Code of Criminal Procedure, 1898

Code of Criminal Procedure

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

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

Sections 202(1), (2A)—Under section 202(1) and proviso to section 202(2A) of the Code of Criminal Procedure in a case exclusively triable by the Court of Sessions, a Magistrate for the purpose of ascertaining the truth or falsehood of the complaint is to consider the evidence in order to find whether prima facie case is made out or not, but he cannot assess the evidence as if in a trial. Syed Ahmed vs Habibur Rahman 42 DLR 240.

Sections 202 and 561A—The Sessions Judge had no jurisdiction to direct the Magistrate for taking cognizance. Even he could not make observation that there was evidence against the petitioner. Basiran Bewa vs State 56 DLR 553.

Sections 202(2B), 241A & 265C—Dis- charge under the provisions of these sections is of different character than the discharge of the accused under sub-section (2B) of section 202 where discharge is made before taking of the cognizance.

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

S. 202(2A)-Complainant in his complaint petition cited 8 witnesses but on inquiry examined 4 witnesses only Held, Upon a close reading of proviso of Section 202 (2A) it appears that the Magistrate who inquires into a case shall call upon the complainant to produce all his witnesses and examined then on oath. The provisions of the proviso is a mandatory one but in the present case the Magistrate who inquired into the case violates the provisions of the proviso of Sub-section 2A of Section 202. Md. Arfan Ullah & Ors Vs. The State, 21 BLT (2013)-HCD-28.

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

কোনও মামলা আমলে গ্রহণের জন্য ম্যাজিস্ট্রেটকে নির্দেশ দেওয়ার ক্ষমতা দায়রা জজ কিংবা হাইকোর্ট বিভাগকে দেওয়া হয়নি। তাদের ক্ষমতা শুধু নালিশ দরখাস্তের বিষয়ে অধিকতর অনুসন্ধান করার নির্দেশ প্রদানের মধ্যে সীমাবদ্ধ। অধিকতর অনুসন্ধানের পর মামলা আমলে নেওয়া বা না নেওয়ার বিষয়টি দেখবেন ম্যাজিস্ট্রেট। ফৌজদারি কার্যবিধির ২০৩ ধারার অধীনে নালিশ দরখাস্ত খারিজ হওয়ার পর দরখাস্তকারীর প্রতিকার হলো অধিকতর অনুসন্ধানের দাবিতে ৪৩৬ ধারার অধীনে উচ্চতর আদালতে যাওয়া। ম্যাজিস্ট্রেট ফাংটাস অফিসিও হয়ে যাওয়ায় আগের কার্যক্রম পুনর্জীবিত করার কোনও ক্ষমতা তার নেই। হিউসুফ আ. হোসেন বনাম কেএম রেজাউল ফেরদৌস, ৪৮ ডিএলআর (১৯৯৬) (এডি) ৫৩।

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

Sections 203, 204(3) & 436—The order of dismissal of the complaint passed under sections 203 and 204 (3) CrPC does not amount to discharge. So for a further enquiry in such a case no notice to the accused is necessary.

The principle, that an order prejudicial to an accused should not be made, without giving him an opportunity to be heard, has no application where the accused is not discharged. A revisional application before the learned Sessions Judge at the instance of an aggrieved complainant against an order of dismissal of a complaint by the Magistrate can be gone into without notice to the accused. Sirajudullah vs State 48 DLR 76.

Sections 203, 205(1) & 436—Neither the Sessions Judge nor the High Court Division is invested with any power to direct any Magistrate to take cognizance of a case.

Their power is strictly limited to directing a further enquiry into the petition of complaint. It will be for the Magistrate concerned to take or not to take cognizance after the result of further enquiry. After the dismissal of the petition of complaint under section 203 CrPC the informant respondent’s remedy was to approach the higher Court under section 436 CrPC for further enquiry into his petition of complaint. The penultimate order of the High Court Division in directing the Chief Metropolitan Magistrate to take cognizance of the offence and to issue process in accordance with section 205(1) CrPC is not sustainable. Yusuf A Hossain vs KM Rezaul Ferdous 48 DLR (AD) 53.

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

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

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

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

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.

The procedure to be followed in this case is that the Druta Bichar Tribunal No. 2 shall hold simultaneous trial of the accused persons in the complaint 1 case and shall dispose of the cases in accordance with sub-section (3) of section 205D which is equally applicable to it. It shall conclude the trial of the police case first and postpone the delivery of the judgment till the trial of the complaint case is concluded and then it will decide which accused persons are involved in the killing of the - victim and shall deliver judgment accordingly. If the court finds one set of accused persons or any one of them is involved in the killing it shall acquit the accused persons in the other case. The judgment of the learned Sessions Judge and the High Court Division are set-aside. We direct the Chief Metropolitan Magistrate to transmit the case record to the Druta Bichar Tribunal No.2 Dhaka for simultaneous trial of the case with Druta Bichar Tribunal Case No.2 of 2010. The Druta Bichar Tribunal shall use the post-mortem report and other alamats seized in the police case in this case also. [73 DLR (AD) 207]

S. 205D-Section 20SD of the Code clearly direct the learned Magistrate to stay the proceeding if at the time of filling a CR case the investigation of a GR case is in progress over the same matter. Monir Hossain Vs. State, 65 DLR (2013)-HCD-413.

Section 205D- Under section 205D Cr.P.C. both the cases, one instituted on police report and the other on complaint on the self-same occurrence, shall be tried by the Magistrate in the same trial treating both the cases as if instituted on a police report...... Enayet Chowdhury (Md.) =VS= The State, [3 LM (AD) 554]

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

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

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

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

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

Ss. 221, 223-The object of framing charge in a criminal trial is to be enable the accused to have a clear idea of what he is being tried for and of the essential facts that he has to meet or in the alternative, to warn the accused of the case he is to answer. It shall contain the nature and the particulars of the offence by name, the date, time and place. The accused is entitled to know with accuracy and certainty the exact nature of the charge brought against him so that he can take proper defence. Habibur Rahman & Habu & Ors. Vs. The State, 33 BLD (2013)-AD-120

S. 221, 222, 223 and 537-Though section 537 provides that by reason of error o omission in the charge the conviction shall not be reversed and altered, this being a general provisions, this section does not supersede the provisions relating to the contents of a charge contained in sections 221, 222 and 223 of the Code o Criminal Procedure, inasmuch as, section 537 states "subject to the provision hereinbefore contained" (sic) that is to say, the aforesaid sections will prevail over section S.37. Habibur Rahman & Habu & Ors. Vs. The State, 33 BLD (2013)-AD-120

Sections 221 and 222-Alternation of charge from 11(Ka) of the Ain to section 302 of the Penal Code will not cause prejudice to the accused. State vs Nurul Amin Baitha (Criminal) 75 DLR (AD) 187

Section 227-The appellate Court has wide power to alter and amend the charges which may have been erroneously framed earlier. State vs Nurul Amin Baitha (Criminal) 75 DLR (AD) 187

Section 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.

