Monthly Journals July 2012

Mobile : 01744-399207 Tel : 9571389

Reg. No. DA-6152

JULY

Vol. I

2012

The

Lawyers & Jurists Cheif Editor Editor Reporters

: : : : : :

(A Monthly Law Report)

Syed Mokaddas Ali, Advocate, Supreme Court Borun Kumar Biswas, Advocate M. Arif Billah, Bar-at-Law SK. Reajul Haque, Advocate, Supreme Court Md. Ashik Ferdous, Advocate, Supreme Court Md. Faruk Hossain, Advocate

FIFTH ISSUE Cit 1 LNJ (AD), 1 LNJ etc.

Appellate Division 49-64 1.

CONTENTS

High Court Division 325-388

Appellate Division Government of Bangladesh and others. VS Md. Jahangir Alam and others. (Civil)

49

High Court Division 1.

2.

3.

4.

5.

6.

7.

8.

Abul Basher and another VS The State (Criminal Appeal) AKM Fayekuzzaman VS The State and another (Criminal Revision) Brigadier (Retd.) A.H.M Abdullah VS Govt. of Bangladesh & others (Spl. Original) Helena Bewa and others VS Md. Mohshin Ali and others (Civil) Md. Alauddin Kazi and others VS Government of Bangladesh and another. (Civil)

349 341 332 362 356

Startus Construction Company VS Govt. of Bangladesh and others (Sta. Original) The State VS Ashraf Ali and others (Criminal Appeal)

325 371

Rupsha Fish and Allied Industries Ltd. Vs. The Premier Bank Limited and others (Civil)

STATUTES gvwbjÛvwis cÖwZ‡iva AvBb 2012 (2012 m‡bi 5 bs AvBb) mš¿vm we‡ivax AvBb, 2009 (2012 m‡bi 6 bs AvBb)

386

49 61

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Publisher : A. M. Masum (Bar-at-Law) E-mail : masum@lawyersnjurists.com

I LNJ (2012)

INDEX APPELLATE DIVISION

Constitution of Bangladesh, 1972 Article 102 Legitimate expectation of work-charged employees of PWD to be transferred to regular establishment in phases has become a right – Following the principles enunciated in the Memo dated 28.03.1969 and other subsequent memorandums till 1987, 6,654 work-charged employees were transferred in phases to regular establishment at the rate of 50% of the leftover work-charged employees. There are still 1906 work-charged employees left in the PWD and the authorities of the PWD sent a proposal to the Ministry of Establishment for regularisation of 951 workcharged employees which is 50% of the left-over 1906 work-charged employees. This step was taken in accordance with the long standing practice based on the various office-Memorandums since 1969. But in the meantime, the Memorandum dated 31.10.2006 made a departure from the earlier practice and introduced a new criteria, such as, that transfer of 50% of the total work-charged employees to the regular establishment, can be done once only. As a matter of public law, it is expected that the concerned authority shall always act reason-ably in the circumstances and not arbitrarily. It must observe the rules of natural justice and act fairly in carrying out their decision making process. An expectation may be crystallized into a reality from the representations expressed on behalf of the concerned authority or from their consistent conduct and regular practice which is expected to continue unabated.

49.

Government of Bangladesh and others Vs. Md. Jahangir Alam and others (Civil).

Evidence Act (I of 1872) Section 115 If a public authority promises to follow certain procedure and which is actually acted upon, for years together, it should follow the said procedure, unless of course, some legal impediment has been created against it. Government of Bangladesh and others Vs. Md. Jahangir Alam and others (Civil).

49.

HIGH COURT DIVISION Arbitration Act (I of 2001) Section 42 (2) and 43 (1) (a) (IV) It appears that no counter claim was filed by the Department concerned. The Arbitral Tribunal travelled beyond its jurisdiction in entertaining and deciding issues which had not been referred to by the contending sides. It would become difficult, if not impossible to sever the determinable issues from the non determinable issues referred to the Tribunal from the final Award which is not before the Court. The impugned order including the modified order are set aside. Startus Construction Company Vs Govt. of Bangladesh and others (Spl. Original) 325.

Code of Civil Procedure (V of 1908) Order VII, rule 11 Limitation Act (IX of 1908) Article 120 The exchange deed was registered on 19.09.1976 when the cause of action was shown on 19.08.1976. It can safely be said that the cause of action as shown by the plaintiff is not correct, rather , it is false and also that S. A. khatian has been finally published in 1970 and hence the cause of action having not been proved the suit is barred by limitation. Helena Bewa and others Vs. Md. Mohshin Ali and others (Civil).

362.

Code of Civil Procedure (V of 1908) Order I, rule 10 Whether the Deputy Commissioner had authority or jurisdiction to execute and register the exchange deed in between the parties , before registering the same whether he has consulted S. A. and R.S. Khatian, whether the power of attorney was genuine or not are to be resolved in the suit for which the Deputy Commissioner is a necessary party to the suit. Helena Bewa and others Vs. Md. Mohshin Ali and others (Civil).

362.

Code of Civil Procedure (V of 1908) Order VIII, rule 10 Order IX, rule 13 Order XLIII, Rule 1(b) After rejecting the defendant’s application for adjournment the learned judge passed the ex-parte judgment. Neither the newly appointed lawyer then filed application for further adjournment nor did he take part in the hearing nor did he retire from the suit. It was fixed on 06.02.2006 for filing written statement. In default the court will take ex-parte decision. No written statement was filed on the fixed date. The Court passed the judgment for failure of the

50

I LNJ (2012)

INDEX

defendants to file the written statement which comes within the purview of Order VIII, rule 10 of the Code. An order passed under Order VIII, rule 10 of the Code is an appealable order under order XLIII, rule 1(b) of the Code.

But in India the provision of appeal has been deleted. Rupsha Fish and Allied Industries Ltd. Vs. The Premier Bank Limited and others (Civil).

386.

Code of Criminal Procedure (V of 1898) Sections 265 C and 439 Negotiable Instruments Act (XXVI of 1881) Section 138 There is sufficient materials before the High court Division for believing that the accused petitioner committed no offence under section 138 of the Negotiable Instruments Act and as such there will be substantial injustice if this court does not interfere in this case and there will be fragrant violation of justice. The High court Division under section 439 of the Code having supervisory jurisdiction can scrutinize and can go into the fact of a case to examine the propriety of the order passed under section 265C of the Code of Criminal Procedure. Hence the application by the accused petitioner under section 265C of the Cr.P.C. is maintainable against the order of framing charge against the accused. AKM Fayekuzzaman Vs. The State and another (Criminal Revisional) 341.

Code of Criminal Procedure (V of 1908) Section 115 The finding of the court of appeal below and the trial court as well is contrary to the evidence on record and also is a product of misreading and non-consideration of material evidence on record in as much as in the present case the plaintiff had produced their kabala, S.A. Khatian and the rent receipt in the trial court to show their continuous possession but the courts below failed to consider the same as a result of which the judgment and decree of the Court below is set aside and the suit is decreed. Md. Alauddin Kazi and others Vs. Govt. of Bangladesh and another (Civil).

356.

Code of Criminal Procedure (V of 1898) Sections 164 & 364 Evidence Act (I of 1872) Section 24 After going through the cross-examination of PW.17 and PW.20, who are confessional statement recording Magistrate and I.O. respectively, a reasonable suspicion could give rise in the mind of a prudent man that condemned prisoner Ashraf Ali might have been tortured when he was under police remand for 3 days and after such remand several injuries were found on his body which made the confessional statement untrue and not voluntary and it is unsafe to base conviction only on such a confessional statement which is doubtful and questionable. Moreso, the recording Magistrate did not fill up the column Nos. 8, 9 and 10 of the form for which it is difficult to hold that the confessional statement made under sections 164, Cr.P.C. is a voluntary and same was recorded in compliance with the mandatory provision of law. The State Vs. Ashraf Ali and others (Criminal Appeal).

371.

Code of Criminal Procedure (V of 1898) Sections 339 B (1) In the notification Police Station case number had been mentioned as Nator Police Station but the present case is Naldanga Police Station Case No.3 dated 05.04.2003. Thus, this notification can not be said a proper and legal notification and subsequent proceeding is illegal and it vitiates the trial, so far the absconding accused persons are concerned. The State Vs. Ashraf Ali and others (Criminal Appeal).

371.

Code of Criminal Procedure (V of 1898) Sections 342 The learned Tribunal is not justified in ignoring the statements of the said accused persons recorded under section 342 of the Code of Criminal Procedure and by such non-consideration the merit of the case had been materially affected. The State Vs. Ashraf Ali and others (Criminal Appeal).

371.

INDEX

I LNJ (2012)

Constitution of Bangladesh, 1972 Article 102 (1)(2)(a)(ii) Motor Vehicles Ordinance (LV of 1983) Sections 105,140,152 and 156 Police Regulation Bengal, 1943 Regulations 33 and 260 Police Act (V of 1861) Section 23 Dhaka Metropolitan Police Ordinance, 1976 Sections 16 (e) and 161 Police Officer (Special Provision) Ordinance (LXXXIV of 1976) Sections 2(b),4,5,12 & 48 The Petitioner, a retired Officer in the rank of Brigadier of the Bangladesh Army, has challenged the Charge Report submitted under section 105 of the Motor Vehicle Ordinance, 1983 issued by the Police Officer, the Respondent No. 10 alleging contravention of sections 140,152 and 156 of the said Ordinance. It is contended on behalf of the petitioner that respondent No. 10, despite being informed by the petitioner’s wife that she was unwell, acted in an irresponsible, rude and arrogant manner, causing serious mental agony and distress to her and embarrassment to the petitioner in public. Such action of respondent No. 10, Mr. Khan submits, is in clear violation of the provisions of The Police Act, 1861, Police Regulations Bengal, 1943 and The Dhaka Metropolitan Police Ordinance, 1976.

Brigadier (Retd.) A.H.M Abdullah Vs. Govt. of Bangladesh & others (Spl Original.

332.

Nari-O-Shisu Nirjaton Daman Ain (XVIII of 1995) Sections 10(2) & 14 Evidence Act ( I of 1872) Section 45 Scanning the evidence of PWs it is evident that the allegation regarding demand of dowery has not been substantiated and the alleged occurrence does not come within the ambit of section 10(2) of the Ain. On appreciation of the evidence on record it appears that the main allegation against the accused appellants that they firstly assaulted the victim and then poured poison into his mouth have not been proved. It is settled principle that the positive evidence in a case is that of the eye witness who had seen and narrated the occurrence. The evidence of a medical man or an expert is merely an opinion which only lends corroboration to the direct evidence. These glaring inconsistencies between the existence of the injuries on the dead body of victim as found by the post mortem doctor and the evidence of the prosecution witnesses about the injuries caused by the appellants irresistibly lead us to a conclusion that the occurrence did not take place in the manner as alleged by the prosecution. Such failure to exhibit the original copy of the post-mortem report, the possibility of such carbon copy being a fabricated copy cannot be ruled out. The learned Judge of the trial court below substituted “moral conviction for legal evidence” which is not allowed in law and, thus the impugned judgment and order of conviction and sentence is illegal and liable to be set aside. Abul Basher and another Vs. The State (Criminal Appeal) 349.

Transfer of property Act (IV of 1882) Section 118 As the defendant got decree against Monimohan and such decree is still in existence. Neither plaintiff nor his predecessor challenged the said decree. Plaintiff has no right, title and interest in the suit property by exchange deed even if it is found that the exchange is genuine, the plaintiffs have no ownership of the suit property because of such decree has extinguished the plaintiffs’ title. Helena Bewa and others Vs. Md. Mohshin Ali and others (Civil).

362.

Editor: Advocate Borun Kumar Biswas, Mobile: 01711-354773, Printed & Published by : A. M. Masum, Bar-at-Law, M.L. -Hotel Tower Ltd. (10th Floor), 208, Shahid Sayed Nazrul Islam Saroni, Bijoy Nagar, Dhaka-1000, Bandhu Printing Press, 149, R. K. Mission Road, Motijheel, Dhaka-1000, Correspondent Address: Md. Nazrul Islam, Manager, LNJ Sales Center, 64/C/3, R. K. Mission Road, Gopibag, Dhaka-1203, Bangladesh. Mobile: 01913-775750, 01199-047076, E-mail: admin@lawyersnjurists.com

APPELLATE DIVISION Constitution of Bangladesh, 1972 Article 102 Legitimate expectation of work-charged employees of PWD to be transferred to regular establishment in phases has become a right – Following the principles enunciated in the Memo dated 28.03.1969 and other subsequent memorandums till 1987, 6,654 work-charged employees were transferred in phases to regular establishment at the rate of 50% of the leftover work-charged employees. There are still 1906 work-charged employees left in the PWD and the authorities of the PWD sent a proposal to the Ministry of Establishment for regularisation of 951 work-charged employees which is 50% of the left-over 1906 work-charged employees. This step was taken in accordance with the long standing practice based on the various office-Memorandums since 1969. But in the meantime, the Memorandum dated 31.10.2006 made a departure from the earlier practice and introduced a new criteria, such as, that transfer of 50% of the total work-charged employees to the regular establishment, can be done once only.

As a matter of public law, it is expected that the concerned authority shall always act reason-ably in the circumstances and not arbitrarily. It must observe the rules of natural justice and act fairly in carrying out their decision making process. An expectation may be crystallized into a reality from the representations expressed on behalf of the concerned authority or from their consistent conduct and regular practice which is expected to continue unabated. Government of Bangladesh and others Vs. Md. Jahangir Alam and others (Civil).

49.

Evidence Act (I of 1872) Section 115 If a public authority promises to follow certain procedure and which is actually acted upon, for years together, it should follow the said procedure, unless of course, some legal impediment has been created against it. Government of Bangladesh and others Vs. Md. Jahangir Alam and others (Civil).

49.

HIGH COURT DIVISION Code of Civil Procedure (V of 1908) Order VII, rule 11 Limitation Act (IX of 1908) Article 120 The exchange deed was registered on 19.09.1976 when the cause of action was shown on 19.08.1976. It can safely be said that the cause of action as shown by the plaintiff is not correct, rather , it is false and also that S. A. khatian has been finally published in 1970 and hence the cause of action having not been proved the suit is barred by limitation. Helena Bewa and others Vs. Md. Mohshin Ali and others (Civil).

362.

Code of Civil Procedure (V of 1908) Order I, rule 10 Whether the Deputy Commissioner had authority or jurisdiction to execute and register the exchange deed in between the parties , before registering the same whether he has consulted S. A. and R.S. Khatian, whether the power of attorney was genuine or not are to be resolved in the suit for which the Deputy Commissioner is a necessary party to the suit. Helena Bewa and others Vs. Md. Mohshin Ali and others (Civil).

362.

Arbitration Act (I of 2001) Section 42 (2) and 43 (1) (a) (IV) It appears that no counter claim was filed by the Department concerned. The Arbitral Tribunal travelled beyond its jurisdiction in entertaining and deciding issues which had not been referred to by the contending sides. It would become difficult, if not impossible to sever the determinable issues from the non determinable issues referred to the Tribunal from the final Award which is not before the Court. The impugned order including the modified order are set aside. Startus Construction Company Vs Govt. of Bangladesh and others (Spl. Original) 325.

Constitution of Bangladesh, 1972 Article 102 (1)(2)(a)(ii) Motor Vehicles Ordinance (LV of 1983) Sections 105,140,152 and 156 Police Regulation Bengal, 1943 Regulations 33 and 260 Police Act (V of 1861) Section 23 Dhaka Metropolitan Police Ordinance, 1976 Sections 16 (e) and 161

I LNJ (2012)

INDEX

Police Officer (Special Provision) Ordinance (LXXXIV of 1976) Sections 2(b),4,5,12 & 48 The Petitioner, a retired Officer in the rank of Brigadier of the Bangladesh Army, has challenged the Charge Report submitted under section 105 of the Motor Vehicle Ordinance, 1983 issued by the Police Officer, the Respondent No. 10 alleging contravention of sections 140,152 and 156 of the said Ordinance. It is contended on behalf of the petitioner that respondent No. 10, despite being informed by the petitioner’s wife that she was unwell, acted in an irresponsible, rude and arrogant manner, causing serious mental agony and distress to her and embarrassment to the petitioner in public. Such action of respondent No. 10, Mr. Khan submits, is in clear violation of the provisions of The Police Act, 1861, Police Regulations Bengal, 1943 and The Dhaka Metropolitan Police Ordinance, 1976.

Brigadier (Retd.) A.H.M Abdullah Vs. Govt. of Bangladesh & others (Spl Original.

332.

Code of Criminal Procedure (V of 1898) Sections 265 C and 439 Negotiable Instruments Act (XXVI of 1881) Section 138 There is sufficient materials before the High court Division for believing that the accused petitioner committed no offence under section 138 of the Negotiable Instruments Act and as such there will be substantial injustice if this court does not interfere in this case and there will be fragrant violation of justice. The High court Division under section 439 of the Code having supervisory jurisdiction can scrutinize and can go into the fact of a case to examine the propriety of the order passed under section 265C of the Code of Criminal Procedure. Hence the application by the accused petitioner under section 265C of the Cr.P.C. is maintainable against the order of framing charge against the accused. AKM Fayekuzzaman Vs. The State and another (Criminal Revisional) 341.

Nari-O-Shisu Nirjaton Daman Ain (XVIII of 1995) Sections 10(2) & 14 Evidence Act ( I of 1872) Section 45 Scanning the evidence of PWs it is evident that the allegation regarding demand of dowery has not been substantiated and the alleged occurrence does not come within the ambit of section 10(2) of the Ain. On appreciation of the evidence on record it appears that the main allegation against the accused appellants that they firstly assaulted the victim and then poured poison into his mouth have not been proved. It is settled principle that the positive evidence in a case is that of the eye witness who had seen and narrated the occurrence. The evidence of a medical man or an expert is merely an opinion which only lends corroboration to the direct evidence. These glaring inconsistencies between the existence of the injuries on the dead body of victim as found by the post mortem doctor and the evidence of the prosecution witnesses about the injuries caused by the appellants irresistibly lead us to a conclusion that the occurrence did not take place in the manner as alleged by the prosecution. Such failure to exhibit the original copy of the post-mortem report, the possibility of such carbon copy being a fabricated copy cannot be ruled out. The learned Judge of the trial court below substituted “moral conviction for legal evidence” which is not allowed in law and, thus the impugned judgment and order of conviction and sentence is illegal and liable to be set aside. Abul Basher and another Vs. The State (Criminal Appeal) 349.

Code of Criminal Procedure (V of 1908) Section 115 The finding of the court of appeal below and the trial court as well is contrary to the evidence on record and also is a product of misreading and non-consideration of material evidence on record in as much as in the present case the plaintiff had produced their kabala, S.A. Khatian and the rent receipt in the trial court to show their continuous possession but the courts below failed to consider the same as a result of which the judgment and decree of the Court below is set aside and the suit is decreed. Md. Alauddin Kazi and others Vs. Govt. of Bangladesh and another (Civil).

356.

Transfer of property Act (IV of 1882) Section 118 As the defendant got decree against Monimohan and such decree is still in existence. Neither plaintiff nor his predecessor challenged the said decree. Plaintiff has no right, title and interest in the suit property by exchange deed even if it is found that the exchange is genuine, the plaintiffs have no ownership of the suit property because of such decree has extinguished the plaintiffs’ title. Helena Bewa and others Vs. Md. Mohshin Ali and others (Civil).

362.

Code of Criminal Procedure (V of 1898)

INDEX

I LNJ (2012)

Sections 164 & 364 Evidence Act (I of 1872) Section 24 After going through the cross-examination of PW.17 and PW.20, who are confessional statement recording Magistrate and I.O. respectively, a reasonable suspicion could give rise in the mind of a prudent man that condemned prisoner Ashraf Ali might have been tortured when he was under police remand for 3 days and after such remand several injuries were found on his body which made the confessional statement untrue and not voluntary and it is unsafe to base conviction only on such a confessional statement which is doubtful and questionable. Moreso, the recording Magistrate did not fill up the column Nos. 8, 9 and 10 of the form for which it is difficult to hold that the confessional statement made under sections 164, Cr.P.C. is a voluntary and same was recorded in compliance with the mandatory provision of law. The State Vs. Ashraf Ali and others (Criminal Appeal).

371.

Code of Criminal Procedure (V of 1898) Sections 339 B (1) In the notification Police Station case number had been mentioned as Nator Police Station but the present case is Naldanga Police Station Case No.3 dated 05.04.2003. Thus, this notification can not be said a proper and legal notification and subsequent proceeding is illegal and it vitiates the trial, so far the absconding accused persons are concerned. The State Vs. Ashraf Ali and others (Criminal Appeal).

371.

Code of Criminal Procedure (V of 1898) Sections 342 The learned Tribunal is not justified in ignoring the statements of the said accused persons recorded under section 342 of the Code of Criminal Procedure and by such non-consideration the merit of the case had been materially affected. The State Vs. Ashraf Ali and others (Criminal Appeal).

371.

Code of Civil Procedure (V of 1908) Order VIII, rule 10 Order IX, rule 13 Order XLIII, Rule 1(b) After rejecting the defendant’s application for adjournment the learned judge passed the ex-parte judgment. Neither the newly appointed lawyer then filed application for further adjournment nor did he take part in the hearing nor did he retire from the suit. It was fixed on 06.02.2006 for filing written statement. In default the court will take ex-parte decision. No written statement was filed on the fixed date. The Court passed the judgment for failure of the defendants to file the written statement which comes within the purview of Order VIII, rule 10 of the Code. An order passed under Order VIII, rule 10 of the Code is an appealable order under order XLIII, rule 1(b) of the Code.

But in India the provision of appeal has been deleted. Rupsha Fish and Allied Industries Ltd. Vs. The Premier Bank Limited and others (Civil).

386.

Constitution of Bangladesh, (V of 1908) Order XXXVIII, Rule 5 Artha Rin Adalat Ain (VIII of 2003) Section 12(3) It appears that the Dutch Bangla Bank Ltd. in compliance with the provisions of section 12 (3) of the Artha Rin Adalat Ain, 2003 published auction notice and the Bank requested the petitioner to execute the mortgage deed but the petitioner did not do the same . On the contrary the petitioner borrower was trying to transfer the schedule properties in order to defeat the decree that might be passed in the Artha Rin Adalat suit and hence the learned judge of the Artha Rin Adalat has rightly passed the impugned order for attachment of the scheduled properties before judgment under Order XXXVIII, Rule 5 of the Code. Khaled Jamel Ahmed Adel & another Vs. Artha Rin Adalat 3, Dhaka & others (Spl. Original) 393.

Editor: Advocate Borun Kumar Biswas, Mobile: 01711-354773, Printed & Published by : A. M. Masum, Bar-at-Law, M.L. -Hotel Tower Ltd. (10th Floor), 208, Shahid Sayed Nazrul Islam Saroni, Bijoy Nagar, Dhaka-1000, Bandhu Printing Press, 149, R. K. Mission Road, Motijheel, Dhaka-1000, Correspondent Address: Md. Nazrul Islam, Manager, LNJ Sales Center, 64/C/3, R. K. Mission Road, Gopibag, Dhaka-1203, Bangladesh. Mobile: 01913-775750, 01199-047076, E-mail: admin@lawyersnjurists.com

I LNJ (2012) Khaled Jamel Ahmed Adel and another Vs. Artha Rin Adalat No. 3, Dhaka and others (F.R.M. Nazmul Ahasan, J.) 393

HIGH COURT DIVISION (Original Jurisdiction) Ms. Zinat Ara, J.. and Mr. F.R.M. Nazmul Ahasan, J. Judgment 14.12.2011

}

Khaled Jamel Ahmed Adel and another ...Petitioners } Vs. Artha Rin Adalat No. } 3, Dhaka and others ...Opposite Parties

Constitution of Bangladesh, (V of 1908) Order XXXVIII, Rule 5 Artha Rin Adalat Ain (VIII of 2003) Section 12(3) It appears that the Dutch Bangla Bank Ltd. in compliance with the provisions of section 12 (3) of the Artha Rin Adalat Ain, 2003 published auction notice and the Bank requested the petitioner to execute the mortgage deed but the petitioner did not do the same . On the contrary the petitioner borrower was trying to transfer the schedule properties in order to defeat the decree that might be passed in the Artha Rin Adalat suit and hence the learned judge of the Artha Rin Adalat has rightly passed the impugned order for attachment of the scheduled properties before judgment under Order XXXVIII, Rule 5 of the Code. ...(16, 18 & 19) Mr. Moudud Ahmed with Mr. A.M. Mahbub Uddin, Advocates ....For the Petitioners .

Mr. Rokon Uddin Mahmud with Mr. Md. Ashraf Uddin Bhuiyan, Advocates ....For the Respondents.

Judgment F.R.M. Nazmul Ahasan, J: This Rule Nisi obtained under Article 102 of the Constitution of the People's Republic of Bangladesh calls upon the respondents to show cause as to why the impugned order dated 16.02.2010 passed by the respondent No. l, in Artha Rin Suit No. 89 of 2009), allowing the application for attachment before the judgment, filed (writ petition) should not be declared to have been passed without lawful authority and is of no

legal effect.

2.

The short facts relevant for disposal of this Rule are as under: The Respondent No. 2, Dutch Bangla Bank Limited (shortly, the Bank), as plaintiff, filed a Artha Rin Suit being No.89 of 2009 stating, inter alia, that during the course of business on 06.10.1997 the defendant No. l, Company opened an account being Current Account No. 10123004826 with the plaintiff Bank in the name of defendant No.l, Company "K & K Tops Textile Mills Ltd." for its business purposes. Subsequently, the said

account number has been renumbered as 0101110000004092; that thereafter, at the request of the defendant No. 1, Company Bank sanctioned a letter of Credit Limit of Tk.90.00 million for opening irrevocable letters of Credit for import of Raw Materials and loan against Trust Receipt for retiring documents under the Letters of Credit vide its Sanction Letter No. DBBL/ LO/CO/3.03.01/97 dated 21.08.1997 in favour of the defendant No.l Company; that the Bank renewed and enhanced the facilities from time to time; that thereafter, the Bank re-arranged the aforesaid facilities in the manner such as reduction of regular Letter of Credit limit from Tk.300.00 million to Tk.270.00 million and allowing free option for opening sight and nuance letter of credit, LTR sub limit, Encashment of FC FUND / Term Deposit that has been built up over the period for adjustment of LTR outstanding and conversion of remaining liabilities into a term loan amount of Tk. 108.77 for adjustment purpose within a period of 5 years on 31.03.2004 which was duly accepted by the defendant. The said credit facilities sanctioned in favour of the Company were secured by the securities/charge documents executed by the defendant Company. In addition to the charge documents the Company mortgaged its landed property by mortgaged deed No. 8385 dated 15.10.1997 along with a registered power of attorney being No. 8386 dated 15.10.1997 empowering the plaintiff to sell the mortgaged property. The defendant Nos. 2 and 3 created equitable mortgaged on their landed property as collateral security against the aforesaid credit facilities by way of depositing title deeds dated 02.02.2000 and 17.02.2004.

3.

*Writ Petition No. 2520 of 2010.

Thereafter, on 19.10.2009 the Bank filed an

394 Khaled Jamel Ahmed Adel and another Vs. Artha Rin Adalat No. 3, Dhaka and others (F.R.M. Nazmul Ahasan, J.) I LNJ (2012)

application under Order XXXVIII, Rule 5 read with Section 151 of the Code of Civil Procedure for attachment of the schedule property before judgment stating, inter alia, that the plaintiff Bank filed the Artha Rin Suit for recovery of an amount of Tk.42,64,85,629.13. At the time of creating equitable mortgage of the schedule properties the defendants on several occasions promised to execute registered mortgage deed. The plaintiff for the assistance of the business of the Company disbursed the Credit facilities relying on the promise of the defendants but they failed to fulfill their commitment. The plaintiff has reliably learnt that having knowledge of the filing of the suit, defendants are trying to transfer the property.

4.

Thereafter, on 05.01.2010 the defendant Nos.2 and 3 filed a written objection against the aforesaid application stating, inter alia, that the said properties have more value than the amount claimed by the plaintiff Bank. Besides that the plaintiff carried out valuation survey on the said properties by its own effort. But the plaintiff did not mention how the Bank calculated the said loan accounts, stating clearly the amount of the interest of each force loan created or letter of credit facility. Moreover, the total value of the said properties are about 100.00 crore as per the present market value.

5.

Thereafter, on 02.02.2010 the petitioners as defendant Nos. 2 and 3 filed a written statement stating, inter alia, that the claim of the Bank is wrongly calculated; that plaintiff Bank sanctioned only Tk. 9(nine) crore; that on several occasions the defendant No. 2 personally requested the plaintiff Bank through several letters to waive 100% interest from insertion of loan created and allowed time period of l(one) year to adjust the liabilities and the defendant No.l Company requested the Bank to adjust the loan by selling the defendants mortgaged property including the stock inside the building on 17.03.2008 and the defendant Nos.1-3 requested the Bank to arrange a meeting with a view to discuss and resolve the matter amicably but the petitioner did not response.

6.

On 16.02.2010, the learned Judge of the Artha Rin Adalat after hearing, allowed the application under Order XXXVIII, Rule 5 read with Section 151 of the Code of Civil Procedure and attached the scheduled properties.

7.

Thereafter, petitioner preferred this Writ Petition before this Court and obtained the present Rule Nisi.

8. & . Respondent No. 2 (Bank) contested the rule by filing an affidavit-in-opposition contending, inter alia, that the learned Judge of the Adalat after proper consideration of the application filed by the Bank allowed the application and passed an order of attachment of the schedule property. It is further contended that the petitioners have been given ample time to adjust the outstanding dues but the petitioners have not taken any positive steps even after repeated requests and appeals vide a series of letter from the respondent Bank and miserably failed to adjust the rest of the outstanding dues with the respondent Bank; thereafter, the Bank on 11.01.2009 published auction notice in "The Financial Express" and on 09.02.2009 published auction notice in the "Daily Prothom Alo", under section 12 of the Artha Rin Adalat Ain, 2003.

Since, there was no suitable participants, the mortgaged properties could not be sold; that the Bank has positive information that the Petitioner Barrower was trying to dispose of the schedule properties in order to defeat the decree which might be passed in the Artha Rin Suit and the learned Judge of the Adalat by his order dated 19.10.2009 issued show cause notice upon the defendant petitioners and, as such, the allegations made in the Writ Petition is not true that no show cause notice was served upon the petitioners; that the petitioners have preferred this Writ Petition only with a view to transfer of the schedule properties. As such, the Rule is liable to be discharged.

9.

Mr. Moudud Ahmed with Mr. A.M. Mahbub

I LNJ (2012) Khaled Jamel Ahmed Adel and another Vs. Artha Rin Adalat No. 3, Dhaka and others (F.R.M. Nazmul Ahasan, J.) 395

Uddin, the learned Advocate appearing on behalf of the petitioners submits, that the learned Judge of the Artha Rin Adalat without complying with the provision of order XXXVIII, rule 5 of the Code of Civil Procedure passed the impugned order for attachment of the schedule properties. He further submits that the Bank sanctioned the loan of Tk.9.00 (nine) crore only but the Bank filed the Artha Rin Suit claiming Tk.42,64,85,629.13 which is much more than three times of the principal amount and so, is a violation of Section 47 of the Artha Rin Adalat Ain, 2003. He next submits that the learned Judge of the Adalat passed the impugned order without issuing any show cause notice upon the defendant petitioner as to why he should not furnish security which is required under order XXXVIII, rule 5 of the Code of Civil Procedure and as such, the impugned order should be declared to have been passed without lawful authority and is of no legal effect. He next submits that the plaintiff Bank neither mentioned the particulars of the properties mentioned in the schedule including the value of the properties nor the learned Artha Rin Adalat directs the parties otherwise as per clause 2 of rule 5 under order XXXVIII of the Code of Civil Procedure and as such the impugned order should be declared to have been passed without lawful authority and is of no legal effect. Finally, he submits that some valuable landed properties with building thereon and equipments inside the building are on mortgaged in favour of the bank and a power of attorney was also executed and registered empowering the bank to sell the properties but the Bank without complying with Section 12 of the Ain filed the Artha Rin Suit. Thus, the impugned order dated 16.02.2010 passed by the learned Judge of the Artha Rin Adalat is liable to be declared to have been passed without lawful authority and is of no legal effect.

10. In reply, Mr. Rokon Uddin Mahmud, the learned Advocate for the respondent No.2 appearing with Mr. Md. Ashraf Uddin Bhuiyan,

has taken us through the affidavit in opposition and submits, that the petitioner borrower availed the loan facilities but despite repeated requests, remainders failed to repay the loan; that the Bank thereafter, requested the defendants to execute a mortgaged deed but the defendant petitioner without doing so tried to transfer the schedule properties and finding no other alternative Bank filed the Artha Rin Suit for recovery of the outstanding dues of Tk.42,64,85,629.13 and thereafter, filed an application for attachment of the schedule properties before judgment under order XXXVIII, rule 5 of the Code of Civil Procedure. He next submits that the petitioner obtained the Rule by suppressing material facts and making incorrect statement that Section 12 of the Artha Rin Adalat Ain was not complied with.

He further submits that in fact auction notice published on 11.01.2009 in the Financial Express and on 09.02.2009 in the daily Prothom Alo. He further submits that the learned Judge of the Artha Rin Adalat issued show cause notice upon the defendants and thereafter, on hearing the application filed by the bank passed the impugned order. He lastly submits that it is evident that the petitioner by suppressing the aforesaid facts and making false statement in the Writ Petition obtained the present Rule, which is liable to be discharged.

11. We have heard the learned Advocates for both the sides, perused the Writ Petition, the affidavit-in-opposition and the impugned order and other materials on record.

12. Admittedly, upon request of the petitioner, the Bank opened an Account with its principal Branch being Bank Account No. 10123004826 dated 06.10.1997 in the name of the petitioner company i.e. K & K Tops Textile Mills Limited.

Thereafter, at the request of the Bank, the petitioner disbursed and aggregate the loan facilities of Tk.34,08,19,287.95 only and enhanced and renewed the loan from time to time and the petitioner Company repaid Tk. 11,75,96,631.74

396 Khaled Jamel Ahmed Adel and another Vs. Artha Rin Adalat No. 3, Dhaka and others (F.R.M. Nazmul Ahasan, J.) I LNJ (2012)

out of their total outstanding liabilities of Tk.42,64,85,629.13; that the said credit facilities sanctioned in favour of the defendants No. l Company were secured by several charge documents.

defendant Nos. 2 and 3 failed to carry out the project and pay back the loan to the Bank on time.

13. In addition to the above mentioned charge documents, the defendant No. l mortgaged its landed property measuring 2.35 acres situated within District-Mymensingh, P.S and Sub-Registry Office-Valuka, Mouza-Kathali and 0.50 acres situated within District-Mymensingh, P.S and SubRegistry Office- Valuka, Mouza-Kathali along with building thereon and all machinery and equipments installed thereon by way of executing a mortgaged deed being No.8385 dated 15.10.1997 along with a registered power of attorney being No.8386 dated 15.10.1997 empowering the plaintiff Bank to sell the mortgaged properties in favour of the plaintiff Bank.

The defendant Nos.2 & 3 described in the plaint in the schedule-B(2) & B(3) of the schedule of the property as collateral security against the aforesaid credit facilities by way of executing a memorandum of deposit of title of deeds dated 02.02.2000 and 17.02.2004 and deposited the title deeds to the plaintiff Bank, when the defendants failed to repay the aforesaid outstanding loan facility; that the Bank on several occasions requested the defendants to execute a registered mortgaged deed of the schedule property mentioned in the schedule-B(2) & B(3) but the defendants failed to do so. Eventually, the suit was filed for recovery of loan.

16. It further appears from the annexures-2(A) and 2(B) to the affidavit-in-opposition that auction notice was published under Section 12(3) of the Artha Rin Adalat Ain, 2003 in the Financial Express on 11.01.2009 and in the daily Prothom Alo on 09.02.2009. Thus, the argument advanced by the learned Advocate for the petitioner that no auction notices was published and no step was taken under Section 12(3) of the Ain before filing of the Suit, is also not true.

14. In the Suit, Bank filed an application under order XXXVIII, rule 5 read with Section 151 of the Code of Civil Procedure for attachment of the schedule property before judgment. It appears from the order sheet annexed with the affidavit-inopposition that on 19.10.2009 the learned Judge of the Adalat issued show cause upon the defendant Nos.2 and 3 and thereafter, defendant Nos.2 and 3 filed written objection against the application filed by the Bank (annexure-C to the Writ Petition) stating that due to non-cooperation and negligence of the plaintiff Bank the defendant Nos.2 and 3 failed to get loan facilities from other Banks as all deeds of personal properties of the defendants in custody of the plaintiff Bank and as such the

15. Thus the submission of the learned Advocate for the petitioner that no show cause notice was served upon the petitioner is not true.

17. For proper appreciation, let us consider the impugned order which is quoted blow: 18. We have considered the findings of the learned Judge, it transpires that the Bank requested the petitioner to execute a mortgage deed but he did not do so; that the Bank had a positive apprehension that the petitioner-borrower was trying to transfer of the schedule properties in order to defeat the decree which might be passed in the Artha Rin Suit.

19. From the discussions made above and on consideration of the documents on record and the impugned order, we are of the opinion that the learned Judge of the Artha Rin Adalat after proper consideration of the cases of the respective parties and following the provisions of order XXXVIII, rule 5 of the Code of Civil Procedure, properly and lawfully passed the impugned order. Thus, we find no illegality in the impugned order passed by the learned Judge of the Adalat.

20.

Thus, the Rule has no merit.

21. In the result, the Rule is discharged without any order as to costs.

22. The order of stay granted earlier by this Court stands vacated. Communicate the order to the respondent No. 1 at once.

Ed.

386

Rupsha Fish and Allied Industries Ltd. Vs. The Premier Bank Limited and others (Farid Ahmed, J.)

HIGH COURT DIVISION (Civil Revisional Jurisdiction) Mr. Farid Ahmed, J.. } and Mr. Obaidul Hassan, J. } Judgment 17.08.2009

Rupsha Fish and Allied Industries Ltd. ...Petitioner Vs. The Premier Bank Limited and others ...Opposite Party.

Code of Civil Procedure (V of 1908) Order VIII, rule 10 Order IX, rule 13 Order XLIII, Rule 1(b) After rejecting the defendant’s application for adjournment the learned judge passed the exparte judgment. Neither the newly appointed lawyer then filed application for further adjournnment nor did he take part in the hearing nor did he retire from the suit. It was fixed on 06.02.2006 for filing written statement. In default the court will take ex-parte decision. No written statement was filed on the fixed date.

The Court passed the judgment for failure of the defendants to file the written statement which comes within the purview of Order VIII, rule 10 of the Code. An order passed under Order VIII, rule 10 of the Code is an appealable order under order XLIII, rule 1(b) of the Code. But in India the provision of appeal has been deleted.

The exparte judgment shows that the learned Judge rejected the defendants’ application for adjournment and thereafter took up the case for exparte hearing. It does not appear from the order that the newly appointed lawyer thereafter filed any application for further adjournment or that the learned Advocate intended to appear for taking part in the hearing of the suit. Even he did not retire from the suit. …(16) On 6.2.2006 was fixed for filing written statements, in default, for taking exparte decision on the suit. The defendants on that date also failed to file written statements. The learned court thereafter passed the judgment for failure of the defendants

*Civil Revision No. 2448 of 2006.

I LNJ (2012)

to file written statements. This judgment comes within the purview of Order 8 Rule 10 of the C.P.C. Order 8 Rule 10 of the Code of Civil Procedure reads as under : “ Where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.” …(17) The learned Advocate for the petitioner on the contrary has submitted that against an order passed under Order 8 Rule 10 of the C.P.C. is appealable under Order 43 Rule 1 (b) of the C.P.C but in India the provision of Rule 1(b) of Order 43 of the C.P.C has been deleted in 1976 by an amendment and there is no provision in the Indian C.P.C for filing an appeal against the order passed under Order 8 rule 10 of the C.P.C . So, in all the aforesaid cases referred on behalf of opposite party it was held that Order 9 Rule 13 of the Code of Civil Procedure is entertainable against an order passed under Order 8 Rule 10 of the C.P.C . But in our C.P.C the provision of Rule 1(b) of Order 43 of the C.P.C has not been amended. According to our C.P.C Rule 1 (b) of Order 43 is the specific provision for filing an appeal against an order passed under Order 8 Rule 10 of the C.P.C if the defendant fails to present the written statements on the date fixed by the Court. The learned Advocate for the petitioner has referred the case of Gopi Charan Bajpai and others Vs. Ramprashad Awasthi and others reported in AIR 1957 (Allahbad) 283. The case was decided before amendment of the C.P.C. in India and it has been held that an order passed under Order 8 Rule 10 of the C.P.C is an appealable order and appeal lies under the provision of Order 43 Rule 1(b) of the C.P.C. Before amendment of C.P.C in India the provision of Order 43 Rule 1(b) was the procedure for filing an appeal against an order passed under order 8 Rule 10 of the C.P.C. But after amendment the provision of appeal has been deleted in India. In the case of M/S. M. Manick Peter and others Vs. K. Surendranathan reported in AIR 1988 Kerala 161 it has been held:

I LNJ (2012) Rupsha Fish and Allied Industries Ltd. Vs. The Premier Bank Limited and others (Farid Ahmed, J.)

..........” A right of appeal provided Under Order 43 Rule 1 (b) was taken away by deletion of sub clause (b). The decree passed in the present case is in conformity with the requirements of Order 8 Rule 10 as amended in 1976. For the absence of the defendnats and their Counsel, it is also a decree exparte. Order 9 Rule 13 C.P.C. enable the defendants to apply to the court to set aside an exparte decree against him”..... .....(20) Code of Civil Procedure (V of 1908) Order VIII, rule 10 Order IX, rule 13 Order XLIII, Rule 1(b) From the impugned order it appears that the learned Joint District Judge refused to reject the miscellaneous case on referring the amended provision of Rule 13 A of Order 9 of the C.P.C. The new provision of Rule 13A of order 9 has been brought in the C.P.C. to avoid delay and expedite disposal in setting aside the exparte decree with cost without requiring the defendant to adduce evidence if an application for setting aside decree is filed within thirty days from the date of decree.

But in the present case, the defendant was very much before the Court. He took four adjournments for filing written statements but ultimately they failed to file the same and the Court passed the ex-parte judgment which comes within the meaning of Order 8 Rule 10 of the Code of Civil Procedure and the same was appealable under the provision of Order 43 rule 1(b) of the Code of Civil Procedure. So, the learned Joint District Judge was not justified in rejecting the petitioner’s prayer for rejecting the miscellanyeous case as being not entertainable. ...(26) Damodar Das Vs. Raj Kumar Das , AIR 1922 (Patna) 485; Bothra and others Vs. Kedar Nath Bothra and others, A.I.R. 1938 (Calcutta) 74; Md. Nurul Haque Vs. Sonali Bank of Bangladesh and another, 39 DLR 223; Narendra Patra Vs. Shiba Narayan Taldi and another, A.I.R. 1995 Orissa 45; Innovation Apartments Flat Owners Association, Secundrabad Vs. M/S. Innovation Associates, Secundrabad, AIR 1991 Andhra Pradesh 69; N. Jayaraman Vs. M/S. Glaxo Laboratories India

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Ltd., AIR 1981 Madras 258; M/S. Kuvarp industries Bangalore Vs. State Bank of Mysore, AIR 1985 (Kant) 77; M.S. Manick Peter and others Vs. K. Surendra Nathan, AIR 1988 Kerala 161; Most.

