subject matter of a suit in the Second Court of Assistant Judge, Chittagong and the petitioner and informant are a loggerheads. Exceptional and special circumstances appear to have existed for granting anticipatory bail to the petitioner. Patwary Rafiquddin Haider vs State 55 DLR 241.

Section 498―Non-compliance of direction of High Court Division by the Court below as to conclusion of trial of the case within 4 months will not create any right to the accused Harun to be entitled to get bail disregarding the allegation of overt act against him. Court of law must act upon materials on record to decide the question of granting or non granting of bail. Harun-or-Rashid vs State 56 DLR 318.

Section 498―The apprehension that there is possibility on the part of the petitioner to interfere with the process of investigation and of tampering with the evidence, has got no basis at all. The attending circumstances shown the petitioner deserve bail. Dr Qazi Faruque Ahmed vs State represented by the Deputy Commissioner 56 DLR 600.

Section 498―The deceased was killed in her husband’s house and naturally he was then her best custodian and he is supposed to know the cause of her death, but the story narrated in the UD Case which was ended in the final report creates presumption about the implication of the husband in the occurrence. Moreover, there is no cause to consider the prayer for his bail in the light of the decision referred which was given in an appeal. Azam Reza vs State 57 DLR 36.

Section 498―As the petitioner has no f to surrender at this stage and police is aftei the accused-petitioner is enlarged on a bail for limited period till submission of police report. Shakawat Hassan vs State 57 DLR 244.

Section 498—When accused, is in custody he is not entitled to anticipatory bail. A Wadud Member vs State 59 DLR 586.

Section 498—Since the accused-petitioners did not appear before the Magistrate nor took any step for recalling the warrant of his arrest, it is apparent that they are fugitives from justice having no protection of law. AKM Iflekhar Ahmed vs State 59 DLR 646.

Section 498—In view of the inordinate delay in holding trial and the law laid down by the Appellate Division in granting bail to an accused of non bailable offence if the trial is not concluded in the specified time the co-accused has been enlarged on bail, this Court is inclined to enlarge the appellant on bail. Abul Kalam vs State 60 DLR 254.

Section 498―From the foregoing discussions and in view of the facts and circumstances of the case, we are led to hold that at this stage, the accused-petitioner cannot make any application for bail, far less anticipatory bail, under section 498 of the Code of Criminal Procedure, 1898. Accordingly, the instant application for anticipatory bail is summarily turned down. Ali Ahsan Mujahid vs State 60 DLR 359.

Section 498—It appears that although charge-sheet has been submitted but charge has not yet been framed and, as such, completion of the trial is not likely to be soon. Furthermore, considering all the above matters we are inclined to grant bail to the accused-appellant. Ziad Ali Gazi vs State 61 DLR 807.

Section 498—On reference to the record of Criminal Miscellaneous Case No. 13454 of 2008 we find that ad interim bail was granted to the victim petitioner treating her as accused-petitioner. This may be due to mistaken submission of her learned Advocate or due to inadvertence of the Court. Indeed, the victim was not an accused in the case. Question of her release or custody was not a matter for determination under section 498 of the Code. Not being an accused charged with commission of any offence she had no scope to seek bail under the provision of sections 496, 497 and 498. We have reason to find that application preferred by the victim under section 498 of the Code seeking bail was quite incompetent. It is difficult to maintain the order of ad interim bail in her favour either through inadvertence of the Court or mistaken submission of her Advocate. Aysha Begum vs State 61 DLR 493.

Section 498—Anticipatory bail —Not to harass/arrest. If a fugitive surrenders before the High Court Division and prays for bail, it may either grant bail under section 498 of the Code, on the principle discussed or is obliged to hand him over to the police, to be dealt with in accordance with law. But directing the police not to arrest a fugitive, which the police is duty bound to do under the law, is an order beyond the ambit of the Code of Criminal Procedure or any other law, known to us. This kind of order may impede the investigation and ultimately frustrate the administration of criminal justice. State vs Zakaria Pintu 62 DLR (AD) 420.

Section 498―The Court below has seen the CD and became sure about the transaction. The matter is still under investigation and if the mighty accused is granted bail the investigation of the case will be hampered as he holds very powerful position in the Anti-Corruption Commission. SM Sabbir Hasan vs State 63 DLR 368.