Sections 227, 228, 231, 232 and 537- Defect in framing of charge cannot be a ground for acquittal of the accused. The only time when any proceeding can be quashed for material error in the framing of charge is when the Court forms the opinion that the facts of the case are such that no valid charge could be framed against the accused in respect of the facts proved. Section 232 of the Code of Criminal Procedure provides that even where an accused convicted of an offence was misled in his defence by absence of a charge or by an error in the charge, the Appellate Court or the Revisional Court shall direct a new trial to be held upon a charge framed in whatever manner it thinks fit. Thus, if ingredients of an offence are disclosed the charge may be altered at any time or a new charge may be framed at any time up to the pronouncement of judgement, giving opportunity to the accused to put in his defence against the new or altered charge. But in no way can he be acquitted if the evidence against him proved his guilt in commission of an offence.... The State -VS- Ibrahim Ali(Md.), [10 LM (AD) 385]

Section 231- As per provision of section 231 of the Code of Criminal Procedure if the charge is altered or added after the commencement of the trial, the prosecutor and the accused shall be allowed to recall or resummon the witnesses and examine them with reference to such alteration or addition. The accused has a right to make prayer to recall prosecution witnesses after the alteration of the charge. It is true that Court is authorised to reject the prayer for recalling addition of the charges not beyond that witness if it considers that prayer is made only to delay disposal of the case but in this case, the charge has been altered and two of the accused persons were made approvers and they are examined as PWs. In such circumstances, it was reasonable to allow the accused petitioner to re-examine the witnesses. This petition is disposed of. The prayer of the petitioner so far the same relates to recalling the PWs 1 to 5 and 8 are allowed. The prayer in respect of direction to Public Prosecutor to issue certificate regarding the evidence of approvers is rejected. Gias Uddin al-Mamun (Md) =VS=State, [5 LM (AD) 244]

Section 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.

Joint trial of different offences under different enactments does not vitiate proceedings in the absence of prejudice to the accused, particularly when the special enactment authorizes the Court to try different offences jointly where a charge is framed for one offence but offence committed is found to be some other than the one charged, provided, the same facts can sustain a charge for the latter offence, the accused can be convicted for such an offence. Even if the facts proved are slightly different from those alleged in the charge, a conviction based on the facts proved would be legal. 18 SCOB (2023) AD 1

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

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

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

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

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

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

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

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

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

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

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

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

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

S. 241-Discharge of accused.

Facts stated in the application under Section 241A of the Code of Criminal

Procedure praying for discharge are nothing but defence pleas and these cannot be considered at the time of framing of charges. In such view of the matter, the learned Sessions Judge committed no illegality in summarily rejecting the accused-petitioner's revisional application U/S 439A of the Code. The High Court Division was also perfectly justified in summarily rejecting the petitioner's application u/s 561A of the Code of Criminal Procedure. Syed Abu Siddique Vs. The State, 2 ALR (2013)-AD-62.

S. 241A and 439A-Facts stated in the application under Section 241A of the Code of Criminal Procedure praying for discharge are nothing but defence plea and these cannot be considered at the time of framing of charges. The learned Sessions Judge committed no illegality in summarily rejecting the accused petitioners revisional application under section 439A of the Code. Syed Abu Siddique Vs. The State, 2 LNJ (2013)-HCD-37.

Revival of Criminal Case

Revival of a case against a discharged accused

With the discharge of an accused the proceeding against him comes to an end and the Magistrate has no power to revive the said proceeding against him in the absence of at fresh complaint or a fresh police report in respect of the same offence. A second prosecu- tion is competent under special circumstances. Cr.PC. S.241A Maulana M.A. Mannan and others Vs. The State, 15BLD (HCD) 151

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 247—Appraisal of evidence—Complainant petitioner’s evidence was discredited because, in the opinion of the Magistrate, he had not filed any GD entry about the incident alleged by him.

Held—This is not necessary at all in law. Sultan Ahmed vs Golam Mostofa 41 DLR 219.

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

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

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

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

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

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

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

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

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

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

Section 247 r/w section 403- Since the order passed under section 247 of the Code of Criminal Procedure is one of acquittal the second complaint on the same allegation is not maintainable. At whatever stage of the proceeding the acquittal order section 247 is ordered, such order will operate as a bar the fresh trial, in the same way as are acquittal after trial on merits. The judgment and order of the High Court Division is set aside. The proceeding of C.R. Case No.421 of 2006 is hereby quashed. Bo-Sun Park =VS= The State, [3 LM (AD) 544]

S. 247-The same Magistrate passing an order of acquittal cannot set aside his own order;

There is nothing in the provision that a Magistrate can set over his own order of acquittal which he recorded under section 247 of the CrPC. Though the trial was not held, the order of acquittal was recorded under section 247 of the CrPC Though the trial was not held, the order of acquittal was recorded under a specific provision of law which is either appealable or revisional before the higher court. Unless and until the order of acquittal under section 247 of the CrPC is revised or set aside by the higher court, the same Magistrate cannot set over the matter and set aside his own order and re-start disposed of criminal proceeding...(para-9). Azizur Rahman Khan Vs. State 1 CLR (2013)- Page 430.

S. 247-There is nothing in the provision that a Magistrate can set over his own order of acquittal which he recorded under section 247 of the Code. Unless and until the order of acquittal under section 247 of the Code is revised or set-aside by the higher Court, the same Magistrate cannot set over the matter and set-aside his own order and re-start disposed of criminal proceeding. Azizur Rahman Khan Vs. State, 65 DLR (2013)-HCD-298.

S. 247 and 561A-The High Court Division is not powerless to acquit the accused or to quash the proceeding of the case where the allegations are not grave and heinous in nature considering the willful negligence and silence of the complaint taking aid of Section 247 along with Section 561A of the Code of Criminal Procedure. Abu Azam Md. Yunus Miah Vs. State, 18 BLC (2013)-HCD-74.

S. 247-An order under this section can be set aside or restored only by the Higher Court in appeal or revision and not by the same Court passing the order. There is nothing in the provision that a Magistrate can set over his own order of acquittal which he recorded under section 247 of the Code of Criminal Procedure. Though the trial was not held the order of acquittal was recorded under a specific provision of law which is either appellable or revisionable before the higher Court. Unless and until the order of acquittal under section 247 of the Code of Criminal Procedure is revised or set aside by the higher Court, the same Magistrate cannot set over the matter and set aside his own order and re-started disposed of criminal proceeding. There is no provision for restoration of such criminal case.. (Para-9). Azizur Rahman Khan Vs. The State, I Counsel (2013)-HCD-102.