Hakumat Bibi Vs. Imam Din and others, PLD 1987 (S.C.)-22 ref.

Mr. Abdul Quayum with Mr. Probir Halder and Mr. Swarup Kanti Deb ....For the Petitioner .

Mr. Ajmalul Hossain QC with Mr. A.B.M. Siddiqur Rahman Khan and Mr. Affan Ahmed Siddiq ....For the Opposite Parties.

Judgment Farid Ahmed, J: This rule was issued calling upon the opposite parties to show cause as to why the impugned order No. 20 dated 3.7.2006 passed by the learned Joint District Judge, 1st Court, Khulna in entertainning the Miscellaneous Case No. 24 of 2006 under Order 9 Rule 13 should not be set aside and or such other or further order or orders passed as to this Court may seem fit and proper.

2.

The petitioner on 1.8.2005 instituted Money Suit No. 6 of 2005 before the 1st Court of Joint District Judge, Khulna agaisnt the opposite parties for a decree for Tk. 53,97,3,000/- as compensation for damage and for mandatory injunction directing the defendant-opposite parties to handover key of chamber of the factory and to restrain them from interfering to the running of the business of the plaintiff-petitioner namely ‘Rupsha Fish and Allied Industries’.

3.

The learned court by order dated 11.9.2005 fixed up 18.10.2005 for filing written statements and thereafter consecutively on 4 dates the defendant-opposite parties failed to file written statements. The learned Joint District Judge by order No. 12 dated 22.1.2006 as last chance allowed time and fixed up 6.2.2006 for filing written statements with a cost of Tk. 700/-, in default, for exparte hearing and decision. On 6.2.2006 the defendants appointed a new lawyer and again filed an application for 15 days

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Rupsha Fish and Allied Industries Ltd. Vs. The Premier Bank Limited and others (Farid Ahmed, J.)

adjournment to file written statements. The Court rejected the prayer for adjournment and took up the case for exparte hearing and decreed the suit exparte.

4.

Against the said exparte decree the defendant opposite parties have filed a case being Miscellaneous Case No. 24 of 2006 under Order 9 Rule 13 of the Code of Civil Procedure stating that defendant-opposite parties could not prepare the written statements as the Head Office of the Bank did not supply the necessary facts and documents in support of their case and that they engaged a new Advocate but he could not prepare the written statements and as such prayed for time, the learned Court rejected the prayer for time and passed the exparte decree. In the miscellaneous case the petitioner filed an application stating that the impugned exparte order was passed under Order 8 Rule 10 of the code of Civil Procedure which is appealable, so, the miscellaneous petition under Order 9 Rule 13 of the Code of Civil Procedure is not maintainable.

5.

The learned Joint District Judge by order No. 20 dated 3.7.2006 rejected the application for rejection of the miscellaneous case on the finding that in order to avoid delay and for expeditious disposal of the case the provision of Rule 13 (A) of Order 9 has been inserted in the Code of Civil Procedure.

6.

Being aggrieved thereby, the petitioner moved this court and obtained the present Rule.

7.

The defendant-opposite parties have filed a counter affidavit controverting the statements made in the revisional application and stated that in their miscellaneous case they stated that for bonafide reason they failed to file written statements within the time granted by the Court and that as per provision of Rule 13A of Order 9 of the Civil Procedure Code, to ensure the expeditious hearing of the case the learned court rejected the petitioner’s application for rejection of the miscellaneous case and that the said miscellaneous case is maintainable.

8.

Mr. Abdul Quayum with Mr. Probir Halder, learned Advocates appearing on behalf of

I LNJ (2012)

petitioner-company have submitted that the exparte order was passed as per provision of Order 8 Rule 10 which is appealable under Order 43 Rule 1(b) of the Code of Civil Procedure and as such the miscellaneous case is not maintainable.

Mr. Probir Halder thereafter has submitted that petitioner took specific ground that an appeal lies against the order passed under Order 8 Rule 10 of the Code of Civil Procedure and the learned Judge quoted the submission of the petitioner in his judgment but without considering the said provision of law illegally rejected the petitioner’s application for rejection of the miscellaneous case.

9.

Mr. Ajmalul Hossain, learned Senior Counsel appearing with Mr. A.B.M. Siddiqur Rahman Khan and Mr. Mamun Chowdhury learned Advocates have submitted that the order passed by the Joint District Judge in the money suit is an exparte decree within the meaning of Order 9 Rule 6 of the C.P.C and as such an application under Order 9 Rule 13 of the C.P.C is attracted. Mr. Ajmalul Hossain thereafter has submitted that the judgment passed in the money suit deemed to be a decree under Order 17 Rule 2 of the C.P.C and the remedy lies under Order 9 Rule 13 of the C.P.C. He further has submitted that 1st part of the Order 9 Rule 13 of the C.P.C defines that in case of every exparte decree an application under Order 9 Rule 13 is maintainable and the present miscellaneous case being an application against the exparte decree under the 2nd limb of the Order 8 Rule 10 the proper forum is an application under Order 9 Rule 13 of the C.P.C. He lastly has submitted that the exparte judgment passed in the Money suit being not a judgment within the meaning of Section 2 (9) and Order 20 Rule 4 of the C.P.C the application under Order 9 Rule 13 is entertainable.

10. Certified copy of the entire order sheet of the Money Suit No. 6 of 2005 have been annexed with the revisional application as Annexure-B. From order No. 12 dated 22.1.2006 it appears that previously on 4 occasions adjournment were allowed for filing written statements but the defendant did not file any written statements. The Court by that order again granted adjournment for

I LNJ (2012) Rupsha Fish and Allied Industries Ltd. Vs. The Premier Bank Limited and others (Farid Ahmed, J.)

the last time and fixed up 6.2.2006 for filing written statements with a cost of Tk. 700/-, in default, fixed for exparte disposal and decision of the case. The defendants without filing any written statements and without depositing the cost money filed an application for time to file written statements. This application was filed by a new lawyer who stated that the previous lawyer of the defendants retired from the case. The defendants then and there deposited the cost amount and made a prayer for adjournment. The learned Court rejected the said prayer and took up the case for exparte hearing and disposed of the case by an exparte judgment.

11. The learned Advocate for the opposite party has submitted that the exparte decree was passed in absence of the learned Advocate and that the learned court debarred him from appearing in the case. So, the miscellaneous case under order 9 Rule 13 of the C.P.C is maintainable . In support of his submission he referred three decisions.

12. In the case of Damodar Das Vs. Raj Kumar Das reported in AIR 1922 (Patna) 485 the suit was decreed exparte on 20.9.1919. The defendant applied Under Order 9 Rule 13 of the C.P.C to have the decree set aside. The High Court found that the trial took place on the 11th, 12th and 13th August, 1919 and on the 11th the defendants pleader appeared and asked for an adjournment which was refused. He renewed the application on the following day stating that he had no instruction from his client to cross-examine the plaintiff whose evidence had been taken on the 11th . His application was again refused.

13. In the case of Bothra and others Vs. Kedar Nath Bothra and others reported in A.I.R. 1938 (Calcutta) 74 the plaintiffs in the suit at a late stage applied for the issue of a commission. The learned Counsel for the plaintiffs, when the suit was called on, applied for an adjournment, in order that he might be in a position to tender the commission evidence after the commission had been executed.

The court rejected the application. Thereupon Counsel stated that he was not in a position to proceed. The suit was accordingly dismissed. It has been held that if the plaintiff’s counsel

389

confines himself to asking for an adjournment and when it is refused, retires from the case and states that he has no further instruction in that case it cannot be said that in presence of the plaintiff decree was passed.

14. In the case of Md. Nurul Haque Vs. Sonali Bank of Bangladesh and another reported in 39 DLR 223 their Lordships held : ...........” It is apparent that after rejection of the prayer for adjournment when the suit was called on for hearing the plaintiff did not appear within the meaning of Order 9 Rule 8 read with Order 17 Rule 2 of the C.P.C and the learned Subordinate Judge dismissed the suit for default”........

15. In all the aforesaid cases there was an application for adjournment which was rejected by the court. The learned Advocate thereafter withdrew him from the suit and intimated the court that he has no further instruction from his client .

So, it was held that the suit was disposed of in absence of the Advocate and miscellaneous case under order 9 Rule 13 were entertained.

16. The exparte judgment shows that the learned Judge rejected the defendants’ application for adjournment and thereafter took up the case for exparte hearing. It does not appear from the order that the newly appointed lawyer thereafter filed any application for further adjournment or that the learned Advocate intended to appear for taking part in the hearing of the suit. Even he did not retire from the suit.

17. On 6.2.2006 was fixed for filing written statements, in default, for taking exparte decision on the suit. The defendants on that date also failed to file written statements. The learned court thereafter passed the judgment for failure of the defendants to file written statements. This judgment comes within the purview of Order 8 Rule 10 of the C.P.C. Order 8 Rule 10 of the Code of Civil Procedure reads as under: “ Where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce

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Rupsha Fish and Allied Industries Ltd. Vs. The Premier Bank Limited and others (Farid Ahmed, J.)

judgment against him, or make such order in relation to the suit as it thinks fit.”

18. So, the order passed by the Court clearly comes within the perview of Order 8 Rule 10 of the C.P.C. An order passed under Order 8 Rule 10 of the C.P.C. is an appealable order under the provision of Order 43 Rule 1(b) of the C.P.C. The provision of Order 43 Rule 1(b) of the C.P.C reads as under : “ 1. An appeal shall lie from the following orders under the provisions of section 104, namely:(a) .............................. (b). an order under Rule 10 of Order 8 pronouncing judgment against a party.”

19. According to learned Advocate for the opposite party the impugned judgment having been passed under the provision of Order 17 Rule 2 of the Code of Civil Procedure the application under Order 9 Rule 13 is maintainable and that the exparte judgment passed in money suit can be considered as an order under the second limb of Rule 10 of Order 8 of the Code of Civil Procedure.

In case of failure to file written statement the court can take two courses: (1) pass an exparte judgment and (2) can make such order in relation to the suit as it thinks fit. In support of his submission he relied on the cases of Narendra Patra Vs. Shiba Narayan Taldi and another reported in A.I.R. 1995 Orissa 45, Innovation Apartments Flat Owners Association, Secundrabad Vs. M/S. Innovation Associates, Secundrabad reported in AIR 1991 Andhra Pradesh 69, N. Jayaraman Vs. M/S. Glaxo Laboratories India Ltd. reported in AIR 1981 Madras 258, M/S. Kuvarp industries Bangalore Vs. State Bank of Mysore reported in AIR 1985 (Kant) 77 and the case of M.S. Manick Peter and others Vs. K. Surendra nathan reported in AIR 1988 Kerala 161. In all these cases it has been decided that an order passed under Order 8 Rule 10 of the Code of Civil Procedure can be challenged by an application under Order 9 Rule 13 of the Code of Civil Procedure.

20. The learned Advocate for the petitioner on the contrary has submitted that against an order

I LNJ (2012)

passed under Order 8 Rule 10 of the C.P.C. is appealable under Order 43 Rule 1 (b) of the C.P.C but in India the provision of Rule 1(b) of Order 43 of the C.P.C has been deleted in 1976 by an amendment and there is no provision in the Indian C.P.C for filing an appeal against the order passed under Order 8 rule 10 of the C.P.C . So, in all the aforesaid cases referred on behalf of opposite party it was held that Order 9 Rule 13 of the Code of Civil Procedure is entertainable against an order passed under Order 8 Rule 10 of the C.P.C . But in our C.P.C the provision of Rule 1(b) of Order 43 of the C.P.C has not been amended. According to our C.P.C Rule 1 (b) of Order 43 is the specific provision for filing an appeal against an order passed under Order 8 Rule 10 of the C.P.C if the defendant fails to present the written statements on the date fixed by the Court. The learned Advocate for the petitioner has referred the case of Gopi Charan Bajpai and others Vs. Ramprashad Awasthi and others reported in AIR 1957 (Allahbad) 283. The case was decided before amendment of the C.P.C. in India and it has been held that an order passed under Order 8 Rule 10 of the C.P.C is an appealable order and appeal lies under the provision of Order 43 Rule 1(b) of the C.P.C. Before amendment of C.P.C in India the provision of Order 43 Rule 1(b) was the procedure for filing an appeal against an order passed under order 8 Rule 10 of the C.P.C. But after amendment the provision of appeal has been deleted in India.

In the case of M/S. M. Manick Peter and others Vs. K. Surendranathan reported in AIR 1988 Kerala 161 it has been held : ..........” A right of appeal provided Under Order 43 Rule 1 (b) was taken away by deletion of sub clause (b). The decree passed in the present case is in conformity with the requirements of Order 8 Rule 10 as amended in 1976. For the absence of the defendnats and their Counsel, it is also a decree exparte. Order 9 Rule 13 C.P.C. enable the defendants to apply to the court to set aside an exparte decree against him”...............

21. Mr. Probir Halder also referred the case of Most. Hakumat Bibi Vs. Imam Din and others reported in PLD 1987 (S.C.)-22. In that case

I LNJ (2012) Rupsha Fish and Allied Industries Ltd. Vs. The Premier Bank Limited and others (Farid Ahmed, J.)

exparte decree was passed for not filing the written statements on the date fixed by the Court. An appeal was filed against that order under the provision of Order 43 Rule 1(b) of the Code of Civil Procedure. In Pakistan the provision of Order 43 Rule 1(b) neither has been amended nor deleted. The provision of appeal Under Order 43 Rule 1(b) against an order passed Under Order 8 Rule 10 still is present in Pakistan like Bangladesh.

22. It has been argued on behalf of opposite parties that the exparte judgment passed by the lower Court is not a judgment as defined in Section 2(9) read with Order 20 Rule 4(2) of the Code of Civil Procedure as the learned Court did not consider the case of the parties, the documents and the evidence cited by the plaintiff-petitioner in support of his case. In the case in hand the Court passed a short judgment disposing the suit in favour of plaintiff and did not at all consider the facts of the case and a decree was drawn. As per provision of Rule 10 of Order 8 the Court had two options open to it to deal with the situation arising out of the failure of the opposite party to file written statements despite they having been allowed several opportunity to do so. One of the options was to decide the suit forthwith, (ii) to make such order in relation to the suit as it thought fit. As per the provision of Order 8 Rule 10 the court can pass a judgment if the defendant fails to file written statements on the date fixed by the Court. In the present case the judgment passed by the Court is an order and the Court was not required to draw a decree in support of the said judgment. In this point we get support from the case referred by the learned Advocate for the petitioner in the case of Sarder Sakhwat Ud-Din and others Vs. Muhammad Iqbal and others reported in PLD 1983 (Lahore)-448. In that case it was held that “ after making the impugned order the learned Senior Civil Judge had drawn up a decree sheet as well. It was perhaps through inadvertence that the decree sheet was prepared because, as held above the order passed by him was an order and not a decree. The mere fact that he had erroneously drawn up the decree sheet would not change the true character of the order under review. In that case the case of the provice

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of Punjab and others ruled by the Pakistan S.C. was considered and wherein it was held : “...... an order pronouncing the judgment against the defendants for failure to file written statements is an appealable order but not a decree. The use of the ward “Judgment” in Rule 10 of Order 8 of the Code of Civil Procedure is of little avail to the respondents because according to the definition of the “judgment” as given in clause 9 of section 2 of the above code a decree as well as an order is a judgment. It is therefore, not correct to say that only that adjudication of the court which is followed by a decree is a judgment and that any other adjudication, though appealable, is not a judgment” .............

23. The Court has drawn up a decree in terms of the judgment but the same was not necessary and for drawing up such decree it cannot be said that it is a decree within the meaning of section 2 (9) of the C.P.C and the judgment comes within the perview of Order 9 Rule 6 of the Code of Civil Procedure and against the said judgment the miscellaneous case under Order 9 Rule 13 of the Code of Civil Procedure is maintainable.

24. Referring the 1st part of the Order 9 Rule 13 of the Code of Civil Procedure the learned Advocate for the opposite party has submitted that in any case in which an exparte decree is passed against a defendant, he may apply to the court for setting aside the exparte decree by an application Under Order 9 Rule 19 of the C.P.C. In support of his submission he referred the case of Innovation Apartments Flat Owners Associat-ion, Secundrabad Vs. M/S. Innovation Associates Secundrabad reported in AIR 1991 (Andhra Pradesh) 69. From plain reading of the entire provision of rule 13 of order 9 it appears to us that if the Court is satisfied that the summons was not duly served upon the defendant or that he was prevented by sufficient cause from appearing at the hearing, the court can set aside an exparte decree. Specific provision has been made for preferring an appeal under Order 43 Rule 1(b) of

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Rupsha Fish and Allied Industries Ltd. Vs. The Premier Bank Limited and others (Farid Ahmed, J.)

the CPC when an order is passed under Order 8 Rule 10 of the CPC and an application Under Order 9 Rule 13 will not be entertainable in the garb of “ in any case” mentioned in the provision of Order 9 Rule 13 of the C.P.C. Moreover, the decision referred in AIR 1991 (Andhra Pradesh) 69 was passed on 30.8.1990 when the Indian C.P.C. was amended in 1976 and Rule 1 (b) of Order 43 was deleted. ‘In any case’ mentioned in rule 13 of order 9 of the Code of Civil Procedure can only be entertained when it is found is that the summons of the suit was not properly served or that the defendant was prevented by sufficient cause in appearing on the date of hearing of the suit.

25. By amending Rule 1 of Order 8 of the C.P.C. provision has been made to file written statement within the time not exceeding two months from the 1st date of hearing. But before amendment there was no specific time limit in the CPC for filing written statement. Before amendment it was in the discretion of the Court to allow time to the defendant to file written statement but after amendment the written statement is required to be filed before the first hearing or within 2 months.

The defendants on 11.9.2005, 18.10.2005,24.11.2005 and 22.1.2006 took four adjournments for filing written statements and the court by order No. 12 dated 22.1.2006 allowed time with a cost of Tk. 700.00 and directed the defendant to file written statement on 6.2.2006 with a direction that the suit would be taken up for exparte decision in case of failure of the defendant to file written statement on that date. On the fixed date on 6.2.2006 the defendant appointed a new lawyer who again prayed for time to file written statement. On the previous date they were allowed time to file written statements with cost even then on the next date without filing any written statement they again prayed for adjournment.The defendants had the opportunity to avoid exparte judgment by filing a written statement with some facts and thereafter they could file additional written statement but the defendant without filing written statements prayed for adjournment, so, the Court did not allow time and proceeded with the exparte hearing. It does not appear from the order

I LNJ (2012)

sheet that the learned Advocate thereafter prayed for any adjournment or that he retired from the case. When the Court proceeded for hearing of the case exparte the learned Advocate for the defendant-opposite party was present in Court but did not take any step. It has been urged that the learned Advocate for the defendant was debarred from appearing in the suit when the same was taken up for hearing but there is no evidence before us to show that learned Advocate of the defendant was not allowed to appear in the suit.

26. From the impugned order it appears that the learned Joint District Judge refused to reject the miscellaneous case on referring the amended provision of Rule 13 A of Order 9 of the C.P.C. The new provision of Rule 13A of order 9 has been brought in the C.P.C. to avoid delay and expedite disposal in setting aside the exparte decree with cost without requiring the defendant to adduce evidence if an application for setting aside decree is filed within thirty days from the date of decree. But in the present case, the defendant was very much before the Court. He took four adjournments for filing written statements but ultimately they failed to file the same and the Court passed the exparte judgment which comes within the meaning of Order 8 Rule 10 of the Code of Civil Procedure and the same was appealable under the provision of Order 43 Rule 1(b) of the Code of Civil Procedure. So, the learned Joint District Judge was not justified in rejecting the petitioner’s prayer for rejecting the miscellaneous case as being not entertainable. We find substance in the Rule.

In the result, the Rule is made absolute without any order as to cost. The impugned order No. 20 dated 3.7.2006 is set aside. The miscellaneous case No. 24 of 2006 of the 1st Court of joint District Judge, Khulna is rejected as being not maintainable. The defendant opposite parties have the opportunity to prefer an appeal as per provision of law.

Ed.

I LNJ (2012)

Startus Construction Company Vs Government of Bangladesh (Zubayer Rahman Chowdhury, J.)

HIGH COURT DIVISION (ORIGINAL STATUTORY JURISDICTION) Mr. Zubayer Rahman Chowdhury, J.

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Judgment 01.06.2010.

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Startus Construction Company .…. Petitioner VS Roads and Highways Department, Ministry of Communication, Government of Bangladesh … Respondent & Roads and Highways Department, Ministry of Communication, Government of Bangladesh.

- - -Petitioner VS Startus Construction Company . . . Respondent

Dr. Kamal Hossain, Senior Advocate with Mr. Ashraful Hadi, Advocate with Mr. Tanim Hussain Shawon, Advocate … For the petitioner Mr. A.F. Hassan Arriff, Senior Advocate with Ms. Khaleda Zaman, Advocate with Mr. Md. Ashik Al Jalil, Advocate with Ms. Ruhi Naz, Advocate ….. For the respondent Mr. A.F. Hassan Arriff, Senior Advocate with Ms. Khaleda Zaman, Advocate with Mr. Md. Ashik Al Jalil, Advocate with Ms. Ruhi Naz, Advocate . . . For the petitioner Dr. Kamal Hossain, Senior Advocate with Mr. Ashraful Hadi, Advocate with Mr. Tanim Hussain Shawon, Advocate … For the respondent Arbitration Act (I of 2001) Section 42 (2) and 43 (1) (a) (IV) It appears that no counter claim was filed by the Department concerned. The Arbitral Tribunal travelled beyond its jurisdiction in entertaining and deciding issues which had not been referred to by the contending sides. It would become difficult, if not impossible to sever the determinable issues from the non determinable issues referred to the Tribunal from the final Award which is not before * Arbitration Application No. 02 of 2004 with Arbitration Application No. 03 of 2004.

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the Court. The impugned order including the modified order are set aside.

From the observation quoted above, it appears that no counter claim was filed by the Roads and Highways Department, but the Tribunal nevertheless proceeded to make an Award in their favour which was beyond their terms of reference. It is also admitted by Mr. Hassan Ariff, learned Advocate appearing on behalf of the Roads and Highways Department that only three disputes were referred to the Tribunal and upon commencement of the proceeding, the Tribunal framed as many as seven issues, as has been quoted earlier in this judgment. However, from a reading of the same, it does not appear that it relates to any counter claim filed by the Department. ...(25) It also appears that certain issues, which were not referred to the Tribunal, were taken up and decided by the Tribunal on its own accord. In my view, it would be reasonable to infer that in such circumstances, the Tribunal had indeed acted beyond its jurisdiction. The Tribunal exceeded its jurisdiction by abrogating to itself issues which were not referred to it by the contending sides. The issues relating to, advance, cost of bitumen, retention of advance money, advance income tax are some of the issues which, admittedly, were not referred to the Tribunal, but upon which the Tribunal made a pronouncement and gave an Award in favour of the Department. ...(26) Having regard to the statements made in the application before this Court, the relevant provision of law, the submissions advanced by the learned Advocate for the contending sides and last, but not least, having considered the decisions referred to above, with which I find myself in total and respectful agreement, I am inclined to hold that the Arbitral Tribunal travelled beyond its jurisdiction by entertaining and deciding issues which had not been referred to by the contending sides and the impugned order is liable to be set aside. . . .(34) Varat Cooking Coal Limited, 200 C 8 SCC 154; West Bengal Industrial Infra-Strictire Development Corporation v. M/s. Star Engineering Co., AIR 1987 Calcutta 126; Chetandas and others v. Radhakrisson Ramchandra and others, AIR 1927 Bombay 553; Bengal Jute Mills vs. Jewraj Heeralal, reported in AIR 1943 Calcutta 13 ref.

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Judgment Mr. Justice Zubayer Rahman Chowdhury Arbitration Application No. 02 of 2004 relates to an application for setting aside an arbitration Award under section 42(2) and section 43 of the Arbitration Act, 2001 at the instance of Startus Construction company, a company incorporated in Iran and having its local office Apartment- 5A, House No. 15, Road no. 17, Sector No. 7, Uttara Model Town, Dhaka 1230, Bangladesh. The application is being opposed by the sole respondent, namely Roads and Highways Department, Ministry of Communications, Government of People’s Republic of Bangladesh, Sarak Bhavan, Dhaka, Bangladesh.

2.

Arbitration Application No. 03 of 2004 filed under section 42(2) read with section 43(1)(a)(iv) of the Arbitration Act, 2001, is at the instance of Roads and Highways Department, Ministry of Communication, Government of the People’s Republic of Bangladesh, Sarak Bhaban, Ramna, Dhaka for setting aside portion of the Award dated 13.05.2004 (as modified by Award dated 23.06.2004) passed by the Arbitration Tribunal in an arbitration proceeding between the petitioner and the respondent/oppositeparty. The aforesaid application is being opposed by Startus Construction Company, the petitioner of Arbitration Application 2 of 2004.

3.

Since both the applications arise out of the Award dated 13.05.2004 (as modified by order dated 23.06.2004) passed by the Tribunal, Dhaka in an arbitration proceeding between Startus Construction (claimant) and Roads and Highways, Government of People’s Republic of Bangladesh and furthermore, since both the petitioner and the respondent in the aforesaid two Arbitration Applications are the same, both the applications were taken up and heard simultaneously and they will be disposed of by this single judgment.

4.

A brief summary of the relevant facts is required to be stated for the purpose of disposal of the two applications before this Court.

Startus Construction Company (hereinafter referred to as the company) entered into a contract with the Roads and Highways, Government of People’s Republic of Bangladesh (hereinafter referred to as the Department) for construction/rehabilitation of roads and highways between Joydebpur and Kaliakair measuring approximately 26.60 km. After completion of necessary formalities, the company

5.

commenced work under the contract and duly completed part of the work upto 5 km. However, while undertaking the work in the first 5 km of the project, the company faced certain obstacles with regard to underground gas pipe lines and requested the Department to take necessary steps for removal of the gas pipe lines in order to enable the company to undertake and complete the project work without any hindrance.

Despite assurance from the respondents, the matter was not resolved and at one stage, the project work was suspended. The parties engaged in discussion and exchange of correspondences, which also invoved various other Ministry/Departments of the Government.

6.

Ultimately, since there was no further progress in the matter which had comes to a standstill, the company issued a notice dated 14.08.2001 determining the contract and claiming compensation as well as requesting for return of the Bank Guarantee which was furnished earlier. Subsequently, the company also served a notice of Arbitration on 20.08.2001. On the other hand, the Department by its letter dated 16.08.2001, approved various orders and voluntarily extended the contract period upto 06.05.2002, but three days later, it terminated the contract by letter dated 19.08.2001.

7.

The dispute between the parties was referred to a three members Arbitration Tribunal comprising of Mr. Justice Sultan Hossain Khan as Chairman and Mr. Justice M.A. Karim and Mr. Justice M.M. Hoque as members of the Tribunal. The Department duly entered appearance and participated in the arbitration proceeding.

8.

Upon commencement of the arbitration proceeding, the Tribunal framed the following issues “(1)

Has the Employer committed breach of contract in not removing the gas pipeline and thus prevented SCC from performing the latter’s promise?

(2)

Has the Claimant sustained any loss in consequence of its non-performance of the contract ? If so, what compensation it is entitled to?

(3)

Is the certification of default of the Contractor issued by the Engineer baseless and illegal?

(4)

Is the contract liable to be terminated at the instance of SCC in view of Section 53 of the Contract Act ?

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Startus Construction Company Vs Government of Bangladesh (Zubayer Rahman Chowdhury, J.)

(5)

Has the termination of the contract by the Employer been legal and valid ?

(6)

Has the valuation of the variations by the engineer been legal and valid?

(7)

Is the Claimant entitled to get the Award as prayed for including the additional claim against bitumen and cost of the proceeding ?”

9.

Both sides filed written statements, replies, additional and further statements and replies thereto, documents and other related papers. The Tribunal also examined witnesses.

10. Upon conclusion of the arbitration proceeding, the Tribunal, by order dated 13.05.2004, dismissed the claim of the company and made a Award of Tk. 6,25,46,127.66 (Taka Six Crore Twenty Five Lac Forty Six Thousand One Hundred and Twenty Severn and Paisa Sixty Six) only in favour of the Roads and Highways Department. The Tribunal also ordered the release of the Bank Guarantee in favour of the company.

11. Subsequent thereto, upon an application filed by the company for correction of the Award dated 13.05.2004. Consequently, the Tribunal, by order dated 23.06.2004, allowed the application and corrected the Award by reducing the Award amount to Tk. 3,29,82,629.56 (Taka three corer twenty nine lac eighty two thousand six hundred twenty nine and pais fifty six) in favour of the Department. Being aggrieved by the aforesaid Award dated 13.05.2004 (as amended by order dated 23.06.2004), the company filed Arbitration Application No. 2 of 2004 praying for setting aside the award.

12. At the same time, the Roads and Highways Department, as petitioner, also preferred Arbitration Application No. 03 of 2004 praying for correction of the Award by setting aside a part of the Award darted 13.05.2004 (as amended by order dated 23.06.2004), in particular, paragraph 18.6, 18.7, 18.8, 18.9, 22, 24, 25.4 26 and 27 of the Award under section 42 (2) read with section 43 (i)(a)(iv) of the Act and also for passing a corrected Award in terms of prayers A to E of paragraph 7 of the application.

13. At the very outset, this Court takes note of the fact that the pleading and documents annexed in the two arbitration applications runs into hundred, if not thousands of pages. In fact, the related documents had to be brought into the Court in a trunk, which at first sight, made the Court slightly apprehensive. However,

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having gone through most of the documents and papers, this Court was remind of an age old Bangla saying ÒhZ M‡R© ZZ e‡l© bv|Ó 14. Dr. Kamal Hossain, learned Senior Advocate appears for the Startus Construction Company in Arbitration Application No. 2 of 2004, while Mr. A.F. Hassan Ariff, Senior Advocate appears with Mr. Md. Ashik Al Jalil in support of the Arbitration Application No. 3 of 2004.

15. During the course of his submission, Dr. Kamal Hossain has challenged the Award primarily on the issue of jurisdiction. Dr. Hossain submitted emphatically that although the respondents in the Arbitration proceeding i.e. the Roads and Highways Department did not make any counter claim before the Tribunal, the Tribunal, on its own volition, made an Award in favour of the Department upon rejecting the claim of the claimant. Dr. Hossain refers to the issues framed at the commencement the arbitration proceeding and submits categorically that no such issue relating to any counter claim was filed by the Department and therefore, in the absence of any claim in that respect, the Award made by the Tribunal allowing counter claim under several heads in favour of the Department is quiet clearly an Award which is beyond the jurisdiction of the Tribunal.

16. Dr. Hossain has also argued with some considerable force on the merit of the Award itself.

However, I do not wish to enter into the merit of the Award for reasons that I shall state at a subsequent stage of this judgment.

17. Dr. Hossain has also referred to two expert’s opinions, which were framed before the Tribunal by the claimant company given by one Engineer A.B.M. Fazley Elahi, former Managing Director, Rupantorito Pakritik Gas Limited RPGL, Petro Bangla and former General Manager, Tital Gas Transmission and Distribution Company Limited as well as the evidence of one Mr. Md. Mobarak Ali, former Chief Instructor of Explosives, Government of Bangladesh. Dr. Hossain has argued that the Tribunal erred and misconducted itself in not considering these two vital pieces of evidence upon which the claimant company had placed considerable reliance. Therefore, according to Dr. Hossain, the impugned Award in question is liable to be set aside, having been passed without jurisdiction and also because of the failure of the Tribunal to consider material evidence which was placed before the Tribunal.

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18. Mr. A.F. Hassan Ariff, learned Senior Advocate appearing for the respondent in Arbitration Application No. 02 of 2004 and for the petitioner in Arbitration Application No. 3 of 2004 submits that the impugned Award does not call for any interference from this Court save and except to the extent to which it relates to issues not submitted before the Tribunal.

Referring to the provision of section 42 and section 43(i)(a)(iv) of the Act, Mr. Ariff submits categorically that the Act itself makes provision for such cases and allows the Award to be separated from the issues which were not submitted before the Tribunal and empowers the Court to set aside the Award so far it relates to matter not referred to the Tribunal. Mr. Ariff argues with some force that having regard to the provision of section 43(i)(a)(iv), the Court has ample power and jurisdiction to severe the Award and set aside such portion of the Award which has been passed by the Tribunal beyond its jurisdiction.

19. During the course of his argument, Mr. Hassan Ariff acknowledged that the Tribunal had indeed acted beyond its jurisdiction to some extent by allowing the counter claim of the Department when, in fact, no such issues were framed before the Tribunal. Elaborating his submission, Mr. Hassan Ariff contends that although the claimant company had not referred certain disputes such as claim for refund against bitumen, the Tribunal allowed such claim in favour of the claimants, thereby acting beyond its jurisdiction. Mr. Hassan Ariff further submits that the issue of retention money or return of the same was not referred for adjudication before the Tribunal as per clause 67 of GCOC and therefore the Tribunal travelled beyond its jurisdiction in allowing the same in favour the claimant company. Similarly, according to Mr. Hassan Ariff, the Tribunal erred and consequently travelled beyond its jurisdiction in awarding a reduction of VAT or its return in favour of the claimant company as well as return of the Bank Guarantee submitted by the claimant company.

20. Lastly, Mr. Hassan Ariff contends that having regard to the provision of section 43(i)(a)(iv) of the Act, the Court is vested with ample power to correct and modify the Award in accordance with the prayer made by the petitioner in Arbitration Application No. 3 of 2004.

21. The moot question which calls for determination by this Court relates to the jurisdiction of the Tribunal itself. A Tribunal is to decide only such issues as are referred to them by the contending sides.

In fact, the power of the Tribunal is confined within the terms of reference made to it by the parties under the contract. Consequently, any deviation therefrom is bound to invoke the question of jurisdiction, as has been done in the instant case.

22. In the instant application before this Court, the petitioner i.e. the company has challenged the Award mainly on the ground that the Tribunal has travel beyond its jurisdiction by deciding issues which were not referred to it. This contention advanced by the company gains support from the affidavit-inopposition dated 01.11.2009 filed by the respondent itself. In paragraph 4 of the aforesaid affidavit-inopposition, it has been stated as follows : “The calculation made under the heading “Final Position” is not an outcome of any counter claim made by the respondent rather it is outcome of an unwarranted arithmetic calculation made by the Tribunal on the basis of its discussion on the valid as well as invalid determinable disputes and Annexure 17 to the Award submitted by the claimant/petitioner before the Tribunal. The calculation under the head “Final Position” is not consequential of the adjudication of 3 (three) valid referred dispute under clause 67 of GCOC. The said calculation therefore is not relatable to the three valid referred disputes under clause 67 of GCOC. The “Final Position” is therefore relatable to issue, which were not referred to arbitration as dispute following the mechanism /procedure under clause 67 of GCOC. The “Final Position” is extraneous to the 3 (three) valid referred dispute.”

23. There is further corroboration of the issue in the impugned Award itself, where the Tribunal observed as under: “We have noticed that the Respondent had claimed various amounts as shown by way submissions of summary of additional cost and amount due from the Contractor. These claims were not referred to the Arbitrators in terms of Clause 67 of the Contract”. (emphasis added) 24. Moreover, from the dissenting Award dated 13.05.2004 passed by one of the Arbitrators (Mr. Justice M.M. Haque), it appears that the learned Arbitrator found as under : “It may be mentioned here that there is no counter claim by the said ……………..” (page 29 of the Award)

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Startus Construction Company Vs Government of Bangladesh (Zubayer Rahman Chowdhury, J.)

329

25. From the observation quoted above, it appears that no counter claim was filed by the Roads and Highways Department, but the Tribunal nevertheless proceeded to make an Award in their favour which was beyond their terms of reference. It is also admitted by Mr. Hassan Arifff, learned Advocate appearing on behalf of the Roads and Highways Department that only three disputes were referred to the Tribunal and upon commencement of the proceeding, the Tribunal framed as many as seven issues, as has been quoted earlier in this judgment.

However, from a reading of the same, it does not appear that it relates to any counter claim filed by the Department.

Civil Procedure and the Evidence Act in disposing of a dispute under this Act.

26. It also appears that certain issues, which were not referred to the Tribunal, were taken up and decided by the Tribunal on its own accord. In my view, it would be reasonable to infer that in such circumstances, the Tribunal had indeed acted beyond its jurisdiction. The Tribunal exceeded its jurisdiction by abrogating to itself issues which were not referred to it by the contending sides. The issues relating to, advance, cost of bitumen, retention of advance money, advance income tax are some of the issues which, admittedly, were not referred to the Tribunal, but upon which the Tribunal made a pronouncement and gave an Award in favour of the Department.

29. The case of West Bengal Industrial InfraStrictire Development Corporation, v. M/s. Star Engineering Co., reported in AIR 1987 Calcutta 126 related to a matter which had similar issues as in the present case pending before this Court in that no counter claim was filed in the reported case referred to above and the Court adjudicated on a imaginary counter claim. While setting aside the Award, the Court held :

27. From the supplementary affidavit dated 17.08.2009 filed by the petitioner, it has been stated on behalf of the petitioner that the expert evidence which was adduced on behalf of the claimant company, was also provided to the Department. From the Tribunal’s order sheet dated 06.02.2003, there is affirmation of the aforesaid statement made by the claimant company. However on a close scrutiny of the Award itself, it appears that the Tribunal has not referred to the expert evidences referred to above. On the issue of non-consideration of the expert report referred to above, it was argued forcefully by Mr. Ariff that such consideration will not invalidate the Award in view of the fact that the Tribunal is not bound to comply strictly with the provision of the Code of Civil Procedure and the provisions of the Evidence Act. Therefore, according to Mr. Hassan Ariff, even if the contention of the claimant company is accepted as to non-consideration of the expert opinion by the Tribunal, that, ifso facto, will not be a ground for setting aside the Award. In support of his contention, Mr. Hasan Ariff referred to section 24 of the Act, which provides that the Arbitral Tribunal was not bound to follow the provisions of the Code of

28. To take up Mr. Hassan Ariff’s last contention first, in the case of Varat Cooking Coal Limited, reported in 200 C 8 SCC 154, the Supreme Court of India held that while making the Award, the Arbitrator cannot ignore very material and relevant documents relevant for determining the controversy, so as to render a just and fair decision.

In that case referred to above, it was further held : “there lies a trial distinction between a year within the jurisdiction and error in excess of jurisdiction.”

“In my opinion, this gross mistake has arisen from culpable negligence amounting to legal misconduct in part of the arbitrator in making the Award and as such this Award cannot be upheld.”

30. In the case of Chetandas and others v.

Radhakrisson Ramchandra and others, reported in AIR 1927 Bombay 553, it was held as under : “In cases where an arbitrator enters into the consideration of matters which are not referred to him, or which he has no jurisdiction to try, Blackburn, J. in Ringland v. Lowndes (1) (1864) 12 W.R. 1010) said that The question is not one of waiver or of estoppel, but of authority, and a party continuing to attend the reference after objection taken and protest made down not give the arbitrator authority to make an award. Even if a party under protest continues to attend before arbitrators and cross-examines witnesses, he does not thereby waive his objection, nor is he stopped from saying that the arbitrators have exceeded their authority by awarding on the matter :”

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31. In my view, the aforesaid decision referred to above, falls squarely with the scope and nature of the matter before this Court. As to Mr. Hassan Ariff’s contention that this Court has ample power under section 43(1)(a)(iv) of the Act to severe the Award and only set aside that portion of the Award which relates to issues not referred to the Tribunal, it has to be said that the Award which has been passed in the instant case stands embodied under the head “final position” as contained at page 58 of the Award, whereby an Award of Taka 6,00,00,000/- and odd (which was subsequently reduced to Tk. 3,00,00,000/and odd by order dated 23.06.2004) was made in favour of the Roads and Highways Department, despite the absence of any counter claim filed on their behalf. The Roads and Highways Departments itself

disputes have arisen and what relief is sought in consequence of the alleged default by one party, it seems to me that those are the only matters upon which the arbitrators are required to inquire and to adjudicate. The only relief claimed in the present case was confined to an allowance being made in the price on account of the defective quality. The buyers never sought to have other awards given dealing with rejection and fresh tender of the goods. By adding to their award Para.

2(b) and (c), above, it seems to me that the arbitrators have gone beyond what the required for their consideration and have decided questions beyond which they were required to adjudicate. This being the case it must follow that the award is void in toto and must be set aside.”

stated in their affidavit-in-opposition dated 01.11.2009 that

“The calculation made under the head “Final Position” is not an outcome of any counter claim made by the respondent rather it is outcome of an unwarranted arithmetic calculation made by the Tribunal on the basis of its discussion on the valid as well as invalid determinable disputes and Annexure 17 to the Award submitted by the claimant/petitioner before the Tribunal. The calculation under the head “Final Position” is not consequential of the adjudication of 3 (three) valid referred dispute under clause 67 of GCOC.” 32. Therefore, the statement made by the Department itself indicates that the Award made under the head of “Final Position” relates to issues, some of which have been referred under clause 67 of the GCOC. In my view, it would became difficult, if not impossible, to sever the determinable issues from the non determinable issues referred to the Tribunal from the final Award which is not before this Court.

33. I am fortified in my view by a decision pronounced more than half a century ago in the case of Bengal Jute Mills vs. Jewraj Heeralal, reported in AIR 1943 Calcutta 13, where it was held, and I quote: “Whilst it is correct that since the recent Arbitration Act there need to be no form of submission, and the authority and jurisdiction of the arbitrator is to be ascertained from the agreement for arbitration, which in this case is contained in the contract, nevertheless when the parties set out specifically what

34. Having regard to the statements made in the application before this Court, the relevant provision of law, the submissions advanced by the learned Advocate for the contending sides and last, but not least, having considered the decisions referred to above, with which I find myself in total and respectful agreement, I am inclined to hold that the Arbitral Tribunal travelled beyond its jurisdiction by entertaining and deciding issues which had not been referred to by the contending sides and the impugned order is liable to be set aside.

35. Accordingly, Arbitration Application No. 2 of 2004 stands allowed.

36. The impugned Award dated 13.05.2004 (as modified by order dated 23.06.2004) is hereby set aside.

37. Consequently, in view of the judgment and order passed in Arbitration Application No. 2 of 2004, Arbitration Application No. 3 of 2004 stands dismissed.