Sections 498 and 499—The Tribunal has no power to impose a condition at all when it grants bail to an accused—Even the Tribunal is not competent to accept any offer of a condition by the accused in grantingbail beyond the pr-ovision of law. Rafiqul Islam vs State 58 DLR 244.

Section 500—When an accused is discharged pursuant to a final report that means that the accused has been discharged from custody under section 500 of the Code and not discharged from the case. Nurul Hoque vs Bazal Ahmed 48 DLR 327.

Section 509A—Post-mortem report although excluded from consideration while dealing with the prosecution ease due to its having been brought on record without compliance of the provision of section 509A, the defence could very well use and refer to any portion of the report for its own purpose and for assisting the Court in reaching its decision. Tariq Habibullah vs State 43 DLR 440.

Section 509A—Post-mortem report—For bringing such report in evidence strict compliance of section 509A of the Code is necessary. The report of the post-mortem examination was neither produced by the doctor who had held the post-mortem examination nor the doctor was examined as a witness in the trial. While producing the report PW 7, an Investigating Officer, had shown no cause explaining the circumstances under which the doctor could not be produced in court. Tariq Habibullah vs State 43 DLR 440.

Section 509A—Post-mortem report—The trial Court committed error of law in considering and relying upon the post-mortem report when it was produced in court without fulfilling the requirements of section 509A. Khelu Mia vs State 43 DLR 573.

Section 509A—Report of post-mortem examination—As the doctor concerned who held the post-mortem examination was not examined although he was available in the country at the relevant time, the report was not legally admitted into evidence and as such the conviction based thereon is illegal. Abdul Quddus vs State 44 DLR 441.

Section 509A—Post-mortem report is an admissible evidence when three requirements laid down in the section are satisfied. Ezahar Sepai vs State 40 DLR 177.

Section 509A—The post-mortem report was not a substantive evidence before insertion of section 509A in the Code of Criminal Procedure by Ordinance No. 24 of 1982. Ezahar Sepai vs State 40 DLR 177.

Section 509A—Non-examination of the doctor was not fatal for the prosecution case. Conviction can be based on the evidence of a solitary witness if the testimony is not tainted with suspicion. Ezahar Sepai vs State 40 DLR 177.

Section 509A—Ext. 13, post-mortem report of the deceased, has been admitted into evidencei in utter violation of the mandatory provisions of section 509A. The doctor who held the post-mortem on each of the dead bodies was not examined during the trial. Md Ali Haider vs State 40 DLR 97.

Section 509A—This section is an exception to the requirement of law that the evidence of the doctor who prepared the post-mortem report is material. Its condition therefore must be strictly fulfilled by the prosecution. The prosecution filed an application for issuing warrant against Dr M Billah Azad for his appearing in Court, and it was allowed by the order dated 29-2-88. It does not appear from the record that after the application filed by Dr M Billah Azad, any summons was issued and served on him or the said warrant of arrest was executed. Nevertheless, the prosecution filed an application on 1-3-88 vaguely stating that his present address was not known, although his address was available in the record. The learned Sessions Judge, it seems, without noticing the conditions of section 509A of the Code of Criminal Procedure accepted the post-mortem report as Ext.10 Learned Sessions Judge illegally admitted into evidence the said post-mortem report without noticing that the prosecution did not care to fulfil the conditions of section 509A Ext. 10 is thus inadmissible in evidence and so there remains no positive proof as to the cause of Amiruddin’s death. State vs Fulu Mohammad 46 DLR 160.

Section 509A—The doctor who examined the victim girl was not available and therefore another doctor PW 9 was examined to prove the handwriting of the examining doctor. His report was admissible in law. Sobesh Ali vs Jarina Begum 49 DLR (AD) 143.

Section 509A—This section is an exception to the requirement of law that the evidence of the doctor who prepared the post-mortem report is material. Its condition therefore must be strictly fulfilled by the prosecution. State vs Fulu Mohammad 46 DLR 160.

Section 509A—The case is the outcome off admitted enmity between the parties—The failure to examine the doctor who held post-mortem examination on the body of the deceased to together with absence of any alamat justify the defence case. Jalal Uddin vs State 56 DLR 69.

Section 509A—The post mortem report admitted into evidence without complying with the requirements of section 509A of the Code must be left out of consideration. There is therefore, no medical evidence as to the cause of death of the deceased. State vs Al Hasib Bin Jamal alias Hasib 59 DLR 653.