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 265 I (3) Restricted the number of defence witnesses- The Court is required to issue process unless he considers, and gives his reasons in writing that the application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. In the facts and circumstances of the instant case the trial Court opined that a list of 271 defence witnesses would cause vexation, delay the trial and the ends of justice would be defeated. And for that reason he restricted the number of defence witnesses to a maximum of 10. The High Court Division did not find any reason to interfere with that decision. Monirul Islam Khan -VS- Anti Corruption Commission, [4 LM (AD) 389]

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.

Editors’ Note:

In the instant Criminal Revision question came up for consideration as to whether the Sessions Court had power or authority to acquit an accused under section 265H of the Code of Criminal Procedure without examining any witnesses or without exhausting the legal procedures for compelling the attendance of the witnesses. The High Court Division examining relevant laws, particularly, Rule 638 of the Criminal Rules and Orders (Practice and Procedure of Subordinate Court), 2009 and case laws held that in exercising the power under section 265H of the Code, the Sessions Court must take necessary measures to secure the attendance of the witness and comply all the relevant procedures according to law before acquitting any accused. Consequently, the rule was made absolute.

Section 265H of the Code of Criminal Procedure, 1898:

From a plain reading of the provisions of section 265H it transpires vividly that after framing charge against the accused, the Sessions Judge is bound to examine witnesses and upon hearing the prosecution as well as defence if he considers that there is no evidence to proceed against the accused then the Court should pass an order of acquittal to acquit the accused. Recording the evidence before passing such an order is mandatory under section 265H of the Code. (Para 12)

Section 265H of the Code of Criminal Procedure, 1898:

Necessary measures should be taken to secure the attendance of the witness:

Our considered view is that in exercising his power under section 265H of the Code, the Sessions Judges, at first, shall take meaningful steps for securing the attendance of the witnesses; and secondly: if any witness is available record the same; and thirdly: in case of non-availability of any other witnesses, take hearings from both the parties and thereafter shall pass an order of acquittal of the accused. (Para-20)

Section 265H of the Code of Criminal Procedure, 1898:

The Court must exhaust all the procedure for taking down evidence before passing the order of acquittal:

Under the provisions of section 265H of the Code the duty of a Sessions Judge is to look into the prosecution evidence and materials brought out in the examination of the accused and thereafter should hear the learned Advocates of both sides and considering the evidences and materials on record if he finds that all the procedures under the law have been exhausted and if he is of the opinion that he has taken all possible steps for taking down the evidences of the prosecution but the prosecution has miserably failed to comply with the order of the Court, in that case, the duty casts on the Court to pass an order of acquittal of the accused. But in the present case, it appears manifestly that the learned Joint Sessions Judge without complying with the relevant laws and procedures has illegally dismissed the petition filed by the prosecution with the observations that the prosecution is not willing to adduce evidences. [18 SCOB [2023] HCD 294]

Section 288 [omitted by Ordinance XLIX of 1978]—Two ways of making the previous recognition of the accused admissible in evidence. Rules stated in 1925 AIR (All) 223 have been relied on by the State (Respondent).

One way, being by putting in his statement before the committing Magistrate under section 288 CrPC and “The other method is to elicit from the witness at the trial a statement that he identified certain persons at the jail and that the persons whom he there identified were persons whom he had seen taking part in the dacoity. Ratan Kha vs State 40 DLR 186.

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

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

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

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

Tender of pardon to an accused The sole purpose of granting pardon to an accused is to procure evidence against other accused persons when the prosecution is faced with the difficulty of gathering evidence to bring home the charge against them. An accused is granted pardon on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence and to every other person concemed, whether as principal or abet- tor, in the commission of the offence-Cr.P.C S. 337 Md. Zakir Hossain @ Jakir Hossain and others Vs. The State, 14BLD(HCD)509

S. 300. Exception 4-Exception 4 has an in-built exception to it which provides the offender would not get the benefit of this exception if he takes undue advantage or acts in a quarrel or unusual manner. Habibur Rahman & Habu & Ors. Vs. The State, 33 BLD (2013)-HCD-213. Giving of below on the head of the deceased after snatching away from deceased any substance capable of causing harm and inquiry are undue advantage, acts in a cruel and unusual manner. Habibur Rahman & Habu & Ors. Vs. The State, 33 BLD (2013)-HCD-213.

S. 323-The long pendency of case against accused and long sufferings in demand giving of benefit of doubt will meet the ends of justice instead of sending the case on remand for fresh examination. Habibur Rahman & Habu & Ors. Vs. The State, 33 BLD (2013)-AD-123.

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

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

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

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

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

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

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

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

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

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

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

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

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

Publication of Notification

In the absence of any notification in respect of the absconding accused in any newspaper, the Special Judge acted illegally in proceeding with the trial in violation of the express provision of law-Cr.P.C S. 339B(1) Md. Jamsed Ahmed Vs. The State, 14BLD(HCD)301

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Public Prosecutor

The Public Prosecutor is to know the law and has a responsibility to work with utmost devotion keeping in mind that he is representing not a party but the people in the administration of criminal justice. If he fails in his duty, a sessions exception is taken by the Court.

The State Vs. Nurul Huq, 13BLD (HCD) Ref: 172 1.C.374; 39 Cr.LJ. 123; A.I.R. 99 1977 (SC)1116; 126 I.C.689; 62 LC. 545; P.L.D. 1964 (SC)813; 31DLR. 312; 16 D.L.R. 598; A.I.R.1973(SC)2474-Cited

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

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

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

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

Fugitive

Fugitive from Law and Fugitive from Justice

It is well-settled that a fugitive from justice is not entitled to the protection of law but when he is charged with an offence punish- able with death, he has a right to be defended by a lawyer appointed by the State-Cr.P.C. S. 340

Nurun Nahar Zaman Vs. The State and another, 15BLD (HCD) 537

Fugitive from Law

Surrender and custody of the accused When the accused after his conviction surrenders in the Court and the Court after refusing his prayer for bail orders for sending him to jail and he is held up in custody, in the process of being sent to the jail and under such circumstances he executed a vokalatnama duly attested by the Court police on the strength of which an appeal is filed before the Sessions Judge, who grants him bail after condoning the delay, it cannot be held that he was a fugitive from justice. Minhaz A. Chowdhury Vs. Manzurul Huq and another, 16BLD(HCD)154