38.

There will be no order as to cost.

39. The parties are at liberty to take necessary steps in the matter, if so advised, in accordance with law.

Before parting with case, this Court would like to put on record its profound appreciation for the valuable assistance rendered by the learned Advocates of the contending sides.

Ed.

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Startus Construction Company Vs Government of Bangladesh (Zubayer Rahman Chowdhury, J.)

HIGH COURT DIVISION (Special Original Jurisdiction) Mr. Shah Abu Nayeem Mominur Rahman, J. and Mr. Zubayer Rahman Chowdhury, J.

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Brigadier (Retd.)

A.H.M Abdullah .…. Petitioner VS Government of Bangladesh and others … Respondents

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Judgment 01.06.2010.

Mr. M. A. Aziz Khan

… For the petitioner No one . . . For the Respondents.

Constitution of Bangladesh, 1972 Article 102 (1)(2)(a)(ii) Motor Vehicles Ordinance (LV of 1983) Sections 105,140,152 and 156 Police Regulation Bengal, 1943 Regulation 33 and 260 Police Act (V of 1861) Section 23 Dhaka Metropolitan Police Ordinance, 1976 Sections 16 (e) and 161 Police Officer (Special Provision) Ordinance (LXXXIV of 1976) Sections 2(b),4,5,12 & 48 The Petitioner, a retired Officer in the rank of Brigadier of the Bangladesh Army , has challenged the Charge Report submitted under section 105 of the Motor Vehicle Ordinance , 1983 issued by the Police Officer, the Respondent No. 10 alleging contravention of sections 140,152 and 156 of the said Ordinance. It is contended on behalf of the petitioner that respondent No. 10, despite being informed by the petitioner’s wife that she was unwell, acted in an irresponsible, rude and arrogant manner, causing serious mental agony and distress to her and embarrassment to the petitioner in public. Such action of respondent No. 10, Mr. Khan submits, is in clear violation of the provisions of The Police Act, 1861, Police Regulations Bengal, 1943 and The Dhaka Metropolitan Police Ordinance, 1976.

The police, as the law enforcing agency of the State, are to ensure that the law of the land is obeyed and followed by the general public. It is, therefore, not only a matter of utmost regret, but * Writ Petition No. 3012 of 2001

331

also of grave concern, when such acts of violation are committed by the police themselves. It is also a sad reality that although police excess occur regularly, such incidents are rarely challenged in a Court of law.

The facts stated in the writ petition, being uncontroverted, are, therefore, deemed to be correct in the eye of the law. Quite clearly, the conduct of respondent No. 10 not only falls within the ambit of the term ‘misconduct’, it is also violative of the other provisions quoted above. As such, the allegation of misconduct against respondent No. 10 has been established. The issuance of the impugned Charge Report dated 30.05.2001 is found to be without lawful authority and of no legal effect. Respondent No. 5 (Inspector General of Police, Bangladesh) and respondent No. 6 (Commissioner, Dhaka Metropolitan Police) are directed to initiate appropriate disciplinary action against respondent No. 10 in accordance with law. ...(3,9,46,52 & 53) Ghani .v. Jones[1970] 1QB, 693; R .v. Guardians of Lewisham Union, (1897) 1 QB 498; I.R.C. .v. Fed of Self-employed, [1981] 2 All E.R. 93; S.P. Gupta v.

President of India, reported in AIR 1982 SC 149; Warburton .v. Loveland (1832) 2 D and Cl. 480; N.D.-State .v. Northwester Pac. Rail Co., 172 N.W. 324, 331; Willingale .v. Norris (1909) 1 K.B. 57; C. Kalbagh .v. State of UP, AIR 1989 SC 1452; Merkur Island Shipping Corporation .v. Laughton and Others [1983] 2 AC 570 ref.

Judgment Zubayer Rahman Chowdhury, J: This Rule Nisi, at the instance of the petitioner, was issued calling upon the respondents to show cause why the Charge Report bearing serial number 0684546 dated 30.5.2001 purportedly issued under the Motor Vehicle Ordinance, 1983 by respondent no. 10 in respect of a Government vehicle bearing Registration No. Dhaka Metro Gha-11-2744 shall not be declared to be harassing in nature and without lawful authority and of no legal effect.

2.

Facts necessary for disposal of the Rule, are, as under: The petitioner, a retired officer in the rank of Brigadier of the Bangladesh Army, was, at the

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relevant time, serving as an Engineering Advisor to a World Bank Project called Road Rehabilitation and Maintenance Project-III under the Roads and Highways Department, Government of Bangladesh.

3.

While serving as such, on 30.05.2001, the petitioner and his wife went to Zia International Airport to receive his son in his above mentioned official car, driven by the official driver Md. Joynal.

On reaching the Airport, the petitioner went inside while his wife, being unwell, waited in the car. When the petitioner saw his son coming out of the Airport, he signalled the driver to come to the pick up point.

At that moment, on being informed that the police personnel were creating some sort of commotion in front of his car, the petitioner went there and found one police officer shouting at the top of his voice, showing little care or respect for the lady who was sitting inside the car. Although the petitioner’s wife explained to the police officer (respondent No. 10) that as she was very ill, she was unable to get down from the car and she was waiting to pick-up her son who was on his way out, he paid no heed to her and created an unpleasant scene in public. The petitioner disclosed his identity and requested respondent no. 10 to show his identity, as he did not have any name tag on his uniform, as is usually done by all on-duty police personnel. Respondent no. 10 took a out name tag from inside his pocket bearing the name Ferdous.

On being asked by the petitioner as to why he was behaving in such a rude manner, respondent No. 10, without caring to reply, asked for the documents of the car. The documents, including original fitness certificate, insurance certificate and a copy of the registration certificate were produced and he was told that the vehicle was a Government transport.

Respondent no. 10 took the insurance certificate and the fitness certificate and left the place. Shortly thereafter, when the petitioner was about to leave the Airport along with his wife and son, another policeman came up to the car and handed over a piece of paper to him which turned out to be Charge Report under Section 105 of the Motor Vehicles Ordinance, 1983 issued by said respondent no. 10 alleging contravention of sections 140, 152, 156 with a special note that he has framed charge under the instruction of the OC, Cantonment Police Station and the Chief

Security Officer of the Airport and also recommending realisation of full fine.

4.

The petitioner sent a Demand of Justice notice to the respondents through his lawyer on 13.06.01, but the same remained unresponded.

5.

It is in this back-drop that the petitioner moved this Court and obtained the Rule in the aforesaid terms.

6.

Although it appears from the office note dated 15.07.02 of the case record that service of notice has been duly communicated, yet none of the respondents appeared to contest the Rule. On our query, the learned A.A.G. submits that she has no instructions in this matter.

7.

Mr. M. A. Aziz Khan learned Advocate, appearing for the petitioner, has taken us through the writ petition and its annexures as well as the relevant provisions of law.

8.

Mr. Khan submitted that the actions of the respondents, who are all public servants, are contrary to the provisions of Article 21(2) of the Constitution of Bangladesh which stipulates that every person in the service of Republic has a duty to strive at all times to serve the people.

9.

He submits that respondent no. 10, despite being informed by the petitioner’s wife that she was unwell, acted in an irresponsible, rude and arrogant manner, causing serious mental agony and distress to her and embarrassment to the petitioner in public.

Such action of respondent no. 10, Mr. Khan submits, is in clear violation of the provisions of The Police Act, 1861, Police Regulations Bengal, 1943 and The Dhaka Metropolitan Police Ordinance, 1976.

10. Mr. Khan refers to Regulation 260 of the Police Regulations Bengal, 1943 (hereinafter referred to as the Regulation) which is as follows : “260: Investigation officers should carefully abstain from causing unnecessary harassment either to the parties or to the people generally. Only those persons who are likely to assist the inquiry materially should be summoned to attend. Where possible the

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investigating officer should himself go to the house of the witness to be examined. The proceedings should be as informal as possible. The questioning of witnesses should ordinarily be conducted apart, and in a manner that will not be distasteful to them”.

11. He also refers to Section 23 of The Police Act, 1861 (hereinafter referred to as the Act) which is as follows : “23: It shall be the duty of every policeofficer promptly to obey and execute all orders and warrants lawfully issued to him by any competent authority; to collect and communicate intelligence affecting the public peace; to prevent the commission of offences and public nuisances; to detect and bring offenders to justice and to apprehend all persons whom he is legally authorized to apprehend, and for whose apprehension sufficient ground exists : and it shall be lawful for every police-officer, for any of the purposes mentioned in this section, without a warrant, to enter and inspect any drinkingshop, gaming-house or other place of resort of loose and disorderly characters”.

12. Mr. Khan then refers to Section 16(e) of the Dhaka Metropolitan Police Ordinance, 1976 (hereinafter referred to as ‘the Ordinance’) which runs as under: “16(e) in dealing with women and children, to act with strict regard to decency and with reasonable gentleness”. (emphasis supplied) 13. Relying on the aforesaid provisions of law, Mr. Khan submits that although there is a clear stipulation to the effect that the police personnel are not to cause unnecessary harassment to the public in general and to women and children in particular, there has been a gross violation of the same in the instant case. He makes a pointed reference to clause 16(e) of the Ordinance quoted above, which requires the police to act with strict regard to decency and gentleness while dealing with women and children. He further submits that although the police is required by law to

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prevent the commission of public nuisance, in the instant case, it was respondent no. 10 who was solely responsible for creating public nuisance by his rude and arrogant behaviour.

14. Mr. Khan next draws our attention to Annexure ‘Q’ to the writ petition and submits that although the name of the accused person in the Charge Report has been mentioned as Driver Md. Zafar, the petitioner’s driver’s name was Md. Joynal Khan, which is evident from his driving licence, as evidenced by Annexure ‘G’ to the writ petition. It is further submitted that although there is a note that the Charge Report has been issued under the instruction of OC, Cantonment Thana and the Chief Security Officer of the Airport, there was no official endorsement. He submits that respondent no. 10 himself made the endorsement illegally to save his own self.

15. Mr. Khan then submits that the action of respondent no. 10 in impounding valid documents of the car (i.e. the Fitness Certificate and the Insurance Certificate) was in gross violation of Section 161 of the Ordinance, which authorizes such an action only when there is reason to believe that such documents are false documents within the meaning of Section 464 of the Penal Code. In the instant case, respondent no. 10 had absolutely no basis to form such opinion since the vehicle in question was a Government vehicle. As such, the aforesaid actions of respondent no. 10 was not only in excess of his jurisdiction, but malafide too.

16. Mr. Khan informs the Court that the petitioner, being a law abiding citizen, has duly paid the fine imposed by the impugned Charge Report dated 30.05.2001.

17. Last, but not least, Mr. Khan urges that this Court to take note of the situation that prevails in our society today. He argued, very strongly, that there are many incidents like this occurring everyday relating to police excess and non-compliance of Police Rules and Regulations by the police themselves, but such occurrences remain unreported mostly out of fear of further harassment by the police.

More importantly, ordinary citizens neither have the

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resources nor the ability to stand-up against police excess and bring such incidents to the Court’s notice for redress. Hence, the instant case should not be dealt with leniently, but be an example against police excess considering the issues in a wider perspective relating to the non-compliance of the provisions of the Act, Regulations and the Ordinance by the police.

18. Although the matter before us raises issues of considerable public importance, Mr. Khan has not referred to any decision in support of his case.

Nevertheless, we made an endeavour to refer to some decisions from our own jurisdiction, but there was hardly any reported decision on the subject. We noted, much to our surprise and dismay, that a similar scenario prevails in the English jurisdiction. To quote Prof. H.W.R. Wade: “It is impossible to examine the cases on the status of the police without marvelling at how few they are, and in how many respects their position and powers are still not clearly defined. The police have had remarkable success in avoiding challenge in the courts of law, even though they often stretch their powers and risk actions for trespass.”

(Administrative Law, Fifth Edition, page 135)

22. The pre-requisite of having a specific legal right before issuance of a writ of mandamous was laid down towards the end of the nineteenth century in R .v. Guardians of Lewisham Union, reported in (1897) 1 QB 498. However, since then, there has been a very significant shift, and, so much so, that by the end of the twentieth century, the Courts were inclined to issue mandamous even in cases where the applicant had no specific legal right.

23. In I.R.C. .v. Fed of Self-employed, [1981] 2 All E.R. 93, Lord Scarman observed :“The decision of the Divisional Court in R .v. Guardian of Lewisham Union was accepted as establishing that an applicant must establish ‘a legal specific right to ask for the interference of the Court by order of mandamous. I agree with Lord Denning MR in thinking this was a deplorable decision”.

24. In our own jurisdiction, the position has been summarized as under :

20. It is in this backdrop that we are called upon to decide this matter. We intend to do so, first by considering the relevant Rules and Regulations and the extent of their application and thereafter certain aspects relating to the concept of rule of law.

“In England, the Lewisham Union Principle was given up as it would have the effect of allowing the public functionaries a free hand in ignoring their public duties. In countries like ours, it will have a far more serious effect as many instances of non-performance of legal duty by government and public functionaries will remain without remedy, thereby eroding the concept of rule of law and constitutionalism. This principle originated in England and when it has been discarded there, there is no rationale for insisting on the application of this principle in our country. Thus, if a person is going to be affected by the failure of a public functionary to do what he is required by law to do, he can claim performance of the legal duty of the public functionary whether or not he has a specific legal right to claim performance of the duty” (M. Islam, Constitutional Law of Bangladesh, Second Edition, page 529).

21. At the outset, it would be appropriate to begin by examining the maintainability of an application of this nature.

25. A definite jurisprudential basis was laid down in S.P. Gupta v. President of India, reported in AIR 1982 SC 149 where Bhagwati, J, in according standing to the petitioners, observed :

19. In Ghani .v. Jones, reported in [1970] 1QB, 693 where the action of the police in impounding the passports and conducting unauthorized searches was challenged by the petitioner, a similar view was expressed by no less an authority than Lord Denning MR himself, when he observed : “The case raises matter of importance on which there is very little direct authority in our books.”

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“Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determine class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons.”

26. As noted above, the various provisions in the Police Rules and Regulations are quiet clear in specifying guidelines for the police in their dealings with the public in general and women and children in particular. In this context, we may refer to Regulation 33 of the Regulations which deals with behaviour of the police towards the public. It states : “33 (a) No police force can work successfully unless it wins the respect and good-will of the public and secures its cooperation. All ranks, therefore, while being firm in the execution of their duty, must show forbearance, civility and courtesy towards all classes. Officers of superior rank must not only observe this instruction themselves but on all occasions impress their subordinates with the necessity of causing as little friction as possible in the performance of their duties. (b) Rudeness, harshness and brutality are forbidden; and every officer of superior rank must take immediate steps for the punishment of any offenders who come to his notice.”

27. Similarly, Section 15(c) of the Ordinance provides : “General duties of police officers. – It shall be the duty of every police officer –

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(a) ………….. (b) ………….. (c) to the best of his ability to prevent commission of public nuisances ; (d) …………….. (e) ……………… (f) ………………..”.

28. Under the 1861 Act, a duty was cast upon the police by Section 23 to “prevent commission of offences and public nuisance.” Almost a century later, in 1943, the Regulations imposed further control on the police by requiring them to “abstain from causing unnecessary harassment either to parties or to the people generally.” Regulation 33(a) required all ranks to “show forbearance, civility and courtesy towards all classes”. As an additional measure, rudeness, harshness and brutality were forbidden by Regulation 33(b). More recently, in 1976, under the Ordinance, the police was required “to act with strict regard to decency and reasonable gentleness” in dealing with women and children.

29. On a careful analysis, it appears that the conduct of the police vis-a-vis the general public is regulated by certain positive enactments and negative stipulations. The words ‘decency’, ‘gentleness’, ‘courtesy’, forbearance’, ‘civility’, ‘rudeness’, ‘brutality’ etc. have been incorporated in various sections of the Act, Ordinance and Regulations with a definite purpose or intent. The Legislatures, being mindful of the unfettered power the police are considered to exercise, were quite clear in their intent to prevent any abuse or misuse of such powers. To quote Tindal, CJ in Warburton .v. Loveland (1832) 2 D and Cl. 480 “……………. the words of the statute speak the intention of the Legislature.”

In the words of the distinguished Jurist Sir John Salmond: “The Courts must in general take it absolutely for granted that the legislature has said what it meant, and meant what it has

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said. Ita scriptum est is the first principle of interpretation”. (Salmond, Jurisprudence, Twelfth Edition, page 132) Furthermore, as an additional measure, rudeness, harshness and brutality was not only forbidden, but every officer of superior rank was required to take immediate steps for punishment of any offender when it comes to his notice.

30. The imposition of such prohibition is, no doubt, significant. This is in consonance with the concept of ‘Rule of law’ as embodied in our Constitution where the preamble states that it shall be the fundamental aim of the State to secure the rule of law for all citizens.

31. Walber, in his Oxford Companion to Law (1980 Edition, page 1093) explained the term rule of law as under: “The concept implies that the ruler must also be subject to law. It is the subordination of all authorities, legislative, executive and others to certain principles, which would generally be accepted as characteristic of law, such as the ideas of fundamental principles of justice, moral principles, fairness and due process. It implies respect for the supreme value and dignity of the individual”.

32. As observed by Hilaire Barnett in Constitutional and Administrative Law (Third Edition, page 85): “The rule of law insists that every personirrespective of rank and status in society – be subject to the law. For the citizen, the rule of law is both prescriptive-dictating the conduct required by law – and protective of citizens – demanding that government acts according to law”.

33. In S.P. Gupta’s case, cited above, the Supreme Court of India held: “If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is

entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective”.

34. The concept of rule of law has been upheld not only by the Courts, it has also been endorsed and adopted by the Universal Declaration of Human Rights more than half a century ago and subsequently, in 1950, by The European Convention for the Protection of Human Rights and Fundamental Freedoms. The International Commission of Jurists, in the Delhi Declaration of 1959, stated: “The function of the legislature in a free society under the rule of law is to create and maintain the conditions which will uphold the dignity of man as an individual.”

35. Having considered the theoretical aspects and the relevant provisions of the Act and the Rules, we now propose to consider one of the core issue in this matter, i.e., ‘the misconduct of the police’.

The term ‘misconduct has been defined in 2(b) of ‘The Police Officers (Special Provisions) Ordinance, 1976’. It states : “(b) ‘misconduct’ means conduct prejudicial to good order or service discipline or contrary to Government Servants (Conduct) Rules, 1966, or unbecoming an officer or gentleman.”

36. Under the aforesaid Ordinance, if a police officer is found guilty of misconduct or inefficiency (Section 4(i) and 4(vii) respectively), then any one of the penalties mentioned in Section 5(a) to 5(e) may be imposed upon him. Section 5 provides as under: “Penalties.- The following shall be the penalties which may be imposed under this Ordinance, namely :(a)

dismissal from service;

(b)

removal from service;

(c)

discharge from service;

(d)

compulsory retirement; and

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(e)

reduction to lower rank.”

37. Furthermore, the provisions relating to an errant police officer has been laid down in Section 12 of the 1976 Ordinance, where clause (g) provides for forfeiture of pay not exceeding one month and Clause (h) provides for forfeiture of increment of pay.

Section 48 of the Ordinance reads as under: “48. Penalty for misconduct of policeofficer.- Any police officer who is guilty of cowardice or of any wilful breach of any provision of law or of any rule, regulation or order which it is his duty as such policeofficer to observe or obey shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand taka, or with both.”

38. Evidently, the provisions for dealing with an errant police officer are elaborate and stringent. This, in our view, is necessary for maintaining discipline in the force. It is equally important that Courts should enforce their application when called upon to do so, or else the provisions would become meaningless.

39. Maxwell on The Interpretation of Statutes has clearly stated that if the language is clear and explicit, the Court must give effect to it (12th edition, page 1).

40. We may also profitably refer to a passage from Broom’s Legal Maxims (10th Edition, page 384) where it has been stated: “If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound the words in their natural and ordinary sense. The words themselves alone do, in such case best declare the intention of the law giver”.

41. Judge Colley, in his Constitutional Limitations, wrote that the police of a state, in a comprehensive sense, embraces, among others, its whole system of internal regulation, by which the state seeks to preserve the public order and to prevent offenses against the state. (Corpus Juris Secondum, Vol. LXXII, page 207).

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42. The term ‘Police Regulation’ is used to define a power which resides in the state. In its primary or narrow sense, it refers to the exercise of the police power to protect the health, lives and morals of the people. In its broader acceptation, it embraces everything to promote the general welfare; everything essential to the great public needs. (N.D.-State .v.

Northwester Pac. Rail Co., 172 N.W. 324, 331).

43. As to the question of binding force of such rules and regulations, it has been established by judicial pronouncements that rules made under a statute have the force of law.

44. In Willingale .v. Norris (1909) 1 K.B. 57, the question of binding force of Regulations made under a Statute came up for consideration. It was held that where a Statute makes provisions for Rules to be made thereunder, such Rules have the force of law (per Lord Alverstone, CJ).

45. Since the enactment of the Act in 1861, the Regulation in 1943 and the Ordinance in 1976, there has been significant change in the set-up and format of the police force. There is no longer one police force for the entire country. Rather, each Metropolitan city has a force of its own like the Dhaka Metropolitan Police, Chittagong Metropolitan Police, Khulna Metropolitan Police. Today’s police force is a far-cry from the police force of yester years. They are evidently much better equipped and, presumably, better trained. They have sophisticated arms, communications network and fast cars at their disposal and, very recently, a new uniform to go with their image. However, all the expenses are borne by the people of the country. It is, therefore, not only necessary, but also imperative that the police comply strictly with the provisions of the Act, Rules and Regulations which govern their dealing with the public. In C. Kalbagh .v. State of UP, reported in AIR 1989 SC 1452, it was aptly held : “there is the imperative requirement of ensuring that the guardians of law and order in fact observe the code of discipline expected of them and that they function strictly as the protectors of innocent citizens” (Per Pathak, CJ).

46. The police, as the law enforcing agency of the State, are to ensure that the law of the land is obeyed

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and followed by the general public. It is, therefore, not only a matter of utmost regret, but also of grave concern, when such acts of violation are committed by the police themselves. It is also a sad reality that although police excess occur regularly, such incidents are rarely challenged in a Court of law.

47. We are inclined to accept Mr. Khan’s submission that most people are either reluctant to initiate any actions against the police or are very skeptical about any disciplinary action that may be taken against such errant officers. The petitioner deserves to be commended for bringing an issue of such public importance and relevance before this Court. This, no doubt, will serve to create awareness amongst the general public who, though being law abiding, paradoxically remain unaware or ignorant about the law itself. We are reminded of what Lord Donaldson, MR stated in Merkur Island Shipping Corporation .v. Laughton and Others [1983] 2 AC 570: “The efficacy and maintenance of the rule of law, which is the foundation of any parliamentary democracy, has at least two pre-requisites. First, people must understand that it is in their interests, as well as in that of the community as a whole, that they should live their lives in accordance with the rules and all the rules. Secondly, they must know what those rules are ….”

48. We have considered the submission of the learned Advocate and have also given our anxious thoughts to the grounds taken in the petition. We also take note of the fact that no affidavit-in-opposition has been filed on behalf of any of the respondent nor has any one even entered appearance, although notice has duly been served on them. This is also indicative of their callous and arrogant attitude, to say the least.

49. The facts stated in the writ petition, being uncontroverted, are, therefore, deemed to be correct in the eye of the law. Quite clearly, the conduct of respondent no. 10 not only falls within the ambit of the term ‘misconduct’, it is also violative of the other provisions quoted above. As such, we have no

hesitation in holding that the allegation of misconduct against respondent No. 10 has been established.

50. Regrettably, inspite of the matter having been brought to the notice of the superior officers, as is evidenced by Annexure ‘R’ to the writ petition, no action appears to have been taken against the deliquent officer. This, in turn, makes the superior officers liable for punishment as per the aforesaid provisions.

51. In view of the discussions made above, we find substance in the Rule.

52. Accordingly, the Rule is made absolute. The issuance of the impugned Charge Report dated 30.05.2001 is found to be without lawful authority and of no legal effect.

53. Respondent No. 5 (Inspector General of Police, Bangladesh) and respondent No. 6 (Commissioner, Dhaka Metropolitan Police) are directed to initiate appropriate disciplinary action against respondent No. 10 in accordance with law.

54. Respondent nos. 5 and 6 are further directed to ensure that all police personnel, in whatever rank they are now serving, be made to be acquainted properly with the provisions of the 1861 Act, the 1943 Regulations and the 1976 Ordinance in dealing with the public in general and, in particular, with women and children and also comply with those provisions in letter and spirit.

55. Let a copy of this judgment be sent to respondent Nos. 5 and 6 for implementation of the aforesaid directions and report compliance to the Registrar of this Court within 4 (four) weeks from receiving copy of this order.

56. Let a copy of this judgment be also sent to respondent no. 1 Secretary, Ministry of Home Affairs, Government of Bangladesh to ensure due treatment of the public by the police force.

57. Although we were inclined to award costs to the petitioner, we refrain from doing so.

Ed.

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HIGH COURT DIVISION (Criminal Revisional Jurisdiction) Mr. Siddiqur Rahman Miah, J. and Mr. Md. Abdul Hye, J. Judgment 09.12.2010.

} AKM Fayekuzzaman .…. Petitioner VS The State and another … Opposite Parties } } }

Mr. Habibur Rahman with Mr. Delwar Hossain Lasker … For the petitioner Mr. M.A. Mazid ...For the opposite Party No. 2.

Mr. Zahirul Haque Zahir, DAG with Ms. Salma Rahman, AAG . . . For the state.

Code of Criminal Procedure (V of 1898) Sections 265 C and 439 Negotiable Instruments Act (XXVI of 1881) Section 138 There is sufficient materials before the High court Division for believing that the accused petitioner committed no offence under section 138 of the Negotiable Instruments Act and as such there will be substantial injustice if this court does not interfere in this case and there will be fragrant violation of justice. The High court Division under section 439 of the Code having supervisory jurisdiction can scrutinize and can go into the fact of a case to examine the propriety of the order passed under section 265C of the Code of Criminal Procedure. Hence the application by the accused petitioner under section 265C of the Cr.P.C. is maintainable against the order of framing charge against the accused. ...(34) Reazuddin Ahmed Md vs. State and another 1997 49 DLR (AD)64 1997 BLD AD 123; Md. sami Ullah Khan vs. The State (1963) 15 DLR(SC)150; Firoj Khan vs. Captain Golam Nabi (1966) 18 DLR (SC)289; Abdur Rashid Khondaker vs. Chandu Master (1964) 16 DLR (SC)505 ref.

Judgment Siddiqur Rahman Miah, J: This Rule was issued on an application under section 439 read with section 435 of the Code of * Criminal Revision No. 1025 of 2010

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Criminal Procedure filed by the informant petitioner against the order dated 09.02.2009 for framing charge against the accused petitioner which was passed by the learned Sessions Judge, Rangpur in Sessions case No. 383 of 2008 arising out of CR case No. 300 of 2008 under section 138 of the Negotiable Instruments Act, 1881 now pending before the Metropolitan Sessions Judge, Dhaka as Metro. Sessions case No. 858 of 2010.

2.

Prosecution case, in short is that one Rejena Begum, proprietor of Nepa Enterprise, filed CR Case No. 300 of 2008 against AKM Fayekuzzaman, proprietor of M/S. Khandoker Business International stating, inter alia, that the complainant is a contractor and her husband Md. Eakub Ali is a 1st Class Government officer who is acquainted with the accused who is a reputed 1st class contractor; that the accused approached to the complainant that he got five work orders whose contract value stands at Taka 13,17,36,515.60; that he needs some money for the completion of those works; that the accused expected to earn taka about more than two crores out of those works and he would pay complainant half of the profit if she gave him some money and that the complainant as per the proposal of the accused gave loan of Taka 2,25,00000/= within 23.09.2006 to 21.02.2008.

3.

It is further stated that the complainant, later on, pressed the accused to repay his loan and accordingly the accused issued a cheque of taka 1,50,00,000.00 being No. NCCB/C 5710308 from his current account No. 01016899 of NCC Bank Ltd. Rangpur; that later on when the complainant again pressed the accused to repay his loan with profit, then the accused again issued a cheque of Taka 75,00,000/= ;that the complainant placed the cheque of taka 1,50,00,000/= in the relevant bank for encashment but the cheque was dishonored; that the complainant approached to accused for immediate repayment of loan but he failed for which the complainant issued legal notice on 03.06.2008 to the accused through his lawyer which was received by the office of the accused on 08.06.2008 but the accused did not take any step to repay the loan; that in reply to the legal notice the accused stated that there was a written contract between them, which is not correct and that when the complainant presumed that the accused would not

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repay the loan, then she was compelled to file the case against the accused petitioner under section 138 of the Negotiable Instruments Act, 1881.

Thereafter the accused petitioner voluntarily surrendered before the Chief Judicial Magistrate and got bail. Subsequently the case was transferred before the Sessions Judge, Rangpur for trial and the accused petitioner got bail by the learned Sessions Judge, Rangpur and on 09.02.2009 was fixed for framing of charge. On behalf of the accused petitioner, an application under section 265C was filed which was rejected by an order dated 09.02.2009. Later on, by the order of High Court Division the case transferred to Metropolitan Sessions Judge, Dhaka and now the case is pending before the Metropolitan Sessions Judge, Dhaka and last date of hearing was on

4.

21.04.2010.

5.

The defence case as it appears from the record is that the accused petitioner is a bonafide businessman and he got some work orders for erecting some buildings at Rangpur and at that time, husband of the complainant i.e. Yeakub Ali was the PIO (Project Implementation Officer) of the Rangpur who proposed to the accused petitioner that his wife had a business firm and she is able to discharge the work and there will be no problem if the works are given to the complainant. On good faith, the accused petitioner on the basis of a deed of contract supplied the works to the complainant along with sufficient cash and 10(ten) blank cheques of NCC Bank Rangpur being Nos. 5710301 to 5710310 were given to the complainant. Out of the 10 (ten) cheques, the complainant used 7 (seven) cheques i.e. cheque Nos. 5710301 to 5710307 and drew Taka 57,04,000/= and for getting back his blank cheques, the accused petitioner filed a petition case No. 6 dated 17.06.2008 to recover the blank cheques. Simultaneously the accused wrote a letter to the Bank to stop payment because the 10% of the work was not done by the complainant but amount of more bills was already withdrawn by her.

6.

In view of the above facts and circumstances of the case, the points for determination is whether the case of the complainant under section 138 of the Negotiable Instruments act is at all maintainable and

whether the framing of charge dated 09.02.2009 against the accused petitioner is at all tenable in law.

7.

There is no denying of the fact that the complainant, Rejina Begum, proprietor of Nepa Enterprise and the accused Petitioner AKM Fayekuzzaman, proprietor of M/S. Khondaker Business International business man and women and the husband of the complainant, Md. Yakub Ali, was PIO ( Project Implementation Officer ) of Rangpur area and there was acquaintance between the husband of the complainant and the accused petitioner.

8.

Mr. M A Mazid, the learned Advocate of the opposite party No. 2 submits that the accused took loan of taka 2,25,00,000/= on different dates starting from 23.09.2006 to 21.02.2008 giving her assurance to pay her 50% profit of schedule work and on the demand and pressure of the complainant the accused issued a cheque of Taka 1,50,00,000/= from his current account of NCC Bank Ltd. Rangpur; that the complainant requested the accused to repay the loan but he failed to repay the loan; that complainant issued legal notice through his lawyer and in stead of getting the notice, the accused failed to repay the loan for which she filed a case under section 138 of the Negotiable Instruments Act and that matter has been decided by the High Court Division. He further submits that the charge framed against the accused petitioner being legal will be maintained and thus the application under section 439 of the Code of Criminal Procedure are liable to be discharged.

9.

Mr. Zahirul Haque Zahir, Deputy Attorney General along with Mrs. Salma Rahman, Assistant Attorney General for the State has adopted the submission of the learned Advocate for the complainant opposite party No. 2.

10. Mr. Habibur Rahman with Mr. Delwar Hossain the learned Advocate for the petitioner submits that the charge against the accused petitioner is not at all maintainable under section 138 of the Negotiable Instruments Act as there is a Civil contract between the complainant opposite party and the accused petitioner in the following terms: Ò1g c‡ÿi gvwjKvbvaxb cÖwZôv‡bi bv‡g wkÿv-cÖ‡KŠkj Awa`ßi nB‡Z cÖvß 2wU KvR myôz ev¯Íevq‡bi Rb¨ wjwLZ k‡Z© Avgiv Dfq cÿ GB Pzw³c‡Î Ave× nBjvg|

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kZ©vejx 1| 1g c‡ÿi e¨emvqxK e¨¯ÍZv I kvixwiK Amyweavi Kvi‡Y wgÿv cÖ‡KŠkj Awa`ßi, XvKvi KZ©„K Bmy¨K…Z Kvh©v‡`k †g‡gvt bs 4949 ZvwiL 07/08/06Bs I 4938 ZvwiL 07/08/06Bs| Kv‡Ri cwigvb UvKv 2,04,08,185-30 I 6497432/59| D³ KvR 2wU m¤úbœ Kivi Rb¨ Avgvi cÖwZôv‡bi c‡ÿ †gmvm© wbcv G›UvicÖvBR Gi ¯^Z¡vwaKvix 2q cÿ eive‡i ewY©Z Kv‡Ri Pzw³ g‡Z wbR A_©vq‡b m¤úbœ Kivi `vwqZ¡ KZ©„Z¡ cÖ`vb Kwiqv GKwU cvIqvi Ae GUwb© cÖ`vb KwiqvwQ| hvnvi ZvwiL -- †bvUvix bs--| 2| 2q cÿ GB Pzw³ cÎ Abyhvqx ewY©Z KvR 2wU m¤úbœ Kwi‡Z hveZxq wewb‡qvM Kwi‡eb Ges KZ©„c‡ÿi wm×všÍ Abyhvqx KvRwU h_vixwZ wbR `vwq‡Z¡ m¤úbœ Kwi‡eb| GB e¨vcv‡i 1g c‡ÿi †Kvb `vq `vwqZ¡ iwnj bv| mswkøó KvR‡i hveZxq wej Gbwmwm e¨sK wjt, iscyi kvLvq 1g c‡ÿi bv‡g PjwZ wnmve b¤^i 01016899 Gi †PK b¤^i 5710301-10 †gvU 10wU cvZv 1g cÿ ¯^vÿi Kwiqv 2q cÿ‡K cÖ`vb Kwijvg| hvnv Øiv wZwb ïay gvÎ Dc‡iv³ Kvh©v‡`k eve` we‡ji mgy`q A_© e¨vsK nB‡Z D‡Ëvjb Kwiqv jB‡Z cvwi‡eb| Bnv‡Z 1g c‡ÿi †Kvb IRi AvcwË AvBbMZ fv‡e AMÖvn¨ nB‡e| 2q cÿ GB †PK vb¨ †Kvb Kv‡R e¨eüZ Kwi‡Z cvwi‡e bv| 3| Dc‡iv³ wVKv`vix KvR 2wU e¨vq I jf¨vsk eve` †gvU 14,00,000 †PŠÏ jÿ) UvKv 2q cÿ 1g cÿ‡K cÖ`vb Kwi‡eb| Zvi g‡a¨ A`¨ 26/09/2006&s Zvwi‡L 2,50,000 (`yB jÿ cÂvk nvRvi) UvKv bM‡` cwi‡kva mn evKx UvKv AvMvgx Aí mg‡qi g‡a¨ 2q cÿ 1g cÿ‡K cwi‡kva Kwi‡eb|Ó 11. He further submits that on good faith the accused petitioner on the basis of contract supplied the works to the complainant along with sufficient cash and 10 (ten) blank cheques of NCC Bank Ltd. Rangpur being 5710301 to 5710310; that out of the 10 (ten) cheques the complainant used 7 (seven) cheques i.e. cheque Nos.5710301 to 5710307 and withdrew taka 57,04,000/= from the relevant account of the accused petitioner and the accused petitioner filed a petition case No. 6 dated 17.06.2008 to recover the blank cheques and simultaneously the accused wrote a letter to the Bank concerned to stop payment in the case filed under section 138 of the Negotiable Instruments Act because the 10% of the work was not done by the complainant but more amount of bill was drawn.

12. He further submits that the accused petitioner has filed the complainant petition being No. 3346 of 2008 under section 406/420/109 of the Penal Code by annexure–‘F’. The learned Chief Metropolitan Magis-

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trate forwarded the petition to O.C., Ramna PS for enquiry and report. Officer-in-charge, Ramna endorsed the matter to SI Mr. Aksed, who enquired into the matter submitted enquiry report marked annexure-‘D’ stating ÒNUbvi e¨vcv‡i wRÁvmvev` Kwi Ges welqwU †Mvc‡b I cÖLv‡k¨ wRÁvmvev` Kwi| Avgvi mwVK Z`šÍ, cÖ`Ë ¯^vÿ¨ cÖgvb, wewfbœ WKz‡g›U I mvÿ¨ BZ¨vw`‡Z ev`xi AvbxZ `t wet 406/420/109 avivi Awf‡hvM cÖ_wgKfv‡e cÖgvwbZ nBqv‡Q|Ó 13. On the finding of the report submitted by SI Akshed, Metropolitan Magistrate, Ms. Sayeda Minhajum Munir without taking cognizance of the case against accused Yukub Ali and Rejina Begum discharged them relating to Ramna PS Case No. 45(7)08 and GR case No.382 of 2008 under section 420/406/109 of the Penal Code against which accused petitioner AKM Fayekuzzaman filed Naraji Petition being Metropolitan Criminal Revision case No.92 of 2009 which was transferred to the learned Additional Metropolitan Sessions Judge, Dhaka for hearing who after detained discussion held that learned Metropolitan Magistrate committed illegality in not taking cognizance of the case on the basis of police report dated 05.07.1008 filed by SI Aksed and illegally discharged the accused Yeakub Ali and Rejina Begum from charge and consequently he allowed the Revisional application which stoutly upheld that contention of the present accused petitioner A.K.M. Fayekuzzaman to the effect that the accused petitioner did not take loan from the complainant opposite party Rejina Begum rather the accused petitioner gave 10 (ten) blank cheques being No.5710301 to 5710310 out of which the complainant opposite party Rejina Begum used cheque Nos. 5710301 to 5710307 and withdrew Tk. 57,04,000/= completing only 10% of the work violating the terms of contract dated 13.09.2006 between the parties . This fact clearly shows that the complainant opposite party Rejina Begum violating the terms of the contract illegally and fraudulently had written the huge amount of Taka 1,50,00,000 on the blank cheque and filed the case under section 138 of the Negotiable Instrum-ents act for illegal gain. This fraudulent conduct of the complainant opposite party Rejina Begum cannot be encouraged allowing to proceed her case under section 138 of the Negotiable Instruments Act. The Negotiable Instruments Act was enacted for the holy

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purpose relating to promissory notes, bill of exchange and cheques. But this law has not been enacted for materializing such fraudulent cheques. The above facts clearly proves that the complainant opposite party Rejina Begum has illegally taken the shelter of this law like Negotiable Instruments Act to materialize her illegal gain. Record shows that the complainant opposite party Rejina Begum violating the terms of contract illegally withdrew Tk. 57,04,000/= using seven cheque Nos.5710301 to 5710307 and moreover she fraudulently and illegally attempted to snatch away Taka 1,50,00,000/= from the accused petitioner A.K.M. Fayekuzzaman using blank cheque No.5710308 misusing the holy purpose of the Negotiable Instruments Act. Negotiable Instruments Act is a very hash law wherein it is to be seen if whether cheque is dis-honoured within stipulated time whether legal notice has been served in time, and whether case was filed within specific time, then there is every possibility of being convicted with heavy fine. In the instant case, when the basic document like cheque is fraudulent there is no scope to see other factors. Because fraud vitiates everything Negotiable Instruments Act cannot be allowed to use for fraudulent purpose and for the illegal gain of the complainant opposite party Rejina Begum. To get relief under this law, the complainant opposite party Rejina Begum has to come to the court with clean hand. The contract between the accused petitioner A.K.M. Fayekuzzaman and complainant opposite party Rejina Begum is civil in nature. She may get relief on the basis of the contract. The contract between parties is a secret document. No one can go beyond the contract. In the instant case, the whole thing is to be settled on the basis of contract which the parties solemnly signed. The complainant opposite party Rejina Begum by passing the contract which she signed can not take the shelter of fraud and her fraudulent cheque which she manufactured illegally using the blank cheque which accused petitioner gave her in good faith to draw the amount of bill after completion of work but the complainant opposite party Rejina adopted illegal means under grab of Negotiable Instruments Act to get the huge amount from the accused petitioner AKM Fayekuzzaman in a easy way fraudulent converting the blank cheque.

14. Mr. Habibur Rahman, the learned Advocate for the accused petitioner A.K.M. Fayekuzzaman in reply to the question of Settlement of the matter of section 138 of the Negotiable Instruments Act by the High court Division presided by Mr. Afzal Hossain Ahmed, submits that commitment of fraud on the blank cheque by the complainant Rejina Begum has surely escaped the notice of the learned Judge, otherwise the matter was not decided in such a mechanical way. He further stoutly submits that fraud always vitiates everything and that the present forum is different wherein this court can decide everything on the basis of the facts of the case. We find substance in the submission of the learned Advocate for the petitioner.

15. The accused petitioner AKM Fayekuzzaman filed application before the learned Sessions Judge, Rangpur under section 265C of the Code of Criminal Procedure for discharging him from the charge as the complainant opposite party fraudulently converted the blank cheque into the alleged cheque.

16. Now let us see whether the accused petitioner may get any relief under section 265C of the Code of Criminal Procedure. Section 265C runs thus “265C – Discharge. If upon consideration of the record of the case and the documents submitted therewith and after hearing the submission of the accused and the prosecution in this behalf, the court considers that there is no sufficient ground for proceeding against the accused, it shall discharge the accused and record the reasons for so doing.�

17. The section has made a beneficent provision to save the accused from planned harassment which is a necessary concomitant of a protracted criminal trial.

The object of section 265C of the Code of Criminal Procedure is to inquire into the materials on record for prima facie satisfaction of the court as to whether the accused should be discharged or proceeded against so that innocent persons may not be harassed on false and frivolous allegations. If on the other hand, if the court finds that there is ground for presuming that the accused has committed an offence it shall frame necessary charges against him under section 265D of the Code. Even if now cases are sent to the court of Sessions upon a charge sheet or otherwise under

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section 265C of the Code of Criminal Procedure it is the duty of the court of Sessions to discharge those accused against whom it appears to the court from the record that there is no ground for proceeding after recording its reasons upon a consideration of the materials on record and after hearing both the parties so that frivolous cases and cases of no evidence do not occupy the time of the Sessions Court and innocent persons are not harassed unnecessarily by being put to the trouble and expense of undergoing a sessions trial.

We find support of the above view in the case reported in 11 DLR (SC)394.