Sections 512 & 339B(2)—Since section 339B(2) provides for absentia trial, section 512 has no application in the case of an accused who appeared before the court but thereafter absconded. Baharuddin vs State 47 DLR 61.

Section 516A—Section 516A empowers a criminal Court to pass an order for custody and disposal of property during any enquiry or trial and it does not empower an Investigating Officer to give any property in the custody of any person. Siddique Ahmed Sowdagar vs State 40 DLR 268.

Section 516A—Where the offence is not committed regarding particular property the Court has no authority to pass order directing sale of such property and deposit the sale price in Court’s account. Shahabuddin vs Abdul Gani Bhuiyan 45 DLR 217.

Section 516A—Custody of property pending trial for theft and cheating—Jurisdiction of civil Court over such property—Order passed by the criminal Court giving custody of a vessel, the subject-matter of the criminal case, to the local Upazila Chairman was subject to revision and the application under section 151 CPC made before the civil Court by the complainant as the plaintiff in his suit for injunction is misconceived. Mitali Shipping Lines vs Bhuiyan Navigation Agency 44 DLR 230.

Section 516A—The Court is entitled to release the property in the Jimma of the claimant to save the same from gradual damage being exposed to sun and rain. The petitioner claiming to take the same in his jimma is bound by the bond to produce the same in Court on and when directed by the Court. Shahnewaz Karim vs State 62DLR 67.

Sections 516A & 517—About disposal of property, there is no provision in the Act and therefore the Special Tribunal shall dispose of the property under section 51 6A or 517 of the being empowered to do so by section 29 of the Act which provides that the provisions of the Code of Criminal Procedure, so far only as they are not inconsistent with the provisions of the Act, shall apply to the proceedings of Special Tribunals, and Special Tribunals shall have all the powers conferred by the Code Criminal Procedure on a Court of Sessions exercising original jurisdiction. Mahbub Alam vs Commissioner, Customs, Excise and VAT 62 DLR 395.

Section 517—Disposal of seized goods—It is for the trial Court to consider all the relevant facts and hear all the necessary parties before making an order for disposal of goods under section 517 CrPC, if called upon. Sompong vs State 45 DLR (AD) 110.

Sections 517, 520 and 561A—Stolen necklace—Whether the possession of the same should be restored to the petitioner who was acquitted of charge of retention of stolen property due to incomplete evidence and also upon benefit of doubt—Stolen necklace cannot be restored to the petitioner under such circumstances. Hajera Khatoon vs State 40 DLR 280.

Section 517(1)—The Court has a very wide discretion as to the mode of disposal of the property produced before it or in its custody. Monaranjan Das vs State 40 DLR 485.

Section 522—Power to restore possession of immovable property—Provision of section 522 of the Code cannot be made applicable to the j’ accused persons by filing a separate application to the trial Court after disposal of the appeal and revisional application arising out of the case against him under section 447 Penal Code. Dr Md Abdul Baten vs State 43 DLR 60.

Section 522—Restoration of possession of immovable property—The order of the Court restoring possession must be passed within one month from the date of conviction. The Magistrate having passed the order of restoration beyond 30 days of the order of conviction acted without jurisdiction. The provision of section 522 cannot be availed of if the dispossession is not by means of criminal force or show of force or criminal intimidation. In the instant case the accused petitioner wrongfully entered into the shop at 10-30 PM but at that time the complainant opposi party or his wife, who was the tenant, was not upon the scene. There was neither assault nor any resistance or use of criminal force in the act of dispossession by the accused-petitioner. The Magistrate’s order is bad on this count also. Sheikh MA Jabbar vs AKM Obaidul Huq 43 DLR 233.

Section 523(1)—The act of the Investigating Officer to give custody of the property on the basis of the practice in vogue in the Police Department without any support of the statutory provisions of law to that effect in violation of section 523 CrPC is without any lawful authority and is illegal. Siddique Ahmed Sawdagar vs State 40 DLR 268.

Section 526—Transfer of case—Plea of bias—The question of admissibility or non-admissibility of evidence should be left to be agitated when the case is argued. Merely because a Court acted illegally in allowing some evidence to go into the record or disallowing some evidence as irrelevant or took a wrong view of the law in passing an order would not by itself be a ground for bias (Per Anwarul Huq Chowdhury)
Per Habibur Rahman Khan J (agreeing): In the present case the order refusing to grant adjournment having been passed by the Special Tribunal not in violation of any mandatory provisions of law but in exercise of his discretionary power, could not itself give rise to a ground for transfer as no prejudice could be shown to have been caused to the accused Hussain Mohammad Ershad vs State 43 DLR 347.