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

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

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

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

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

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

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

Section 340(3)-Expunged Evidence- It is provided in section 340(3) of the Code of Criminal Procedure that any accused person before a criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charge made against him or any person charged together with him at the same trial. A witness is transposed into the category of the accused person, the prosecution probably cannot use his evidence against him because it will tantamount to self implication. Their evidence may be considered by the defence as well. Durnity Daman Commission=VS=Md Gias Uddin-al-Mamun & another, [1 LM (AD) 473]

In this connection, we may profitably refer the case of Md. Islam Uddin @ Din Islam Vs. The State reported in 27 BLD (AD) 37 wherein our Appellate Division has observed as under:

“7.It is now the settled principle of Law that judicial confession if it is found tobe true and voluntary can form the sole basis of conviction as against the maker of the same. The High Court Division as noticed earlier found the judicial confession of the condemned prisoner true and voluntary and considering the same, the extra judicial confession and circumstances of the case found the condemned prisoner guilty and accordingly imposed the sentence of death upon him. ”

In the case of Dogdu V. State of Maharastra reported in AIR 1977 SC 1759 it was observed that when in case involving capital punishment, prosecution demands conviction primarily on the basis of confession, the court must apply the double tests:

(1) Whether the confession is perfectly voluntary, and (II) if so, whether it is perfectly true.

The Code of Criminal Procedure, 1898, Section 164: It is by now well settled that an accused can be found guilty and convicted solely banking on his confession if, on scrutiny, it is found to be true, voluntary and inculpatory in nature. ...(Para 42)

Effect of belated retraction: During making confession, as it appears, the accused did not make any complaint about police torture or inducement. Even, after coming out of the clutches of the police the accused did not also raise any complaint touching the veracity of his confession immediately thereafter. Rather, after almost 5(five) years of making confession the accused filed a retraction application directly to the court which was also signed by an Advocate. Therefore, it can easily be said that such retraction application is nothing but the brainchild of the concerned Advocate. Moreover, no tangible material is found on record in support of the above application which was a belated one as well. In such a posture of things; the confession of accused Hamidul can be regarded as voluntary as well. (Para 48)

Appropriateness of quantum of sentence awarded to the convict: Now, we can turn our eyes to the quantum of sentence awarded to accused Md. Hamidul to see whether the same is appropriate in the facts and circumstances of the instant case. Admittedly, there is no eye witness of the occurrence leading to the incident of murder of victim Milon Babu and the fate of the case mainly hinges upon the lone confession of the accused together with some incriminating circumstances. Moreover, as per record, there is no previous criminal history of the accused who has been suffering the pangs and torments of the death sentence for the last about more than 5(five) years for no fault of his own. Therefore, considering the aggravating as well as mitigating circumstances of the case, we are of the dispassionate view that justice would be best served if the death sentence of the accused is commuted to one of life imprisonment along with fine. (Para 51)

The Code of Criminal Procedure 1898, Section 342: We would like to put on record one legal infirmity that has been committed by the learned Judge of the court below. On perusal of the impugned judgment and order, it reveals that the learned Judge on his own accord asked as many as 13(thirteen) questions to the accused while he was being examined under section 342 of the Code. Not only that the judge concerned has also used the same against the accused in finding his culpability in the killing of the victim boy. The above approach adopted by the trial Judge is absolutely weird, uncalled for and illegal as well. ...(Para 52)

Section 342 of the Code of Criminal Procedure, 1898: It is apparent that the learned Additional Sessions Judge has committed gross illegality in using the statement of accused Md. Hamidul under section 342 of the Code which is all together foreign in criminal jurisprudence inasmuch as a statement given by an accused cannot be used as evidence to find his culpability. ...(Para 53) The State Vs. Md. Hamidul 18 SCOB [2023] HCD 224

Section 342- Examination of accused

Purpose of the examination of an accused under section 342 Cr. P.C is to give him an opportunity to explain his position in relation to the evidence brought against him on record. This is mandatory provision of law. Improper examination causes prejuduce to the accused. Touhid and others Vs. The State 12 MLR (2007) (HC) 158.

Section 342—Appellant’s attention having been not drawn to the confessional statement, the confessional statement cannot be used against him.

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

S. 342-Necessity of examining the accused of the close at the prosecution case.

This section is based on the principle involved in the maxim audi alteran parten i.e. no one should be condemned unheard. It enjoins a duty upon the Court to bring to the notice of the accused all pieces of incriminating evidence and circumstances appearing the case against so as enable him to offer his explanation in respect of those incriminating materials. It is a very valuable right law has given to the accused and as such it is necessary to ensure that right. The examination of the accused by the Court in a causal manner is never contemplated by law as it prejudices the accused and deprives him of a valuable legal right. Alauddin Vs. The State 2 ALR (2013)-HCD-457.

S. 342- Examination of the Accused of his confessional statement: The purpose of examining the accused is to enable him to explain any circumstances appearing in the evidence against him. Confessional statement of an accused is evidence against that accused, accuser's attention having not drawn to the confessional statement. So, it must be out of consideration...(Para-52). Md. Ishaque Vs. The State, 1 Counsel (2013)-HCD-83.

S. 342 and the Children Act, 1974: The confessional statement as well as the statement recorded under section 342 of the Code of Criminal Procedure, we are of the view that the condemned-prisoner was not a minor at the time of commission of the offence. Therefore, he was not entitled to avail of the provisions of the Children Act, 1974 so far as those relate to youthful offenders...(Para-15). Nalu Vs. State, 1 CLR (2013)-AD-215.

S. 342–Held; On perusal of the Form of examination of the accused person under section 342 of the Code of Criminal Procedure, it appears that the incriminating portion of the evidences were not brought to the notice of the convict while examining him but it is the mandatory provisions of law. The section 342 of the Code of Criminal Procedure cast a duty on the Court to bring the incriminating portion of the evidence to the notice of the convict appellant and non-compliance with the aforesaid procedure prejudiced the accused persons. Md. Mostafa Jaman Vs. State, 21 BLT (2013)-HCD-476.

S. 342-object of:

This section imposes upon the Trial Court a duty to properly examine the accused hy bringing all the incriminating evidence and circumstances appearing against him at the trial so as to give him the opportunity to explain the same Examination of the accused in a casual manner is perfunctory and the same is deprecated as it is prejudicial to the accused. Jharna Begum Vs. The State, 2 AL (2013)-1/CD-43.

S. 342-The defence case is that the accused were in no way involved in the commission of murder as alleged by the prosecution and that there was no occurrence in the manner as alleged in the FIR .....(8) Nalu Vs. The State, 10 ADC (2013)-Page 687.