18. Trial court may discharge accused without framing charge if material on record is not sufficient.

If before framing the charge, the Sessions court considers that there is no sufficient ground for proceeding against the accused, then it shall discharge the accused and record the reason for so doing under section 265C Cr.P.C. 19. The legislature has enacted section 265C apparently to protect the accused from facing the agony of futile and useless trial when the statements of the complainant and evidence available on record do not make out any prima facie case against the accused. Just as the accused is to be presumed innocent till he is proved to be guilty similarly the prosecution or the person wronged can not be throttled by the court arbitrarily and capriciously and must be given due opportunity to prove his case against the alleged wrong doer if on initial scrutiny is found that his allegation does disclose the commission of a criminal offence against an accused.

20. Under section 265C Cr.P.C. it is duty of the court of sessions upon consideration of the materials on record and after hearing the parties, to discharge those accused persons against whom it appears to the court that there is no ground for proceeding so that frivolous cases and cases of no evidence do not occupy the time of the court and innocent persons are subjected to the rigorous and expenses of a full scale trial.

21. The Role of High Court Division is to see whether thing are done rightly. High Court Division by its inherent jurisdiction can impart justice and can also eliminate injustice. This Division is empowered

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to see whether the charge against the accused petitioner has framed rightly or not under section 439 of the Code of Criminal Procedure .

22. The revisional powers of the High court vested in it by section 439 read with section 435 do not create any right in the litigant, but only conserve the power of the High court to see that justice is done in accordance with the recognized rules of criminal jurisdiction and that subordinate courts do not exceed their jurisdiction or abuse their powers vested in them by the code. In hearing and determining cases under section 439, the High Court discharges its statutory function of supervising the administration of justice on the Criminal side.

23. The High Court Division may suo motu call for the record of the courts subordinate to it and set aside any order passed by such courts in any legal proceeding which has caused miscarriage of justice( Reazuddin Ahmed Md vs. State and another 1997 49 DLR (AD)64 1997 BLD AD 123.

24. The object of this section to confer a kind of paternal or supervisory jurisdiction to correct flagrant miscarriage of justice in matters coming up for adjudication before a criminal court. The main question which the High court has to consider in revision is whether substantial justice has been done.

This power is to be exercised in aid of justice and to prevent injustice.

25. The discretion of High Court to interfere with the proceedings pending in a subordinate court is unfettered though this section cannot be interpreted to mean interference with each and every order passed by a subordinate court. The power of revision has to be exercised sparingly and only when grave injustice is likely to be done or where there has been clear miscarriage of justice or the order is illegal or perverse or the impugned order is such that no reasonable court would pass it or when it appears that great injustice has been done by the impugned order.

26. Power possessed by court under section 435/439 Cr.P.C. do not impinge, curtail or limit in any manner whatsoever. The powers under section 435/439 Cr.P.C. are independent and jurisdiction can be exercised under section 439, Cr.P.C to secure the ends of justice.

27. In view of the provision of law on mentioned above and on perusal of the record it clearly appears to us that the learned Sessions Judge Rangpur illegally

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framed charge on 09.02.2009 without going to the root of the matter and the learned Sessions Judge, Rangpur had done glaring irregularities materially affecting the proceeding and also committed paten improprieties vitiating the impugned order dated 09.02.2009. Since there is glaring defect and error in law and since there is a flagrant miscarriage of justice in the impugned order, thus High Court Division has jurisdiction to cure the injustice.

28. The impugned order dated 09.02.2009 for framing charge is bad in law and fact and full of non consideration of vital point of law and also the trial court failed to consider that the complainant opposite party was employer of the accused petitioner who came in a contract for discharging the work order of the accused petitioner. The accused petitioner has become a victim of circumstances as the complainant filed this false, fabricated and concocted case to harass and humiliated the accused petitioner for momentary gain.

29. More over on perusal of the record it clearly appears to us that the present facts and circumstances of the case does not attract section 138 of the Negotiable Instruments Act as the complainant opposite party has taken the shelter of fraud for materialsing her monetary gain and as such the case of complainant opposite party under section 138 of the Negotiable Instruments Act does not attract at all.

30. The accused petitioner AKM Fayekuzzaman filed application before the learned Sessions Judge, Rangpur for discharging him under section 138 of the Negotiable Instruments act as he framed the charge without considering the material facts Section 265C of the Code of Criminal Procedure empower the court to discharge the accused if there is sufficient ground for not proceeding against the accused. The learned Sessions Judge ought to have discharged his power judiciously after applying his mind to the material facts and examining the evidence on record carefully.

It is not open to a court to base its finding on the assumption. The learned Sessions Judge, Rangpur had based its decision on assumption without going through the facts of the case. On perusal of the record it is abundantly clear that the complainant opposite party manufactured the cheque in question under section 138 of the Negotiable Instruments act interpolating the amount in the blank cheque which was given to the complainant opposite party by

accused petitioner for official use. It is alleged by the complainant opposite party that Tk. 2,50,00,000/= was given loan to accused petitioner, who is a stranger, without any written document and the loanmoney was alleged to have been sent through S.A. paribahan in different dates but the complainant opposite party could not submit any document of sending such amount and more over on the prayer of the accused petitioner the SA Paribahan authority had denied the assertion of the complainant opposite party Rejina Begum. On the other hand, from the document, enquiry report and other evidence on record, it clearly appears to us that the accused petitioner gave those 10 (ten) blank cheques on the basis of contract between the parties to facilitate to draw the bill amount after completion of work. It further reveals that the complainant opposite party withdrew more money from the account of the accused petitioner through seven cheques without completing the work as per contract and out of the rest three cheques, one blank cheque was given to a shop keeper from whom the complainant opposite party took construction materials but that shop keeper on oath denies the assertion of the complainant opposite party and on the other hand admitted the case of the accused petitioner. It further reveals from the facts and evidence on record of the accused petitioner that the complainant opposite party fraudulently converted the rest two cheques interpolating the amount filed two cases against the accused petitioner under section 138 of the Negotiable Instruments Act. 31. The above facts were on the record before the learned Sessions Judge, Rangpur while he rejected the application of the accused petitioner under section 265C of the Code of Criminal Procedure. Such nonconsideration of the facts on the part of the learned Sessions Judge, Rangpur clearly shows his nonapplication of judicial mind to the materials on record.

32. As per decision cited in the case of Md. sami Ullah Khan vs. The State (1963) 15 DLR(SC)150, in the case of Firoj Khan vs. Captain Golam Nabi (1966) 18 DLR (SC)289 and in the case of Abdur Rashid Khondaker vs. Chandu Master (1964) 16 DLR (SC)505,High court’s power under section 439 of the Code of criminal Procedure is very wide. It can revise the order passed by the inferior criminal court in exercise of its revisional jurisdiction in a proper case.

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High court, in proper cases, can interfere with question of fact wrongly decided by the trial court.

Under section 439, Cr. P.C. High court exercises of its revisional Jurisdiction, in appropriate case and can go into the fact and disturb the finding of fact as for example where the subordinate courts have wrongly applied the law and procedure or not applied the correct principles relating to the appraisement of evidence or ignored the important pieces of evidence altogether High Court Division can interfere.

Normally though a revisional court should not take upon itself the task of weighing the evidence a fresh, but its power can not be defined to question of law along and in a fit case, the High court Division can also deal with question of facts where the finding of the court below are unreasonable, perverse and absolutely wrong against the weight of evidence.

Considering the facts and circumstances and evidence on record, we are of the firm view that the impugned order dated 09.02.2009 passed by the learned Sessions Judge, Rangpur is unreasonable, perverse and absolutely wrong in view of the prevailing facts and circumstances of the case.

33. We may profitably refer the decision in the case of State vs. Khondaker Md. Moniruzzaman reported in BLT (AD) 9 wherein it is decided that where there is no sufficient ground to proceed against the accused, the High court under section 265C of the Code of Criminal Procedure can discharge accused from charge. The facts of the present case clearly indicate the innocence of the accused petitioner and his false implication in this case under section 138 of the Negotiable Instruments Act. The learned Sessions Judge, Rangpur ought to have allowed the application of the accused petitioner under section 265C of the Cr.P.C. discharging accused petitioner A.K.M. Fayekuzzaman from the charge under section 138 of the Negotiable Instruments Act for ends of justice in view of the defence plea. The facts and circumstances require interference for correction of a manifest illegality or the prevention of a gross miscarriage of justice. The exercise of power under section 439/435 of the Code of Criminal Procedure is discretionary with the High Court. Considering the facts and circumstances of the present case, we are of the view that this is a fit case for exercising its discretion as the complainant opposite party Rejina Begum has committed double fraud as she withdrew the excess money of the accused petitioner using seven cheques and secondly she converted the present two cheques

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inserting huge amount by different hand which is a manifest and patent injustice apparent on the face of the record which calls for prompt redress. High Court Division will surely interfere where a person like accused petitioner is being harassed by an illegal and fraudulent proceeding.

34. There is sufficient materials before the High court Division for believing that the accused petitioner committed no offence under section 138 of the Negotiable Instruments Act and as such we are of opinion that there will be substantial injustice if this court does not interfere in this case and there will be fragrant violation of justice. The High court Division under section 439 of the Code having supervisory jurisdiction can scrutinize and can go into the fact of a case to examine the propriety of the order passed under section 265C of the Code of Criminal Procedure. Hence the application by the accused petitioner under section 265C of the Cr.P.C. is maintainable against the order of framing charge against the accused.

35. In the present case we have already found that the learned Sessions Judge, Rangpur acted without jurisdiction in passing the impugned order dated 09.02.2009 which is clearly illegal and we are of the view that in order to prevent the same for the ends of justice, the power vested in the High court Division under section 439 of the Code of Criminal Procedure should be exercised in the present case. We, therefore, find that the impugned order dated 09.02.2009 being illegal and without jurisdiction which is liable to be set aside.

In the result, the Rule is, therefore, made absolute and the impugned order dated 09.02.2009 passed by the learned Sessions Judge, Rangpur in Sessions Case No. 383 of 2008 arising out of CR case No. 300 of 2008 is set aside. Accused AKM Fayekuzzaman be discharged from the charge levelled against him under section 138 of the Negotiable Instruments Act, 1881 as the present facts and circumstances of the case do not attract section 138 of the Negotiable Instruments Act. Complainant opposite party Rejina Begum may take shelter under appropriate law to redress her grievance, if any, if she wishes under actual facts.

Let a copy of this judgment be sent to the trial court at once for necessary action.

Ed.

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HIGH COURT DIVISION (Criminal Appellate Jurisdiction) Mr. Siddiqur Rahman Miah, J. and Mrs. Krishna Debnath, J. Judgment 13.05.2010.

State, 43 DLR (AD) 234; State vs. Khadem Mondal, 10 BLD (AD) 228 ref.

}

Abul Basher and another } .…. Appellants VS The State } … Respondent

Mr. Hasan M.S. Azim … For the petitioner Mrs. Sakila Rowshan DAG . . . For the state.

Nari-O-Shisu Nirjaton Daman Ain (XVIII of 1995) Sections 10(2) & 14 Evidence Act ( I of 1872) Section 45 Scanning the evidence of PWs it is evident that the allegation regarding demand of dowery has not been substantiated and the alleged occurrence does not come within the ambit of section 10(2) of the Ain. On appreciation of the evidence on record it appears that the main allegation against the accused appellants that they firstly assaulted the victim and then poured poison into his mouth have not been proved. It is settled principle that the positive evidence in a case is that of the eye witness who had seen and narrated the occurrence. The evidence of a medical man or an expert is merely an opinion which only lends corroboration to the direct evidence. These glaring inconsistencies between the existence of the injuries on the dead body of victim as found by the post mortem doctor and the evidence of the prosecution witnesses about the injuries caused by the appellants irresistibly lead us to a conclusion that the occurrence did not take place in the manner as alleged by the prosecution. Such failure to exhibit the original copy of the post-mortem report, the possibility of such carbon copy being a fabricated copy cannot be ruled out. The learned Judge of the trial court below substituted “moral conviction for legal evidence” which is not allowed in law and, thus the impugned judgment and order of conviction and sentence is illegal and liable to be set aside. ....(39, 48 52 & 53) Osena Begum vs. The State, 55 DLR 299; Abdur Rashid vs. State, 27 DLR (AD)- 1; Abdul Quddus vs. * Criminal Revision No. 1025 of 2010

Judgment Siddiqur Rahman Miah, J: This Criminal Appeal is directed against the judgment and order dated 06.11.2007 passed by the learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal No. 3, Chittagong, in Nari-O-Shishu Nirjatan Case No.177 of 2003 arising out of Fatikchari PS. Case No.6 dated 14.11.1999 corresponding to GR No. 140 of 1999 convicting the appellants under section 10(2) and 14 of the Nari-O-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 (hereinafter refer as Ain) and sentencing each of them to suffer imprisonment for life.

2.

The prosecution case, in short, is that, the deceased Hasina Akhter alias Ratna was given in marriage on 16.05.2007 with the convict-appellant Abul Bashar, that after 10/12 days of marriage, the co-accused Nos.3,4 and 5 including another convict Morium Bibi, mother of Abul Bashar, stared demanding dowry to the tune of Tk.70,000/=for arranging a Saudi Arabian visa for Abul Bashar; that the victim used to inform her father about the demand for dowry; that upon refusal by the family of the deceased Ratna to meet the demand for dowry, the two appellants Abul Bashar and his mother mounted torture on the deceased.

3.

It is further stated that the allegation of beating and demanding dowry was taken to the local Salish where appellant in the presence of PW 1, PW 3 and PW 4 promised not to torture his wife and took her home; that in the night before the date of incident, appellants Morium Bibi and her son Abul Bashar on the excuse of delay in cooking food tortured her again on different parts of her body; that the next morning on 29.07.1999 when Ratna was coming to her father’s home, then the appellant Abul Bashar with the order of co-accused Nos.3 and 5 forcefully brought her inside and on her request for water, they poisoned her and strangled her to death after beating.

4.

Sensing death of the victim, a boy from nearby house came to the home of her father Omar Ahmed Khondoker and informed him about the death of his daughter. He went there immediately and found the victim dead. Soon after, he along with the company of PW-3 went to Fatikchari police station and accordingly lodged the UD case No. 20 of 1999 dated 29.07.1999.

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Thereafter, the brother of the deceased came to know that, in fact, the convict-appellants and other coaccused killed her sister. Accused No, 4 and 5 forging signature of his father made out the said UD case No.20 of 1999 dated 29.07.1999. Stating the above, facts Ratna’s brother Abdul Halim submitted a written complaint to the Magistrate on 31.10.1999. Treating the above complaint as FIR, Fatikchari P.S Case No.6 dated 14.11.1999 u/s 10 (1)and 14 of the Nari-OShisu Nirjatan (Bishes Bidhan) Ain, 1995 was recorded against these two convict-appellants and three others named in the ejahar that corresponds to G.R. No 140 of 1999.

5.

After investigation, police submitted the report being Charge sheet No. 12 dated 23.02.2000 against the 4(four) accused persons including the convict appellants and sent them up for trial for committing offence punishable under section 10(1) and 14 of the Nari-O-Shishu Nirjatan Bishesh Bidhan Ain, 1995 stating, inter alia, that the allegations against the accused persons were prima facie found to be true.

6.

After being ready the case was transferred to the learned Nari-O-Shishu Nirjatan Daman Tribunal No. 3 Chittagong and renumbered as Nari-O-Shishu Nirjatan Case No. 177 of 2003 (previously it was numbered as Nari-O-Shishu Case No. 63 of 2000).

7.

The learned Tribunal, thereafter, framed charge against the accused Abul Basher under section 4/10(1) of the Nari-O-Shishu Nirjatan ( Bishesh Bidhan) Ain 1995 and under section 4/10(1)/14 of the Nari-OShishu Nirjatan (Bishesh Bidhan) Ain 1995 against the other accused Marium Bibi, Shahjahan and Bacchu Miah.

8.

The trial of the case was held before the Tribunal Judge, Chittagong and in total 9 prosecution witnesses appeared before the Tribunal who were examined by the prosecution and cross-examined in part by the defence with the exception of prosecution witness No. 3 who was declared hostile.

9.

The appellants were examined under section 342 of the Code of criminal Procedure and they denied the charges brought and the allegations made against them. The defence did not call for any witness.

10. From the trend of cross examination and the defence case, it appears to be a case of innocence of the accused and that there was no demand of any dowry from the wife and there was any attempt of

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kill the victim by the accused as alleged by the prosecution but that the victim died by taking poison.

11. After considering the facts circumstances and evidence of the case, the learned Judge, Nari-OShishu Nirjatan Tribunal convicted the accused under section 10(2) and 14 of the Ain, 1995 sentencing them to suffer rigorous imprisonment for life by the judgment and order dated 06.11.2007.

12. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction under section 10(2)/14 of the Nari-O-Shishu Nirjatan Bishesh Bidhan Ain, 1995, the appellants have come up with the present appeal which is opposed by the respondent state through learned Deputy Attorney General.

13. Mr. Hassan S.M. Azim the learned Advocate for the appellant took us to the FIR, the charge so framed, the deposition of the prosecution witnesses, impugned judgment and the material papers and documents which are available in the paper books and submits that the convict appellants are totally innocent and they have not committed the crime as alleged by the prosecution; that the learned Tribunal misinterpreted, misread and misunderstood the oral evidence as well as documentary evidence in the case and erred in convicting and sentencing the appellants on such misreading and misapplication of evidence; that the learned Tribunal erred in failing to note the contradictions in the depositions made by the PWs in their own depositions as well as against each other and the learned court failed to apply his judicial mind in assessing the evidence and that the impugned judgment is illegal and unwarranted by facts and circumstances of the case as such the impugned judgment is liable to be set aside.

14. Mrs. Sakila Rowshan, the learned Deputy Attorney General for the state, on the other hand submit that the learned Judge, Nari-O-Shishu Nirjatan Daman Bishesh Adalat No. 3 Chittagong was justified in convicting and sentencing the accused appellants Abul Basher and Marium Bibi on assessing the evidence on record. She further submits that the prosecution has proved its case against the accused by most consistent, corroborative and overwhelming evidence; that the learned Judge was perfectly justified in convicting and sentencing the accused appellants on the basis of the most cogent and reliable evidence and that his judgment does not suffer from any misreading and non-reading of

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evidence. The learned Deputy Attorney General further submits that all the prosecution witnesses are natural, probable and competent witnesses and there is no internal points of falsehood in their evidence on any point and as such the impugned judgment calls for no interference by the court.

15. The only point for determination in the appeal is whether the learned Judge was justified in convicting and sentencing accused appellants Abul Basher and Marium Bibi under section 10(2)/14 of the Nari-OShishu Nirjatan Daman Bishesh Bidhan Ain, 1995 .

16. In the face of arguments advanced by the learned Advocates of the contending parties, we are now called upon to scrutinize the material evidence on record to come to a proper decision in this appeal.

17. P.W.1, Omer Ahmed Khondaker is the father of the victim who deposed that the inmates of the house of his son-in law informed him that his daughter died taking poison; that his son, who is the informant, was in his duty at Rubber Garden, that accused Abul Basher is also his brother’s son; that accused Sajahan is also his brother’s son and accused Bachu is his nephew; and that his son filed this case 3 three months of his after filing of his UD case.

18. He categorically stated in his cross examination that his son in law Abul Basher who is the accused did never demand any dowry from his daughter and thus he does not solicit his punishment.

19. P.W.2, Abdul Halim, is the informant of this case who deposed in his examination in chief that he heard that his sister Hachina Akter died taking poison; that he was not in the house as he served in Holudia Rabber Garden; that he does not know what was written in his case. At this stage the learned court warned this witness to say like the contents of the FIR and thereafter the learned Judge adjourned the case from 18.02.2001 to 20.05.2001. Thereafter he deposed like the contents of the FIR and this sort of attitude of the learned Judge is not desirable which indicates that the learned Judge compelled this witness to depose according to the contents of FIR. 20. In the cross examination, he stated that he filed the case three months after the occurrence; that he did not see the occurrence; that he heard about the occurrence but he did not hear the occurrence from any person who saw the occurrence from his own eyes. He categorically stated in his cross examination that the accused did not demand any dowery; that his

father informed him that his sister died taking poison and that no salish was held at school field.

21. P.w. 3.Mohammad Hossain, deposed that the father of the victim, Omer Ali Khandaker informed him on 29.09.1999 at about 11/12 hour that his daughter died taking poison.

22. In the cross examination, he denied the defence suggestion that he told to the I.O. that the accused killing the victim poured poison into her mouth; that he did not depose to the I.O. and his statement under section 161 is concocted; that no salish was held regarding demanding of dowery by the accused and that the father or the brother of the victim did never disclose about the demanding of dowery by the accused.

23. P.W.4, Alkas Mia, deposed in his cross examination that he knows nothing about the occurrence.

24. P.W.5, Kala Miah, deposed in his cross examination that he heard that the victim died taking poison.

25. P.W.6, Dr. Prodip Kumar Chowdhury, deposed supporting P.M. report that the victim M Hachina died due to assault and effect of poison.

26. P.W.7, Dr. Aditta Kumar Roy, is a local doctor who deposed that the accused Abul Basher called him in his house on 29.07.1999 at 10.00 as his wife was ill and going there he found that his wife took poison. He categorically deposed that he came to understand by observing her symptom that she took poison for which he washed her stomach by tube mixing potash and water and thereafter he pushed 5000 CC saline and thereafter the victim died in his presence .

27. In the cross examination, he stated that after taking poison, Kornia became small and poison’s saint was coming from her mouth and thus he came to understand that the victim took poison and he found no injury mark inside her mouth.

28. P.W. 8, SI Sheikh Lutfor Rahman, was the in charge of Datmara Investigation Centre. He testified that on 29.07.1999 the father of the victim filed a written complaint to the effect that his daughter died drinking poison and on the basis of such complaint, an UD case no. 20 dated 29.07.1999 of Fatikchari P.S. was started and the investigation was entrusted on ASI Abdur Razzak who held inquest of the dead body of the victim and prepared an inquest report and

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sent the dead body to the morgue for holding post mortem examination.

29. In the meantime, the brother of the victim filed a complaint before the Magistrate,1st class who sent the complaint to the Fatikchori PS for treating the same as FIR and accordingly Fatik chori PS case No.06 dated 14.12.1999 under section 10(1)/14 of the Nari-Shishu Nirjatan Daman (Bishesh Bidhan) Ain 1995 was started and this witness was entrusted with the task of investigation of the case and getting the task of investigation, he visited the place of occurrence prepared the sketch map of the place of occurrence and also prepared Index thereof, recorded the statement of witnesses under section161 of the Code of Criminal Procedure and later on he handed over the case docket to the officer in charge.

30. P.W.9, ASI Abdur Razzak held the inquest report of the victim and submitted a report marked exhibit-6 and his signature thereon is marked exhibit 6/1. He categorically deposed that he found no hurt in the dead body.

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35. Here in this case charge was framed against the accused Abul Basher under section10(2) of Ain and against accused Marium Bibi ( Mother of Abul Basher), Shajahan Mia and Bachu Miah under section 4/10(1)/14 of the Ain. Only accused Abul Bashar and his mother Marium was convicted under section 10(2)/14 of the Ain. No where in the judgment as well as in the framing of charge stated which role was played by which the accused were convicted basing on the lump allegation.

Now let us see how far the prosecution has succeeded in proving the allegation against accused appellants under section 10(2) of the Ain, It is stated in this section if any person commits murder for doweryk he will be convicted under this section. First of all we see whether the allegation of dowery has been proved or not.

36. P.W.2, Omar Ahmed Khonder, father of the victim deposed that accused Abul basher did not demand any dowery from his daughter.

31. In the cross examination, he deposed that he heard from local people that the victim committed suicide taking poison.

37. P.W.2 Abdul Halim as informant deposed in his cross examination that the accused Abul Basher did not demand any dowery at the time of marriage or later.

32. These are all the evidence produced by the prosecution.

38. P.W.3 Mohammad Hossain deposed that he did not do any salish as regards the demand of dowery.

33. In the instant case, the appellants were convicted under section 10(2)/14 of the Nari-OShishu Nirjatan Daman (Bishesh Bidahan) Ain, 1995.

39. Scanning the evidence of PWs it is evident that the allegation regarding demand of dowery has not been substantiated . Thus we find that the alleged occurrence does not come within the ambit of section 10(2) of the Ain.

34. Now let us see the provision of section 10(2)/14 of the Ain which runs thus: Òaviv 10| ‡hŠZy‡Ki Rb¨ g„Z~¨ NUv‡bv, BZ¨vw`i kvw¯ÍÐ (1) hw`†Kvb bvixi m¦vgx, m¦vgxi wcZv, gvZv, AwffveK, AvZ§xq ev m¦vgxi c‡¶ Ab¨†Kvb e¨w³†hŠZy‡Ki Rb¨ D³ bvixi g~Z¨ NUvb Zvnv nB‡j D³ m¦vgx, wcZv, gvZv, AwffveK , AvZ§xq ev e¨w³ g„Z~¨`‡Û `Ûbxq nB‡eb| 2| hw`†Kvb bvixi m¦vgx, m¦vgxi wcZv, gvZv, AwffveK, AvZ§xq ev m¦vgxi c‡¶ Ab¨†Kvb e¨w³ †hŠZy‡Ki Rb¨ D³ bvixi g„Zy¨ NUv‡bvi †Póv K‡ib Zvnv nB‡j D³ m¦vgx, wcZv, gvZv, AwffveK AvZ§xq ev e¨w³ hve¾xeb Kviv`‡Û `Ûbxq nB‡ebÓ| Òaviv 14| AcivacÖ‡ivPbvi kvw¯ÍÐ hw` †Kvb e¨w³ GB AvB‡bi Aaxb†Kvb Aciva msNU‡bi cÖ‡ivPbv †hvMvq Ges†mB cÖ‡ivPbvi d‡j D³ Aciva msNwUZ nq, Zvnv nB‡j H Aciva msNU‡bi Rb¨ wba©vwiZ `‡Û cÖ‡ivPbvKix e¨w³ `Ûbxq nB‡ebÓ|

40. In this connection we may profitable refer the decision in the case of Osena Begum vs. The State reported in 55 DLR 299. It is held in the said decision “ The Ain was promulgated to punish certain heinous offences against the children and women through special Adalat established by it. If the murder were committed for dowry, only then such Adalat would have exclusive jurisdiction to try such offence. Only sentence for such an offence under section 10(1) or section 14 of the Ain is death. No alternative sentence is prescribed . The Ain was no doubt made harsh and intended to prevent amongst others certain heinous offences committed for dowry. The motive for such offence will decide the jurisdiction of such Adalat.

The moment the Adalt finds no proof of existence of such ,motive of dowry for any offence within

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mischief of the Ain, it must take its hands off the case.

In such situation only course will remain open for the Adalat to follow would be to send the case record to the Sessions Judge for trial.

41. Now let us see whether there will be any fruitful result if the case is sent to Sessions Judge for trial.

Before sending the case to sessions Judge for trial we should see whether the main allegation against the accused appellants that the accused assaulted the victim first and then poured poison into her mouth has been proved or not.

42.

In this case 9 PWs have been examined.

P.W.1, Omar Ahmed Khondaker, is the father of the victim . P.W.2, Abdul Halim, is the brother of the victim as well as the informant of this case. P.W.3 Mohammad Hossain, P.W.4 Alkas Miah and PW.5 Kala Miah are neighbouring witnesses. P.W.7 Dr. Aditha Kumar Dey is local doctor who attended the victim immediately after occurrence . P.W.8 is SI Sheikh Lutfor Rahman who prepared inquest report.

As regards the main allegation, PW.1, father of the victim, at first informed the matter to Datmara Investigation Centre in writing that his daughter died taking poison.

43. P.W.2, brother of the victim, who is informant at first deposed that he heard that his sister died taking poison and later on he shifted his position by the warning of the court and again in his cross examination he stated that he did not see the occurrence but his father informed him that the victim died taking poison.

44. P.W.3, Mohammad Hossain, deposed that PW.1 father of the victim informed him on 29.07.1999 at 11/12 hours that his daughter died taking poison and that PW.1 also informed such information to the police of Datmara Investigation Center in writing.

45. P.W.4, Alkas Miah deposed that he does not know any thing about the occurrence.

P.W.5 Kala Miah deposed that he heard that the victim died taking poison.

46. P.W.7 Dr., Aditia Kumar Dey, the local doctor, deposed that accused Abul Basher, the husband of the victim, went to him on 29.07.1999 at 10 a.m. to bring him as his wife is ill and accordingly he went there and examined the victim and realized that the

victim took poison and tried to wash her stomach and later she became weak and died in his presence.

47. P.W.8 SI Sheikh Lutfor Rahman stated that on the written information of PW1, father of the victim, he held surathal of the victim and found no mark of injuries in the body of the victim and he heard from the local people that the victim died taking poison.

48. On appreciation of the evidence on record it appears that the main allegation against the accused appellants that they firstly assaulted the victim and then poured poison into his mouth have not been proved.

49. In the case PW.6 Dr. Prodip Kumar Chowdhury opined and deposed that the victim died due to torture and forceful induction of poison. In this respect, are of the view that the doctor PW.6 being Dr. Prodip Kumar Chowdhury while preparing the post mortem report failed to state the age of injuries, such failure on the part of the doctor rendered the post mortem report very unreliable inasmuch as due to such failure it became very difficult to ascertain when those injuries were sustained by the victim, the same being the time of alleged occurrence. It is held in the case of Abdur Rashid vs. State reported in 27 DLR (AD)- 1” The doctor while holding the post mortem examination did not record the age of the injuries. In a case of murder, the age of injuries is an important fact to determine the approximate time of occurrence.”

50. The medical evidence is only corroborative in nature. It has no higher evidentiary value. As opposed to the ocular evidence of the P.W. 7 being Dr. Adittya Kumar Dey to the effect: “Avwg wfKwU‡gi gy‡L wKsev gyL Mne‡i †Kvb AvNv‡Z wPý †`wL bvB “ and also the ocular evidence of P.W.9 being A.S.I Md Abdur Razzak who prepared the inquest report to the effect that “No sign of hurt was found on the dead body”, Which essentially corroborates the evidence of P.W.7, the post-mortem report should not be considered as being very doubtful rendering itself to be unworthy of reliance for a safe conviction.

51. It also held in the case of Abdul Quddus vs.

State, reported in 43 DLR (AD) 234. “It will not be out of place to mention that the medical evidence is only corroborative in nature. In that view, the ocular evidence of the eye-witness which substantially corroborates the major injuries on the person of the deceased must be accepted.”

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52. It is settled principle that the positive evidence in a case is that of the eye witness who had seen and narrated the occurrence. The evidence of a medical man or an expert is merely an opinion which only lends corroboration to the direct evidence. These glaring inconsistencies between the existence of the injuries on the dead body of victim as found by the post mortem doctor and the evidence of the prosecution witnesses about the injuries caused by the appellants irresistibly lead us to a conclusion that the occurrence did not take place in the manner as alleged by the prosecution. It would be seen from the evidence of the doctor (P.W.6) being Dr. Prodip Kumar Chowdhury that only a carbon copy of the post-mortem report was filed, not the original one, which the P.W.6 admitted as follows: Òm¦v¶x e‡j†h cÖ`wk©Z gqbv Z`‡šÍi wi‡cv‡U©i Kve©b Kwc nB‡jI Bnv Zvi wjLvi Kve©Y KwcÓ Such failure to exhibit the original copy of the post-mortem report, the possibility of such carbon copy being a fabricated copy cannot be ruled out.

53. In view the facts and circumstances of this case, we are view that the learned Judge of the trial court below substituted “moral conviction for legal evidence” which is not allowed in law and, thus the impugned judgment and order of conviction and sentence dated 06.11.2007 is illegal and liable to be set aside. In this regard the convicts-appellants heavily rely on the decision of the Hon’ble Appellate Division as the fact of the instant case are almost similar to the fact of the case reported in the case of The State vs. Khadem Mondal, reported in 10 BLD (AD) 228. In the fact of the present case, it will be improper to substitute moral conviction for legal evidence. It may also be considered for ends of justice that the convict-appellant No. 1 has been languishing in jail since 15.11.1999 for about 11 years and the convict-appellant No. 2 is an old lady who have languishing in jail without any fault of them.

54. The allegation against the accused appellants is that they collusively assaulted the victim and thereafter poured poison into her mouth and thus they killed the victim.

55. The defence case is that the victim died taking poison.

56. The fundamental and basic presumption in the administration of criminal law and justice delivery

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system is that the accused should be presumed to be innocent till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence. In a criminal trial, the burden of proving guilt of the accused beyond all reasonable doubt always rests on the prosecution and on its failure, it can not fall back upon the accused. In a criminal case, it is for the prosecution to bring the guilt home to the accused.

57. Though in a wife killing case, the husband is to explain how his wife died. Here in this case, the husband the appellant No. 1 took an alibi to the effect that his wife died taking poison. though the accused appellants have not adduced any witness but his alibi has been substantiated by the evidence of PWs. 58. Considering all the above facts and circumstances and evidence of the case and in view of our finding above we find that the prosecution has totally failed to prove the case beyond reasonable doubt. So we find that the learned Judge Nari-OShishu Nirjataon Daman Tribunal No.3, Chittagong is not justified in convicting and sentencing the accused appellants by the impugned judgment. We therefore, find that the impugned judgment calls for our interference.

59. In the result, the appeal is allowed and the judgment and order of conviction and sentence dated 06.11.2007 passed by the learned Judge, Nari-oShishi Nirjatan Daman Bishesh Adalat No.3, Chittagong in Nari-O-Shishu Case No.177 of 2003 is set aside. The accused appellants are acquitted from the charge under section 10(2)/14 of the Nari-OShishu Nirjatan ( Bishesh Bidhan) Ain 1995. We direct that the accused appellant Abul Basher be set at liberty forthwith if not wanted in connection with any other case and accused appellant Marioun Bibi is discharged from her respective bail bond.

60. Let a copy of this judgment and order be sent to the Nari-O-Shishu Nirjatan Daman Tribunal No.3 , Chittagong for compliance.

Send down the L.C.R at once.

Ed.

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HIGH COURT DIVISION (Civil Revisional Jurisdiction) Mr. Sheikh Abdul Awal, J. Judgment 12.01.2012.

} } } }

Md. Alauddin Kazi and others. .…. Petitioners.

VS Government of Bangladesh and another. … Opposite-parties.

Mr. Mokhlesur Rahman with Mr. S. A. Hasan, Advocates ....For the petitioners.

Mr. Md. Abdus Salam Mondal, D.A.G. with Mr. Arobinda Kumar Roy, A.A.G. ....For the opposite parties.

Code of Criminal Procedure (V of 1908) Section 115 The finding of the court of appeal below and the trial court as well is contrary to the evidence on record and also is product of misreading and nonconsideration of material evidence on record in as much as in the present case the plaintiff had produced their kabala, S.A. Khatian and the rent receipt in the trial court to show their continuous possession but the courts below failed to consider the same as a result of which the judgment and decree of the Court below is set aside and the suit is decreed. ... (26 & 31) Abul Bakar Siddique Vs. A.D.C. Kurigram and others, 48 DLR(AD) 154; Abdul Mazid Howlader and another Vs. Lahajuddin Howlader and others, 48 DLR(AD) 160; Rajkumari Baishnabi Vs. Shyama Bibi in Calcutta Weekly Notes (Volume 25) 165; Bangladesh Vs. Tabarak Ali Mia and others 43 DLR(AD) 130; Akrab Ali and others Vs. Zahiruddin Kari and others 30 DLR(SC) 81; Erfan Ali Vs. Joynal Abedin Mia 35 DLR(AD) 216, 2 BLC(AD) 134 ref.

Judgment Sheikh Abdul Awal, J. This Rule was issued calling upon the opposite parties to show cause as to why the impugned judgment and decree dated 9.11.2008 passed by the learned Additional District Judge, 5th Court, Dhaka in Title Appeal No. 825 of 1999 affirming those dated 17.10.1999 passed by the learned Subordinate Judge, 1st Court, Dhaka in Title Suit No.16 of 1988 dismissing the suit should not be set-aside. *Civil Revision No. 821 of 2009.

2.

Material facts of the case as necessary for disposal of the Rule are that the petitioners as plaintiffs brought the aforesaid suit being Title Suit No. 16 of 1988 in the Court of the then Subordinate Judge, 1st Court, Dhaka for declaration of title of the suit as described in schedule to the plaint comprising of .62 acres under Mouza-Uttarkhan, C.S. Khatian No.145, Dag No. 1481. The plaintiff’s case, in short, is that the suit land was originally belonged to Bhawal Court of Wards Estate who granted pattan in favour of the plaintiffs on payment of Tk. 26/- as salami; that the plaintiffs thereafter, on the basis of the said pattan mutated their name, paid rents to the Government regularly and during last S.A. operation their names were rightly recorded in the S.A. Khatian No. 13; that when the pattan was granted in favour of the plaintiffs, the nature of the suit land was a pond and after taking pattan the plaintiffs filled up half portion of the suit land by earth-filling and built dwelling house thereon and the rest being cultivable land under their possession; that during last R.S. operation the suit land was wrongly recorded as khas land of the Government as a result of which Settlement Case being No. 54/86-87 was started with Chandpara Shahi Moshjid and thereupon, notices were served upon the plaintiffs infringing their right and title. Hence, the suit.

3.

The defendant contested the suit by filing written statement denying most of the averments of the plaint contending, inter-alia, that the suit land was originally belonged to Bhawal Court of Wards Estate and subsequently, the same was recorded as khas land of the Government; that the suit is barred by limitation and during last R.S. operation the record of right was rightly prepared and published in the name of the Government and later on, the Government leased out the property in favour of the Chandpara Shahi Moshjid Committee through Settlement Case No. 54/86-87. The suit land was never gave pattan by the Bhawal Court of Wards Estate in favour of the plaintiffs, the plaintiffs have no right, title and interest of the suit land and as such the suit is liable to be dismissed.

4.

The trial Court on the pleadings of the parties framed the following issues for determination namely: (i) whether the suit is maintainable in its present form and manner? (ii) whether the case is barred by limitation?

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(iii) whether the plaintiffs have right, title and possession in the suit land? (iv) whether the settlement case in question was void, illegal and beyond jurisdiction? (v) whether the plaintiffs are entitled to get decree, as prayed for?

5.

During trial plaintiffs examined 3 (three) witnesses and exhibited a series of documents and defendant side examined 1 (one) witness to prove their respective cases.

6.

The trial Court below on consideration of the materials on record dismissed the suit by its judgment and decree dated 17.10.1999 (decree signed 27.10.1999) on the findings, inter alia, that the plaintiffs neither proved their right, title and possession in the suit land nor proved their pattan (Ext.1) by adducing evidence.

7.

The unsuccessful plaintiffs then preferred an appeal being Title Appeal No. 825 of 1999 before the learned District Judge, Dhaka which was ultimately heard by the learned Additional District Judge, 5th Court, Dhaka, who by his judgment and decree dated 9.11.2008 affirmed the decision of the trial Court below holding that the plaintiffs could not prove that the pattan (Ext.1) was granted by the Bhawal Court of Wards Estate in favour of the plaintiffs.

8.

Being aggrieved by the aforesaid judgment and decree dated 9.11.2008 the plaintiff-appellantpetitioners have come before this Court and obtained the present Rule.

9.

Mr. Mokhlesur Rahman, the learned Advocate appearing for the petitioners in the course of his argument after placing the judgments of two Courts below, deposition of witnesses, exhibits and other relevant materials on record submits that judgments of both the Courts below are not in fact based on correct evaluation of facts and materials of the case and as such the impugned judgment and decree are liable to be set aside. He next submits that the plaintiffpetitioners in support of their claim proved as many as 4(four) vital documents namely; (i) pattan dated 4.4.1939 (Ext.1), (ii) 5(five) rent receipts (Ext. 22Gha), (iii) S.A. Khatian (Ext.3) and (iv) rent receipt

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under S.A. Khatian (Ext.4) but both the Courts below mere on surmise and conjecture mechanically held that the plaintiffs could not prove their pattan as well as right, title and possession in the suit land by educing evidence.

10. Referring to the deposition of sole D.W-1, Mr. Mokhlesur Rahman contends that it is apparent from the evidence of sole D.W-1 that this witness in his deposition admitted that the S.A. Khatian of the suit land was prepared in the name of the plaintiffpetitioners and there is nothing on record to suggest that the Government leased out the suit property in favour of Chandpara Shahi Moshjid Committee and as such the judgment of both the Courts below are based on gross misreading and misinterpretation of material evidence on record. He also submits that both the Courts below ought to have decreed the suit inasmuch as the plaintiffs examined as many as 3(three) witnesses and all of them in their respective testimony categorically testified that the plaintiffs got the suit land by way of pattan dated 4.4.1939 granted

by Bhawal Court of Wards Estate (Ext.1), mutated their name and since then the plaintiffs have been possessing the suit land by paying rent regularly to the Government as direct tenant of the Government.

Mr. Rahman, finally submits that taking rent from the plaintiff-petitioners it does not lie in the mouth of the defendant opposite party No. 1 that the suit property was vested in the Government and the plaintiffs are not in possession over the suit property.

11. On the other hand, Mr. Md. Abdus Salam Mondal, the learned Deputy Attorney General appearing for the Government by filing counter affidavit opposes the Rule. He submits that both the Courts below on due consideration of the entire materials on record rightly arrived at a finding that the plaintiff-petitioners could not prove their right, title and possession on the basis of their so-called unregistered pattan. He further submits that both the Courts below rightly arrived at a concurrent finding that Pattan (Ext.1) was forged, collusive and illegal document which has never been acted upon and as such question of interference does not arise at all.

12. I have heard the learned Advocate and the learned Deputy Attorney General at length and

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perused the judgments of two Courts below, deposition of witnesses and other materials on record.

To appreciate the contentions of the learned Advocate and the learned Deputy Attorney General, it is necessary to scrutinize the material evidence on record to arrive at a correct decision whether both the Courts below committed any illegality in holding that the plaintiff-petitioners having failed to prove their right, title and possession on the basis of Ext.1 (Pattan).