Section 526—Transfer of a criminal case— Conditions for transfer—The High Court Division may withdraw a case to itself without issuing any notice upon either party when some question of law or unusual difficulty is involved therein. Neither of these situations is present here. There is no justification for the impugned transfer. Sirajul Islam (Md) vs Keramat Ali Bhuiyan 47 DLR (AD) 64.

Section 526―The order of transfer of the case is set aside as the Court below unwillingly transgressed a basic principle of adjudication— ‘hear the other side’—for an opportunity to meet allegations. Khalequzzaman vs Md Illias 48 DLR (AD) 52.

Section 526―The High Court Division can suo motu transfer a sessions case. The informant and his victim brother by preferring the application has merely informed the High Court Division about the state of the circumstances surrounding the sessions case. Jahir Gazi vs Belal Hossain, Advocate 51 DLR (AD) 88.

Section 526―Order of transfer of a case passed ex parte without any notice either to the accused or to the State and without calling for any report from the Court concerned by merely saying that without accepting or rejecting the grounds for the transfer the Court thinks justice will be met if the case is disposed of by the Court of Sessions Judge cannot be legally sustained. Moslem Uddin (Md) vs State 52 DLR (AD) 50.

Section 526―For transfer of a criminal case from one Court to another or from one District to another, there must exist a reasonable apprehension in the mind of the applicant that he will not get a fair and impartial trial in the Court concerned. Allegation of bias in the Court may provide a good ground for transfer, provided there is some factual basis to substantiate it. Shahjahan Faraji vs State 54 DLR 457.

Section 526―The contention that the transfer of the case from Munshiganj to Dhaka for trial will tend to the general convenience of the parties as most of the witnesses hail from Dh has substance. Roquib Mohammad Fakrul alias Rocky vs Md Abdul Kashem 56 DLR (AD) 191.

Section 526—unless the truth or basis of the apprehension is shown the High Court Division cannot accept prayer for transfer. Abdul Halim Ukil vs State 56 DLR 481
Section 526―When any party to any proceeding informs the court that he will move an application for transfer of the case from the Court, presiding officer of the court must then and there stop his pen in order to offer scope to the party to move such petition and wait for instruction. He can, in no way, move forward with the trial of the case. Abdul Halim Ukil vs State 56 DLR 481.

Section 526―Forum for trial of the case should not be decided at the whim of the parties— Grounds alleged by the petitioners being not consonant with section 526 of the Code, the petition for transfer of the case is rejected. Abdul Mataleb Howlader vs State 56 DLR 607.

Section 526―Transfer of case—the complainant, a local leader of the ruling party, is trying to put pressure on the local administration and magistracy —As such, fair and impartial trial may be hampered. The accused being prominent personalities in the field of Journalism, are residing in Dhaka—When their security of life is apprehended if they are to go to Magura frequently in connection with the trial, their inconvenience and apprehension of insecurity of life may be taken into consideration. Mahfuz Anam vs State 58 DLR 60.

Section 526(1)—When the Additional Sessions Judge has already observed that he entertains doubt as to whether the State will succeed in proving the case against the accused, the State has every reason to think there will be no fair trial in his court and the case needs be transferred to some other Court of competent jurisdiction. State vs Auranga @ KM Hemayatuddin 46 DLR 524.

Section 526B—Counter cases, trial of—It is desirable that counter case be tried by the same judge simultaneously—by such trial the court will get opportunity for looking to all the aspects of both the cases which is necessary for arriving at a correct decision and to avoid conflicting findings. Lutfar Rahman vs Aleya Begum 45 DLR 57.

Section 533—Any irregularity in recording the confession is curable under section 533 CrPC. Ratan Kha vs State 40 DLR 186.

Section 533—Credibility of confessional statement—No substantial compliance i cure the defect of non-compliance with the provisions of section 164 CrPC on material points. Confessional statement in a plain paper without the narration of questions and answers would not, by itself, make it inadmissible in evidence. Certificate given by the Magistrate, who had recorded the confessional statement, as to what had happened, how he warned and gave time for refection to the person confessing, how yet he insisted on making confession and his admitting the same to be correct and the Magistrate’s believing the same to be voluntary ought to be treated as conclusive evidence of facts stated therein unless shown to be otherwise. Abdul Hakim vs State 43 DLR 389.