S. 342-Reference to the Registrar of the Supreme Court of Bangladesh under section 374 of the Code of Criminal Procedure for confirmation of death sentence .....(8) The State Vs. Romana Begum alias Noma, 10 ADC (2013)- Page 692

S. 342-Whether a slip short examination is permissible

It appears that while examining the appellant under Section 342 of the Code of Criminal Procedure the Court below did not properly disclosed the incriminating evidence against the appellants who are present in dock and faced the trial. Section 342 of the Code of Criminal Procedure is based on the principle involved in the "Maxim audi alteram partem that is no one should be, condemned unheard" It is utmost duty of the Court to give an opportunity to an accused to defence himself themselves. The real object of section 342 of the Code of Criminal Procedure is inviting the attention of the accused person to the points in the evidence which bare against them for which they may be convicted, so, he is given a chance to offer his explanation as to those. Jharna Begum & Ors Vs. The Stute, 21 BLT (2013)-RCD-20.

S. 342-Trial court has not at all followed the provision of law and convicted the appellants without application of its judicial mind. It is an irregularity on the part lowes of the trial court, at the same time it cannot be ignored that this irregularity has prejudiced the appellants. Failure on the part of the learned Sessions Judge is not a mere irregularity; is a grave irregularity which has occasioned failure of justice. Habibur Rahman Vs. State, 18 BLC (2013)-AD-218.

S. 342-The defence case is that the accused were in no way involved in the commission of murder as alleged by the prosecution and that there was no occurrence in the manner as alleged in the FIR.....(8) Nalu Vs. The State, 10 ADC (2013)-Page-82.

S. 342-Section 342 requires the trial Cour Count to examine the accused for the purpose of enabling him to explain any circumstance appearing in the evidence against him. The substance of this examination is that the principles of natural Justice should not be violated before convicting an accused of a charge. Habibur Rahman & Habu & Ors. V. The State, 33 BLD (2013)-AD-120.

S. 342-The examination of accused under section 342, CrPC in a slipshod manner without drawing the attention of the appellants to incriminating materials on record certainly prejudiced them. True, every error or omission in compline with the requirements of section 342 does not necessarily vitiate the trial, o errors are curable, The question whether the trial of the accused has been vitiates depends in each case upon the degree of error and whether prejudice has been or is likely to have been caused to the accused. Habibur Rahman & Habu & Ors. Vs. The State, 33 BLD (2013)-AD-121.

S. 342-Failure to comply with section 342, CrPC amounts to a serious irregularity vitiating the trial if that is shown to have prejudicied the accused. Habibur Rahman & Habu & Ors. Vs. The State, 33 BLD (2013)-AD-122

S. 342-Examination of the accused under sec. 342 read with see. 364

Mandatory procedure: The accused Abdul Mazid was prejudiced in his defence inasmuch as he was not examined under section 342 in terms of the provisions laid down in Section 364 of the CPC, the incriminating pieces of evidence were brought to his notice, but those were not spelt out with reference to the evidence of the prosecution witnesses concerned. Abdul Mazid and ors Vs. State (Criminal), I Counsel (2013)-HCD-119.

Section 342

After the prosecution closes its evidence the court shall examine the accused and ask them whether they will adduce any evidence in defence. Omission to do so vitiates the conviction, if such omission has prejudiced the accused in their defence. [73 DLR 18]

Minority View

Per Mr. Justice Syed Mahmud Hossain, CJ: Burden of proof in wife killing case: What is more surprising to note here is that the appellant has not provided any reasonable explanation as to the cause of the death of his wife although in wife killing case, the condemned-appellant is under the obligation to do so. He has given all contradictory suggestions to the witnesses imputing allegations that the victim was a lady of lose character having illicit connection with others. In a misogynistic society, character assassination of women is a regular feature. In the case in hand even after death victim’s soul will not rest in peace because her two sons will know that their mother was a lady of questionable character. The condemned-appellant has failed to discharge his obligation by not explaining the cause of death of his wife in his house. ...(Paras 22 and 23)

Sections 24 and 27 of the Evidence Act, 1872: It is of course true that the extra judicial confession made by the appellant before the witnesses in presence of the police is not admissible. But the fact remains that the chen/dao was recovered by the police from ceiling of the shop of the appellant at his instance in presence of the witnesses. Such recovery is admissible under section 27 of the Evidence Act. ...(Para 25)

Section 342 of Code of Criminal Procedure, 1898: When a literate accused person re-calling witnesses cross-examine them, he is not at all prejudiced by minor defects in recording his statement under section 342 of the Code of Criminal Procedure: Having gone through statement recorded under section 342 of the Code of Criminal Procedure, I find that the statement was not recorded specifying the evidence adduced by individual witnesses but it cannot be said that the appellant was prejudiced in any way by such minor omission because he is a literate person and at his instance P.Ws.5, 6 and 7 were recalled. After recalling the aforesaid witnesses they were again cross[1]examined none other than by the appellant himself. Therefore, I am of the view that the condemned-appellant being a literate person and the witnesses having been examined in his presence, he was not at all prejudiced by such a minor defect in recording his statement under section 342 of the Code of Criminal Procedure. ...(Para 32)

Majority Decision

Per Mr. Justice Muhammad Imman Ali, J Honorable Author Judge of the Majority Decision: Section 342 of Code of Criminal Procedure, 1898: We also find some merit in the submission of the learned Advocate appearing on behalf of the appellant that the examination of the appellant done by the trial court under section 342 of the Code of Criminal Procedure was not conducted properly as the incriminating evidence in the depositions of the prosecution witnesses were not placed before the appellant in accordance with law. Hence, we are of the opinion that the examination of the appellant under section 342 of the Code was not lawfully done by the trial Court. So, the trial conducted by the court below is liable to be vitiated. ...(Para 53)

Section 24 of the Evidence Act, 1872: The learned trial Judge appears to have taken into consideration the alleged admission by the appellant in presence of P.Ws 2,3,4 and 5 but failed to appreciate that if there was such an admission, it was made when the appellant was accompanied by the police and hence inadmissible under section 24 of the Evidence Act. The conviction and sentence were thus not based on legal evidence. ...(Para 63)

Section 106 of the Evidence Act, 1872: With regard to the victim’s death while in the custody of her husband, the evidence on record shows that the appellant used to stay at his shop. There was no evidence that on that night he was sleeping in his own house. Hence, there is sufficient explanation from the appellant that he was not present in the house when his wife was attacked, and provision of section 106 of the Evidence Act are not applicable in the facts of the instant case. ...(Para 64) 16 SCOB [2022] AD 22