13. Plaintiff No. 1, Alauddin Kazi himself was examined as PW-1, who in his deposition stated that: bvwjkx m¤úwË fvIqvj †KvU© Ae IqvW©m Gi Lvm m¤úwË wPj| Avwg 4/4/1939 Zvwi‡L 26/- (QvweŸk) UvKv †mjvgx w`‡q bvwjkx m¤úwË cËb †bB| Avwg Avgvi bvg Rvix Kwi| LvRbv †`B| cËb bvgxq LvRbvi iwk` 4wU `vwLj Kwijvg| weMZ Gm, G, Rwi‡ci mgq Gm, G, LwZqv‡bi Avgvi bvg my×fv‡e †iKW© nq| Gm, G, cP©vi mwn gûix bKj `vwLj Kwijvg| 992 Bs mb ch©šÍ LvRbv w`‡qwQ| LvRbvi iwk` mgyn `vwKj K‡iwQ| bvwjkx mgBˇZ Avwg `L‡j AvwQ| This witness in his deposition also stated that earlier the suit land was a pond, who by filling earth thereon started cultivating and fishing. This witness in his cross examination denied that the suit property has been leased out in favour of the Chandpara Shahi Moshjid. PW-2, Abdur Rahman Kazi, stated in his deposition that the plaintiffs got the suit property by the Bhawal Court of Wards Estate by way of pattan and the suit property was mutated in their name and S.A. record was also prepared in the name of the plaintiffs. PW-3, Kazi Lehazuddin, stated in his deposition that:bvwjkx m¤úwË Avgvi evox †_‡K A‡bK `y‡i| Avwg ev`x‡K wPwb| ev`xMb bvwjkx m¤úwË †fvM `Lj K‡i| bvwjkx m¤úwˇZ cyKzi K‡i I wKQz Rwg‡Z dmj Pvl K‡i ev`xMb, bvwjkx m¤úwË gmwR` KwgwU †fvM `Lj K‡i bv| This witness in his cross-examination denied the suggestion that Chandpara Shahi Mosjid Committee has been possessing the suit property.

14. DW-1, Md. Zulfiqur Ali stated in his deposition that the suit property has been leased out in favour of Chandpara Shahi Mosjid Committee though Settlement Case No. 54/86-87. This witness also stated that pattan of the plaintiffs was forged, collusive and Bhawal Court of Wards Estate never granted pattan in favour of the plaintiffs. This witness in his cross-examination admitted that S. A. kahtian

of the suit property was prepared in the name of Alauddin Kazi and Shamsuddin Kazi (plaintiffs) being Dag No. 1481. This witness in his crossexamination also stated that: bvwjkx Rwg miKvix Lvm Rwg nIqvq GUv Pvbcvov kvnx gmwR`‡K e‡›`ve¯Í †`Iqv n‡q‡Q| D³iƒ‡c Gm, G, †iKW© evwZj n‡q‡Q| H e‡›`vm‡¯Íi †Kvb KvMR `vwLj KwiwY| Bs‡iRx 1988 m‡bi eb¨vq bw_ bó nq| Bs‡iRx 1988 m‡bi eb¨vq bw_ bó nevi mg_©‡b †Kvb KvMR `vwLj KiwQ wK bv Zv g‡b co‡Q bv| 15. On a close perusal of the evidence of PW-1, PW-2, PW-3 and DW-1 together with the Exhibits namely, (i) pattan dated 4.4.1939 (Ext.1), (ii) 5(five) rent receipts (Ext.2-2Gha), (iii) S.A. Khatian (Ext.3) and (iv) rent receipt under S.A. Khatian (Ext.4), it appears that the plaintiff-petitioners in support of their right, title and possession over the suit property adduced sufficient corroborative evidence both oral and documentary. It also appears that the defendantopposite parties could not make the case shaky of the plaintiff-petitioners by way of cross-examination.

16. Mr. Mokhlesur Rahman at the end of the day in support of his lengthy argument has referred to some decisions reported in 2 BLC(AD) 134, 30 DLR(SC) 84, 48 DLR(AD) 160, 48 DLR(AD) 154, 43 DLR(AD) 130, Calcutta Weekly Notes (Volume 25) 165 and 35 DLR(AD) 216.

17. Now, in order to appreciate the legal aspects involved in this case, it would be useful if I consider the cited decisions.

18. In the case of Abul Bakar Siddique Vs. A.D.C. Kurigram and others reported in 48 DLR(AD) 154, it has been held that: The learned Single Judge of the High Court Division having independently assessed the evidence and having found a case of non-consideration of material evidence on record and consequently nonreversal of material findings interfered with the finding of fact. To our mind, the revisional Court is competent to interfere in a case of non-consideration of material evidence which is specifically material for the determination of the material issue,

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Startus Construction Company Vs Government of Bangladesh (Zubayer Rahman Chowdhury, J.)

namely, the issue of shifting of the school to the new mouza.

19. In the case of Abdul Mazid Howlader and another Vs. Lahajuddin Howlader and others reported in 48 DLR(AD) 160, it has been held that: There being a total non-consideration of all the witnesses of the pre-emptees, the learned Single Judge acted wrongly in refusing to exercise his revisional jurisdiction in a case where due to non-consideration of the material evidence on record an erroneous decision has been arrived occasioning a grave failure of justice.

20. In the case of Rajkumari Baishnabi Vs. Shyama Bibi reported in Calcutta Weekly Notes ( Volume 25) 165, it has been observed that: Their Lordships passed the following judgment:- We are of the opinion that this appeal must be allowed. The learned District Judge has decided one question and one question only, namely, that the unregistered deed produced in the case was not admissible in evidence. On this ground he has held that the tenancy alleged to have been held by Shyama under Rajkumari has not been established. The District Judge, however, has overlooked that in this country it is possible to establish a tenancy without the production of a lease by proof of payment of rent by the tenant and acceptance of rent by the landlord.

21. In the case of Bangladesh Vs. Tabarak Ali Mia and others reported in 43 DLR(AD) 130, it has observed that: Patni taluk had its origin on the estates of the Raja of Burdwan but has since been extended to other Zamindaris. The character of this tenure is that it is a taluk (etymologically, 'taluk' stands for some intermediate interest being derived from 'alak'= to suspend from) created by the Zaminder, to be held at a rent fixed in perpetuity by the lessee and his heirs for ever. Zaminder is the landlord, patnidar is his tenant. A patni although in form a lease, is not a mere lease-hold property. A patnidar

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may let out the lands in any manner conducive to his interest, provided his interest was subsisting.

22. In the case of Akrab Ali and others Vs. Zahiruddin Kari and others reported in 30 DLR(SC) 81, it has been held that: According to section 103(B)(5) of The Bengal Tenancy Act every entry in a record of rights finally published shall be evidence of the matter referred to in such entry and shall be presumed to be correct until it is proved to be incorrect. The learned Judges of the High Court appear to have started with the view that the Court of appeal below was palpably wrong in presuming title in favour of the defendants from a mere entry in the records of right and that the defence having admitted title of the predecessor of the plaintiff, the plaintiff was relieved of the burden of proving the title of Aftabuddin Sarkar. Their Lordships were not correct in their view as to the effect of the entries in a finally published record of right and in relieving the plaintiff, in the face of the said entries of the burden of proving the title of Aftabuddin Sarkar. The entries in the Khatian Ext. A that Faizuddin Haji was in the occupation of the holding appertaining to the jote of Aftabuddin Sarkar on the basis of purchase for a consideration of Rs. 50/- and that the land was fit for assessment of rent but there was no payment were not beyond the scope of the survey held under Chapter X Part 1 of the Bengal Tenancy Act, 1885.

23. In the case of Erfan Ali Vs. Joynal Abedin Mia reported in 35 DLR(AD) 216, it has been held that: The rent receipts were excluded from consideration by the lower Appellate Court taking the view that these are provisional receipts and that they carry little weight in that "any person interested in a land may pay rent to the Government Acquired Estate".

This view is erroneous, for rent-receipts, though not documents of title, are important items of evidence of possession and may be used as collateral evidence of title since

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possession generally follows title. Again, plaintiff's name has also been recorded in the S.A. Khatian prepared in the period immediately following the whole-sale stateacquisition in 1956 and all objections raised by defendant No.1 were overruled by the Revenue-officer and then by the appellate authority.

24. Thus, from all the decisions, it is clear that a patnidar may let out the lands in any manner conducive to his interest, provided his interest was subsisting. Rent receipts and S.A. Khatian are evidence of possession and may be used as collateral evidence of title and a finding of fact whether concurrent or not, arrived at by the lower Court is binding on this Court, as a Revisional Court except in certain well-defined exceptional circumstances such as non-consideration or misreading of material evidence on record affecting the merit of the case.

25. I have already noticed that in this case, the plaintiff-petitioners in order to prove their right, title and possession in the suit property produced so many important documents namely, pattan dated 4.4.1939 (Ext.1), 5(five) rent receipts (Ext.2-2Gha), S.A. Khatian (Ext.3) and rent receipt under S.A. Khatian (Ext.4). The Court of appeal below by the impugned judgment affirmed the decision of the trial Court with the observation that: c~‡e©v³ Av‡jvPbv I mvÿ¨ cÖgvb ch©v‡jvPbv‡šÍ Av`vjZ GB Awfg‡Z Av‡m †h, bvwjkx m¤úwË eve` ev`x fvIqvj †KvU© Ae IqvW©m †óU nB‡Z cËb MÖnb Kiv Ges D³ cˇbi Av‡jv‡K ¯^Z¡ cÖwZwôZ nIqv Ges D³ ¯§cwˇZ ¯^Z¡evb I `LjKvi _vKvi welqwU ev`xcÿ cÖgv‡b mg_©b nb bvB| †mBw`b †_‡K ev`x Zvnvi ¯^‡Z¡i †NvlbvgyjK wWµx cvB‡Z cv‡ib bv| weÁ wb¤œ Av`viZ Z`ªæc wm×všÍ cÖ`vb Kivq Av`vj‡Zi n¯Í‡ÿc Kivi †Kvb Kvib bvB& bvwjkx m¤úwË m¤ú~b© As‡k ev`x c‡ÿi wbisKzk `Lj bv _vKvq mywbw`©ó cÖwZKvi AvB‡bi 42 aviv g‡Z ¯^Z¡ †Nvlbvi †gvKÏgv Pwj‡Z cv‡i bv g‡g© weÁ wb¤œ Av`viZ †h wm×všÍ cÖ`vb Kwiqv‡Qb Zvnvi mwnZ AÎv`viZ GKgZ †cvlb K‡ib| 26. In the given facts and circumstances of the case and the uniform decisions of the highest Court as cited above, I have no hesitation to hold that the above quoted finding of the Court of appeal below is product of misreading and non considering the material evidence on record inasmuch as in this case the plaintiffs had produced their kabala, SA Khatian and rent-receipts in the trial Court to show their continuous possession but the Courts below did not consider the same.

27. By the way, it may be mentioned that in this case the learned Deputy Attorney General took time

again and again lastly on 8.12.2011 by filing an application took time till one week after the vacation for collecting the record of settlement case No. 54/86-87 though, he failed to collect the same.

28. There is another aspect of the case should also be looked into. Mr. Mokhlesur Rahman, the learned Advocate for the petitioners while elaborating his submission inviting my attention to Annexure ‘C’ and ‘D series’ of the supplementary affidavit dated 29.11.2011 and submits that city survey khatian No. 16259, dag No. 8219 & 8222 respectively in respect of the suit property have been prepared in the name of the petitioners and the Appeal Case being No. 69700 of 2002 filed by the defendant-opposite parties under section 31 of the Bengal Tenancy Act before the settlement officer was rejected with the observation that: Òbvwjkx Rwg Avi, Gm, †iKW© Z`šÍ Kvjxb mg‡q wKfv‡e A_ev †Kvb KvM‡Ri wfwˇZ miKv‡ii 1 bs LwZqv‡b †iKW© nBqv‡Q GB g‡g© cÖkœ K‡i Rvb‡Z PvIqv nB‡j AvcxjKvix cÿ Rvbvb †h, Avi, Gm, †iKW© wKfv‡e bvwjkx Rwg †iKW© nBqv‡Q Zvnv wZwb Rv‡bb bv| GB g‡g© †Kvb KvMRcÎ †`LvB‡Z wZwb AcviMZv Rvbvb| wZwb e‡jb †h, †h‡nZz Avi, Gm †iKW© PzovšÍfv‡e cÖKvwkZ I †M‡RU weÁwcZ&i gva¨‡g miKv‡ii wbKU n¯ÍvšÍi Kiv nBqv‡Q, †m‡nZz Bnv miKvix Lvm Rwg wnmv‡e Mb¨ nB‡e| wZwb bvwjkx Rwg miKv‡ii 1bs LwZqv‡Y †iKW© Kivi `vex Rvbvb| ......AvcxjKvixc‡ÿ `vex †Iqw³K wfwË bv _vKvq Zvnv‡`i bv‡g †iKW© Kivi `vex we‡ePbv Kiv †Mj bv|Ó And, as such at any rate judgments of both the Courts below do not deserve to be sustained.

29. To this, the learned Deputy Attorney General finds it difficult to repel the contention of Mr. Mokhlesur Rahman, the learned Advocate for the petitioners.

30. For the reasons stated above, I am inclined to hold that both the Courts below erred in law in passing the judgments under challenge without following the correct principle relating to the appreciation of the evidence and materials on record and the same has resulted in an error in the impugned decisions occasioning failure of justice.

31. In the result, the Rule is made absolute without any order as to costs. The impugned judgment and decree dated 9.11.2008 (decree signed on 9.11.2008) passed by the learned Additional District Judge, 5th Court, Dhaka in Title Appeal No.825 of 1999 affirming those dated 17.10.1999 passed by the learned Subordinate Judge, 1st Court, Dhaka in Title Suit No.16 of 1988 dismissing the suit is set aside and thus, the suit is decreed.

Let a copy of the judgment along with the lower Court's record be sent down at once.

Ed.

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Startus Construction Company Vs Government of Bangladesh (Zubayer Rahman Chowdhury, J.)

HIGH COURT DIVISION (Civil Revisional Jurisdiction) Mr. Sharif Uddin Chaklader, J. Judgment 21.3.2011.

} Helena Bewa and others. .…. Petitioners. } VS } Md. Mohshin Ali and others } … Opposite-parties.

Mr. A.K.M. Nazrul Islam, Advocate ....For the petitioners.

Mr. M. Yousuf Ali, Advocate ....For the opposite party Nos. 1-6.

Code of Civil Procedure (V of 1908) Order VII, rule 11 Limitation Act (IX of 1908) Article 120 The exchange deed was registered on 19.09.1976 when the cause of action was shown on 19.08.1976.

It can safely be said that the cause of action as shown by the plaintiff is not correct , rather , it is false and also that S. A. khatian has been finally published in 1970 and hence the cause of action having not been proved the suit is barred by limitation. … (17) Code of Civil Procedure (V of 1908) Order I, rule 10 Whether the Deputy Commissioner had authority or jurisdiction to execute and register the exchange deed in between the parties , before registering the same whether he has consulted S. A. & R.S. Khatian , whether the power of attorney was genuine or not are to be resolved in the suit for which the Deputy Commissioner is a necessary party to the suit. ...(16) Transfer of property Act (IV of 1882) Section 118 As the defendant got decree against Monimohan and such decree is still in existence. Neither plaintiff nor his predecessor challenged the said decree. Plaintiff has no right, title and interest in the suit property by exchange deed even if it is found that the exchange is genuine, the plaintiffs have no ownership of the suit property because of such decree has extinguished the plaintiff title. ...(19) *Civil Revision No. 3222 of 2007.

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Abdul Rashid vs. State , 27 DLR(AD)1; Abdul Quddus vs. State, 43 DLR (AD) 234; State vs.

Khadem Mondal, 10 BLD (AD)228; Hajee Khabiruddin Ahmed vs. Md. Salam Kabir, 34 DLR(AD)-271; Sajeda Khatoon vs. Mostafa Khatoon and others, 28 DLR-221; Ibrahim vs. Surendra Kumar Dhar, 9 DLR-16; Atikullah and others vs. Zafala Begum and others, 54 DLR (AD)74; Md. Abdus Sattar and others vs. Lalon Mazar Sharif and Seba Sadar, 24 BLD(AD)125; Dr. Razia Khatun vs Bhanu Guha and others 1986 BLD(AD) 135; Abdus Sobhan vs. Anwar Rahim and others, 53 DLR(AD)110 ref.

Judgment Sharif Uddin Chaklader, J. This rule by the defendants directed against judgment and decree dated 14.5.2007 passed by the learned Joint District Judge, 1st Court, Natore allowing Title Appeal No. 152 of 1996 thereby decreeing Other Class Suit No. 21 of 1994 on reversing those dated 23.10.1996 passed by the learned Senior Assistant Judge, Singra, Natore.

2.

Plaintiffs instituted the aforesaid suit against the defendant-petitioners for declaration of plaintiff’s 16 annas title over the suit property.

3.

It is the case of the plaintiffs that the suit land originally belonged to Hayetullah Sarker and Mojo Fakir, they sold the suit land to Md. Abdul Jabbar and Md. Abdur Rashid by deed on 19th Joishtha, 1315 B.S, who sold the suit land to Razzak Munshi, father of the defendant Nos.1 and 2. Subsequently Razzak Munshi transferred the suit land to Sree Mohini Mohan Lahiri who possessed the same but C.S. record was prepared wrongly in the name of Abdul Jabbar Munshi, Abdur Rashid Munshi, Moyen uddin Munshi, Mojibor Rahman Munshi inspite of that, Mohini Mohon possessed the suit land. Mohini Mohan died leaving 3 sons in Monomohan Lahiri, Monindra Mohan Lahiri and Upendra Mohan Lahiri and S.A. record was prepared in their names. During the continuation of their possession, they proposed to the plaintiffs to make exchange the land with the land of the plaintiffs which is situated in India and they exchanged the land between them and on 11.9.1976 the Deputy Commissioner, Rajshahi gave registered title exchange kabala to the plaintiff vide kabala No.

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31835 through Exchange Case No. 7 (Nato)75-76 but S.A. record was prepared in favour of the previous owner of the suit land and it was, further case of the plaintiffs that they borne in mind the mistake may be corrected during S.A. operation but S.A. record also prepared wrongly and collusively in the names of the defendants, hence the suit.

4.

The petitioners, who are defendants Nos.1, 3 and 8 make out their case in written statement, that disputed holding of C.S. khatian No.30/31 was recorded in the name of Hayetullah and Mojo Fakir under the superior landlord who sold the suit land by separate kabalas to Abdul Jabbar Munshi, Abdur Rashid Munshi, Moyenuddin and Mojibur Rahman.

Rojek Masud father of the aforesaid 4 brothers was the owner of 16 annas share of C.S. khatian No.20.

Rojek Mahmud with his 4 sons started permanently residing at village Kaichar, Bogra and possessed and enjoyed the suit property giving borga to the local people. Local people hatched conspiration to take the suit land as lease from the landlords, so Rojek Mahmud and his two sons, Abdul Jabbar and Abdur Rashid Munshi create benami kabala infavour of Mohini Mohan Lahiri only to protect the suit land.

Mohini Mohan and his heirs as per said kabala did not claim the suit land at no point of time. C.S. record was prepared within the knowledge and co-operation of Mohini Mohan. After the death of Rojek Mahmud, total property devolved upon his 4 sons i.e. Abdul Jabbar, Abdur Rashid, Moyenuddin and Mojibor and they possessed the suit land as ejmali which caused some difficulties, so one of the son, Mojibur filed Partition Suit No.127 of 1959. The suit was finally decreed and each heirs of Rojek Mahmud took possession through Court. During possession and enjoyment of the suit, one of the son, Abdul Jabbar died leaving heirs who sold their share, 1 anna to Ashraf Ali and delivered possession. C.S. khatian No.30/31 was prepared in the name of 4 sons of Rojek Mahmud and they possessed the same by paying rent to the government and during their possession they sold their shares to others. In R.S. survey the suit property was recorded in the name of Mojibor Rahman, Dr. Moyenuddin and in the name of the heirs of Abdul Jabbar and purchaser, Haji Ashraf and Abdur Rashid in R.S. Khatian No.68/79/70/81/94/97.

Tenant of C.S.No.30/31 khatian, Mojibor Rahman and Dr. Moyenuddin gifted 1.32 acres of land to Sukan Gari Madrasha by registered kabala dated 5.6.1958.

S.A. khatian was prepared in the name of 4 sons of Rajek Masud but some portion of the suit land was incorporated in S.A. khatian No.34 in the name of sons of Mohini Mohan Lahiri which was wrong. One son Moni Mohan filed suit by using one Asmat Ali Fakir against the defendant under section 145 of the Code of Criminal Procedure but in vain. The suit property was sold by the heirs of Rojek Mahmud to several persons. The exchange deed and registered kabala created by the plaintiff is false and fabricated as such the suit is liable to be dismissed.

5.

Learned Assistant Judge, Singra, Natore framed 8 issues, issue No.1, whether the plaintiff has cause of action and locustandi for filing the suit, issue No.2, whether the suit is barred by limitation, issue No.3, whether the suit is bad for defect of parties, issue No.4, whether all the properties have been brought into hotchpotch and whether the suit is in proper form, issue No.5, whether the suit is barred by estoppels, waiver and acquisition and whether the plaint is vague, issue No.6, whether the plaintiffs have title and possession over the suit land, issue No.7 whether the suit has been filed properly and court fees have been properly paid and issue No.8, whether the plaintiffs are entitled to any other relief or reliefs.

6.

Learned Assistant Judge dismissed the suit and in dismissing the suit learned judge found that plaintiffs have no locusstandi to file the suit and the suit is bad for defect of parties as Dr. Moyenuddin was not made a party, the suit is barred by res-judicata and the plaintiffs failed to prove his possession over the suit property.

7.

Title Appeal No.152 of 1996 was taken by the plaintiffs. The appeal was heard by the learned Joint District Judge who by the impugned judgment allowed the appeal and on setting aside the decree of the trial court decreed the suit finding that exchange was made correctly, the suit is not bad for defect of parties and plaintiffs have able to prove their possession over the suit property.

8.

Mr. A.K.M. Nazrul Islam, learned Advocate appearing for the defendant-petitioners, submits that,

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Startus Construction Company Vs Government of Bangladesh (Zubayer Rahman Chowdhury, J.)

Court of appeal below was wrong in not holding the suit is bad for defect of parties as Deputy Commissioner was necessary party and in absence of whom, factum of exchange can not be correctly assessed and decide. Learned Advocate further submits that under section 115(1) of the Code of Civil Procedure High Court Division although has limited power to set aside findings of fact arrived at by the learned Judge Court of Appeal below but when it is found that learned Judge of the Court of Appeal below misread the evidence and mis apply the law and thereby arrived at a contrary finding arrived at by the learned Judge of the trial Court then this Court have jurisdiction to set aside the judgment and decree passed by the Court of Appeal below. Learned Advocate elaborate his submission as Court of Appeal below did not at all consider the exhibits filed by the parties and depositions of the witnesses and by cursory manner allowed the appeal. Learned Advocate on reference to the finding of the trial Court on exhibit 7 that unless the property vest in the government Deputy Commissioner has no authority to exchange the property to a citizen but learned Judge of the court of Appeal below without adverting the findings of the trial Court held exchange as made was made correctly which is not legal and not supported by any law. Learned Advocate further submits that trial Court on consideration of series of exhibits i.e. two registered kabalas finds that defendant has proved possession over the suit land and plaintiff did not produced any evidence to that effect as such, learned judge of appellate Court committed gross illegality in reversing the finding of the trial Court on the question of possession. Learned Advocate in support of his submission relied on the decision of Hajee Khabiruddin Ahmed vs. Md. Salam Kabir, 34 DLR(AD)-271, the case of Sajeda Khatoon vs.

Mostafa Khatoon and others, 28 DLR-221, the case of Ibrahim vs. Surendra Kumar Dhar, 9 DLR-16, the case of Atikullah and others vs. Zafala Begum and others, 54 DLR (AD)74, the case of Md. Abdus Sattar and others vs. Lalon Mazar Sharif and Seba Sadar, 24 BLD(AD)125.

9.

Mr. M. Yousuf, learned Advocate, appearing for the plaintiff-opposite parties, on the other hand, submits that, the decisions arrived at by the Court of

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Appeal below unless perverse is finding upon this Court under Section 115(1) of the Code of Civil Procedure. Learned Advocate further submits that the learned Judge of the Court of the Appeal below on consideration of the entire materials before him found that plaintiffs have able to prove the case by adducing oral and documentary evidence as such the judgment being passed on materials on record should not be disturbed by this Court. Learned Advocate on the question of defect of parties submits that when genuinity of registered deed calls in question whether Sub-Register is a necessary party to be impleaded in the suit as such Deputy Commissioner was not a necessary party in the suit as such the suit is not bad for defect of parties.

10.

Let me proceed with my judgment.

11. Plaintiffs in order to prove their case filed exhibits, certified copies of the deeds No.2238 and 2237 dated 1.6.1908 as exhibit 1 and 1(ka), certified copy of deed No.2272 dated 10.3.1914 as exhibit 1(kha), 3 rent receipts as exhibits 2-2kha, certified copies of C.S. khatian Nos.20, 30, and 31 as exhibits Nos.3 – 3(B). Certified copies of S.A.khatian Nos. 56 and 34 as exhibit Nos.4 – 4(1), certified copies of R.S. khatian Nos. 14, 68, 79, 80, 81 and 97 as exhibit Nos. 5 – 5(V), certified copy of the order dated 14.3.1973 passed in Execution Case No. 2 of 1970 as exhibit No.6 and exchange deed No.31835 dated 119.1976 as exhibit No.7. Before I enter into the merit of the case I find the documents exhibited by the plaintiffs are all in certified copies.

12. Defendants exhibited certified copies of C.S. Khatian Nos.30, 31 and 20 as exhibit Nos.A to A2, original copy of S.A. khatian Nos.56, 70, 71 and 34 as exhibit Nos.B – B(3). Original copy of R.S. khatian Nos.14, 68, 79, 80, 81, 97 as exhibit Nos.C- C(5), original copy of R.S. khatian Nos.22, 24, 25, 26, 200 and 201 as exhibit Nos.D – D(5), 14 recent receipts of Government as exhibit Nos.E – E(13). The plaint, decree and commissioner report of Partition Suit No.127 of 1959 as exhibit Nos.F-F(2), the application, possession certificate and commissioner report of Execution Case No.10/61 as exhibit Nos.G-G(2), certified copies of the plaint, written statement and orders in Case No.231/Cros/59 as exhibit Nos.H-H(2),

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the certified copies of the application, plaint and written objection of Criminal Case No.65 as exhibit Nos.I – 1(2). The notice address to the Deputy Commissioner Case No.91/66 as exhibit Nos.J- J(1), the order sheet of the order dated 24.10.66 in Case No.91/66 as exhibit No.J(2), the certified copy of the deed No.10106 dated 5.6.68 as exhibit No.K, the original kabala No.467 dated 8.1.63 as exhibit No. L. The original kabala No.468 dated 9.1.63 as exhibit No.M, the original heba beel deed No.465 dated 8.1.63 as exhibit No.N, the original registered kabuliat in fvour of P.W.2 and others 22 in numbers as exhibit Nos.O – O21. 3 unregistered kabuliyat Nos.62, 63 and 45 as exhibit Nos. O(22)- O(24), one copy of dakhila as exhibit No. E, filed S.A. khatian No.33 and R.S. khatian No. 75 as exhibits Nos. E-E1.

13. Plaintiffs case is that they got the suit land by exchange. I have read the judgment of the Court of appeal below very minutely, I find that learned judge in deciding the appeal find that it is admitted possession that Hayatullah Sarker and Mojfakir were owners of the suit land who sold the suit land to A. Jabbar and A. Rashid and A. Jabbar Munshi, A. Rashid Munshi and Razzak Munshi sold the suit land to Mohini Mohan Lahiri, upto this, case of the parties are similar but learned judge left aside from deciding whether the plaintiffs have proved their case or not.

Before discussing on the findings of the trial Court, learned judge of the appellate court was of the opinion that: GB †gvKÏgvi Zv‡`i Dfq cÿ‡KB Zvnv‡`i ¯^ ¯^ `vex cÖgvb Kwi‡Z nB‡e| Thereafter learned judge left aside the plaintiffs case and observed that; weev`xM‡bi `vex †h Avt ReŸvi gyÝx I Avt iwk` gyÝxi mwnZ Zvnv‡`i `yB fvB g‡qb DwÏb I gwRei ingvb bvwjkx m¤úwË Lwi` Kwiqv‡Qb| GB †gvKÏgvq weev`xcÿ Dc‡iv³ `vex †Kvb †gŠwLK I `vwjwjK cÖgvb Øiv cÖgvb Kwi‡Z mg_© nb bvB| Learned judge thereafter suddenly jumped on exhibit-7and without discussing the contends of the documents just in one line held that: D³ wewbgq `wjj nB‡Z Bnv my®úó fv‡e cÖgvwbZ nq †h, bvwjkx ¯§cwË ev`x Avt Mdzi wewbgq my‡Î cÖvß nBqv‡Qb| Learned Judge thereafter on the findings of the trial Court observed that trial Court believed the

exchange deed but did not give any findings as to genuinity of the deed make and comment asweÁ wb¤œ Av`vj‡Zi Dc‡iv³ e³e¨ mgyn Av‡`Š mwVK b‡n ewjqv Av`viZ g‡b K‡i| †Kbbv eZ©gvb †gvKÏgvwU wewbgq †K‡mi Kvh©µ‡gi ˆeaZv‡K P¨v‡jÄ Kwiqv Avbqb Kiv nq bvB| Learned Judge failed to consider that the entire case of the plaintiffs rests on exchange deed. Learned Judge considered possession of the plaintiffs and considered the depositions of P.Ws.1 to 5 and also observed P.Ws.1 to 5 and particularly that P.W.2 in his examination in chief stated that he saw plaintiffs possessed the suit land, P.w.3, in his deposition stated that he borga cultivated dag No.21 under the plaintiffs, p.w.4 in his deposition stated that he borga cultivated dag No.118 and P.W.5 in his deposition stated that he cultivated dag No.115 of the plaintiffs.

Thereafter learned judge without discussing the depositions of the witnesses for the defendants held as: cÿvšÍ‡i weev`xM‡Yi Reve‡i eY©bv nB‡Z †`Lv hvq †h, weev`xMb bvwjkx †gŠRvq evm K‡ib bv Kv‡RB weev`xMb‡K GB †gvKÏgvq Zvnviv bwjkx m¤úwË wefv‡e dim K‡ib Zvnv cÖgvb Kwi‡Z nB‡e| Learned Judge disbelieved 22 kabuliats, filed by defendants as: ‡Kbbv †Kn †Kvb KeywjqZ m¤úv`b I †iwRóªx Kwiqv w`‡j Zvnv †Kv_vq Kiv nBqv‡Q Zvnv Aek¨B ewj‡Z cvwi‡ebv| And learned Judge further observed as: D³ KeywjqZ ¸wj Bs 66 mv‡ji KeywjqZ wKš‘ D³ KeywjqvZ ¸wji †gqv` BËxY© nIqvi ci weev`x c‡ÿi Dc¯’vwcZ mg_©Kvix ¯^vÿxMb‡K KZ ZvwiL nB‡Z bvwjkx Rwg eM©v w`‡q‡Qb Ges †K †Kvb weev`xi Aax‡b KZUzKz Rwg eM©v w`qv‡Qb GB welq¸wj weev`xM‡bi mvÿxM‡ib mvÿ¨ `vb nB‡Z my®úó b‡n| On these observations learned Judge held that plaintiffs are in possession of the suit property.

14. On the question whether the suit is barred by limitation and bad for defect of parties and on waiver and acquiescence, learned Judge just in one line find that: hvnv Av‡`Š AvBbvbyM nq bvB| †Kbbv GB †gvKÏgvi wewbgq `wj‡ji `vZv †WcywU Kwgkbvi ivRkvnx Av‡`Š Aek¨Kxq cÿ b‡n Ges gvwj‡Ki KviY D™¢ze nIqvi ZvwiL nB‡Z ev`xcÿ h_vh_

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mg‡q‡i g‡a¨ †gvKÏgvwU Avbvqb Kwiqv‡Qb| Learned Judge on these findings decreed the suit.

15. Let me find on reference to the exhibits whether findings of the learned judge of the Appellate court, master of fact and final Court are justified or not.

16. Exhibit-7 is the exchange deed dated 11.9.76. It appears that this deed was executed by the Deputy Commissioner, Rajshahi. On consideration of exhibit7 it appears that in this exhibit-7 some lands of Dakshmin Sukhan gari under J.L. No.226, S.A. khatian No.33, dag Nos.1, 28, 354, 232, 228 in total 1.53 acres of land have been impleaded but these lands have not been properly mentioned or described properly. Next, I find in exhibit-7 that in total 5.61 acres of land including in the suit and some other non suited land have been included and Deputy Commissioner by his order registered the deed of exchange. In registering the exchange deed questions relating to registration envies i.e. whether Deputy Commissioner has authority to register and execute the exchange deed in between the civilian, before registering exchange deed whether the Deputy Commissioner consulted S.A. and R.S. record, whether the power of attorney was genuine or not and whether Deputy Commissioner has jurisdiction to register exhibit-7 as such I am of the view that Deputy Commissioner is a necessary party. From exhibit Nos.4-4(1), S.A. khatian Nos.56 and 34 it appears that in the remark column it has not been recorded plaintiffs have possessed the suit property. It is the case of the plaintiffs that R.S. khatian in preliminary form recorded the name of the plaintiffs but from the aforesaid exhibits filed by the plaintiffs I do not find any such exhibits from the side of the plaintiffs. On consideration of the depositions of the plaintiff's witnesses particularly from P.W.1 it appears he stated that he did not know when and in what year R.S. khatian was prepared and also admitted that he did not file R.S. khatian. P.W.1 i.e. plaintiff further stated that he did not know anything about revenue. P.W.1 also stated that: evox‡Z Avi/Gg Gi Lmov LwZqvb Av‡Q wKbv ej‡Z cv‡ib bv| P.W.1 further stated that Gm/G G¨v± Gi 19(1), 19(2) avivg‡Z AvcwË w`qv‡Qb wKbv Zvi g‡b †bB| During pendency of the suit and continuation

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of the deposition of P.W.1, P.W.1 died and P.W.6, his son, deposed that R.S. record started in 1966 and finally recorded in 1970 and at that time he was 18 years old. He further deposed that his father collected the copy of R.S. khatian and also P.W.6 admitted that his father, P.W.1 knows about the recording of S.A. khatian but after knowing the fact that khatian has not been prepared in the name of his father, why his father did not file any case under section 19(1) -19(2) of the State Acquisition and Tenancy Act for correction of the same, he could not say. Exhibit 5 series are R.S. khatian dated 20.5.70, 5.8.70, 30.5.70, 2.5.70, these are the printed form which are found in possession of the plaintiff i.e. P.W.1 and admission of P.w.6, son of P.W.1, proved that cause of action as shown on 19.8.1976 is false. On a reading of the cause of action it appears that plaintiff does not stated from when his title and possession was threatened.

17. Exhibit 7 is exchange deed, registered by the Deputy Commissioner on 19.9.76 as such cause of action shown on 19.8.76 is totally false as before registering the title deed no one can had any cause of action for title as it was not in his domine. It safely said that cause of action shows by the plaintiff was not correct one and false and also that S.A. khatian has been finally published in 1970, and since cause of action has not been proved this suit is barred by limitation.

18. On a reading of exhibit 7 it appears that by this exchange deed the land of S.A. khatian Nos.33, 56 and 34 has been exchanged but in the plaint, plaintiff filed the suit for 14 dags and 57 decimals of land of dag No.118 has not been claimed, plaintiff claimed 5.90 decimals of land from dag No.115 but in dag No.115 it is clear the quantum of land is 5.68 as such plaintiffs claim .22 decimals of land more which has not been exchanged through exchange deed. It also appears from exhibit 7 that in dag No.10/402 quantum of land was 1.26 decimals but plaintiff claimed only .53 decimals of land. It also appears from exhibit 7 that in dag No.116 there is 1.33 acres of land but plaintiffs in the plaint claimed from dag Nos.50,51,52, 180, 184, (23+10+62+63+66) in Total 2.54 acres of land but it fact plaintiffs claimed 1.33 decimals of land. There is no explanation for the remaining land.

It also appears from exhibit 7 that part of some dags

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has been exchanged but there was no specification for the same.

19. On the question whether Deputy Custodian is a party in the suit learned judge of the trial Court consider memo No.10/73/710(19) dated 29.11.1973 wherein before 6.9.65 all exchange cases were divided in two classes i.e. exchange deed before 10.10.64 which was enemy property and exchange deed after 10.10.64 to 5.9.65 which was land under Disturbed Person Ordinance. For the first class, if the Assistant Custodian/Superintendent (land and buildings) be satisfied then he could register the exchange deed and give certificate to that effect. But for the 2nd class exchange deed, if Deputy Commissioner satisfied then on behalf of Government he promulgate a notification for 'confiscation' of the land and will settled the land to the landless people.

On consideration of exhibit-7, the learned Assistant Judge found that this land belonged to the category/class of No.1 where Deputy Commissioner has no authority to register the same. Learned Judge of the trial Court found on exhibit-7 that it was registered by the Deputy Commissioner, Rajshahi in violation in the order under memo No.1108(18) E.P.236/70 dated 4.5.70 and memo No.610/73/710(91) dated 29.11.73. It also appears that exchange land has not been fallen either of the category of abandoned property or enemy property.

Learned Judge also found from exhibit J series that in Case No.91/66 government did not issue any notice to the defendant for relinquishing the said land as no notice has been served upon the defendants and the case was dismissed. Exhibits C and D, are S.A and R.S khatian. It appears that the suit land is not included either as enemy property nor as vested property as such government does not acquire any title over the suit land. It appears from the depositions of P.W.1 that he did not know about the government land. Plaintiff in his deposition stated that he came to this land in 1961/62 and he can not say about C.S to S.A. operation and who possessed the suit land.

Before C.S khatian, the suit land was homestead of the predecessor of the defendants. P.W.1 further stated that he knew Monimohan who went to India but he did not prove that fact. In cross-examination, P.W.1, admitted that in khatian No.73 he has no land.

But from exhibits Nos.2, 2(ka), 2(kha) it appears that he paid rents for 7.14 decimals of land of khatian No. 73 although khatian No. 73 does not belonged to him.

P.w.1 in his deposition does not state whether defendants got decree against Monimohan, what is the result of the case filed under section 144 of the Code of Criminal Procedure, whether government admitted in Case No. 91/96 that suit land belonged to the defendant. P.W.3 in his examination in chief frankly stated that on the request of plaintiff he came to depose falsely. It appears from the deposition of P.W.4 that he borga cultivated the land of dag No.118 on behalf of the plaintiff. He could not say other dag Nos. of the adjacent land. P.W. 5 does not specifically state the quantum of land of dag No. 115. P.W. 5 stated that he got kabuliyat from the plaintiffs and he delivered crops to the plaintiffs but he did not produce any paper before the Court. Considering exhibits G – G(2) it appears that through Execution Case No.18/61 defendant got decree against Monimohan and decree is still in existence, neither plaintiff nor his predecessor challenge the decree. Since the decree stand plaintiff has no right, title and interest of the suit property by exchange deed. Even if it is found to be genuine then also plaintiffs have no ownership of the suit property as by the decree of the court title of the plaintiffs have been extinguished.

20. Now the decisions filed by the learned Advocate for the petitioners. In the case of Md. Abdus Sattar and others vs. Lalon Mazar Sharif and Seba Sadan committee and others, 24 BLD (AD)-125 it has been held in paragraph 6 that the trial court after giving finding on all the 5 issues framed in the suit including the maintainability of the suit decreed the suit in favour of the plaintiffs and declared right, title, interest and possession of the plaintiffs in the suit land. The appellate court it appears without adverting to the findings given by the trial court reversed the findings of the trial court and sent back the suit on remand for trial afresh without assigning any cogent reason. It is needless to mention that remand can not be allowed as matter of course to fill in the lacuna of the case of any party. It appears that the appellate court relied upon inadmissible evidence namely report of the Advocate commissioner since the Advocate commissioner was not examined by the parties. It is to be mentioned here that the report itself of the Advocate Commissioner is not evidence, but if the

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Advocate Commissioner deposes on oath before the court then the same is evidence. It further appears that the appellate court mainly relied upon the evidence of P.W. 1 in coming to the conclusion that the defendants have homestead in the suit land and hence they are in possession of the same.

21. In the case of Akitullha and others vs. Zafala Begum and other 54 DLR(AD) 74 it is held that in view of the clear finding of the trial Court regarding Hiba-bil-Ewaz as aforesaid we are of the view that this open remand order for a fresh decision in the suit allowing parties to adduce fresh evidence is designed to fill in the lacuna of the pleadings of the parties, which is not the intent and object of the order of remand contemplated under Order XLI rule 23 of the Code of Civil Procedure.

22. In the case of Dr. Razia Khatun vs Bhanu Guha and others 1986 BLD(AD) 135, it is observed that “The long line of judicial decision is to the effect that the remand order should be avoided as far as possible and even the Privy Council in some cases observed that indiscriminate order of remand tantamounts to shirking the responsibility.�

23. In the case of Abdus Sobhan vs. Anwar Rahim and others, 53 DLR(AD)110, it is held that we have gone through the judgment of the trial Court as well as of the High Court Division. It appears that the trial Court decreed the suit on consideration of the evidence on record and it was found that there is no truth in the defence version of the case. The trial Court also found that there was no scope for service of summons of the earlier suit upon the predecessor of the present plaintiff and that the plaintiffs are in possession of the suit property but the appellate Court found that in collusion with the defense lawyer decree was obtained. It also found that illegality has been committed in not calling for the record of the earlier Title Suit No. 21 of 1968 over which the present suit has been filed. The appellate Court also found that defendant ought to have been given a chance to adduce evidence in support of their claim and for that matter passed the order of remand. But from the perusal of the record it appears that the present petitioner took no step for giving additional evidence before the appellate Court and also has not taken any step for calling for the record of the earlier suit. What the appellate Court did was nothing but giving an opportunity to the defence to fill up the lacuna which law has not permitted. No step was taken before the

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appellate court by the present petitioner to adduce additional evidence or to call for the record of the earlier disposed of suit. There is nothing on record to show that there was collusion in between the plaintiff and the defence Advocate. In such a situation the High Court Division rightly found that the suit could not be sent back on remand for filing up lacuna. We have considered the submission made by the learned Advocate for the petitioner but we find nothing to interfere with the judgment of the High Court Division. The learned Advocate failed to point out any legal infirmity in the judgment of the High Court Division which may call for our interference.

24. In the case of Ibrahim vs. Surendra Kumar Dhar, 9 DLR-16 it is held that 'on examination of the record discloses that there is hardly any substance in this contention. It appears that in 1937 the defendant Surendrakumar Dhar brought a suit being S. C.C. Suit No. 219 of 1937, against the plaintiff, Ibrahim, for recovery of his dues under a pro-note. The plaintiff was then away in Burma and summons was served by hanging at his village residence in the district of Chittagong. There was no appearance on behalf of the plaintiff on the date of the hearing of the suit, and the result was that it was decreed ex parte. Thereafter the decree was put into execution and the plaintiff’s homestead was brought to sale and purchased by the defendant himself on the 9th November, 1943. Then on the 20th March, 1947, the plaintiff brought this suit for setting aside the ex parte decree and the sale held in execution thereof alleging that the decree had been brought about by fraudulent suppression of summons, and the sale held in execution thereof had been brought about by causing suppression of all the execution processes including sale-proclamation. In a case like this, the plaintiff in order to succeed must prove how, when and under what circumstances the fraud was practiced, but he has hopelessly failed to discharge it. In the plaint we find general allegations of fraud, but it is well settled that general allegations, however strong may be the words in which they are stated, are insufficient to an averment of fraud. Mr. Hakim having failed to make any headway in this direction proceeds to challenge the legality of the decree on the ground that the mode of service as reported by the peon was not in accordance with the rule of Order 5 of the Code of Civil Procedure. The same point was broached before the Subordinate Judge and the learned Judge overruled it with the following observations.