Sections 533 & 164—The recording of the statement on a foolscap paper and mere omission of endorsement cannot be considered as fatal defect. The breach of the provision of law, if any, is a technical one and by that the evidentiary value of the confessional statement cannot be blown away. The defect is very much curable under section 533 of the Code of Criminal Procedure. Syed Ahmed vs Abdul Khaleque 51 DLR 43.

Section 537—When sanction for prosecuting government servant is invalid, the trial Court would not be a court of competent jurisdiction and a defect in the jurisdiction of the court can never be cured under sections 5 & 7 CrPC. Abdul Hakim vs State 45 DLR 352.
Section 537—The remand order amounts to double jeopardy for the petitioners and offers chance to the prosecution to remedy its lacuna. Such a remand ‘should not be made. Fazal vs State 43 DLR 40.

Section 537—Cognizance—Scheduled and non-scheduled offence—When the very taking of cognizance of an offence, the framing of accusation and the trial upon charges of both scheduled and non-scheduled offences together suffered from complete lack of jurisdiction, this could not at all be considered to be a mere defect in the framing of charges which by aid of section 537 of the CrPC can be cured if prejudice is not caused to the accused. A mere defect in framing of charge by the Court having jurisdiction is one thing while framing of charge without having any jurisdiction is a completely different thing. Mozammel Huq vs State 43 DLR 614.

Section 537—Adoption of a procedure prohibited by Code of Criminal Procedure is not curable by section 537 CrPC. Lal Miah vs State 40 DLR 377.

Section 537—Defect in framing of charge when not curable—a mere defect in framing of charge by a court having jurisdiction is one thing while the framing of charge without having any jurisdiction is a completely different thing. The contention that section 537 of the Code could be invoked to cure defect due to lack of jurisdiction cannot be accepted. Joinder of scheduled and nonscheduled offences and the trial of both these offences were illegal. Mozammel Hoq vs State 42 DLR 527.

Section 537—This provision of law will also apply to the Criminal Procedure Code including section 155. The prevailing opinion is that section 537 may be taken to cover the error, omission or irregularity in the widest sense of these terms provided there has been no failure of justice and there is no restriction in the section itself. Golam Moula Master vs State 46 DLR 140.

Section 537—Sentence passed in lump is only an irregularity not affecting the Court’s competence to pass order of conviction and sentence. Haider Ali Khan vs State 47 DLR (AD) 47.

Section 537—A Special Tribunal is not competent to try a case under the Criminal Law Amendment Act, 1958 read with the provision of the Prevention of Corruption Act, 1947. The Assistant Sessions Judge either out of ignorance or due to his callousness signed the judgment as Special Tribunal. But the accused-appellant has not been prejudiced in any manner whatsoever. So on this ground alone there cannot be any question of the trial to be vitiated for want of competence. Nizamuddin Dhali (Md) vs State 48 DLR 507.

Section 537—Defect in framing the charge is curable and that for improper examination of the accused under section 342 the case should be sent back on remand for curing the defect. Nizamuddin Dhali vs State 48 DLR 507.

Section 537—Though the words “finding, sentence” in this section relate to concluded trial or hearing the word “order” does not relate to only concluded trial or hearing but also to order passed in a pending proceeding. Shinepukur Holding Ltd vs Security Exchange Commission 50 DLR 291.
Section 537—While framing charge against the accused under sections 2 and 4 of the Anti- Terrorism Act, 1992 the missing of words ‘পরিকল্পিতভাবে বা আকস্মিকভাবে’ is a simple omission which is curable under section 537 CrPC. Abdul Kader @ Manju vs Stale 46 DLR 605.

Section 537—The sanction order seems to be too mechanical and is no sanction in the eye of law. Absence of sanction cuts at the very root of the prosecution affecting jurisdiction of the court and this defect is not curable. Syed Mustafizur Rahman vs State 53 DLR 125.

Section 537—Although the charge framed under section 399 of the Code is patently defective, there are sufficient materials on record to justi1,’ the conviction of accused the under section 399, he being a member of the assembly consisting of 8/9 persons. Karam Ali vs State 54 DLR 378.