Section 342 of the Code of Criminal Procedure, 1898 Husband is duty bound to explain his wife’s death when his wife dies in his custody and he can explain it in his 342 statement: From the testimonies of the PWs. 1, 8 and 9 it was proved beyond all reasonable doubt that the instant appellant left the PW.1’s house with his wife Nasima Begum Aka Bahana along with their two sons before the alleged killing of her. This event eventually proved that Nasima alias Bahana before her death was in undeniably in the custody of her husband, the instant appellant. On 01-05-2006, it was reported that she was missing. On 06-05-2006, her corpse was recovered from the septic tank of her husband. The appellant in his confessional statement admitted aforesaid recovery. He not only knows the recovery of corpse, rather, knows about the killing, even though, he falsely searched for Nasima with other inmates of the house only to show publicly that Nasima was really missing which was not fact. The appellant’s such a pretext undoubtedly proved that he was fully aware about the murder. …the instant appellant as the husband is solely responsible and duty bound to explain as to how and when his wife, Nasima Begum alias Bahana was died. He was miserable failed to explain, even if, he was examined under section 342 of the Code of Criminal Procedure to that effect. ...(Paras 19 and 20) 16 SCOB [2022] AD 40

In 42 DLR (AD) 31 wherein our Appellate Division has observed as underneath:

A statement of the accused under section 342 CrPC is meant for giving him and also to explain the circumstances appearing against him in the evidence adduced by the prosecution. This is entirely for the benefit of the accused and the accused only. This statement cannot be used by the court against him, nor is the prosecution permitted to use it to fill up any gap left in the prosecution evidence. A statement under section 342 CrPC is not evidence within the meaning of section 3 of the Evidence Act." The State Vs. Md. Hamidul 18 SCOB [2023] HCD 224

When injured in police custody, burden is upon them: Section 342 of the Code of Criminal Procedure:

From the evidence of P.W.4, 7, 8, 9, 12, 13, 5, 6 it appears the informant Kader had been taken as unhurt into the room of the accused Helaluddin in khilgaon thana whereon the accused had been injured. Since the alleged occurrence took place in police custody, it is duty of officer in charge to explain how an unhurt man was injured in his room. The accused was examined under section 342 of the Code of Criminal Procedure giving him an opportunity to explain the evidence and circumstances appearing against him. During the examination under section 342 of the Code of Criminal Procedure the accused said that he will give a written statement. But on perusal of record no written statement has been found. Both court below did not utter that the accused gave a written statement. Since on declaration by the accused no written documents has been produced by the accused, no evidence has been adduced to defense himself which leads the statement made by prosecution witnesses that under custody of accused officer in charge of khilgaon, the informant had been inflected chapati blow by the accused was remained unchallenged. (Para 53)

Basic pillars of Criminal Case:

It is pertinent to note that in a Criminal case, time, place and manner of occurrence are the 3(three) basic pillars upon which the foundation of the case stand on and the same are required to be strictly proved beyond reasonable doubt by the prosecution in a bid to ensure punishment for an offender charged with an offence. If in a given case any one of the above 3(three) pillars is found lacking or proved to be untrue then it is adversely react upon the entire prosecution case. (Para-55)

Torture in police custody if goes unpunished, the criminals are encouraged and the society suffers:

In recent years, torture in police custody is increasing. The crime in police custody is the worst kind of Crime in a civilized society. The court must keep in mind when the crime goes unpunished, the criminals are encouraged and the society suffers. The victim of crime or his kith and kin became frustrated and lost their confidence towards law. The victim/informant is a young BCS qualified man. Moreover, the two cases had been filed against him, wherefrom he had been released as no evidence had been found during the investigation. Considering those aspects I am of the view that the cruelty and violence with which the accused caused injury the victim deserves to be treated with strict and heavy hand. (Para-56) [Md. Helal Uddin Vs. The State, 18 SCOB [2023] HCD 264]

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

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

Code of Criminal Procedure (V of 1898)

Section 342

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—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.

S. 344

Allegation under Section 467 and 471 of the Penal Code Held; We find that the Civil Suit has already been disposed and the allegation made in the petition of revision has no bearing with the complainant's case of Title Suit No. 344 of 1994. It is well settled that the criminal proceedings should not be at all have the indefinite period for the cause of pendency of civil suit. Hedayet Ullah & Ors Vs. The State, 21 BLT (2013)-HCD-103

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

S. 367-The judgment of the Appellate Tribunal has not touched on the evidence on record at all and has not taken into consideration the grounds of appeal, there is no scope in law for it to be treated in any manner as a judgment. Warid Telecom International Ltd. Vs. Commissioner of Customs (Spl. Statutory), 18 BLC (2013)-HCD-282.

S. 367-No power to dismiss an appeal for default and must dispose of the appeal on merit no matter whether the appellant appears or not. Warid Telecom International Ltd Vs. Commissioner of Customs (Statutory Original), 18 BLC (2013)-HCD-188.

Section 367 (5)- Capital Sentence: Bangladesh Perspective-Bangladesh, like its neighbours and majority of the commonwealth members, retain capital punishment, though it is limited to capital offences only. Bangladesh general law, as it stands today, is slightly at variance with that in India in that a sentencing Court in Bangladesh must assign reasons whether it awards death sentence or the alternative sentence of imprisonment for life, while in India, only death sentences must be justified by special reasons.

General substantive legislation i.e. the Penal Code fixes the penalty that can be awarded, while the general procedural legislation i.e the Code of Criminal Procedure (henceforth Cr.P.C.) law down the procedure to be followed in sentencing a person convicted of an offence punishable under a penal provision of the Pena Code.

Cr. P.C. does not lay down sentencing polices. However, section 367 (5) (as amended) provides that where the Court condemns a convict with death sentence or in the alternative awards imprisonment for life or for a tem of years, the Court shall state reasons for the sentence awarded. No sentencing section in the Penal Code specify any particular sentence. They do, instead specify the maximum sentence. often with alternative, whether custodial or not, and thereby equip the Court with a great deal of discretion.

As death sentence in Bangladesh under the Penal Code is not mandatory and alternative sentence of life imprisonment can, at the discretion of the Court, as discussed above, under the heading "sentencing principles in Bangladesh", be awarded, only in appropriate cases of murder, where aggravating factors outweigh mitigating factors, such as provocation etc. are absent death sentences are passed at the Courts' discretion. Our Courts retribution, general apply deterrence, commensurability, proportionality rationales, motive, personal circumstances of the convict. Antecedent facts leading to the commission of the offence, play decisive role in the determination of sentence. Thus the Appellate Division in Nowsher Ali - V- State (39 DLR (AD) 194) and Dipok Kumar Sarkar V-State (40 DLR (AD) 139) commuted death sentence in wife killing cases because the couple's union were not "blissful" and were rather "rancorous".

Death sentences are however deemed appropriate when the convict act in cold blood without provocation, which are so heinous that arouse judicial indignation.