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“According to the C.P.C. personal service has to be attempted, but if there is no possibility of it, there are alternate procedures of service which may be adopted to meet the situation. The first alternative procedure is the service on the empowered agent, but Abdul Latif, the cousin of the plaintiff, does not appear to have had any such authority. The next best way is to serve the summons on a male member living jointly with the person to be served. In the return of the process server; Abdul Latif to whom the summons was tendered at the first instance is described as having been in joint mess with the plaintiff. But of such a case, there is no evidence. On the other hand, the plaintiff has given the denial.

Under the Mohammedan Law again, there is no presumption of jointness in the case of a Muslim. The statement of the process-server is not of any value; in such a matter, he could not have any personal knowledge.

The tender to Abdul Latif cannot accordingly be regarded as sufficient in law but there is still the last procedure of hanging up the summons to the dwelling house of the defendant under Order 5, rule 15, C.P.C. From the peon’s return, it can be presumed that such a procedure was ultimately adopted in the case of the plaintiff. The incompetent witnesses on the side of the plaintiff can hardly have displaced the presumption raised by the service-return. It is significant that neither Abdul Latif nor the witnesses named in the service return have been examined by the plaintiff, though to disprove the service they could furnish the best evidence; about the actual service by hanging up the summons to the residence of the plaintiff, there can, therefore, be no doubt.

‘But the question is whether under the circumstances of the present case it was sufficient Substituted service under Order 5, rule 20, C.P.C, might be adopted. In fact, in case of the execution proceedings one piece of processes was served under such special procedure. But it cannot be said as a matter of course that if the defendant be found absent, summons for him must be served under Order 5, rule 20, C.P.C. In the present case, the plaintiff had left his wife behind. Some arrangement for management of his affairs must have been made by him consequently the service of summons by hanging it up to his residence could not be regarded as insufficient. With

his people the plaintiff was in communication then. It is only at a later stage that communication broke down due to war. Under such circumstances, the service by hanging up the summons to the residence of the plaintiff could not be regarded as insufficient and invalid. It might have been known that the plaintiff was away to Rangoon. But there is nothing to show that his address was known or could be known by the defendant. Consequently to serve the plaintiff personally with summons was hardly possible for the defendant. And to insist on personal service under such circumstances would be asking the defendant to perform impossibilities.

“Such being the position, I cannot see how the service of summons in the S.C.C. suit could be regarded as bad or insufficient. Apart from the question of irregularity or otherwise of the summons, fraud must be established before, in a suit like this, the decree in question can be set aside. For it is only in case of a decree obtained by fraud that a suit to set it aside lies; in the present case, there is nothing to show that the claim was false. Rather the half admission of the plaintiff suggests otherwise” I do not find any lacuna anywhere in the finding Mr. Hakim contends that the service, not being in accordance with rule 17 of Order 5, Civil Procedure Code, is no service in the eye of law, and consequently the decree passed on the basis thereof cannot but be regarded as illegal and unenforceable."

25. Since I have decided on merit the judgment of the Appellate Court is not sustainable in law and dismissed the suit, the decission so referred are not required to be consider on the fact of the given case and the learned Advocate for the petitioner is advised to cite this in an appropriate case.

26. On an over all consideration of the entire materials on record I find substance in this rule.

27.

In the result this rule is made absolute. No costs.

28. The judgment and decree passed by the learned Joint District Judge, 1st Court, Natore in Title Appeal No. 152 of 1996 is set aside. The Judgment and decree passed by the learned Senior Assistant Judge, Singra, Natore in Other Class Suit No. 21 of 1994 is restored.

Send down the lower Court records at once.

Ed.

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Startus Construction Company Vs Government of Bangladesh (Zubayer Rahman Chowdhury, J.)

HIGH COURT DIVISION (Criminal Appellate Jurisdiction) Mr. Mashuque Hosain Ahmed, J. And Mr. M. Enayetur Rahim Judgment 12.11.2009.

} The State VS Ashraf Ali and others } } Ashraf Ali and others ....Appellants } Vs. } The State ....Respondents } Md. Asad @ Kamal } @ Ashraf @ Raja Ashraf ....Appellant } Vs. } The State ....Respondent } Md. Ashraf Ali } ...Appellant Vs. } The State ....Respondent

Mr. F.R.M. Nazmul Hasan D.A.G. with Mr. Md. Moniruzzaman A.A.G, Mr. S.M. Asad Ullah Tarique, A.A.G. and Mrs. Nur Jahan Mukta. A.A.G ....For the state.

Mr. Reaz Uddin Khan ....For the Appellant (In Crl. Appeal No. 3243 of 2005) Mr. Hafizur Rahman Khan, State Defence Lawyer. ....For absconding convict Code of Criminal Procedure (V of 1898) Sections 164 & 364 Evidence Act (I of 1872) Section 24 After going through the cross- examination of PW.17 and PW.20, who are confessional statement recording Magistrate and I.O. respectively, a reasonable suspicion could give rise in the mind of a prudent man that condemned prisoner Ashraf Ali might have been tortured when he was under police remand for 3 days and after such remand several injuries were found on his body which *Death Reference No. 96 of 2005 with Criminal Appeal No. 3243 of 2005 with Jail Appeal Nos. 768, 769 and 770 of 2005.

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made the confessional statement untrue and not voluntary and it is unsafe to base conviction only on such a confessional statement which is doubtful and questionable. Moreso, the recording Magistrate did not fill up the column Nos. 8, 9 and 10 of the form for which it is difficult to hold that the confessional statement made under sections 164, Cr.P.C. is a voluntary and same was recorded in compliance with the mandatory provision of law. ......(57, 59, 61 and 66) Code of Criminal Procedure (V of 1898) Sections 164 Evidence Act (I of 1872) Section 30 From the evidence of PWS. 4,7,8 and 12 it manifests that the witnesses made contradictory statements regarding the presence of witnesses in whose presence the alleged extra-judicial confession was made and they also contradict one another . The delay in making such statement under section 161, Cr.P.C. render their evidence shaky and the chace of embellishment cannot be ruled out. Learned judge acted illegality in relying on such extra-judicial confession of the condemned prisoner without having any independent corroborative evidence. Confession of an accused cannot be treated as substantive evidence against another co-accused but it can only be used to lend assurance to other evidence. There was absolutely no legal and trustworthy evidence against any of the non confessing accused persons and thus the conviction of the non-confessing accused persons relying on such confessional statement of coaccused is illegal and cannot be sustainable in law.

The absconsion of accused Saiful Islam and Abdul Jalil cannot be treated as corroborative evidence of judicial and extra-judicial confession of condemned prisoner Ashraf Ali in the absence of any other direct evidence. ‌.. (70, 72, 75 & 77)

Code of Criminal Procedure (V of 1898) Sections 339 B (1) In the notification Police Station case number had been mentioned as Nator Police Station but the present case is Naldanga Police Station Case No.3 dated 05.04.2003. Thus, this notification can not be

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said a proper and legal notification and subsequent proceeding is illegal and it vitiates the trial, so far the absconding accused persons are concerned. ...(78) Code of Criminal Procedure (V of 1898) Sections 342 The learned Tribunal is not justified in ignoring the statements of the said accused persons recorded under section 342 of the Code of Criminal Procedure and by such nonconsideration the merit of the case had been materially affected. …(79) Shibu Pada Acharjee – Vs- State, 56 DLR(HC), Page285; State –Vs- Moslem, 55 DLR, Page-116; Salauddin –Vs- the State, 32 DLR, Page-227; State – Vs- Md. Abdus Samad Azad alias Samad and another case, 9 BLC; Lutfun Nahar Begum –Vs- State, 27 DLR(AD); Babor Ali Molla and others –Vs- State, 44 DLR(AD); Mofazzal Hossain Mollah and others –VsState, 45 DLR(AD); Ustar Ali –Vs- State, 3 BLC(AD); Mrs. Jobaida Rashid –Vs- the State,1997 B.L.D; Amir Hossain Hawlader –Vs- the State,1984 BLD(AD); Salauddin –Vs- State, 32 DLR(HC); Abul Hossain and others –Vs- The State,13 BLD; Sarwan Singh Rattan Singh –Vs- State of Punjab, P.L.D 1957(SC)555; Mrs. Jobaida Rashid –Vs- State,17 B.L.D; Mst. Saida Begum –Vs- The State, P.L.D 1958(Lahore) ref.

Judgment M. Enayetur Rahim, J: This reference under section 374 of the Code of Criminal Procedure has been made by the learned Judge, Druta Bichar Tribunal, Rajshahi for confirmation of sentence of death imposed upon accused Ashraf Ali son of late Abesh Ali, Ataur Rahman son of late Idris Ali @ Idi Fakir, Ashraf alias Raja son of late Ahad Ali, f¡mL ¢fa¡x- Rajab Ali, Saiful Islam alias Ripon, son of A. Jabber, A. Jalil alias Shimul, son of late Kapir Mondal on their conviction for the offence punishable under section 302/34 of the Penal Code passed on 05.07.2005 in Druta Bichar Tribunal Case No.16 of 2005 arising out of G.R. No. 170 of 2003 corresponding to Naldanga (Nator) Police Station Case No.03 dated 05.04.2003. CondemnedPrisoner Ashraf Ali, Ataur Rahman and Ashraf alias Raja have also preferred Criminal Appeal No.3243 of 2005 and Jail Appeal Nos.770 of 2005, 769 of 2005 and 768 of 2005 respectively. All the cases are taken together to dispose of by this common judgment.

2.

Prosecution case, in short, is that P.W. 1 Md. Abdul Malek Miah, Officer in Charge of Naldanga Police Station, Nator himself on 05.04.2003 lodged a First Information Report stating, inter alia, that on 05.04.2003 at 2.35 hours he received a wireless message that a dead body was laying beside the railway line at Madhnagar. Receiving the said information he made a G.D being No.136 dated 05.04.2003 and he along with his companion forces reached to the place of occurrence at about 3.50 hours and found the dead body of Majedur Rahman Mridha alias Maju beside the rail line, 500 yards away from Madhnagar rail station. Matenur Rahman, younger brother of Majedur Rahman Mridha alias Maju, identified the dead body and found Majedur Rahman in slaughtered condition, caused by sharp cutting weapons. The informant in presence of witnesses A. Jabber, Lutfar Rahman, Soleman, Belal, Lutfar Rahman, A. Kuddus prepared the inquest report. From witnesses Moulana Mohammad Ali Dewan, Al-haj Azizur Rahman Mridha, A. Jabber Mridha, Akter Hossain, Akkas Ali and Matenur Rahman, the informant came to know that deceased Majedur Rahman along with Azizur Rahman Mridha, A. Jabber Mridha and Akter Hossain were returning back from ‘Islami Jalasha’ at about 1.00 A. M on 05.04.2003 and when they reached 30 yards away from the west side of the rail line, they saw that three unknown persons were sitting in a position as if they were making water and they asked them who they were and one of them suddenly dealt a blow on the head of Majedur Rahman by sharp cutting weapon and instantly he felt down on the paddy field on the southern side of the road and thereafter other persons, who were waiting besides the road, came forward and participated in slaughtering Majedur Rahman Mridha alias Maju with sharp cutting weapon. The miscreants pointed arms to Azizur Rahman and Akter Hossain and asked them to keep silent and eventually the said Azizur and Akter Hossain managed to escape from the place of occurrence. At that time, the accusedpersons went on raising slogans in the name of Purbabangla Communist Party and fled away. Akter Hossain and Azizur Rahman informed the said fact to the village people and the villagers came forward to the place of occurrence. One Shahidul Islam Bachchu informed about the occurrence to the Officer-inCharge of the Police Station.

3.

On the basis of the said First Information Report, Naldanga Police Station Case No.3 dated

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05.04.2003 under section 302/34 corresponding to G.R.No.170 of 2003 was started.

also in this Court they have been defended by the State defence lawyer.

4.

P.W 19 S I Abdul Hai started the initial investigation but ultimately P.W 20 Dina Bandhu Das had completed the same and submitted the charge sheet being No.64, dated 24.09.2003 under sections 120-B/302/34 of the Penal Code against 9(nine) persons. In the instant case although charge sheet was submitted against nine persons but 4 (four) accused persons of them have filed two separate Criminal Revision before this Court and obtained rule and order of stay and eventually the present convicts were put on trial before the learned Judge, Druta Bichar Tribunal, Rajshahi and the learned Judge of the Tribunal by his order dated 03.04.2005 framed charges against 5(five) persons including the condemned prisoners under section 302/34 of the Penal Code to which the accused persons, who were on dock pleaded not guilty and prayed for trial.

10. Mr. F.R.M. Nazmul Hasan, learned Deputy Attorney General with Mr. Md. Moniruzzaman, A.A.G, Mr. S. M. Asad Ullah Tarique, A.A.G and Mrs. Noor Jahan Mukta A.A.G appeared in support of the reference. Learned Deputy Attorney General submits that the reference may be accepted as the prosecution successfully has proved it’s case beyond all reasonable doubt. The extra judicial and judicial confession of accused-Ashraf Ali is rightly found true and voluntarily by the trial Court and P.W. 17 Md. Nazmul Haque, the Magistrate, who recorded the confessional statement of accused-Ashraf Ali under section 164 of the Code of Criminal Procedure, proved the statement as true and voluntary and there is no scope to disbelieve P.W 17. He further submits that judicial confessional statement, made by Ashraf Ali, is corroborated by his extra judicial confession and P.Ws. 4, 7, 8, 12 and 16 in their deposition categorically stated about the substantiality of the extra judicial confession made by Ashraf Ali. He further submits that the absconsion of accused-Saiful Islam and A. Jalil is an incrementing circumstance and corroborative evidence of confessional statement of accused-Ashraf Ali. He also contends that minor discrepancies or variance in adducing the evidence will not make the prosecution case doubtful and discrepancy has to be distinguished from contradiction. In support of his said contention he cited the case of Shibu Pada Acharjee – Vs- State reported in 56 DLR(HC), Page-285.

5.

At the time of the trial, the prosecution examined as many as twenty (20) witnesses out of twenty nine (29) charge sheeted witnesses to prove it’s case. Defence cross-examined them but did not adduce any witness or evidence.

6.

From the trend of cross-examination the case of the defence in short, is that, they have been implicated in this case falsely. They were not in any way connected with the alleged murder and the alleged extra judicial and judicial confession of accused Ashraf Ali is not a true and voluntarily one, rather the same was obtained by torture.

7.

After closing of the evidence, the accused persons present in the dock were examined under section 342 of the Code of Criminal Procedure and they again claimed their innocence and made their respective statement.

8.

The learned Druta Bichar Tribunal after considering the evidence and materials on record by it’s judgment and order dated 05.07.2005 found accused (1) Ashraf Ali, (2) Ataur Rahman, (3) Ashraf alias Raja, (4) Saiful Islam alias Ripon and (5) A. Jalil alias Shimul guilty under section 302/34 of the Penal Code and sentencing them to death.

9.

It is to be mentioned here that convict-Saiful Islam and A. Jalil alias Simul were all along absconding during trial and they were defended by the state defence lawyer and still they are absconding and

11. He also refers the case of State –Vs- Moslem reported in 55 DLR, Page-116, where it has been held that conviction can be based on judicial confession if it is established that it is true and voluntary and is substantiated by other evidence, whether direct or circumstantial and materials on record.

12. Learned Deputy Attorney General also submits that non filling of some columns or partly filling of columns 8, 9 and 10 of the prescribed form does not render the confession in admissible and in support of his said submission he refers the case of Salauddin – Vs- the State reported in 32 DLR, Page-227and regarding extra judicial confession he also refers the case of State –Vs- Md. Abdus Samad Azad alias Samad and another case reported in 9 BLC, Page-39.

13. Mr. Reaz Uddin Khan appeared for the appellants in Criminal Appeal No.3243 of 2005. Mr.

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Khan assailing the impugned judgment and order of conviction and sentence submits that in the instance case there is no eye witness though P.W 2, P.W 5 and P.W 9 were accompanying the deceased at the time of occurrence and they failed to identify the accusedpersons. He submits that judicial and extra judicial confession of condemned-prisoner Ashraf Ali can not be said true and voluntarily and same is the act of torture by the police. In support of his said submission he refers the deposition of P.W 17, Md. Nazmul Haque, the Magistrate, who recorded the statement under section 164 of the Code of Criminal Procedure, and submits that from the cross-examination of said P.W 17, it would be evident that while accusedAshraf Ali was on police remand he was seriously tortured and several marks of injury were found on his body. His further contention is that the conviction of condemned prisoner Ataur Rahman and Ashraf Ali can not be sustained as there are no corroborative evidence of alleged confessional statement of coaccused-Ashraf Ali and confession of an accused can not be treated as substantive price of evidence against another accused person and in support of his said contention he refers the case of Lutfun Nahar Begum –Vs- State reported in 27 DLR(AD), Page-53, the case of Babor Ali Molla and others –Vs- State, reported in 44 DLR(AD), Page-10, the case of Mofazzal Hossain Mollah and others –Vs- State, reported in 45 DLR(AD), Page-175, the case of Ustar Ali –Vs- State, reported in 3 BLC(AD), Page-53.

14. Mr. Reza Uddin Khan, also submits that provision of sub-section (3) of section 164 of the Code of Criminal Procedure is mandatory one and non filling of some column by the Magistrate is clear violation of the said law and failure to comply with the provision of law makes the confession of no value and any defect of it is not curable under section 537 of the Code of Criminal Procedure. In this connection he also refers the case of Mrs. Jobaida Rashid –Vs- the State, reported in 1997 B.L.D, Page-352.

15. Mr. Hafizur Rahman Khan, the State defence lawyer adopted the argument made by the learned Advocate Mr. Reza Uddin Khan and further submits that the Druta Bichar Tribunal acted illegally in convicting the accused-Saiful Islam and A. Jalil relying upon the confessional statement of accusedAshraf Ali and the learned Tribunal also erred in law in holding that the circumstance of absconsion is a corroborative evidence of confessional statement and in this connection he refers the case of Amir Hossain

Hawlader –Vs- the State reported in 1984 BLD(AD), Page-193 where Appellate Division held that mere abscondence is not corroboration. He also refers the cases cited by learned Advocate Mr. Reza Uddin Khan.

16. Now let us scan the evidence on record to ascertain whether the learned Tribunal rightly awarded the conviction and sentence.

17. P.W 1 Md. Abdul Malek Miah, the Officer-inCharge of Naldanga Police Station in his deposition reiterated the statement made in the First Information Report and he proved the same and identified his signature on it as exhibits-1, 1/1, 1/2, 1/3.

18. In his cross-examination he stated that he prepared the inquest report through S.I Abdul Hai. Wife and younger brother of the deceased did not lodge the First Information Report as their mental conditions were not found sound. He asked about the occurrence to the witnesses named in the First Information Report and prepared inquest report but the witnesses did not mention any name of suspected accused persons. In the First Information Report there was no name of any suspected accused-person.

19. P.W 2 Md. Akter Hossain Mridha in his deposition stated that on 04.04.2003 at 1 O’clock at night he along with deceased Majedur Rahman Maju, Mohammad Ali Dewan, Aziz Mridha, Jabber Mridha were returning home after ending of ‘Islami Jalsha’.

Majedur Rahman was the chief guest of said ‘Jalsha’ and when they came 20-30 yards from the Mosque, they saw that two persons facing western side and two persons facing eastern side were sitting in a position as if they were making water. Then they asked them about their identity. In reply to that they said that they were in the “Shava” and Maju told them that he did not see them in “Shava” and thereafter he along with deceased Maju and others again started to walk and after sometimes he heard a sound like ‘W¡p' and when he looked back two persons came to him and asked him to remain silent, otherwise he would be killed but he managed to escape from the place of occurrence and went to the village and raised hue and cry and when the village people came forward, he asked them to go towards the rail line. He saw the slaughtered body of deceased Maju and he did not mention any name to the police.

20. P.W 3 Most. Ferdosi Begum, wife of the deceased in her deposition narrated the First

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Information Report story and further stated that she heard the name of the accused persons from the villagers and she failed to disclose the name of the accused persons definitely. In cross she stated that P.W 2, Md. Akter Hossain and other witnesses who were accompanying her husband, disclosed the name of the accused persons and at the time of occurrence he was at Natore town and hearing the news she came to her home and saw the dead body in the morning.

21. P.W-4 Md. Matinur Rahman alias Matu Mridha, the younger brother of the deceased, in his deposition stated that while he was in the house at the time of occurrence, one of his neighbour Fajila shouted ‘J h¡h¡ j¡S¤-L ®j-l ®gm-m¡' and hearing the same he came out from the house and he went to the place of occurrence and found the dead body of Majidur Rahman on the road. He could not realize who killed his brother. Sometimes after the aforesaid occurrence, again in night some persons were focusing light from the side of ‘Halatir Bill’ towards their village while the village people, after the occurrence of the previous occurrence on 05.04.2003, had arranged for petrol duty (¢hV f¡q¡l¡) for there security and the village people apprehended accused-Asharaf Ali with a torch light and took him at the college field and where Ashraf disclosed and admitted that he was a party to the killing of Maju and Ripon was with him, who dealt a rod blow on the head of Maju and Ataur Rahman had slaughtered Maju by sharp cutting weapon. Shimul was also with him. Hasanuzzaman, Majibur Rahman Mridha, Momtaz and Wares had made a plan to kill the deceased Maju and for that purpose Ataur Rahman took Tk.1,00,000/- from Hasanuzzaman, Mozibur Rahman, Momtaz 4 (four) days before the occurrence and after 12 days of the said killing they also took Tk.1,00,000/- from Hasanuzzaman. This witness identified accusedAshraf Ali on the dock. In cross-examination he stated that on reaching at the place of occurrence he found the dead body of his brother and he heard about the incident from Azizur Rahman Mridha, Akter Hossain and Mawlana Mohammad Ali. He was not available around when Ashraf was apprehended. He got the news from reading the news paper and Daroga about the confessional statement of Ashraf and he also heard from Ashraf directly about the said killing. He said that he might have given the statement on 30.05.2003 to the police and he could not remember when Ashraf made confessional statement. Ashraf made confession at Madh Nagar College and at that

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time Azizur Rahman, Akter Hossain, and Mohammad Ali Dewan were not present there, but Sabed Ali and Madhu was there. After half an hour police came to the college filed. He denied the suggestion that accused-Ashraf did not make any extra judicial confession before them.

22. P.W 5 Mawlana Mohammad Ali Dewan in his deposition made statement in the line of the First Information Report and he further stated that sometimes after the killing, Ashraf Ali was apprehended from ‘Halatir Bill’ and Ashraf Ali voluntarily confessed about his participation in the killing and disclosed that Ataur Rahman, Shimul, Raja and Ripon were with him in committing the offence and he took Tk.2,00,000/- to commit the killing and they had a contract with Hasanuzzaman and he took advance money of Tk.1,00,000/-. This witness also stated that he did not hear the same directly from the mouth of accused.

23. In cross-examination he stated that they failed to identify the accused persons though he was with the deceased at the relevant time. He made statement before the police on 30.05.2003 and in his statement he did not disclose the name of accused-Ashraf and Ataur Rahman and he came to know that Ashraf was apprehended from ‘Halatir Bill’ from the news papers and village people.

24. P.W 6 Md. Afaz Uddin in his deposition stated that on the following day of the alleged occurrence he found the dead body of Maju in the place of occurrence. As a hearsay witness he also stated that when Ashraf was apprehended, he confessed that out of the Tk.2,00,000/- Ripon, Shimul, Raja and Ataur shared the same and committed the offence and Ashraf took money from Hasanuzzaman. Mazibur Rahman was the founder of Madh Nagar Degree College and subsequently he was ousted from the college for misappropriation of money. Subsequently Majedur Rahman established a girls school at Madh Nagar and Mozibur Rahman Mridha tried to resist to establish the same. Mazibur Rahman also established a Technical & Business Management College at Madh Nagar and deceased Majedur Rahman opposed it and ultimately affiliation of said college was cancelled. Regarding the election of Union Parishad there was enmity between deceased and Hasanuzzaman and because of that enmity said Hasanuzzaman made conspiracy and had killed Majedur Rahman by the accused-persons. When

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Ashraf was apprehended then he made confession before the public and the Magistrate as well. He was not present while accused-Ashraf made his confession before the public.

25. In cross-examination he admitted that he made statement before the police voluntarily, but in his statement before the Court, he said what he had not said before the police.

26. P.W 7 Md. Azizul Haque (Madhu) in his deposition stated that on 06.06.2003 at night. He was on ‘¢hV ¢XE¢V’ and they saw the focus of a torch light from ‘Halatir Bill’ and they thought that the dacoits were preparing to commit dacoit in the village and they called the village people and forwarded to wards the light of torch. Suddenly, they saw that one person was trying to hide himself under the drain of paddy field. They apprehended him, who disclosed his name as Ashraf and he told them not to bit him and thereafter Ashraf was taken to Madh Nagar college field and there Ashraf confessed that he was involved with the killing of Maju Mridha. Ashraf also disclosed that Hasanuzzaman gave Tk.20,000/- to Ataur and from that amount Ataur give him Tk.5,000/- and at the time of committing murder Raja, Ataur, Shimul and Ripon were along with him. Raja dealt a rod blow on the head of Maju and Ataur had slaughtered Moju.

27. In cross-examination he stated that he could not remember whether he made the statement before the police prior or after the statement of accused Ashraf before the Magistrate. He along with 15/20 others apprehended Ashraf and thereafter Ashraf was taken to the college field. Matinur Rahman was there but principle, Azizur Rahman, Abdul Jabber and Ferdosi Begum were not there. He told the said fact to Daroga but did not say anything to the villagers.

28. P.W 8 Md. Sabed Ali in his deposition stated that he, Madhu and Siddique apprehended accusedAshraf from ‘Halatir Bill’ and thereafter Ashraf was taken to Eidgoan field and thereafter college field and he disclosed before the members of public that they had killed Maju Mridha and Ataur Rahman had slaughtered him. Shimul was with them. Ashraf also told that Hasan and Mamtaz gave Tk.2,00,000/- to them. He received Tk.1,00,000/- prior to the occurrence and after 12 days of the occurrence he received Tk.10,000/-. Thereafter Ashraf was handed over to police. This witness identified accused-Ashraf on dock and also identified the material exhibits-I, II

that is the blood stain cloth, sandal and the seizer list and his signature thereon as exhibits-3, 3/1.

29. In cross-examination he stated that when the police prepared the seizer list he was asked by the police but he did not mention the name of any accused person. After the arrest of Ashraf he again made statement before the Daroga. When acused-Ashraf made confession Azizur Rahman, Abdul Jabber Mridha, Mawlana Mohammad Ali Dewan and Principle Afzal Uddin and wife of the deceased were present there.

30. P.W 9 Md. Lutfar Rahman Mridha in his deposition reiterated the First Information Report story.

31. He identified the inquest report and his signature on it as exhibits-4, 4/1.

32. In cross-examination he stated that before the police he stated that Majedur Rahman and 5 persons were coming from ‘Jalsha’ towards the Mosque.

33. P.W 10 Md. Belal Hossain in his deposition identified the inquest report and his signature on it as exhibit-4/2. Defence declined to cross him.

34. P.W 11 Sree Santosh Pramanik alias Sree Santosh Kumar is a hearsay witness and he also identified his signature on inquest report as exhibit4/3.

35. In cross he denied the suggestion that Ashraf did not make any extra judicial confession.

36. P.W 12 Md. Siddique in his deposition stated that he, Sabed, Modhu and others apprehended Ashraf from ‘Halatir Bill’ and they took Ashraf to college field where Ashraf confessed that he along with Ataur, Ripon, Raja and Shimul killed Maju the also disclosed that for this murder he took Taka 2,00,000/from Hassan.

37. In cross-examination he stated that he made statement before the police after 2 (two) months of arrest of accused-Ashraf. Daroga took Ashraf from collage field and at that time Akter, Azizur, Matinur, Mohammad Ali, Afaz Uddin, Solaiman, Belal Hossain, Sabed Ali, Madhu and Piyal were there.

38. P.W 13 Md. Habibur Rahman is the Police Constable, who took the dead body to morgue.

39. P.W 14 Md. Asadul Haque Dewan in his deposition stated that on the date of occurrence he being A.S.I was working in Naldanga Police Station

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“fË−u¡S−e ®LE Ap¤Øq q−m a¡l ¢Q¢Lvp¡l B−cn j¡e¢hL L¡l−e ¢c−u b¡¢Lz f¤¢mn ®fËga¡l L−l¢Rm Bp¡j£−L La a¡¢l−M Ascertain L¢l¢ez f¤¢m−nl Custody®a La pju ¢Rm hm−a f¡¢le¡z Cw 11/06/2003 a¡¢l−M 12|00 V¡u Bj¡l L¡−R Bp¡j£−L EÃpq¡fe L−lez B¢j 3|10 Hl fl Sh¡eh¢¾c ¢m¢fhÜ öl² L¢lz ®mM¡ LV¡l pju öl² L¢lz E−õM ®eCz Cw 8/6/2003 a¡¢l−Ml B−c−n 3 ¢c−el Remand j”¤l q−u¢Rmz Bp¡j£ Ap¤Øq ¢Rm Hl²f ¢LR¤ h¡ a¡−L ¢Q¢Lvp¡ ®cu¡ fË−u¡Se Hl²f ¢LR¤ ®eCz I B−c−n a¡l nl£−l ®L¡e SMj ®f−u¢R E−õM ®eCz Cw 11/6/2003 a¡¢l−Ml B−cn Bj¡l ®mM¡z ac¿¹L¡l£ A¢gp¡l Bp¡j£−L ¢lj¡ä ®n−o ®L¡−VÑ q¡¢Sl L−l a¡l Sh¡eh¢¾c ®g±x L¡x ¢hx 164 d¡l¡ ®j¡a¡−hL ®lLXÑ Ll¡l B−hce L−l−Rez Bp¡j£l f¡ pq nl£−ll AeÉ¡eÉ Øq¡−e SM−jl ¢Qq² B−Rz Bp¡j£l ¢Q¢Lvp¡ fœ f¡Ju¡ ®Nmz Bp¡j£l ®c¡o ü£L¡−l¡š²£ ¢m¢fhÜ Ll¡ qmz a¡−L ®Sm q¡S−a ®fËle Ll¡ ®q¡Lz Bp¡j£ Bnl¡g SeNe La«ÑL dªa qJu¡l pju SMj q−u¢Rm j−jÑ S¡¢e−u−Rez a¡l ¢Q¢Lvp¡l hÉhØq¡ Ll¡l SeÉ L¡l¡N¡l La«Ñfr hÉhØq¡ NËqe Ll−hez”

and as per the instruction of officer in charge he along with S.I. Abdul High went to the plance of occurrence and found the dead body. Defence did not crossexamine the said witness.

40. P.W 15 Md. Akkas Ali was one of the witness of inquest report. In his deposition he stated that after 2 (two) months of the alleged occurrence Ashraf was apprehended from ‘Halatir Bill’ and Ashraf confessed that he along with Ataur, Ripon, Raja, Shimul killed Maju Mridha. He was examined by the police and he told the police that Ashraf had confessed that he took Tk.2,00,000/- from Muzibar Mridha, Hassan, Momtaz and Wares.

41. In cross-examination he failed to say the date when Ashraf was taken to the college field and at that time Siddique and Matinur were there. He also could not say whether Azizur Rahman was there; Jabbar Mridha and Mawlana Mohammad Ali were not there.

He made statement before the police after the arrest of Ashraf and he could not say whether he made any statement on 07.08.2003. He denied all the suggestion given by the defence.

42. P.W 16 Md. Yar Ali in his deposition, he reiterated the deposition made by P.W. 15 and in cross-examination he stated that he is a active member of B.N.P and deceased Maju was the president of B.N.P Union unit. He failed to say the date when Ashraf was apprehended and he made statement after 7/8 days of the arrest of Ashraf. He denied all the suggestions given by the defence.

43. P.W 17 Md. Nazmul Haque, Magistrate, 1st Class who recorded the confessional statement of accused-Ashraf, under section 164 of the Code of Criminal Procedure in his deposition stated that after observing all the formalities as per law and rule, he recorded the statement of accused-Ashraf under section 164 of the Code of Criminal Procedure. He gave him enough time for reflection and he told him that he was a Magistrate, not a police man and he would not hand him over to the police and thereafter the accused-Ashraf voluntarily made his statement under section 164 of the Code of Criminal Procedure.

He identified the said recorded statement as exhibit-5 and his signatures thereon as exhibits-5/1, 5/2, 5/3, 5/4. He also stated that accused-Ashraf put his thump impression on it.

44. In his cross-examination he stated to the following effect:

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He further stated to the effect: “HC Sh¡eh¢¾c ®üµR¡ fË−e¡¢ca J p¢WL ¢Rm HC j−jÑ B¢j p¡¢VÑ¢g−LV ¢c−u¢R HC i¡o¡u E−õM ®eCz Bp¡j£ ®mM¡fs¡ S¡−e ¢Le¡ ¢S−‘p L¢l¢ez paÉ eu ®k, Bp¡j£−L j¡l−d¡l Ll¡l SeÉ pC −cu¡l ®L¡e rja¡ h¡ ®pSeÉ Af−ll ¢Vf ¢e−u¢Rz HC ¢Vf Bj¡l ¢fue pe¡š² L−l−Rz B¢j Bp¡j£l i¡o¡−a Sh¡eh¢¾c ¢m−M¢Rz-----------z Bf¢e ®c¡o ü£L¡l e¡ Ll−m f¤el¡u f¤¢m−nl L¡−R ®cu¡ q−h e¡ fË−nÀ E−õM ®eCz” 45. This witness denied the suggestion of the defence that he did not record the statement properly and applying judicial mind.

46. P.W 18 Doctor Abdul Kalam Azad, the Residential Medical Officer, held the post mortem and he found the following injuries: 1.

Incised injury over 04"X01"X bony injury.

frontal

head

2.

Incised injury over anterior aspect of right shoulder 04"X01"X Joint deep.

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3.

Incised injury over vertex 04"X01"X Scalp.

4.

Incised injury over occipital region 03"X01"X Scalp.

5.

Incised injury over vertex 02"X01"X Scalp.

6.

One cut throat injury over anterior Lateral aspect of neck 05"X01"X injury of neck, vessels and respiratory tract.

7.

Multiple small incised injuries over left face and anterior chest wall.

Opinion:- Death in my opinion was due to hemorrhage and shock as a result of cut throat injury(No-6) Which was ante mortem & homicidal in nature.

47. In cross-examination he stated that he did not mention in his report the age of injuries and time of death. He did not mention the nature of injuries and about the type of weapon as was used. He denied the suggestion that if the deceased would be given treatment immediately he might not have been died.

He denied the suggestion that he gave vague report.

48. P.W 19 S. I Abdul Hai, the 1st investigating officer in his deposition stated that he found the dead body 30 yards away from the western side of the rail way line and the relatives of the deceased identified the dead body. He prepared the inquest report and identified his own signature thereon as exhibit-4/5. He also seized alamats namely blood stain cloth, blood stain grass and sandal and identified the seizure list as exhibit-3/2. He took the photo graphs of the dead body and the place of occurrence which were marked as exhibit-8 and 9 respectively and he also identified the alamats namely blood stain cloth, grass, sandal, ‘chadar’, trouser and panjabi as material exhibits-I, II, III, IV, V and VI. He prepared sketch map and index which were marked as exhibits-10 and 11. He arrested 9 persons out of suspicion. He recorded the statement of some of the witnesses under section 161 of the Code of Criminal Procedure.

49. In cross-examination he stated that deceased Majedur Rahman was the cousin (M¡m¡a i¡C) of State Minister Dulu and Maju was the President of Union Unit of B.N.P and he did not know whether the witnesses belong to any political party. He did not seize any ‘leaflet’ of Purba Bangla Communist Party and he denied the suggestion that he, with malafide

motive, refrained from seizing leaflets from the place of occurrence. He asked number of people but none mentioned the name of any accused person and he also admitted that the name of the said persons was not mentioned in the case diary. He arrested two members of the Purba Bangla Communist Party namely Ohi and Jahi and ultimately final report was given in favour of them. He denied the various suggestions given by the defence. On recall he stated that in the photographs there was no signature and he denied the suggestion that with malafide motive he made the photograph as part of the C.D and he also denied the suggestion that he investigated the case under the influence of the Minister.

50. P.W 20 Din Bandhu Dash the 2nd I.O, who ultimately submitted the charge sheet in his deposition stated that the accused-Ashraf had confessed his guilt before him and thereafter he sent him before the Magistrate to record his statement. After investigation he submitted the charge sheet against 9 persons under section 120(kha)/302/34 of the Penal Code. In crossexamination he stated that on 20.09.2003 he was given charge to investigate the case and up to 11.06.2003 he took statement under section 161 of the Code of Criminal Procedure of 7(seven) witnesses.

Afaz Uddin, Anisur Rahman, Akter Hossain did not mention any name of accused persons. Ashraf Ali was apprehended by the villagers on 06.06.2003 and he was handed over to him on 07.06.2003 at 15.10 hours and S.I. Zahangir Alam and A.S.I Md. Asadul Haque took Ashraf Ali to him. He also stated that he did not record any statement of any witness between the days 07.06.2003 and 11.06.2003 and he recorded the statement of the witness after the statement of Ashraf.

He further stated to the following effect: “p¡r£ j¢ae¤−ll Sh¡eh¢¾c 30/5/2003 a¡¢l−M 161 L−l¢Rz ®p h−m¢e ®k, OVe¡l ¢LR¤¢ce fl q¡m¢al ¢h−m m¡CV j¡l¢Rmz NË¡−jl ®m¡L Baw¢La qu ®k, NË¡−j j−e qu X¡L¡a f−s−Rz h¡ NË¡jh¡p£ ¢hV f¡q¡l¡l ®m¡L−cl p¡−b L−l ®e−j Bnl¡g−L d−l L−mS j¡−W ¢e−u B−pz --------------------- p¡r£ A¡¢SS¤m qL jd¤l Sh¡eh¢¾c 13/6/2003 a¡¢l−M ¢e−u¢Rz ®p Bj¡−L h−m¢e ®k, ¢hV f¡q¡l¡l hÉhØq¡ L¢lz a−h NË¡−j Duty Hl hÉhØq¡ L¢l h−m−Rz l¡−a f¡q¡l¡ Qm¢Rm h−m¢ez a−h l¡−a Duty ¢Rm h−m−Rz ®p h−m¢e ®k, “q¡m¢al ¢h−m V−QÑl B−m¡ NË¡j−l ¢c−L j¡l−Rz ----------z ®p h−m¢e ®k, qW¡v ®c¢M 1 Se ®m¡L ®XÊ−el j−dÉ m¤L¡−µRz aMe a¡−L d¢l h−m¢ez ---------z

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p¡r£ p−hc Bm£−L 13/6/2003 a¡¢l−M 161 L−l¢Rz ®p h−m¢e ®k, "q¡m¢al ¢h−m' VQÑ j¡l−a b¡−Lz -------z q¡m¢al ¢h−m Bnl¡g−L d¢l E−õM ®eCz -------z p¡r£ ¢p¢Ÿ−Ll Sh¡eh¾c£ Cw 20/7/2003 a¡¢l−M 161 L−l¢Rz Bp¡j£ Bnl¡−gl ü£L¡−l¡š²£l fË¡u 1 j¡p fl HC p¡r£l Sh¡eh¾c£ ®lLXÑ L¢lz ®p h−m¢e ®k, OVe¡l f−l l¡−a ¢hV ¢c¢µRm¡jz h¡ "¢hm' ®b−L m¡CV j¡l¢Rmz ----------z ®p h−m¢e jd¤, ®p, p−hc pq ¢e−u Bp¡j£ Bnl¡g−L d−lz ---------z ®p h−m¢e ®k, Bj¡−L ®jle¡ ü£L¡l Ll−h¡z ®p h−m¢e ®k, ®p Ba¡El, ¢lfe, ¢nj¤m, l¡S¡ V¡L¡l ¢h¢ej−u M¤e L−l¢Rz ----z Cw 8/7/2003 a¡¢l−M p¡r£ B‚¡R Bm£l Sh¡eh¢¾c 161 L¢lz ®p qaÉ¡L¡l£ pÇf−LÑ ¢LR¤ h−m¢ez p¡r£ Cu¡l Bm£ Bnl¡−gl ü£L¡−l¡š²£ J Bp¡j£l pl¡p¢l qaÉ¡L¡−äl Lb¡ h−m¢ez --------z A¢i−k¡Nf−œ Bp¡j£−L q¡m¢al ¢h−m dl¡ qu J SeN−el L¡−R ü£L¡l L−l E−õM ®eCz”

51. He denied the defence suggestion that accused Ashraf Ali was seriously tortured when he was taken to police remand and to save himself he disclosed that the villagers had bitten accused Ashraf. He also denied the suggestion that because of the influence of the Minister he compelled to submit the charge sheet against the accused persons.

52. After closing the evidence, the accused persons, who were present before the Tribunal were examined under section 342 of the Code of Criminal Procedure and accused Ashraf Ali in his statement under section 342 stated to the effect: ----------------------------------| fËnÀx Bfe¡l Bl ¢LR¤ hm¡l B−R ¢L? “Ešlx- qyÉ¡z X¡L¡¢a q¢µRmz HLSe ®jðl Bj¡−L h−m ®a¡j¡l ¢hV ¢XE¢V Ll−a q−hzz a¡l fl A¡j¡−L ¢hV ®b−L ®X−L NË¡−jl ®m¡LSe j¡−lz A¡j¡−L L−mS j¡−W d−l ¢e−u B−pz HV¡ j¡S¤ jªd¡ j¡l¡ k¡Ju¡l fË¡u 3 j¡p flz Bj¡−L j¡−W H−e j¡l−d¡l L−l h¡−nl p¡−b T¥m¡Cz B¢j A‘¡e AhØq¡u Lb¡ h−m¢Rz Hl fl N¡¢s−a ¢e−u k¡u f¤¢mn H−pz Hl fl b¡e¡u ¢e−u k¡uz ------- Bj¡−L c¤¢ce fl ®L¡−VÑ ¢e−u k¡u J 3 ¢c−el ¢lj¡−ä ¢e−u B−pz jÉ¡¢S−øÊV−L h¢m ¢hV ®b−L d−l L−mS j¡−W j¡−l J ¢lj¡−ä ¢e−u j¡−lz e¡−V¡l ------ H−e j¡−lz jÉ¡¢S−øÊVÊ −L h¢m AaÉ¡Q¡l L−lz B¢j

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jÉ¡¢S−øÊ−Vl L¡−R ¢L h−m¢R e¡ h−m¢R hm−a f¡l−h¡ e¡z” 53. Accused-Ataur at the time of the examination under section 342 also stated to the effect: ------------------------------------z fËnÀx Bfe¡l Bl ¢LR¤ hm¡l B−R ¢L? “Ešlx- qyÉ¡z ®qm¡m c¡l¢S−al p¡−b A¡j¡l f¡¢lh¡¢lL ®N¡mj¡m B−Rz a¡l¡ B.N.P Hl ®ea¡−cl m¡N¡uz B¢j j¡X¡Ñl pÇf−LÑ ¢LR¤ S¡¢e e¡z ®qm¡m Bj¡−L h−m¢Rm ®a¡−L ®c−M ¢ehz a¡l fl HC j¡jm¡u Bj¡l ¢hl²−Ü Q¡SÑn£V ®cuz ®qm¡m h−m ®S−ml i¡a M¡zÓ 54. We have heard the learned Advocates of the respective parties, perused the impugned judgment and scrutinized the evidence and other materials on record.