Section 537—The omission of the expression ‘যৌতুকের জন্য’ which is a vital ingredient of the offence under the aforesaid sub-section (2) being a major omission makes the charge materially defective and the defect is not curable under section 537 of the Code because this omission deprived the accused from taking proper defence and thereby caused prejudice to him. Goutam Chandra Das alias Goutam Kumar Das vs State 55 DLR 527.

Sections 537, 155 & 190—Non cognizable offence—Mere irregularity like investigation by an officer not authorized to investigate a no cognizable offence does not affect the legality of a proceeding of a Court below. Investigation by a police officer in the instant case is an antecedent proceeding. It is neither the foundation stone nor a prerequisite of the proceeding nor a sine qua non of a valid trial in the Court. It is difficult for us to see why such an irregularity, i.e. investigation by an officer not authorised, should affect the proceeding in a Court or prevent the Court from taking cognizance of a noncognizable offence under clause (a) or (b) of section 190(1) of the Code of Criminal Procedure in the absence of a clear enactment, expressed or implied preventing the Court from doing so. Golam Moula Master vs State 46 DLR 140.

Sections 537 & 243—The alleged admission of guilt was not recorded as nearly as possible in the words used by the accused. Section 243 CrPC is mandatory, the violation of which causes prejudice to the accused and is not curable under section 537 CrPC. The order of conviction and sentence as against the appellant on the basis of such so-called admission of guilt cannot therefore be sustained in law and the same should therefore be set aside in the interest of justice and the case should be sent back on remand to the trial Court to hold that trial afresh from the stage of framing the accusation or charge again after hearing the parties and considering the materials on record in accordance with the law in the light of the observations made above. Saheb Ali Miah vs State 46 DLR 238.

Sections 537 & 342—When confessional statement is found to be true and voluntary and it gets corroboration from some other evidence, the appellant had not been prejudiced for non- mentioning of his confession in his examination under section 342 CrPC. This irregularity or omission is curable under section 537 CPC in the facts of the case and the same has not vitiated the trial. Abdul Khayer vs State 46 DLR 212.
Sections 537 & 342—When confessional statement is found to be true and voluntary and it gets corroboration from some other evidence, the appellant had not been prejudiced for non- mentioning of his confession in his examination under section 342 CrPC. This irregularity or omission is curable under section 537 CPC in the facts of the case and the same has not vitiated the trial. Abul Khayer vs State 46 DLR 212.

Sections 537, 342 & 164—Since the attention of the accused was not drawn to his confessional statement when he was examined under section 342, he is obviously prejudiced. Such defect is not curable under section 537 of the Code. Abu Jamal vs State 51 DLR 57.

Section 540—Examining prosecution witnesses as Court witnesses—Magistrate has power to summon material witness whose relevance is disclosed in evidence, but he cannot examine them as Court witness—Magistrate’s order has been modified accordingly. Helaluddin vs State 40 DLR 352.

Section 540―Scope of section 540 consists of two parts—the first part is discretionary and the second part is obligatory. Md Jalaluddin Ahmed vs State 40 DLR 564.

Section 540—It is obligatory for the Court to allow the examination of witness if he thinks it is essential for the just decision of the case. The accused will not be prejudiced if the witness is examined in the Court. Md Jalaluddin Ahmed vs State 40 DLR 564.

Section 540―The ends of justice have been negatived by the trial Court by refusing to recall certain witnesses for cross-examination by the appellant. The trial Court is not meant for only convicting or acquitting the accused persons but their duty is to administer justice. In the present case before us by refusing to recall certain witnesses for cross-examination by the appellant the ends ofjustice have been negatived by the trial Court. In such circumstances for ends of justice we are inclined to set aside the order dated 1-Il- 88 passed by the learned Tribunal and direct him for affording opportunity to the appellant to cross- examine the witnesses already examined by the prosecution. This is very much necessary for ends of justice. Jamil Siddique vs State 41 DLR 30.

Section 540—Court’s power to examine witness not named in the FIR—The scope of the provision in CrPC in this connection appears to be wide. It gives a discretion to the court to examine such witness at any stage. It is imperative for the Court to examine such a witness if his evidence appears to be essential for a just decision. Akhtar Jahan vs State 42 DLR 413.