Apart from the cases of murder, which are punishable under section 302 of the Penal Code, capital punishment can be awarded for gang rape, trafficking of children, women, for seriously injuring a child or a women by acid throwing under a special legislation called Women and Children Cruelty Act, 2013. While exercising their discretion, take account of all those factors as they take in sentencing a murderer under the Penal Code provisions. (Paras: 1082- 1087); ..... Allama Delwar Hossain Sayedee -VS- Government of Bangladesh, (2 LM (AD) 76]

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

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

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

S. 369-As soon as the judgment is pronounced and signed by the learned Judges in a criminal case, this Division becomes functus officio and neither the particular Bench itself nor any Bench of the High Court Division has any power to revise override or alter the decision or interfere with it in any way: even if the learned Judges arrived at a wrong decision. MA Motaleb Bhuiyan Vs. State, 18 BLC (2013)-HCD-451.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sections 374 & 164—Part of the confessional statement found true may be accepted by the court to convict the accused rejecting the other part which is not true. There is no merit in the contention that when one part of the confessional statement is rejected, other part, even if true, cannot be accepted.

Learned Sessions Judge could reject a part of the confessional statement iF he found the same contrary to other evidence on record. But he could not reject the same on mere surmise and conjecture. A part of the confessional statement favourable to the accused should be given due weight to it unless Court finds the same not true being contrary to other evidence on record. State vs Afazuddin Sikder 50 DLR 121.

Section 374-Before awarding punishment a balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and mitigating circumstances. Considering the depraved and shameful manner in which the offence has been committed, the mitigating factor would not outweigh the aggravating factors. Dr. Miah Md Mohiuddin vs State (Criminal) 75 DLR (AD) 8

Section 374 We fully agree with the observations except the observations that "Life imprisonment is the Rule and death sentence is an exception." Because in our jurisdiction our apex Court in many cases has decided in a reverse way. Gias vs State (Criminal) 75 DLR (AD) 195

Section 374-In the given circumstances only the death penalty would be the proper punishment for the appellant Gias which will serve the ends of justice. Gias vs State (Criminal) 75 DLR (AD) 195

Sections 374 and 376-The appellants are in death cell for about 17 years and during that period the appellants have suffered mental agony, and that the father of Rabiul having nabbed him handed over to the villagers on coming to know about his involvement with the commission of the offence, justice would be best served if the sentence of death is commuted to one imprisonment for life.Milon @ Md Milon vs State (Criminal) 75 DLR (AD) 164

Sections 374 and 376-The convict Rana is in the condemned cell for more than 14 (fourteen) years suffering the pangs of death. Justice would be sufficiently met if the sentence of death of Rana be commuted to one of imprisonment for life. Gias vs State (Criminal) 75 DLR (AD) 195

Sections 374 and 376

The condemned-prisoner is a young girl of 19 years of age. Her mental condition was not developed to that level of understanding to know the consequence of the act. She is a helpless young girl, has been in jail since her arrest on 20-6-2011. Clemency of penal justice always helps a young perpetrator for his/her rectification. Taking her tender age into consideration, it is appropriate and justice will sufficiently be met if her sentence is reduced to imprisonment for life. [73 DLR 471]

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

Section 374- The appellant has been in death cell since 12.08.2002 and by the judgment he suffered the agony of death for the last 9(nine) years, 6(six) months and 9(nine) days. In the facts of the case, justice would be best served if the sentence of death awarded to the appellant is altered into one for imprisonment for life with fine, of taka 10,000.00 only, in default, to suffer rigorous imprisonment for 6(six) months...... Momtaj Ali @ Babul =VS The State, [1 LM (AD) 557]

Section 374, 376 & 537- Even if it is assumed that the Session Judge has not taken cognizance of the offence after the case was 'sent' by the Magistrate, the trial of the accused shall not be vitiated in view of section 537 of the Code which provides that 'no finding, sentence, or order passed by the court of competent jurisdiction shall be reversed or altered under Chapter XXVII on appeal or revision of account.... Chapter XXVII contains sections 374-380. Section 374 provides the sentence of death to be submitted by a court of Sessions to the High Court Division for confirmation. Section 376 empowers the High Court Division to confirm a death sentence or annul a death sentence. So, whenever a death sentence is passed by a court of session, it is sent to the High Court Division for confirmation. The High Court Division has power to confirm the sentence or annul the sentence and by reason of any defect or error in the procedure, death sentence cannot be vitiated. So, the conviction of the accused cannot be set aside by reason of the alleged defect. .....Mufti Abdul Hannan Munshi =VS= The State, (3 LM (AD) 566]

Section 374 & 376- The nature of the offence it appears to us that the petitioner is not anyway entitled to get any sympathy. We do not find any mitigating or extenuating circumstances on record for commutation of the sentence of death. Delay in the disposal of this case cannot by itself be a ground for commuting the sentence of death to one of imprisonment for life since the crime committed by the petitioner was premeditated senseless, dastardly and beyond all human reasonings. We do not find any Substance in the petition. Thus, the review petition is dismissed....... Shahidul Islam @ Shahid =VS State, [4 LM (AD) 428]

Ss. 374 and 376-Commutation Sentence-They were not laying down any precedent which can be applied to every case when a question of commutation of death sentence was considered on account of age of the accused. Rahmat Ali Vs. State (Civil), 18 BLC (2013)-AD-109.

S. 374 and 376-The criminal act of the condemned appellants is tribunal, dastardly, premeditated, gruesome, cold blooded and shocking to our conscience. Khorshed Vs. State, 18 BLC (2013)-HCD-241.

Ss. 374 and 376-The circumstances are aggravating and not mitigating or extenuating. The High Court Division should not hesitate to use Sword of Justice with the utmost severity to the full and to the end. Khorshed Vs. State, 18 BLC (2013)-HCD-241.

S. 374-Mr. Helaluddin Mollah has advanced argument to the effect that both the tribunal and the High Court Division have failed to appreciate and comprehend the evidence and the facts and circumstances properly and as a result have failed to take a just decision in his case. The learned advocate has argued that there is no acceptable evidence at all to prove the case against the accused petitioner, that the so-called confessional statement of the accused petitioner is not voluntary and true at all, that there are so many facts and circumstances on record which tell strongly against the truth of the so-called confessional statement. The learned advocate has argued that both the courts did not consider at all about the voluntariness of the so-called confessional statement of this accused petitioner: that the facts and circumstances on record proved that the so-called confessional statement of this accused was obtained under torture and coercion. Mr. Md. Helaluddin Mollah, the learned advocate has made submissions to the effect also that there are so many contradictions between the F.I.R. and the evidence adduced by prosecution which made the prosecution case not believable at all The learned advocate has pointed out that in the F.I.R. it was alleged that the deceased made dying declaration to the effect that her husband the accused threw acid on her but during trial the prosecution witnesses stated that the deceased made dying declaration to the effect that the accused set fire on her. The learned advocate has argued that this is a gross contradiction which makes the whole prosecution case unbelievable and that both the courts below have failed to take into consideration this material contradictions in the prosecution case. The learned advocate for the petitioner has made further submissions to the effect that the 15th amendment of the Constitution has given right to the condemned prisoner to prefer appeal against him sentence of death as of right and as such this condemned prisoner to prefer appeal against his sentence of death as of right and as such this condemned prisoner petitioner though the death sentence was confirmed before 15 amendment of the Constitution may be favoured with this privilege of this amended Article 103 of the Constitution for the ends of justice and also to honour the sprit of the Constitution..(10) Md. Shah in Qadir Vs. The State (Criminal), 10 ADC (2013)-Page No. 534.