55. In the instance case, there is no eye witness of the alleged murder although P.W 2, P.W 5 and P.W 9 were accompanying the deceased Majidur alias Maju.

They could not identify the accused persons neither at the time of the occurrence nor after the occurrence.

The learned Druta Bichar Tribunal in fact awarded the conviction relying upon the Judicial and extra Judicial confession of condemned prisoner Ashraf Ali and the learned Tribunal found that the confessional statement of accused-Ashraf Ali made before the Magistrate was true and voluntarily, as the same was recorded by the P.W 17 Md. Nazmul Haque, Magistrate 1st Class with due compliance of law.

56. Now let us consider whether the statement under section 164 of the Code of Criminal Procedure made by condemned prisoner Ashraf Ali is true and voluntary one.

57. From the cross-examination of P.W 17, the Magistrate, who recorded the statements under section 164 of the Code of Criminal Procedure, of condemned prisoner Ashraf Ali, it is manifested that when Ashraf Ali was produced on 11.06.2003 before him by the police after remand, several marks of injury were found on his body, although he stated that said injuries were caused on his person when he was apprehended by the villagers. This explanation of P.W 17 is not acceptable to us. When accused-Ashraf was first produced before him on 08.06.2003 in the order sheet he did not mention anything about such injury/ injuries and P.Ws 4, 7, 8, 12 and 16, who stated about the extra judicial confession made by the accused-

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Ashraf Ali, neither in their deposition nor in crossexamination they stated like that when accusedAshraf Ali was apprehended by the villagers the unruly villagers assaulted accused-Ashraf Ali, but they deposed clearly and consistently that Ashraf Ali was taken by the police from college filed.

58. P.W 20, the investigating officer in his crossexamination admitted that accused-Ashraf Ali was placed before him on 07.06.2003 at 15.10 by S.I. Zahangir Alam and A.S.I Asadul Haque. Said police officers were not produced before the Court and examined by the prosecution as P.Ws, which also creates doubt about the manner of very arrest of the condemned prisoner Ashraf Ali. If we carefully scrutinize the cross-examination of the P.W 17 and P.W 20, a reasonable suspicion would give rise in the mind of a prudent man that accused-Ashraf Ali might have been tortured, when he was under police remand.

The confessional statement was allegedly made after 3 days of police remand and after remand when accused-Ashraf Ali was produced before the Magistrate, several marks of injury were found on his body and in such attending facts and circumstances of the case, the truth and voluntariness of the confessional statement, exhibit-5 becomes highly questionable and doubtful and it would not be safe and legal to convict a person relying upon only a such doubtful and questionable confessional statement and sentence him to death by awarding capital punishment.

59. Moreover, it appears from exhibit-5, the confessional statement, that the recording Magistrate did not fill up the column Nos. 8, 9 and 10 of the form. Column No.8 of the form reads as follows: “8. Brief statement of Magistrate’s reason for believing that the statement was voluntarily, made.

[Note.- Any complaints of ill-treatment of injuries noticed on the accused or referred to by the accused should appear under paragraphs 6 and 7 but should be specifically noticed here and the action taken by the Magistrate thereon should be mentioned.

When the confession is recorded otherwise than in the Court building and during Court hours the Magistrate’s reasons are likewise to be recorded here.]”

And column 10 of the form reads as follows:

“10. The accused ………………..at.”

is

forwarded

to

60. Regarding the non filling of the said columns of the form, the learned Deputy Attorney General referred the case of Salauddin –Vs- State, reported in 32 DLR(HC) Page-227 and submits that it is a mere irregularity and failure to comply with requirement of column 8, 9 and 10 of the form at best it will mean violation or non-compliance of same circulars and same is curable under section 357 of the Code of Criminal Procedure. On the other hand the learned Advocate of the defence submits that the mandatory provision of law as contemplated in section 164(3) of the Code of Criminal Procedure has been violated in not filling the said columns under the requirement of law and in support of his confession he referred to the case of Abul Hossain and others –Vs- The State, reported in 13 BLD, Page- 311wherein it has been held that: “This sub-section speaks of the manner as to how a confession of an accused is to be recorded by a Magistrate and this is a mandatory provision and failure to comply with it shall make the confession invalid and unreliable. This provision of law along with provisions of section 364 of the Code of Criminal Procedure requires to be strictly observed and followed to make the confession voluntary and true in the real sense to be fit for reliance for convicting an accused on his confession.”

61. Column 8 of the form bears important significant. A Magistrate after recording statement under section 164 of the Code of Criminal Procedure should have given a certificate that it appears to him that the confession made by the accused is true and voluntary and in a case where mark of several injuries were found on the body of the accused person, he should have satisfied himself that the statement was true and voluntary and it was not the result/ act of any torture and he ought to have given a certificate in his own hand in column 8 of the form as to the truth and voluntariness of such statements and in not giving such certificate, in this particular case, also creates a doubt that the learned Magistrate might have recorded the confessional statement in a casual manner and mechanical way without making necessary endeavour to ascertain the truth and voluntariness of the statement. Column 10 is found blank, which is not

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desirable and it shows the non application of mind of the recording Magistrate. Omission to fill up column 10 of the Form creates a presumption that accused was under the threat of being sent back to the police remand instead of sending him in jail hajat. P.W 17, the recording Magistrate in his cross-examination admitted to the effect: ""Bf¢e ®c¡o ü£L¡l e¡ Ll−m f¤el¡u f¤¢m−nl L¡−R ®cu¡ q−he¡ fË−nÀ E−õM ®eCz'' 62. In such facts and circumstances is very difficult for us to hold that statement under section 164 of the Code of Criminal Procedure is voluntary one and same was recorded complying the mandatory provision of law.

63. In this connection we may refer the case of Sarwan Singh Rattan Singh –Vs- State of Punjab, reported in P.L.D 1957(SC)555, where it has been observed as follows: “The act of recording confession under Section 164 Criminal P.C. is a very solemn act and, in discharging his duties under Section 164, the Magistrate must take care to see that the requirements of sub-section (3) of Section 164 are fully satisfied. It would, of course, be necessary in every case to put the questions prescribed by the High Court circulars but the questions intended to be put under Sub-section(3) of Section 164 should not be allowed to become a matter of mere mechanical inquiry. No element of casualness should be allowed to creep in and the Magistrate should be fully satisfied that the confessional statement which the accused wants to make is in fact and in substance voluntary. The whole object of putting questions to an accused person who offers to confess is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or promise having reference to the charge against the accused person as mentioned in section 24 Evidence Act.” 64. In case of Mrs. Jobaida Rashid –Vs- State, reported in 17 B.L.D, Page-352 their Lordships held: “Columns 3, 4 and 8 of the prescribed form for recording confessions have not been filled up by the Magistrate. Therefore this piece of paper (confessional statement of the

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petitioner) is highly doubtful having no credibility and as such unworthy of consideration by any Court.”

65. In the case of Mst. Saida Begum –Vs- The State, reported in P.L.D 1958(Lahore) Page,559, wherein it has been observed as follows: “Beside putting the set questions the Magistrate is required to make a real endeavor to find out the voluntary nature of confession, it is a solemn duty which should be performed with great care and caution, and not mechanically.”

66. Having discussed as above and considered the above reported cases together with the crossexamination of P.W.17, the recording Magistrate and P.W 20, the investigating officer and the statement of accused-Ashraf Ali before the Court at the time of examination under section 342 of the Code of Criminal Procedure, we are of the view that the exhibit-5, the confessional statement is not true and voluntary one and the Magistrate recorded it mechanically and failed to perform his solemn duty.

67. Now let us consider how far the extrajudicial confession of condemned prisoner Ashraf would be taken to consideration as evidence in the facts and circumstances of the present case.

68. P.W 4 Md. Matinur Rahman, in his crossexamination stated to the effect: “a−h OVe¡l ®cs j¡p 2 j¡p f¡l q−a f¡−lz j¡deNl ¢XNË£ L−m−S ®p ü£L¡l L−l¢Rmz aMe B¢SS¤l lqj¡e, BLa¡l ®q¡−pe, ®j¡q¡Çjc Bm£ ®cJu¡e ¢Rme¡z” And P.W 7 Md. Azizul Haque alias Madhu in his cross-examination stated to the effect: “Bjl¡ k¡l¡ ¢h−V ¢Rm¡j a¡−cl e¡j hm−a f¡¢lz Bp¡j£−L L−mS j¡−W ¢e−u B¢pz aMe fË¢¾pf¡m, B¢SS¤l lqj¡e jªd¡ ¢Rme¡z Bx Sî¡l, ®gl−c±p£ ®hNj ¢Rme¡z j¡−ae¤l lqj¡e ¢R−mez jJm¡e¡ ®j¡q¡Çjc Bm£ ¢R−me ¢Le¡ S¡¢e e¡z -------z Bj¡−L c¡−l¡N¡ ¢S−‘p Ll−m a¡−L h−m¢Rz Hl f§−hÑ Bp¡j£ ü£L¡l L−l−R B¢j L¡E−L h¢m¢ez B¢j NË¡−jl ®m¡L−L h¢m¢ez'' And P.W 8 Md. Sabed Ali, in his crossexamination stated to the effect: “j¡−W Bp¡j£ Bnl¡g−L dl¡l fl Bj¡−cl L¡−R ü£L¡l L−lz Bp¡j£ dl¡ fl¡l fl c¡−l¡N¡

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flha£Ñ−a Sh¡eh¢¾c ®euz aMe Bp¡j£ Bnl¡g ü£L¡l L−l aMe B¢SS¤l lqj¡e Bx Sî¡l jªd¡ ¢Rmz a¡l¡ OVe¡ ö−e−Rz aMe jª−al Øœ£ ¢Rmz jJm¡e¡ ®j¡q¡Çjc Bm£ ®cJu¡e ¢Rmz ¢fË¢¾pf¡m Bg¡S E¢Ÿe ¢Rmz a¡l¡J ®n¡−e B¢jJ ö¢ez” 69. P.W 12 Md. Siddique in his cross-examination stated to the effect: ""c¡−l¡N¡ H−p L−mS j¡W ®b−L Bnl¡g−L ¢c−u k¡uz aMe Bš²¡l, B¢SS¤l, j¡¢ae¤l, jq¡jÈc Bm£, Bg¡S E¢Ÿe, ®p¡m¡uj¡e, ®hm¡m ®q¡−pe ¢Rmz p−hc Bm£ ¢Rmz jd¤ ¢Rmz'' 70. From the said evidence, it manifests that the witnesses made contradictory statements regarding the presence of witnesses, in whose presence the alleged extrajudicial confession was made.

71. Further P.W 12 Md. Siddique admitted in his cross-examination that he was examined by the police after 2 months of the arrest of accused-Ashraf Ali. P.W 20, the Investigating Office in his crossexamination admitted to the effect: ""B¢j 7/6/2003 a¡¢lM ®b−L 11/6/2003 a¡¢lM pj−ul j−dÉ k¡l¡ Bp¡j£ Bnl¡g−L d−l¢Rm J Bnl¡g a¡−cl p¡j−e ü£L¡l L−l¢Rm a¡−cl 161 I pj−ul j−dÉ L¢l¢ez 11/06/2003 a¡¢lM Bp¡j£ Bnl¡g Bm£l jÉ¡¢S−øÊ−Vl L¡−R Sh¡eh¢¾c ®cu¡l fl p¡r£−cl 161 L−l¢Rz'' 72. This delay in recording the statement under section 161 of the Code of Criminal Procedure of witnesses particularly P.W 4, 7, 8 and 12, who stated about the extrajudicial confessional of AccusedAshraf Ali, renders their evidence shaky and chance of embellishment can not be ruled out. It also appears to us that P.W 4, 7, 8, 12 and 16 narrated the extra judicial confession of the Ashraf Ali in different way and the said witnesses contradict each other. In view of the above discussion, we are of the opinion that the learned Judge of Druta Bichar Tribnal acted illegally relying upon the alleged extra judicial confession of accused- Ashraf Ali which was not corroborated by any other legal evidence.

73. We have already found exhibit-5, the confessional statement of accused-Ashraf Ali is not true and voluntarily and not free from doubt and thus the questionable extrajudicial confession of Ashraf

Ali can not be said a corroborative evidence of the same and as such the conviction of accused-Ashraf Ali relying upon those is unwarranted in law.

74. As we have already discarded the judicial and extrajudicial confession of accused-Ashraf Ali as legal evidence, the conviction of other accused namely Ataur Rahman, Ashraf alias Raja Saiful Islam alias Ripon and A. Jail alias Simul relying on the same can not be sustained. Further it is well settle principle of law that confession of an accused can not be treated as substantive evidence against another accused but that it can only be used to lend assurance to other evidence. In this connection we can rely upon the case of Lutfun Nahar Begum –Vs- The State, reported in 27 DLR(AD), Page 29, Babor Ali Molla and other –Vs- State, reported in 44 DLR(AD), Page 10 and the case of Ustar Ali -Vs-State, reported in 3 BLC(AD), Page 53 respectively.

75. In the instant case we found that there was absolutely no legal and trust worthy evidence against any of the non-confessing accused persons and total absence of such legal and trust worthy evidence against them, the confession of their co-accused persons could not be collect in aid to lend assurance to non-existent evidence on which conviction could be passed and thus, the conviction of accused-Ataur Rahman, Ashraf @ Raja, Saiful Islam @ Ripon and A Jalil @ Simul relying upon the confessional statements of co-accused Ashraf Ali is illegal and same can not be sustainable in law.

76. In the case of Amir Hossain Hawlader –Vs- The State, reported in 1984 BLD(AD), Page 193, it has been observed as follows: “In the case of Gul Hassan and another V. The State, PLD 1969 SC 89, the absconsion of an accused was considered to be a corroborating evidence against him, but in that case there was no confessional statement of any co-accused in support of which absconsion of another accused was held to be a corroborating evidence. In that case, one Karim Khan was shot dead by one of the accused within the sight of three witnesses who gave direct evidence that one of the accused had fired a double barrel gun and another accused a pistol after which they

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absconded. In that case the absconsion was considered to be corroboration to the direct evidence of the eye-witnesses connecting the accused with the murder. Reference to this case has no bearing with the question raised in the instant case. In the case of Md. Bashir V.l The State, Supreme Court Monthly Report (1970) Voll. III, 351, the assailant shot the victim with a pistol, pursued him when the latter ran and again fired two shots and then absconded; he was arrested from a distant place and his absconsion was held to be corroboration of the direct evidence of four witnesses who claimed to have seen him firing upon the deceased victim. In the case of Md. Rafiq V. The State, PLD (1974) SC 65 the assailant killed his victim by firing a pistol thrice, absconded and was arrested after a year from a distant place; his absconsion was considered to be a corroboration to the direct evidence of three witnesses who claimed to have seen him firing the pistol shots. I fail to understand why these cases have been cited by the learned Deputy Attorney General seeking corroboration in this case of the confessional statement of Sattar Mir so as to implicate thereby these appellants who absconded but against whom there is no evidence except the co-accused Sattar’s confession. No decision could be cited by the learned Deputy Attorney General showing that the absconsion of an accused has been held to be corroboration to the confessional statement of another accused so as to base thereon conviction of the absconding accused.�

77. In view of the said observation of our Appellate Division we are of the opinion that in the attending facts and circumstance of the instant case the absconsion of accused-Saiful Islam and Abdul Jalil can not be treated as corroborative evidence of judicial and extrajudicial confession of accusedAshraf Ali, in absence of any other direct evidence.

78. The learned State defence lawyer submits that notification as per provision of section 339B(1) of Code of Criminal Procedure published in Daily Ajker Kagoj News Paper is defective one as the police station case number had wrongly mentioned in the notification. We have perused the notification

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published in the newspaper and found that in the notification Police Station case number had been mentioned as Nator Police Station but the present case is Naldanga Police Station Case No.3 dated 05.04.2003. Thus, this notification can not be said a proper and legal notification and subsequent proceeding is illegal and it vitiates the trial, so far the absconding accused persons are concerned.

79. In the instant case convict Ashraf Ali and Ataur Rahman at the time of examination under section 342 of the Code of Criminal Procedure made statement in support of their innocence and also as to their respective confessional statement, but the learned Druta Bichar Tribunal did not at all take notice of those and did not consider the same with reference to the evidence on record. The learned Tribunal is not justified in ignoring the statements of the said accused persons recorded under section 342 of the Code of Criminal Procedure and by such non-consideration the merit of the case had been materially affected.

80. In view of our above discussion we hold without any hesitation that the learned Druta Bichar Tribunal erred in law in passing the impugned judgment and order of conviction and sentence and we are inclined to interfere which the same.

81. Accordingly, the Death Reference No.96 of 2005 is hereby rejected. Criminal Appeal No.3243 of 2005 and Jail Appeal No.768 of 2005, 769 of 2005 and 770 of 2005 are allowed. The impugned judgment and order dated 05.07.2005 passed by the learned Judge, Druta Bichar Tribunal; Rajshahi in Druta Bichar Tribunal Case No.16 of 2005 is hereby set aside. All the convicts are acquitted from the charge brought against them and the condemned prisoners are set at liberty at once, if not wanted in connection with any other case.

82. The learned State defence lawyer submits that the conviction warrant issued by the Trial Court against the absconding accused-Saiful Islam alias Ripon son of A. Jabber, and A. Jalil alias Shimul son of late Kapir Mondal, may be withdrawn. On submission of the learned State defence lawyer, the trial Court is directed to re-call the conviction warrant issued earlier against the above named absconding accused-Saiful Islam alias Ripon and Abdul Jalil alias Shimul.

Send down the lower Court record at once.

Ed.

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HIGH COURT DIVISION (Civil Revisional Jurisdiction) Mr. Farid Ahmed, J.. and Mr. Obaidul Hassan, J.

} }

Judgment 17.08.2009

Rupsha Fish and Allied Industries Ltd. ...Petitioner Vs. The Premier Bank Limited and others ...Opposite Party.

Mr. Abdul Quayum with Mr. Probir Halder and Mr. Swarup Kanti Deb ....For the Petitioner .

Mr. Ajmalul Hossain QC with Mr. A.B.M. Siddiqur Rahman Khan and Mr. Affan Ahmed Siddiq ....For the Opposite Parties.

Code of Civil Procedure (V of 1908) Order VIII, rule 10 Order IX, rule 13 Order XLIII, Rule 1(b) After rejecting the defendant’s application for adjournment the learned judge passed the ex-parte judgment. Neither the newly appointed lawyer then filed application for further adjournment nor did he take part in the hearing nor did he retire from the suit. It was fixed on 06.02.2006 for filing written statement. In default the court will take exparte decision. No written statement was filed on the fixed date. The Court passed the judgment for failure of the defendants to file the written statement which comes written the purview of Order VIII, rule 10 of the Code. An order passed under Order VIII, Rule 10 of the Code is an appealable order under order XLIII, rule 1(b) of the Code. But in India the provision of appeal has been deleted.

The exparte judgment shows that the learned Judge rejected the defendants’ application for adjournment and thereafter took up the case for exparte hearing. It does not appear from the order that the newly appointed lawyer thereafter filed any application for further adjournment or that the learned Advocate intended to appear for taking part in the hearing of the suit. Even he did not retire from the suit. …(16) *Civil Revision No. 2448 of 2006.

On 6.2.2006 was fixed for filing written statements, in default, for taking exparte decision on the suit. The defendants on that date also failed to file written statements. The learned court thereafter passed the judgment for failure of the defendants to file written statements. This judgment comes within the purview of Order 8 Rule 10 of the C.P.C. Order 8 Rule 10 of the Code of Civil Procedure reads as under : “ Where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.” ………(17) The learned Advocate for the petitioner on the contrary has submitted that against an order passed under Order 8 Rule 10 of the C.P.C. is appealable under Order 43 Rule 1 (b) of the C.P.C but in India the provision of Rule 1(b) of Order 43 of the C.P.C has been deleted in 1976 by an amendment and there is no provision in the Indian C.P.C for filing an appeal against the order passed under Order 8 rule 10 of the C.P.C . So, in all the aforesaid cases referred on behalf of opposite party it was held that Order 9 Rule 13 of the Code of Civil Procedure is entertainable against an order passed under Order 8 Rule 10 of the C.P.C . But in our C.P.C the provision of Rule 1(b) of Order 43 of the C.P.C has not been amended. According to our C.P.C Rule 1 (b) of Order 43 is the specific provision for filing an appeal against an order passed under Order 8 Rule 10 of the C.P.C if the defendant fails to present the written statements on the date fixed by the Court. The learned Advocate for the petitioner has referred the case of Gopi Charan Bajpai and others Vs. Ramprashad Awasthi and others reported in AIR 1957 (Allahbad) 283. The case was decided before amendment of the C.P.C. in India and it has been held that an order passed under Order 8 Rule 10 of the C.P.C is an appealable order and appeal lies under the provision of Order 43 Rule 1(b) of the C.P.C. Before amendment of C.P.C in India the provision of Order 43 Rule 1(b) was the procedure for filing an appeal against an order passed under order 8 Rule 10 of the C.P.C. But after amendment the provision of appeal has been deleted in India. In the case of M/S. M. Manick Peter and others Vs. K. Surendranathan reported in AIR 1988 Kerala 161 it has been held : ..........” A right of appeal provided Under Order 43 Rule 1 (b) was taken away by deletion of sub clause

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(b). The decree passed in the present case is in conformity with the requirements of Order 8 Rule 10 as amended in 1976. For the absence of the defendnats and their Counsel, it is also a decree exparte. Order 9 Rule 13 C.P.C. enable the defendants to apply to the court to set aside an exparte decree against him”..... .......(20) Code of Civil Procedure (V of 1908) Order VIII, rule 10 Order IX, rule 13 Order XLIII, Rule 1(b) From the impugned order it appears that the learned Joint District Judge refused to reject the miscellaneous case on referring the amended provision of Rule 13 A of Order 9 of the C.P.C. The new provision of Rule 13A of order 9 has been brought in the C.P.C. to avoid delay and expedite disposal in setting aside the exparte decree with cost without requiring the defendant to adduce evidence if an application for setting aside decree is filed within thirty days from the date of decree.

But in the present case, the defendant was very much before the Court. He took four adjournments for filing written statements but ultimately they failed to file the same and the Court passed the ex-parte judgment which comes within the meaning of Order 8 Rule 10 of the Code of Civil Procedure and the same was appeal able under the provision of Order 43 Rule 1(b) of the Code of of Civil Procedure. So, the learned Joint District Judge was not justified in rejecting the petitioner’s prayer for rejecting the miscellaneous case as being not entertain able. ....(26) Damodar Das Vs. Raj Kumar Das , AIR 1922 (Patna) 485; Bothra and others Vs. Kedar Nath Bothra and others, A.I.R. 1938 (Calcutta) 74; Md. Nurul Haque Vs. Sonali Bank of Bangladesh and another, 39 DLR 223; Narendra Patra Vs. Shiba Narayan Taldi and another, A.I.R. 1995 Orissa 45; Innovation Apartments Flat Owners Association, Secundrabad Vs. M/S. Innovation Associates, Secundrabad, AIR 1991 Andhra Pradesh 69; N. Jayaraman Vs. M/S. Glaxo Laboratories India Ltd., AIR 1981 Madras 258; M/S. Kuvarp industries Bangalore Vs. State Bank of Mysore, AIR 1985 (Kant) 77; M.S. Manick Peter and others Vs. K. Surendra Nathan, AIR 1988 Kerala 161; Most. Hakumat Bibi Vs. Imam Din and others, PLD 1987 (S.C.)-22 ref.

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Judgment Farid Ahmed, J: This rule was issued calling upon the opposite parties to show cause as to why the impugned order No. 20 dated 3.7.2006 passed by the learned Joint District Judge, 1st Court, Khulna in entertaining the Miscellaneous Case No. 24 of 2006 under Order 9 Rule 13 should not be set aside and or such other or further order or orders passed as to this Court may seem fit and proper.

2.

The petitioner on 1.8.2005 instituted Money Suit No. 6 of 2005 before the 1st Court of Joint District Judge, Khulna agaisnt the opposite parties for a decree for Tk. 53,97,3,000/- as compensation for damage and for mandatory injunction directing the defendant-opposite parties to handover key of chamber of the factory and to restrain them from interfering to the running of the business of the plaintiff-petitioner namely ‘Rupsha Fish and Allied Industries’.

3.

The learned court by order dated 11.9.2005 fixed up 18.10.2005 for filing written statements and thereafter consecutively on 4 dates the defendantopposite parties failed to file written statements. The learned Joint District Judge by order No. 12 dated 22.1.2006 as last chance allowed time and fixed up 6.2.2006 for filing written statements with a cost of Tk. 700/-, in default, for exparte hearing and decision.

On 6.2.2006 the defendants appointed a new lawyer and again filed an application for 15 days adjournment to file written statements. The Court rejected the prayer for adjournment and took up the case for exparte hearing and decreed the suit exparte.

4.

Against the said exparte decree the defendant opposite parties have filed a case being Miscellaneous Case No. 24 of 2006 under Order 9 Rule 13 of the Code of Civil Procedure stating that defendant-opposite parties could not prepare the written statements as the Head Office of the Bank did not supply the necessary facts and documents in support of their case and that they engaged a new Advocate but he could not prepare the written statements and as such prayed for time, the learned Court rejected the prayer for time and passed the exparte decree. In the miscellaneous case the petitioner filed an application stating that the impugned exparte order was passed under Order 8 Rule 10 of the code of Civil Procedure which is appealable, so, the miscellaneous petition under Order 9 Rule 13 of the Code of Civil Procedure is not maintainable.

5.

The learned Joint District Judge by order No. 20 dated 3.7.2006 rejected the application for rejection

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of the miscellaneous case on the finding that in order to avoid delay and for expeditious disposal of the case the provision of Rule 13 (A) of Order 9 has been inserted in the Code of Civil Procedure.

6.

Being aggrieved thereby , the petitioner moved this court and obtained the present Rule.

7.

The defendant-opposite parties have filed a counter affidavit controverting the statements made in the revisional application and stated that in their miscellaneous case they stated that for bonafide reason they failed to file written statements within the time granted by the Court and that as per provision of Rule 13A of Order 9 of the Civil Procedure Code, to ensure the expeditious hearing of the case the learned court rejected the petitioner’s application for rejection of the miscellaneous case and that the said miscellaneous case is maintainable.

8.

Mr. Abdul Quayum with Mr. Probir Halder, learned Advocates appearing on behalf of petitionercompany have submitted that the exparte order was passed as per provision of Order 8 Rule 10 which is appealable under Order 43 Rule 1(b) of the Code of Civil Procedure and as such the miscellaneous case is not maintainable. Mr. Probir Halder thereafter has submitted that petitioner took specific ground that an appeal lies against the order passed under Order 8 Rule 10 of the Code of Civil Procedure and the learned Judge quoted the submission of the petitioner in his judgment but without considering the said provision of law illegally rejected the petitioner’s application for rejection of the miscellaneous case.

9.

Mr. Ajmalul Hossain, learned Senior Counsel appearing with Mr. A.B.M. Siddiqur Rahman Khan and Mr. Mamun Chowdhury learned Advocates have submitted that the order passed by the Joint District Judge in the money suit is an exparte decree within the meaning of Order 9 Rule 6 of the C.P.C and as such an application under Order 9 Rule 13 of the C.P.C is attracted. Mr. Ajmalul Hossain thereafter has submitted that the judgment passed in the money suit deemed to be a decree under Order 17 Rule 2 of the C.P.C and the remedy lies under Order 9 Rule 13 of the C.P.C. He further has submitted that 1st part of the Order 9 Rule 13 of the C.P.C defines that in case of every exparte decree an application under Order 9 Rule 13 is maintainable and the present miscellaneous case being an application against the exparte decree under the 2nd limb of the Order 8 Rule 10 the proper forum is an application under Order 9 Rule 13 of the C.P.C. He lastly has submitted that the exparte judgment passed in the Money suit being not a judgment within the meaning of Section 2 (9) and Order 20 Rule 4 of the C.P.C the application under Order 9 Rule 13 is entertainable.

10. Certified copy of the entire order sheet of the Money Suit No. 6 of 2005 have been annexed with the revisional application as Annexure-B. From order No. 12 dated 22.1.2006 it appears that previously on 4 occasions adjournment were allowed for filing written statements but the defendant did not file any written statements. The Court by that order again granted adjournment for the last time and fixed up 6.2.2006 for filing written statements with a cost of Tk. 700/-, in default, fixed for exparte disposal and decision of the case. The defendants without filing any written statements and without depositing the cost money filed an application for time to file written statements.

This application was filed by a new lawyer who stated that the previous lawyer of the defendants retired from the case. The defendants then and there deposited the cost amount and made a prayer for adjournment. The learned Court rejected the said prayer and took up the case for exparte hearing and disposed of the case by an exparte judgment.

11. The learned Advocate for the opposite party has submitted that the exparte decree was passed in absence of the learned Advocate and that the learned court debarred him from appearing in the case. So, the miscellaneous case under order 9 Rule 13 of the C.P.C is maintainable . In support of his submission he referred three decisions.

12. In the case of Damodar Das Vs. Raj Kumar Das reported in AIR 1922 (Patna) 485 the suit was decreed exparte on 20.9.1919. The defendant applied Under Order 9 Rule 13 of the C.P.C to have the decree set aside. The High Court found that the trial took place on the 11th, 12th and 13th August, 1919 and on the 11th the defendants pleader appeared and asked for an adjournment which was refused. He renewed the application on the following day stating that he had no instruction from his client to cross-examine the plaintiff whose evidence had been taken on the 11th .

His application was again refused.

13. In the case of Bothra and others Vs. Kedar Nath Bothra and others reported in A.I.R. 1938 (Calcutta) 74 the plaintiffs in the suit at a late stage applied for the issue of a commission. The learned Counsel for the plaintiffs, when the suit was called on, applied for an adjournment, in order that he might be in a position to tender the commission evidence after the commission had been executed. The court rejected the application. Thereupon Counsel stated that he was not in a position to proceed. The suit was accordingly dismissed. It has been held that if the plaintiff’s counsel confines himself to asking for an adjournment and when it is refused, retires from the case and states that he has no further instruction in that case it cannot

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be said that in presence passed.

of the plaintiff decree was

14. In the case of Md. Nurul Haque Vs. Sonali Bank of Bangladesh and another reported in 39 DLR 223 their Lordships held : ...........” It is apparent that after rejection of the prayer for adjournment when the suit was called on for hearing the plaintiff did not appear within the meaning of Order 9 Rule 8 read with Order 17 Rule 2 of the C.P.C and the learned Subordinate Judge dismissed the suit for default”........

15. In all the aforesaid cases there was an application for adjournment which was rejected by the court. The learned Advocate thereafter withdrew him from the suit and intimated the court that he has no further instruction from his client . So, it was held that the suit was disposed of in absence of the Advocate and miscellaneous case under order 9 Rule 13 were entertained.

16. The exparte judgment shows that the learned Judge rejected the defendants’ application for adjournment and thereafter took up the case for exparte hearing. It does not appear from the order that the newly appointed lawyer thereafter filed any application for further adjournment or that the learned Advocate intended to appear for taking part in the hearing of the suit. Even he did not retire from the suit.

17. On 6.2.2006 was fixed for filing written statements, in default, for taking exparte decision on the suit. The defendants on that date also failed to file written statements. The learned court thereafter passed the judgment for failure of the defendants to file written statements. This judgment comes within the purview of Order 8 Rule 10 of the C.P.C. Order 8 Rule 10 of the Code of Civil Procedure reads as under: “ Where any party from whom a written statement is so required fails to present the same within the time fixed by the Court, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.”

18. So, the order passed by the Court clearly comes within the perview of Order 8 Rule 10 of the C.P.C. An order passed under Order 8 Rule 10 of the C.P.C. is an appealable order under the provision of Order 43 Rule 1(b) of the C.P.C. The provision of Order 43 Rule 1(b) of the C.P.C reads as under :

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“ 1. An appeal shall lie from the following orders under the provisions of section 104, namely:(a) .............................. (b). an order under Rule 10 of Order 8 pronouncing judgment against a party.”

19. According to learned Advocate for the opposite party the impugned judgment having been passed under the provision of Order 17 Rule 2 of the Code of Civil Procedure the application under Order 9 Rule 13 is maintainable and that the exparte judgment passed in money suit can be considered as an order under the second limb of Rule 10 of Order 8 of the Code of Civil Procedure. In case of failure to file written statement the court can take two courses: (1) pass an exparte judgment and (2) can make such order in relation to the suit as it thinks fit. In support of his submission he relied on the cases of Narendra Patra Vs. Shiba Narayan Taldi and another reported in A.I.R. 1995 Orissa 45, Innovation Apartments Flat Owners Association, Secundrabad Vs. M/S. Innovation Associates, Secundrabad reported in AIR 1991 Andhra Pradesh 69, N. Jayaraman Vs. M/S. Glaxo Laboratories India Ltd. reported in AIR 1981 Madras 258, M/S. Kuvarp industries Bangalore Vs. State Bank of Mysore reported in AIR 1985 (Kant) 77 and the case of M.S. Manick Peter and others Vs. K. Surendra nathan reported in AIR 1988 Kerala 161. In all these cases it has been decided that an order passed under Order 8 Rule 10 of the Code of Civil Procedure can be challenged by an application under Order 9 Rule 13 of the Code of Civil Procedure.

20. The learned Advocate for the petitioner on the contrary has submitted that against an order passed under Order 8 Rule 10 of the C.P.C. is appealable under Order 43 Rule 1 (b) of the C.P.C but in India the provision of Rule 1(b) of Order 43 of the C.P.C has been deleted in 1976 by an amendment and there is no provision in the Indian C.P.C for filing an appeal against the order passed under Order 8 rule 10 of the C.P.C . So, in all the aforesaid cases referred on behalf of opposite party it was held that Order 9 Rule 13 of the Code of Civil Procedure is entertainable against an order passed under Order 8 Rule 10 of the C.P.C . But in our C.P.C the provision of Rule 1(b) of Order 43 of the C.P.C has not been amended.

According to our C.P.C Rule 1 (b) of Order 43 is the specific provision for filing an appeal against an order passed under Order 8 Rule 10 of the C.P.C if the defendant fails to present the written statements on the date fixed by the Court. The learned Advocate for the petitioner has referred the case of Gopi Charan Bajpai and others Vs. Ramprashad Awasthi and others reported in AIR 1957 (Allahbad) 283. The case was

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decided before amendment of the C.P.C. in India and it has been held that an order passed under Order 8 Rule 10 of the C.P.C is an appealable order and appeal lies under the provision of Order 43 Rule 1(b) of the C.P.C. Before amendment of C.P.C in India the provision of Order 43 Rule 1(b) was the procedure for filing an appeal against an order passed under order 8 Rule 10 of the C.P.C. But after amendment the provision of appeal has been deleted in India. In the case of M/S. M. Manick Peter and others Vs. K. Surendranathan reported in AIR 1988 Kerala 161 it has been held : ..........” A right of appeal provided Under Order 43 Rule 1 (b) was taken away by deletion of sub clause (b). The decree passed in the present case is in conformity with the requirements of Order 8 Rule 10 as amended in 1976. For the absence of the defendnats and their Counsel, it is also a decree exparte.

Order 9 Rule 13 C.P.C. enable the defendants to apply to the court to set aside an exparte decree against him”...............

21. Mr. Probir Halder also referred the case of Most. Hakumat Bibi Vs. Imam Din and others reported in PLD 1987 (S.C.)-22. In that case exparte decree was passed for not filing the written statements on the date fixed by the Court. An appeal was filed against that order under the provision of Order 43 Rule 1(b) of the Code of Civil Procedure. In Pakistan the provision of Order 43 Rule 1(b) neither has been amended nor deleted. The provision of appeal Under Order 43 Rule 1(b) against an order passed Under Order 8 Rule 10 still is present in Pakistan like Bangladesh.

22. It has been argued on behalf of opposite parties that the exparte judgment passed by the lower Court is not a judgment as defined in Section 2(9) read with Order 20 Rule 4(2) of the Code of Civil Procedure as the learned Court did not consider the case of the parties, the documents and the evidence cited by the plaintiff-petitioner in support of his case. In the case in hand the Court passed a short judgment disposing the suit in favour of plaintiff and did not at all consider the facts of the case and a decree was drawn.

As per provision of Rule 10 of Order 8 the Court had two options open to it to deal with the situation arising out of the failure of the opposite party to file written statements despite they having been allowed several opportunity to do so. One of the options was to decide the suit forthwith, (ii) to make such order in relation to the suit as it thought fit. As per the provision of Order 8 Rule 10 the court can pass a judgment if the defendant fails to file written statements on the date fixed by the Court. In the present case the judgment

passed by the Court is an order and the Court was not required to draw a decree in support of the said judgment. In this point we get support from the case referred by the learned Advocate for the petitioner in the case of Sarder Sakhwat Ud-Din and others Vs. Muhammad Iqbal and others reported in PLD 1983 (Lahore)-448. In that case it was held that “ after making the impugned order the learned Senior Civil Judge had drawn up a decree sheet as well. It was perhaps through inadvertence that the decree sheet was prepared because, as held above the order passed by him was an order and not a decree. The mere fact that he had erroneously drawn up the decree sheet would not change the true character of the order under review. In that case the case of the provice of Punjab and others ruled by the Pakistan S.C. was considered and wherein it was held : “...... an order pronouncing the judgment against the defendants for failure to file written statements is an appealable order but not a decree. The use of the ward “Judgment” in Rule 10 of Order 8 of the Code of Civil Procedure is of little avail to the respondents because according to the definition of the “judgment” as given in clause 9 of section 2 of the above code a decree as well as an order is a judgment. It is therefore, not correct to say that only that adjudication of the court which is followed by a decree is a judgment and that any other adjudication, though appealable, is not a judgment”.............

23. The Court has drawn up a decree in terms of the judgment but the same was not necessary and for drawing up such decree it cannot be said that it is a decree within the meaning of section 2 (9) of the C.P.C and the judgment comes within the perview of Order 9 Rule 6 of the Code of Civil Procedure and against the said judgment the miscellaneous case under Order 9 Rule 13 of the Code of Civil Procedure is maintainable.

24. Referring the 1st part of the Order 9 Rule 13 of the Code of Civil Procedure the learned Advocate for the opposite party has submitted that in any case in which an exparte decree is passed against a defendant, he may apply to the court for setting aside the exparte decree by an application Under Order 9 Rule 19 of the C.P.C. In support of his submission he referred the case of Innovation Apartments Flat Owners Association, Secundrabad Vs. M/S. Innovation Associates Secundrabad reported in AIR 1991 (Andhra Pradesh)

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69. From plain reading of the entire provision of rule 13 of order 9 it appears to us that if the Court is satisfied that the summons was not duly served upon the defendant or that he was prevented by sufficient cause from appearing at the hearing, the court can set aside an exparte decree. Specific provision has been made for preferring an appeal under Order 43 Rule 1(b) of the CPC when an order is passed under Order 8 Rule 10 of the CPC and an application Under Order 9 Rule 13 will not be entertainable in the garb of “ in any case” mentioned in the provision of Order 9 Rule 13 of the C.P.C. Moreover, the decision referred in AIR 1991 (Andhra Pradesh) 69 was passed on 30.8.1990 when the Indian C.P.C. was amended in 1976 and Rule 1 (b) of Order 43 was deleted. ‘In any case’ mentioned in rule 13 of order 9 of the Code of Civil Procedure can only be entertained when it is found is that the summons of the suit was not properly served or that the defendant was prevented by sufficient cause in appearing on the date of hearing of the suit.

25. By amending Rule 1 of Order 8 of the C.P.C. provision has been made to file written statement within the time not exceeding two months from the 1st date of hearing. But before amendment there was no specific time limit in the CPC for filing written statement. Before amendment it was in the discretion of the Court to allow time to the defendant to file written statement but after amendment the written statement is required to be filed before the first hearing or within 2 months. The defendants on 11.9.2005, 18.10.2005,24.11.2005 and 22.1.2006 took four adjournments for filing written statements and the court by order No. 12 dated 22.1.2006 allowed time with a cost of Tk. 700.00 and directed the defendant to file written statement on 6.2.2006 with a direction that the suit would be taken up for exparte decision in case of failure of the defendant to file written statement on that date. On the fixed date on 6.2.2006 the defendant appointed a new lawyer who again prayed for time to file written statement. On the previous date they were allowed time to file written statements with cost even then on the next date without filing any written statement they again prayed for adjournment.The defendants had the opportunity to avoid exparte judgment by filing a written

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statement with some facts and thereafter they could file additional written statement but the defendant without filing written statements prayed for adjournment, so, the Court did not allow time and proceeded with the exparte hearing. It does not appear from the order sheet that the learned Advocate thereafter prayed for any adjournment or that he retired from the case. When the Court proceeded for hearing of the case exparte the learned Advocate for the defendant-opposite party was present in Court but did not take any step. It has been urged that the learned Advocate for the defendant was debarred from appearing in the suit when the same was taken up for hearing but there is no evidence before us to show that learned Advocate of the defendant was not allowed to appear in the suit.

26. From the impugned order it appears that the learned Joint District Judge refused to reject the miscellaneous case on referring the amended provision of Rule 13 A of Order 9 of the C.P.C. The new provision of Rule 13A of order 9 has been brought in the C.P.C. to avoid delay and expedite disposal in setting aside the exparte decree with cost without requiring the defendant to adduce evidence if an application for setting aside decree is filed within thirty days from the date of decree.

But in the present case, the defendant was very much before the Court. He took four adjournments for filing written statements but ultimately they failed to file the same and the Court passed the exparte judgment which comes within the meaning of Order 8 Rule 10 of the Code of Civil Procedure and the same was appealable under the provision of Order 43 Rule 1(b) of the Code of Civil Procedure. So, the learned Joint District Judge was not justified in rejecting the petitioner’s prayer for rejecting the miscellaneous case as being not entertainable. We find substance in the Rule.