Section 540—Power to summon material witness—Any party to a proceeding during the trial may point out the desirability of relevant evidence being taken and there is no limitation with regard to the state or the manner in which it is to be used. The only criterion is that the power to examine additional witness is to be used before the pronouncement of judgment and it is to be found necessary by the Court for doing justice. It appears that due to certain circumstances beyond the control of the prosecution the witnesses could not be produced and examined earlier but evidence is vitally important for the just and proper adjudication of the case. The learned Additional Sessions Judge having passed the order for the examination of the additional witness after due consideration of the facts and circumstances of the case invoking the aid of the provision of law being herself convinced that examination of the witness is necessary for proper adjudication of the case we do not find any illegality or impropriety in the order calling for interference in this revisional jurisdiction. Hemayatuddin vs State 46 DLR 1.

Section 540—The section is expressed in the widest possible term— It cannot be said that the intention of the section is to limit its application to Court witnesses only. Hemayatuddin @ Auranga vs State 46 DLR (AD) 186.
Section 540—There is absolutely no material to show that accused Ramizuddin had any knowledge about the proceeding ever since it was started against him, as at all material times he was abroad. In that view the discretion exercised by the Additional Sessions Judge allowing the accuser’s application for cross-examination of PWs affirmed by the High Court Division calls for no interference. Nimar Ali vs Ramizuddin 50 DLR (AD) 162.

Section 540―Section 540 of the Code is expressed in the widest possible terms—It cannot be said that the intention of this section is to limit its application to the witnesses only before examination of the accused under section 342 of the Code. Chutta Miah vs State 56 DLR 610.

Section 540―It is only for the purpose of just decision of a case that the Court can have resort to section 540. Shahinur Alam @ Shahin vs State 56 DLR 10.

Section 540―This section is expressed in the widest possible term and it cannot be said that the intention of this section is to limit its application to the witnesses only before examination of the accused under section 342 of the Code. Kazi Ali Zahir alias Elin vs State 56 DLR 244.

Section 540―The Court shall summon and examine witness under this section only if it appears to it essential for a just decision in the case. Tofail Ahmed vs State 56 DLR 250.

Section 540—Question of further investigation of the case for including names of two witnesses as charge-sheet witnesses does not arise, for, the court has power to examine any person as a witness. The name of any person is included as witness in the charge-sheet or not is immaterial. Ayub Ali vs State 57 DLR 230.

Section 540—Court is entitled to call for as many witnesses as required for bringing out the truth. The Sessions Judge is the arbiter and the Judge. He is not party nor an investigator. He is not expected to fill up the gaps left by the prosecution. The overriding consideration for him while exercising power under section 540 CrPC is the interest of justice. Mahatab vs State 63 DLR 223.

Section 540—Since the accused-petitioners prayed for recalling PW 2, PW 3 and PW 4 as they omitted to cross-examine them on some vital points which are essential to find out the truth, the trial Court ought to have allowed the application. Shariful Bhuiyan vs State 63 DLR 524.
Section 540A—Complaint case and police case over the same incident—How their trial will proceed—A fair procedure to be adopted in the disposal of the two cases would be for the Trial Judge to take up the complaint case first for trial. The Trial Judge may call the witnesses mentioned in the police case, if they are not already examined on behalf of the complainant, as court witnesses so that they can be cross-examined by both the parties. If the trial ended in conviction in the Complaint Case the Public Prosecutor would consider whether prosecution of police case should be withdrawn with permission of the court or not. If the police case is taken up first for trial the complainant would be under handicap insofar as to cross-examining the witnesses- for the prosecution. Normally, the Public Prosecutor is to be in charge of the case even if the trial is based on a private complaint. Motleb Mondal vs State 58 DLR 282.

Section 549—Since the appellants were not on active service within the meaning of section 8(1) of the Army Act, 1952 the appellants cannot be tried under the Army Act and, as such, there was no offence of mutiny leading to murder in the facts of the instant case. Even if one were to accept for the sake of argument that offences committed were civil offences within the meaning of section 8(2) read with section 59(2) of the Army Act, there is no legal bar in trying those accused persons in the Sessions Court in compliance with the provisions of section 94 of the Army Act read with section 549 of the CrPC. There is no legal bar for trial of the appellants in the Criminal Court in the relevant case, inasmuch as, the offences committed are in the nature of murder simpler. (Per Md Muzammel Hossain J) Major Bazlul Huda vs State 62 DLR (AD) 1.

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