S. 374 read with Penal Code, 1860; S. 302

It is the definite case of prosecution that the deceased Nurjahan was raped to death then her dead-body was thrown to the river Meghna. So if we believe the evidence of P.W.11 for a moment then the prosecution case fails and if the prosecution case be sustained for sometime then the evidence of P.W. 11 should be left out of consideration. Therefore, we failed to discover any definite prosecution case against the condemned prisoners the prosecution measurably failed to prove the charge against the condemned prisoners beyond all reasonable doubt. Thus the reference having no merit fails. The State & Ors Vs. Abdul Quiyum & Ors, 21 BLT (2013)-HCD-169.

Sections 375-376

It has been well proved by sufficient tangible evidence that the condemned-prisoner Md Abu Taher @ Choru Miah and Zahirul Islam @Zahir cannot be escaped from their liability in commission of the dacoity along with the heinous gruesome killing of the deceased Tofazzal and there is no such mitigating extenuating circumstances by which their sentence can be commuted but in respect of Abdus Salam Liton who only participated in the occurrence of dacoity with other dacoits, deserve compassionate view in commuting his death sentence and reducing to imprisonment. [73 DLR 18]

Section 376

The accused was about 18 years of age at the time of commission of offence and taking his tender age into consideration, justice would sufficient by be met, if his sentence is reduced to imprisonment for life. [73 DLR 411]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 376-Sentences of severity are imposed to reflect the seriousness of the crime, to promote respect for the law, to provide just punishment for the offence, to afford adequate deterrent to criminal conduct and to protect the community from further similar conduct. It serves a three-fold purpose-punitive, deterrent and protective. Giar vs State (Criminal) 75 DLR (AD) 195

Section 376-The fact of prolonged incarceration together with the discussion that we made fortified with the recently passed decision of this Division can be considered as a mitigating circumstances and for that reason we are inclined to modify the order of sentence and commute the sentence of death to that of imprisonment for life. Anowar Talukder vs State (Criminal) 75 DLR (AD) 221

S. 376-Keeping in mind the youth of the condemned petitioner, no previous criminal record, admitted previous enmity, the fact that he had languished in the condemned cell for more than 8.5 years, ends of justice will be sufficiently met if them sentence of death is commuted and altered to one of imprisonment for life. Rahmat Ali @ Shukkur Vs. The State, 2 LNJ (2013)-AD-125.

S. 376-The condemned-prisoner was aged about 28 years when he was examined under Section 342 Cr.P.C. The record indicates that the condemned prisoner is not a hard criminal he cannot be at all characterized to be a menace to the society. Taking an account of aggravating and mitigating circumstances, ends of justice will be met if death sentence is altered to one of imprisonment for life, Condemned prisoner Nurul Kabir, thus stands sentenced to imprisonment for life. The State Vs. Nurul Kabir, 2 LNJ (2013)-HCD-297.

Ss. 376, 464, 465 and 467-It appears that before commencement of trial the accused was sick and not fit for facing trial and as such the accused was seriously prejudiced by the trial of the case for which the impugned judgment and order of conviction and sentence is set aside and the case is remanded to the Court of Sessions, Rajshahi for new trial. The State Vs. Md. Moksed Ali, 2 LNJ (2013)-HCD-429.

S. 376-Remanded to the Court of Sessions for holding new trial-appellant being lunatic:

Held: It is a matter of great regret that the learned Judge of the trial Court in his judgment dated 24.05.2007 observed in the following manner: ইতিপূর্বে আসামী পাগল ছিল কিনা তাহা বিস্তারিত আলােচনা হইতে আদালত সিদ্ধান্তে আসিয়াছে যে, ঘটনার সময় আসামী মানসিক রােগী বা পাগল ছিল না।

The aforesaid observation is absolutely erroneous inasmuchas there is no finding of the learned Judge regarding physical and mental condition of the accused at the time of trial. Moreso, in such situation earlier the learned Sessions Judge was not empowered by law to transfer the case to the second Court of Additional Sessions Judge, for holding trial without obtaining any opinion from the concern authority regarding physical and mental condition of the accused. The learned Judge of the trial Court also without collecting such report concluded the trial and convicted the accused as aforesaid which, in our view seriously prejudiced the accused. So both the learned judges of the Court below including the learned Magistrate violated the mandatory Provisions of law as provided above. Therefore, we hold that the case should be remanded to the Court of Sessions, Rajshahi for holding new trial, pursuant to the Provisions laid down in Section 376 of the Code. The State Vs. Md. Moksed Ali, 21 BLT (2013)-HCD-291.

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

Sections 378 and 429- Sections 378 and 429 of the Code of Criminal Procedure contemplate that it is for the third learned Judge to decide on what points he shall hear arguments, if any, and, that postulates that he is completely free in resolving the difference as he thinks fit, and therefore, the third learned Judge was competent to decide the case of six convicts of whom the learned judges were equally divided in their opinion and thus the third learned Judge was in agreement with the decision of the learned Judges of the Division Bench in respect of 9(nine) convicts of whom there was no difference of opinion. Major Md. Bazlul Huda(Artillery) -VS-The State (Banga Bandhu Murder Case). (9 LM (AD) 386]

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

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

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

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

Ss. 397, 401-The revisional jurisdiction of a High Court is conferred by the provision of Section 397 read with Section 401 of the Code of Criminal Procedure. While Section 397 empowers the High Court to call for the record of any proceeding before any inferior criminal court within its jurisdiction to satisfy itself as to the correctness, legality or propriety of any finding, sentence or order and such power extends to suspension of execution of any sentence or order and also release the accused on bail, under section 401(3) Cr.P.C. there is an express bar in the High Courts to convert a finding of acquittal into one of conviction. While the revisional power under the code would undoubtedly vest in the High Court the jurisdiction to set aside an order of acquittal the same would not extend to permit the conviction of the accused. The High Court may, however, order a retrial or a rehearing of the case, as may be, if so justified...(8). Kumar etc. Vs. Karnataka Industrial Co-operative Bank, 3 TLR (2013)-Page 447

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