In the result, the Rule is made absolute without any order as to cost. The impugned order No. 20 dated 3.7.2006 is set aside. The miscellaneous case No. 24 of 2006 of the 1st Court of joint District Judge, Khulna is rejected as being not maintainable. The defendant opposite parties have the opportunity to prefer an appeal as per provision of law.

Ed.

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HIGH COURT DIVISION (Original Jurisdiction) Ms. Zinat Ara, J.. and Mr. F.R.M. Nazmul Ahasan, J. Judgment 14.12.2011

} Khaled Jamel Ahmed Adel and another ...Petitioners } Vs. Artha Rin Adalat } No. 3, Dhaka and others ...Opposite Parties

Mr. Moudud Ahmed with Mr. A.M. Mahbub Uddin, Advocates ....For the Petitioners .

Mr. Rokon Uddin Mahmud with Mr. Md. Ashraf Uddin Bhuiyan, Advocates ....For the Respondents.

Constitution of Bangladesh, (V of 1908) Order XXXVIII, Rule 5 Artha Rin Adalat Ain (VIII of 2003) Section 12(3) It appears that the Dutch Bangla Bank Ltd. in compliance with the provisions of section 12 (3) of the Artha Rin Adalat Ain, 2003 published auction notice and the Bank registered the petitioner to exclude the mortgage deed but the petitioner did not do the same . On the contrary the petitioner borrower was trying to transfer the schedule properties in order to defeat the decree that might be passed in the Artha Rin Adalat suit and hence the learned judge of the Artha Rin Adalat has rightly passed the impugned order for attachment of the scheduled properties before judgment under Order XXXVIII, Rule 5 of the Code. ‌.(16, 18 & 19) Judgment F.R.M. Nazmul Ahasan, J:

This Rule Nisi obtained under Article 102 of the Constitution of the People's Republic of Bangladesh calls upon the respondents to show cause as to why the impugned order dated 16.02.2010 passed by the respondent No. l, in Artha Rin Suit No. 89 of 2009), allowing the application for attachment before the judgment, filed (writ petition) should not be declared to have *Writ Petition No. 2520 of 2010.

been passed without lawful authority and is of no legal effect.

2.

The short facts relevant for disposal of this Rule are as under: The Respondent No. 2, Dutch Bangla Bank Limited (shortly, the Bank), as plaintiff, filed a Artha Rin Suit being No.89 of 2009 stating, inter alia, that during the course of business on 06.10.1997 the defendant No.l, Company opened an account being Current Account No. 10123004826 with the plaintiff Bank in the name of defendant No.l, Company "K & K Tops Textile Mills Ltd." for its business purposes. Subsequently, the said account number has been renumbered as 0101110000004092; that thereafter, at the request of the defendant No. 1, Company Bank sanctioned a letter of Credit Limit of Tk.90.00 million for opening irrevocable letters of Credit for import of Raw Materials and loan against Trust Receipt for retiring documents under the Letters of Credit vide its Sanction Letter No.DBBL/ LO/CO/3.03.01/97 dated 21.08.1997 in favour of the defendant No.l Company; that the Bank renewed and enhanced the facilities from time to time; that thereafter, the Bank re-arranged the aforesaid facilities in the manner such as reduction of regular Letter of Credit limit from Tk.300.00 million to Tk.270.00 million and allowing free option for opening sight and nuance letter of credit, LTR sub limit, Encashment of FC FUND / Term Deposit that has been built up over the period for adjustment of LTR outstanding and conversion of remaining liabilities into a term loan amount of Tk. 108.77 for adjustment purpose within a period of 5 years on 31.03.2004 which was duly accepted by the defendant. The said credit facilities sanctioned in favour of the Company were secured by the securities/charge documents executed by the defendant Company. In addition to the charge documents the Company mortgaged its landed property by mortgaged deed No. 8385 dated 15.10.1997 along with a registered power of

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attorney being No. 8386 dated 15.10.1997 empowering the plaintiff to sell the mortgaged property. The defendant Nos. 2 and 3 created equitable mortgaged on their landed property as collateral security against the aforesaid credit facilities by way of depositing title deeds dated 02.02.2000 and 17.02.2004.

3.

Thereafter, on 19.10.2009 the Bank filed an application under Order XXXVIII, Rule 5 read with Section 151 of the Code of Civil Procedure for attachment of the schedule property before judgment stating, inter alia, that the plaintiff Bank filed the Artha Rin Suit for recovery of an amount of Tk.42,64,85,629.13. At the time of creating equitable mortgage of the schedule properties the defendants on several occasions promised to execute registered mortgage deed. The plaintiff for the assistance of the business of the Company disbursed the Credit facilities relying on the promise of the defendants but they failed to fulfill their commitment. The plaintiff has reliably learnt that having knowledge of the filing of the suit, defendants are trying to transfer the property.

4.

Thereafter, on 05.01.2010 the defendant Nos.2 and 3 filed a written objection against the aforesaid application stating, inter alia, that the said properties have more value than the amount claimed by the plaintiff Bank. Besides that the plaintiff carried out valuation survey on the said properties by its own effort. But the plaintiff did not mention how the Bank calculated the said loan accounts, stating clearly the amount of the interest of each force loan created or letter of credit facility.

Moreover, the total value of the said properties are about 100.00 crore as per the present market value.

5.

Thereafter, on 02.02.2010 the petitioners as defendant Nos. 2 and 3 filed a written statement stating, inter alia, that the claim of the Bank is wrongly calculated; that plaintiff Bank sanctioned only Tk. 9(nine) crore; that on several occasions the defendant No. 2 personally requested the plaintiff Bank through several letters to waive 100% interest from insertion of loan created and allowed time

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period of l(one) year to adjust the liabilities and the defendant No.l Company requested the Bank to adjust the loan by selling the defendants mortgaged property including the stock inside the building on 17.03.2008 and the defendant Nos.1-3 requested the Bank to arrange a meeting with a view to discuss and resolve the matter amicably but the petitioner did not response.

6.

On 16.02.2010, the learned Judge of the Artha Rin Adalat after hearing, allowed the application under Order XXXVIII, Rule 5 read with Section 151 of the Code of Civil Procedure and attached the scheduled properties.

7.

Thereafter, petitioner preferred this Writ Petition before this Court and obtained the present Rule Nisi.

8. & . Respondent No. 2 (Bank) contested the rule by filing an affidavit-in-opposition contending, inter alia, that the learned Judge of the Adalat after proper consideration of the application filed by the Bank allowed the application and passed an order of attachment of the schedule property. It is further contended that the petitioners have been given ample time to adjust the outstanding dues but the petitioners have not taken any positive steps even after repeated requests and appeals vide a series of letter from the respondent Bank and miserably failed to adjust the rest of the outstanding dues with the respondent Bank; thereafter, the Bank on 11.01.2009 published auction notice in "The Financial Express" and on 09.02.2009 published auction notice in the "Daily Prothom Alo", under section 12 of the Artha Rin Adalat Ain, 2003.

Since, there was no suitable participants, the mortgaged properties could not be sold; that the Bank has positive information that the Petitioner Barrower was trying to dispose of the schedule properties in order to defeat the decree which might be passed in the Artha Rin Suit and the learned Judge of the Adalat by his order dated 19.10.2009 issued show cause notice upon the defendant petitioners and, as such, the allegations made in the Writ Petition is not true that no show cause notice

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Startus Construction Company Vs Government of Bangladesh (Zubayer Rahman Chowdhury, J.) I LNJ (2012)

was served upon the petitioners; that the petitioners have preferred this Writ Petition only with a view to transfer of the schedule properties. As such, the Rule is liable to be discharged.

9.

Mr. Moudud Ahmed with Mr. A.M. Mahbub Uddin, the learned Advocate appearing on behalf of the petitioners submits, that the learned Judge of the Artha Rin Adalat without complying with the provision of order XXXVIII, rule 5 of the Code of Civil Procedure passed the impugned order for attachment of the schedule properties. He further submits that the Bank sanctioned the loan of Tk.9.00 (nine) crore only but the Bank filed the Artha Rin Suit claiming Tk.42,64,85,629.13 which is much more than three times of the principal amount and so, is a violation of Section 47 of the Artha Rin Adalat Ain, 2003. He next submits that the learned Judge of the Adalat passed the impugned order without issuing any show cause notice upon the defendant petitioner as to why he should not furnish security which is required under order XXXVIII, rule 5 of the Code of Civil Procedure and as such, the impugned order should be declared to have been passed without lawful authority and is of no legal effect. He next submits that the plaintiff Bank neither mentioned the particulars of the properties mentioned in the schedule including the value of the properties nor the learned Artha Rin Adalat directs the parties otherwise as per clause 2 of rule 5 under order XXXVIII of the Code of Civil Procedure and as such the impugned order should be declared to have been passed without lawful authority and is of no legal effect. Finally, he submits that some valuable landed properties with building thereon and equipments inside the building are on mortgaged in favour of the bank and a power of attorney was also executed and registered empowering the bank to sell the properties but the Bank without complying with Section 12 of the Ain filed the Artha Rin Suit. Thus, the impugned order dated 16.02.2010 passed by the learned Judge of the Artha Rin Adalat is liable to be declared to have been passed without lawful authority and is of no

legal effect.

10. In reply, Mr. Rokon Uddin Mahmud, the learned Advocate for the respondent No.2 appearing with Mr. Md. Ashraf Uddin Bhuiyan, has taken us through the affidavit in opposition and submits, that the petitioner borrower availed the loan facilities but despite repeated requests, remainders failed to repay the loan; that the Bank thereafter, requested the defendants to execute a mortgaged deed but the defendant petitioner without doing so tried to transfer the schedule properties and finding no other alternative Bank filed the Artha Rin Suit for recovery of the outstanding dues of Tk.42,64,85,629.13 and thereafter, filed an application for attachment of the schedule properties before judgment under order XXXVIII, rule 5 of the Code of Civil Procedure.

He next submits that the petitioner obtained the Rule by suppressing material facts and making incorrect statement that Section 12 of the Artha Rin Adalat Ain was not complied with. He further submits that in fact auction notice published on 11.01.2009 in the Financial Express and on 09.02.2009 in the daily Prothom Alo. He further submits that the learned Judge of the Artha Rin Adalat issued show cause notice upon the defendants and thereafter, on hearing the application filed by the bank passed the impugned order. He lastly submits that it is evident that the petitioner by suppressing the aforesaid facts and making false statement in the Writ Petition obtained the present Rule, which is liable to be discharged.

11. We have heard the learned Advocates for both the sides, perused the Writ Petition, the affidavit-in-opposition and the impugned order and other materials on record.

12. Admittedly, upon request of the petitioner, the Bank opened an Account with its principal Branch being Bank Account No. 10123004826 dated 06.10.1997 in the name of the petitioner company i.e. K & K Tops Textile Mills Limited.

Thereafter, at the request of the Bank, the petitioner

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Startus Construction Company Vs Government of Bangladesh (Zubayer Rahman Chowdhury, J.)

disbursed and aggregate the loan facilities of Tk.34,08,19,287.95 only and enhanced and renewed the loan from time to time and the petitioner Company repaid Tk. 11,75,96,631.74 out of their total outstanding liabilities of Tk.42,64,85,629.13; that the said credit facilities sanctioned in favour of the defendants No. l Company were secured by several charge documents.

13. In addition to the above mentioned charge documents, the defendant No. l mortgaged its landed property measuring 2.35 acres situated within District-Mymensingh, P.S and Sub-Registry Office-Valuka, Mouza-Kathali and 0.50 acres situated within District-Mymensingh, P.S and SubRegistry Office- Valuka, Mouza-Kathali along with building thereon and all machinery and equipments installed thereon by way of executing a mortgaged deed being No.8385 dated 15.10.1997 along with a registered power of attorney being No.8386 dated 15.10.1997 empowering the plaintiff Bank to sell the mortgaged properties in favour of the plaintiff Bank. The defendant Nos.2 & 3 described in the plaint in the schedule-B(2) & B(3) of the schedule of the property as collateral security against the aforesaid credit facilities by way of executing a memorandum of deposit of title of deeds dated 02.02.2000 and 17.02.2004 and deposited the title deeds to the plaintiff Bank, when the defendants failed to repay the aforesaid outstanding loan facility; that the Bank on several occasions requested the defendants to execute a registered mortgaged deed of the schedule property mentioned in the schedule-B(2) & B(3) but the defendants failed to do so. Eventually, the suit was filed for recovery of loan.

14. In the Suit, Bank filed an application under order XXXVIII, rule 5 read with Section 151 of the Code of Civil Procedure for attachment of the schedule property before judgment. It appears from the order sheet annexed with the affidavit-inopposition that on 19.10.2009 the learned Judge of the Adalat issued show cause upon the defendant Nos.2 and 3 and thereafter, defendant Nos.2 and 3 filed written objection against the application filed by the Bank (annexure-C to the Writ Petition) stating that due to non-cooperation and negligence

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of the plaintiff Bank the defendant Nos.2 and 3 failed to get loan facilities from other Banks as all deeds of personal properties of the defendants in custody of the plaintiff Bank and as such the defendant Nos. 2 and 3 failed to carry out the project and pay back the loan to the Bank on time.

15. Thus the submission of the learned Advocate for the petitioner that no show cause notice was served upon the petitioner is not true.

16. It further appears from the annexures-2(A) and 2(B) to the affidavit-in-opposition that auction notice was published under Section 12(3) of the Artha Rin Adalat Ain, 2003 in the Financial Express on 11.01.2009 and in the daily Prothom Alo on 09.02.2009. Thus, the argument advanced by the learned Advocate for the petitioner that no auction notices was published and no step was taken under Section 12(3) of the Ain before filing of the Suit, is also not true.

17. For proper appreciation, let us consider the impugned order which is quoted blow: 18. We have considered the findings of the learned Judge, it transpires that the Bank requested the petitioner to execute a mortgage deed but he did not do so; that the Bank had a positive apprehension that the petitioner-borrower was trying to transfer of the schedule properties in order to defeat the decree which might be passed in the Artha Rin Suit.

19. From the discussions made above and on consideration of the documents on record and the impugned order, we are of the opinion that the learned Judge of the Artha Rin Adalat after proper consideration of the cases of the respective parties and following the provisions of order XXXVIII, rule 5 of the Code of Civil Procedure, properly and lawfully passed the impugned order. Thus, we find no illegality in the impugned order passed by the learned Judge of the Adalat.

20.

Thus, the Rule has no merit.

21. In the result, the Rule is discharged without any order as to costs.

22. The order of stay granted earlier by this Court stands vacated. Communicate the order to the respondent No. 1 at once.

Ed.

I LNJ AD (2012) Government of Bangladesh and others Vs. Md. Jahangir Alam and others (A.B.M. Khairul Haque, CJ.)

APPELLATE DIVISION (CIVIL APPELLATE JURISDICTION) } Government of Bangladesh and others. } ...Appellants. } (In All the Appeals) VS Md. Jahangir alam } Judgment and others. } 1st and 2nd February, 2011 ....Respondents (In C.A. No. 44/10) } Abdul Malek and } others. .....Respondents.

(In C.A. No. 45/10) } Md. Abu Taher } Bhuiyan and others. .....Respondents } (In C.A. No. 46/10) Md. Nazmul Ahsan } and others. ....Respondents.

(In C.A. No. 47/10) Mr. A.B.M. Khairul Haque, CJ. Mr. Md. Muzammel Hossain. J Mr. S. K. Sinha, J..

Constitution of Bangladesh, 1972 Article 102 Legitimate expectation of work-charged employyees of PWD to be transferred to regular establishment in phases has become a right – Following the principles enunciated in the Memo dated 28.03.1969 and other subsequent memorandums till 1987, 6,654 work-charged employyees were transferred in phases to regular establishment at the rate of 50% of the leftover work-charged employees. There are still 1906 work-charged employees left in the PWD and the authorities of the PWD sent a proposal to the Ministry of Establishment for regularisation of 951 work-charged employees which is 50% of the left-over 1906 work-charged employyees. This step was taken in accordance with the long standing practice based on the various officeMemorandums since 1969. But in the meantime, the Memorandum dated 31.10.2006 made a departure from the earlier practice and introduced a new criteria, such as, that transfer of 50% of the total work-charged employees to the Civil Appeal Nos.44-47 of 2010.

49

regular establishment, can be done once only.

As a matter of public law, it is expected that the concerned authority shall always act reasonably in the circumstances and not arbitrarily. It must observe the rules of natural justice and act fairly in carrying out their decision making process. An expectation may be crystallized into a reality from the representations expressed on behalf of the concerned authority or from their consistent conduct and regular practice which is expected to continue unabated.

The authorities cannot abruptly without any rhyme or reason, change their consistent policy adopted since 1969 till the year 2002. The public interest demands that after putting so many years of service, they should be transferred into regular establishment. No reason was assigned for introducing such a new condition. It is rather unfair on the part of the said committee to introduce such a new condition in breach of a long standing and consistent practice to regularise the rest of the workcharged employees in phases. This unfair conduct on the part of the committee tantamounts to misuse of power. It is apparent that because of the various memorandums and specially due to the decision of the standing committee on 17.12.1987, an expectation for regularisation in the service arose in the minds of the work-charged employees, employed before 23.01.1986. Their such expectation was crystalised into a legitimate one, giving rise to a right, because of the actual regularisation of 6,654 work-charged employees since 1987 till 2002 in phases, in almost every year. The concerned authorities can not now deviate from their consistent policy pursued since 1969, specially when there is no overwhelming reason to do otherwise. The introduction of a new condition, by the memo dated 31.10.2006 under the circumstances, is not only unfair but it is arbitrary also. It cannot be allowed to stand. ...(59 to 61, 63, 67 and 69 to 71) Evidence Act (I of 1872) Section 115 If a public authority promises to follow certain procedure and which is actually acted upon, for years together, it should follow the said procedure, unless of course, some legal impediment has been created against it. ‌(61)

50

Government of Bangladesh and others Vs. Md. Jahangir Alam and others (A.B.M. Khairul Haque, CJ.)

Schmidt V. Secretary of State for Home Affairs (1969) 2 Ch 149; O'Reilly V. Mackman (1983)2 AC 237; Attorney General of Hong Kong V. Ng Yuen Shiu (1983)2 AC 629; Waite V. Government Communications Headquarters (1983) 2 AC 714; Council of Civil Service Unions V. Minister for the Civil Service (1985) AC 374; Regina V. North and East Devon Health Authority, ex parte Coughlan (2001) QB 213; Food Corporation of India v. M/S Kamdhenu cattle Feed Industries AIR 1993 SC 1601; Bangladesh Soya-Protein Project Ltd. V. Secretary, Ministry of Disaster Mana-gement and Relief 22 BLD (2000)HCD 378; The Chairman, Bangladesh Textile Mills Corporation V. Nasir Ahmed Chowdhury 22 BLD (AD) (2002) 199; Golam Mostafa V. Bangladesh 2007 (XV) BLT (HCD) 128; Reg. V. Liverpool Corporation ex-parte Liverpool Taxi Fleet Operators' Association (1972) 2 QB 299, Hughes V. D.H.S.S (1985) 1 AC 776, Findlay V. Secretary of State (1984) 3 All ER 801, Navjyoti Coo-Group Housing Society V. Union of India AIR 1993 SC 155, Union of India V. Hindustan Development Corporation AIR 1994 SC 988, Attorney General for New South Wales V. Quin (1990) 64 Australian LJR 327, Madras City Wine Merchants' Association V. State of T.N. (1994 5 SCC 509, Punjab Communications Ltd. V. Union of Indio AIR 1999 SC 1813, Managing Director, Dhaka WASA V. Superior Buildings and Engineers Ltd. 51 DLR AD 1999.

R.V. Secretary of State for the Home Department, Ex P. Hargreaves (1997) 1 WLR 906. Dr. Chanchal Goyal V. State of Rajasthan (2003) 3 SCC 485.

Howrah Municipal Corpn. V. Ganges Rope Co. Ltd. (2004)1 SCC 663. Kuldeep Singh V. Govt. of NCT of Delhi (2006) 5 SCC 702. Ram Pravesh Singh V. State of Bihar (2006) 8 SCC 381. Jitendra Kumar V. State of Haryana (2008) 2 SCC 161 ref.

Mr. Mojibur Rahman Miah, Deputy Attorney General ....For the Appellants.

(In all the Appeals) Mr. Mahmudul Islam, Senior Advocate, ....For Respondents JUDGMENT A.B.M. Khairul Hague, CJ. : These appeals are all heard together and disposed of by a single judgment since those involved similar questions of fact and law.

2.

These appeals involve the question as to whether the work-charged temporary employees of

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Housing and Public Works Department of the Government of Bangladesh who have been working for the last nearly 20 years or more, have any legitimate expectation to be made permanent or not.

3.

It appears that a huge number of employees were in Public Works Department, firstly, under master roll and then were brought under the Workcharged Establishment mostly during the period from 1977 to 1984, prior to 1986 (Annexure-A series to the Writ Petition No.4040 of 2007). The matter of their regularisation came to the notice of the concerned authorities in 1986 and the Government by its Memo dated 28.07.1986, set up a standing committee to deal with the issue of regularisation of the service of work-charged employees, serving under different Ministries/ Divisions (Annexure-G to the Writ Petition No.4040 of 2007). Therefore, a number of committees discussed and resolved the issue of regularisation of the work-charged employees of Housing and Public Works Department.

4.

It appears that the total number of workcharged employees in Public Works Directorate were 9,143 up to 1986 and out of those the services of 6,654 work-charged employees were regularised till 2002, leaving the rest 1906 employees. It is contended on behalf of those employees that at least 50% of those, which is 951 employees, should be regularised as permanent employees.

5.

A Committee of the Establishment Division in its meeting held on 19.2.2007, resolved on the basis of the Memo No. ﾃ知g (wewa-3/2006-32 31.10.2006, issued by the Establishment Division, Government of Bangladesh (Annexure-P to the Writ Petition No. 4040 of 2007) that although since 50% of the total number of 9143 workcharged employees till 1986 comes to 4572 but instead, 6,654 were already regularised, apparently, an excess of 2,182 employees were regularized. As such, the committee concluded that there is no scope for regularising any other employee as permanent (Annexure-Q to the Writ Petition No. 4040 of 2007).

6.

Being aggrieved, the writ-petitioners issued a Notice Demanding Justice on 16.04.2007, upon

I LNJ AD (2012) Government of Bangladesh and others Vs. Md. Jahangir Alam and others (A.B.M. Khairul Haque, CJ.)

the appellants, requesting them to withdraw/ rescind/cancel the above decision taken in the meeting held on 19.02.2007, but without any response from them.

7.

As such, the aggrieved work-charged employees filed 4 (four) Writ Petitions, namely, W.P. No. 4040 of 2007, W.P. No. 7081 of 2007, W.P. No. 7963 of 2007 and W.P. No. 8880 of 2007, challenging the legality of the decision of the Scrutiny Committee in its meeting held on 19.2.2007.

8.

In due Course, Rules were issued in all the Writ Petitions. The rule in W.P. No. 4040 of 2007 was issued in the following terms: "Let a Rule Nisi issue calling upon the respondents to show cause as to why the impugned decision taken in the meeting dated 19.02.2007 presided by respondent No. 4 should not be declared to have been made without lawful authority and is of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper.

The Rule is made returnable within 4 (four) weeks from date."

9.

Similar Rules were issued in other writ petitions also.

10. The High Court Division heard all the Rules together and found that all the petitioners are working for the last 20 to 30 years and Annexure A to P show that the Government is implementing the decision of absorption of 50% employees at a time, phase by phase on regular basis, as such, the petitioners have got the legitimate expectation to be so absorbed. The Court found that there is no rational basis for the decision taken in the meeting held on 31.10.2006 that absorption of 50% employees can be done only once. On these findings, the Court held that the decision taken by the writ respondents dated 19.2.2007 based on the memo dated 31.10.2006, is not in accordance with law and directed them to take necessary steps to absorb the Writ Petitioners in regular establishment in accordance with law. With these findings and direction, all the Rule were made absolute.

51

11. Being aggrieved the writ-respondents filed civil petitions for leave to appeal in respect of the Judgment and Order passed in all the writ petitions. Leave was granted to consider the submissions raised on behalf of the writ-respondents that the work-charged employees are not entitled to be absorbed as a matter of right , that admittedly more than 50% of the total work-charged employees had already been regularized from 1987 to 2002 and that the inter ministerial correspondence and recommendations for regularizations of the appointment of the work charged temporary employyees have no force of law and those do not constitute any promissory estoppel on the part of the writ-respondents to absorb them as permanent employees in the government departments.

12. Mr. Mojibur Rahman Miah, Deputy Attorney General, at the time of hearing the appeal, harped on the aforesaid submissions.

13. On our quiry he, however, admitted that the work-charged employees are working for many years and to his knowledge, there is no allegation of inefficiency against them, that their services are still required, that the work-charged employees transferred to the regular establishment although far exceeded the limit of 50% of the total number of 9, 143 employees, the rest of the work-charged employees are still in the service of the PWD. 14. It is very true that a number of Office Memorandums issued since 1969 on the service of work charged employees, are not law and no legal right can be based on those. Those are mere administrative guide lines and no legal right can be founded on the office memorandums.

15. It is contended on behalf of the respondents that this long standing practice based on the principles enunciated in various officeMemorandums, creates a legitimate expectation for the rest 1906 work-charged employees that as before since 1987, they all will be regularised every year, from time to time, at the rate of 50% of the leftover work-charged employees.

16. The decision taken in the meeting held on 19.02.2007, was based on the Memorandum dated 31.10.2006 which evoked all these writ petitions.

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Government of Bangladesh and others Vs. Md. Jahangir Alam and others (A.B.M. Khairul Haque, CJ.)

17. We would first consider the legitimate expectation of the work-charged employees employed from time to time since 1977 (Annexure-A series to the Writ Petition No. 4040 of 2007), to be transferred to regular establishment. We would also consider the legality of the Memorandum dated 31.10.2006 issued by the Ministry of Establishment (Annexure-P to the Writ Petition No. 4040 of 2007).

18. The word legitimate expectation' was first coined by Lord Denning M.R. in the case of Schmidt V. Secretary of State for Home Affairs (1969) 2 Ch 149, a case of immigration. The point, among others, was whether there is any ground for saying that the Home Secretary did not observe the precepts of natural justice.

Lord Denning M.R. agreed that (Page-170 CD):

"Where a public officer has power to deprive a person of his liberty or his property, the general principle is that it is not to be done without his being given an opportunity of being heard and of making representations on his own behalf."

19. Referring to the case of Ridge V. Baldwin, Lord Denning said (Page-170 EF): "The speeches in Ridge v. Baldwin (1964) A.C. 40 show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations.

It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say."

20. Although Lord Denning baptised the principle of legitimate expectation in this manner but he was cautious and kept its ambit within the strict legal limit of the incumbent. In the case of Schmidt, a foreign alien, he said (Page-171 AB): "He has no right to enter this country except by leave: and, if he is given leave to come for a limited period, he has no right to stay for a day longer than the

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permitted time. If his permit is revoked before the time limit expires. he ought , I think, to be given an opportunity of making representation: for he would have a legitimate expectation of being allowed to stay for the permitted time."

21. With the passage of time the principle of legitimate expectation was further developed and liberalised and it can be invoked even without any legal right, as such, in its strict sense.

22. This principle was propounded in the case of O'Reilly V. Mackman (1983)2 AC 237. There were certain incidents of riots at Hull prison and a number prisoners were charged with offences of breach of discipline and they were variously punished. An allegation of bias was raised and their punishments were challenged. Lord Diplock in holding the legitimate expectation of the prisoners, said (Page.275 C-F): "It is not, and it could not be, contended that the decision of the board awarding him forfeiture of remission had infringed or threatened to infringe any right of the appellant derived from private law, whether a common law right or one created by statute. Under the Prison Rules remission of sentence is not a matter of right but of indulgence. So far as private law is concerned all that each appellant had was a legitimate expectation, based upon his knowledge of what is the general practice, that he would be granted the maximum remission, permitted by rule 5(2) of the Prison Rules, of one third of his sentence if by that time no disciplinary award of forfeiture of remission had been made against him. So the second thing to be noted is that none of the appellants had any remedy in private law.

In public law, as distinguished from private law, however, such legitimate expectation gave to each appellant a sufficient interest to challenge the legality of the adverse disciplinary award made against him by the board on the ground

I LNJ AD (2012) Government of Bangladesh and others Vs. Md. Jahangir Alam and others (A.B.M. Khairul Haque, CJ.)

that in one way or another the board in reaching its decision had acted outwith the powers conferred upon it by the legislation under which it was acting; and such grounds would include the boards failure to observe the rules of natural justice: which means no more than to act fairly towards him in carrying out their decision-making process, and I prefer so to put it."

23. In the case of Attorney General of Hong Kong V. Ng Yuen Shiu (1983)2 AC 629, one of the questions, inter alia, was whether an alien in Hong Kong had a legitimate expectation for a fair hearing. Lord Eraser held (P.636 DG): "The narrower proposition for which the applicant contended was that a person is entitled to a fair hearing before a decision adversely affecting his interests is made by a public official or body, if he has "a legitimate expectation" of being accorded such a hearing Accordingly "legitimate expectations" in this context are capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis: see Reg. V. Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 Q.B. 864. So it was held in Reg. V. Board of Visitors of Hull Prison, Ex parte St. Germain (No. 2) [1979] 1 W.L.R. 1041 that a prisoner is entitled to challenge, by judicial review, a decision by a prison board of visitors, awarding him loss of remission of sentence, although he has no legal right to remission, but only a reasonable expectation of receiving it."

53

justification for it is primarily that, when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. The principle is also justified by the further consideration that, when the promise was made, the authority must have considered that it would be assisted in discharging its duty fairly by any representations from interested parties and as a general rule that is correct.

In the opinion of their Lordships, the principle that a public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty, is applicable to the undertaking given by the Government of Hong Kong to the applicant " 24. In the case of Waite V. Government Communi-cations Headquarters (1983) 2 AC 714, the question of retiring age was at issue. Lord Fraser upheld the expectation for retiring age (P.724 CD):

Lord Eraser in explaining the principle held (P.638 EG) :

"The proper test is in my view not merely statistical. It is to ascertain what would be the reasonable expectation or understandding of the employees holding that position at the relevant time. The contractual retiring age will prima facie be the normal, but it may be displaced by evidence that it is regularly departed from in practice. The evidence may show that the contractual retirement age has been superseded by some definite higher age, and, if so, that will have become the normal retiring age."

"Their Lordships see no reason why the principle should not be applicable when the person who will be affected by the decision is an alien, just as much as when he is a British subject. The

25. The principle of legitimate expectation was elaborately considered in the case of Council of Civil Service Unions V. Minister for the Civil Service (1985) AC 374. In that case, in December, 1983, the Minister for Civil Service gave

54

Government of Bangladesh and others Vs. Md. Jahangir Alam and others (A.B.M. Khairul Haque, CJ.)

instructions that the staff employed with the Government Communications Headquarters (GCHQ) would no longer be permitted to belong to national trade unions but without consultation with trade unions as was the long standing practice in case of alterations of important terms and conditions of their service. The House of Lords found that although the employees did not have a legal right to prior consultation but in principle accepted the contention that they have legitimate expectation that the unions and the employees ought to have been consulted but on merit dismissed their appeal on the ground of over whelming public interest that such consultation would imperil national security.

26. Propounding the principle of legitimate expectation, Lord Fraser held (P. 401 A-E): "But even where a person claiming some benefit or privilege has no legal right to it, as a matter of private law, he may have a legitimate expectation of receiving the benefit or privilege, and, if so, the courts will protect his expectation by judicial review as a matter of public law Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of regular practice which the claimant can reasonably expect to continue The test of that is whether the practice of prior consultation of the staff on significant changes in their conditions of service was so well established by 1983 that it would be unfair or inconsistent with good administration for the Government to depart from the practice in this case. Legitimate expectations such as are now under consideration will always relate to a benefit or privilege to which the claimant has no right in private law, and it may even be to one which conflicts with his private law rights."

27. Enunciating the principles leading to legitimate expectation, Lord Diplock held (P.408 F-H, 409A): "To qualify as a subject for judicial review the decision must have consequences

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which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either : (a) by altering rights or obligations of that person which are enforceable by or against him in private law; or (b) by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker will riot be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. (I prefer to continue to call the kind of expectation that qualifies a decision for inclusion in class (b) a ‘legitimate expectation� rather than a 'reasonable expectation" in order thereby to indicate that it has consequences to which effect will be given in public law, whereas an expectation or hope that some benefit or advantage would continue to be enjoyed, although in might well be entertained by a " reasonable" man, would not necessarily have such consequences )" Lord Roskill also considered the principle in the same case (P. 415 D, F): "The particular manifestation of the duty to act fairly which is presently involved is that part of the recent evolution of our administrative law which may enable an aggrieved party to evoke judicial review if he can show that he had "a reasonable expectation" of some occurrence or action preceding the decision complained of and that "reasonable expectation" was not in the event fulfilled. The principle may now be said to be firmly entrenched in this branch of the law."

I LNJ AD (2012) Government of Bangladesh and others Vs. Md. Jahangir Alam and others (A.B.M. Khairul Haque, CJ.)

28. In the case of Regina V. North and East Devon Health Authority, ex parte Coughlan (2001) QB 213, the concept of substantive legitimate expectation was considered by the Court of Appeal in England in a broader perspective. In this case Ms. Coughlan being seriously injured in a road accident in 1971, was moved along with seven others from a hospital to Mardon House in 1993, on the assurance of the Health Authority that they could live there 'for as long as they chose' but in 1998, the concerned Authority decided to close down Mardon House.

This was the immediate cause for the said litigation. Hidden J. granted an order of certiorari quashing the closure decision. On appeal, the Court of Appeal sought to strike a fair balance between the public interest in one hand and the interests of the individuals on the other, having expectations based upon statements or consistent practice of the concerned authorities. All three members of the Bench, namely, Lord Wolf M.R., Mummery and Sedley L. JJ., contributed in the judgment.

29. In considering the Court’s role when the plea of legitimate expectation is raised, the Court held at para 56 to 58 (P.241): "56. What is still the subject of some controversy is the court's role when a member of the public, as a result of a promise or other conduct, has a legitimate expectation that he will be treated in one way and the public body wishes to treat him or her in a different way. Here the starting point has to be to ask what in the circumstances the member of the public could legitimately expect. In the words of Lord Scarman in In re Findlay (1985) AC 318, 338, "But what was their legitimate expectation ?" Where there is a dispute as to this, the dispute has to be determined by the court, as happened in In re Findlay. This can involve a detailed examination of the precise terms of the promise or representation made, the

55

circumstances in which the promise was made and the nature of the statutory or other discretion.

57. There are at least three possible outcomes, (a) The court may decide that the public authority is only required to bear in mind its previous policy or other representation, giving it the weight it thinks right, but no more, before deciding whether to change course. Here the court is confined to reviewing the decision on Wednesbury grounds (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn (1948) I KB 223). This has been held to be the effect of changes of policy in cases involving the early release of prisoners: see In re Findlay (1985) AC 318; R v Secretary of State for the Home Department, Ex p Hargreaves (1997) I WLR 906. (b) On the other hand, the court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. Here it is uncontentious that the court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it (see Attorney General of Hong Kong v Ng Yuen Shiu (1983) 2 AC 629) in which case the court will itself judge the adequacy of the reason advanced for the change of policy, taking into account what fairness requires, (c) where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any

56

Government of Bangladesh and others Vs. Md. Jahangir Alam and others (A.B.M. Khairul Haque, CJ.)

overriding interest relied upon for the change of policy.

58. The court having decided which of the categories is appropriate, the court's role in the case of the second and third categories is different from that in the first. In the case of the first, the court is restricted to reviewing the decision on conventional grounds. The test will be rationality and whether the public body has given proper weight to the implications of not fulfilling the promise.

In the case of the second category the court's task is the conventional one of determining whether the decision was procedurally fair. In the case of the third, the court has when necessary to determine whether there is a sufficient overriding interest to justify a departure from what has been previously promised.

81. For our part, in relation to this category of legitimate expectation, we do not consider it necessary to explain the modern doctrine in Wednesbury terms, helpful though this is iri terms of received jurisprudence (cf Dunn LJ in R v Secretary of State for the Home Department, Ex p Asif Mahmood Khan (1984) I WLR 1337, 1352 : "an unfair action can seldom be a reasonable one").

We would prefer to regard the wednesbury categories themselves as the major instances (not necessarily the sole ones : see Council of Civil Service Unions v Minister for the for the Civil Service (1985) AC 374, 410, per Lord Diplock) of how public power may be misused. Once it is recognised that conduct which is an abuse of power is contrary to law its existence must be for the court to determine.

82. The court's task-and this is not always understood-is then limited to asking whether the application of the policy to an individual who has been led to expect something different is a just

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exercise of power. In many cases the authority will already have considered this and made appropriate exceptions (as was envisaged in British Oxygen Co Ltd v Board to Trade (1971) AC 610 and as had happened in Ex p Hambel (Offshore) Fisheries Ltd (1995) 2 All ER 714), or resolved to pay compensation where money alone will suffice. But where no such accommodation is made, it is for the court to say whether the consequent frustration of the individual's expectation is so unfair as to be a misuse of the authority's power."

30. The Court of Appeal explained how fairness and the overriding public interest are to be considered (P.251) : "83 What matters is that, having taken it all into account, the health authority voted for closure in spite of the promise.

The propriety of such an exercise of power should be tested by asking whether the need which the health authority judged to exist to move Miss Coughlan to local authority facility was such as to outweigh its promise that Mardon House would be her home for life."

On the merit of the case, the Court held (P.254): "89. We have no hesitation in concluding that the decision, to move Miss Coughlan against her will and in breach of the health authority's own promise was in the circumstances unfair. It was unfair because it frustrated her legitimate expectation of having a home for life in Mardon House. There was no overriding public interest which justified it. In drawing the balance of conflicting interests the court will not only accept the policy change without demur but will pay the closest attention to the assessment made by the public body itself. Here, however, as we have already indicated, the health authority failed to weigh the conflicting interests correctly.�

I LNJ AD (2012) Government of Bangladesh and others Vs. Md. Jahangir Alam and others (A.B.M. Khairul Haque, CJ.)

31. In conclusion, the Court found that there was a breach of clear promise by the concerned health authority (P.260) : "(c) .. . . . . . . .. (iii) the decision was an unjustified breach of a clear promise given by the health authority's predecessor to Miss Coughlan that she should have a home for life at Mardon House. This constituted unfairn-ess amounting to an abuse of power by the health authority. It would be a breach of article 8 of the European convention of Human Rights."

32. In the case of Food Corporation of India v.

M/S Kamdhenu cattle Feed Industries AIR 1993 SC 1601, the Supreme Court of India expounded the principle of legitimate expectation in considering the denial of the highest tenderer's right to have his tender accepted. J.S. Verma, J. held (P. 1604) : "7. In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Art. 14 of the Constitution of which nonarbitrariness is a significant facet. There is no unfettered discretion in public law: A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is 'fairplay in action'.

Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision-making process in all State actions. To satisfy this requirement of non-arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides

57

of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness.

Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise by judicial review.

8. The mere reasonable or legitimate expectation a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due considerations in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant.

A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent."

33. In the case of Sethi Auto Service Station V. Delhi Development Authority (2009) 1 SCC 180, the Supreme Court of India, explained the applicability of the principle of legitimate expectation (P. 190-91): 32………………….a case for applicability of the doctrine of legitimate expectation, now accepted in the subjective sense as part of our legal jurisprudence, arises when an administrative

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Government of Bangladesh and others Vs. Md. Jahangir Alam and others (A.B.M. Khairul Haque, CJ.)

body by reason of a representation or by past practice or conduct aroused an expectation which it would be within its powers to fulfill unless some overriding public interest comes in the way.

However, a person who bases his claim on the doctrine of legitimate expectation, in the first instance, has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his detriment. The Court could interfere only if the decision taken by the authority was found to be arbitrary, unreasonable or in gross abuse of power or in violation of principles of natural justice and not taken in public interest. But a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles.

33…………… It is well settled that the concept of legitimate expectation has no role to play where the State action is as a public policy or in the public interest unless the action taken amounts to an abuse of power. The court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply an objective standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. Therefore, a legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the grating of relief is very much limited."

34. Let us now look at our jurisdiction. In the case of Bangladesh Soya-Protein Project Ltd. V. Secretary, Ministry of Disaster Management and

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Relief 22 BLD (2000)HCD 378, the High Court Division examined the principle of legitimate expectation: "32. From the discussion of the above noted cases, I would conclude that the expression 'legitimate expectation' first used by Lord Denning M.R. in the case of Schmidt in 1969 opened a new vista and has by now established as a principle of law. This principle as I understand in essence imposes a duty to act fairly and requires of the concerned authorities to act reasonably in dealing with the rights and interest of the people in the given circumstances. This is certainly expected of them. If there is any breach, the Courts should not be slow in holding so. If the situation so demands, the Court shall certainly strike down such orders in exercise of its powers of judicial review of executive actions. In case of their unreasonableness or inertness or even laches on their part for which some benefit is lost causing prejudice to the people at large or even to a individual, the Court may also direct the concerned authorities to exercise their functions fairly, reasonably and in accordance with law.

39. This legitimate expectation of the petitioner had been crystallized by successive agreements executed between the Government and the petitioner calling upon them to supply the Soya products to different schools earmarked by the Government. The petitioner, marshalling all its resources successfully supplied the Soya products to all the schools in accordance with the agreements executed one after the other. There was no complain about the quality of the Soya products supplied by the petitioner or with regard to their service incidental to such supply to the Schools. There was no claim on behalf of the Government that the problem of malnutrition among the children had been solved or even minimized so that the school Feeding Program was no longer

I LNJ AD (2012) Government of Bangladesh and others Vs. Md. Jahangir Alam and others (A.B.M. Khairul Haque, CJ.)

necessary. But the Government suddenly stopped the scheme since July, 2000, apparently without any reason.

53. In the decisions discussed above it. will be seen that the Courts are always alive to the paramount public interest, either in upholding the decision of the Government even to the prejudice of an individual, or in case of striking it down as arbitrary or unreasonable, the public interest element is always the criteria for doing so. The Courts all over the world in deciding an issue give importance always to the overall interest of the people at large which commensurate with the sense of social justice in a welfare state.

54. There is no doubt that the Government can always change its policy and the Courts will not interfere with such change, if made for a better one or for public interest or for some overwhelming reason for which a change of policy had become unavoidable, provided of course, the Government acts fairly and reasonably. In this case, in discontinuing the School Feeding Program, the Government had failed to implement its own policy decision thawarting the legitimate expectation of the petitioner that the Government would continue their said program which was solemnly accepted in their policy decision."

35. This Court also considered the principle of legitimate expectation in the case of The Chairman, Bangladesh Textile Mills Corporation V. Nasir Ahmed Chowdhury 22 BLD (AD) (2002) 199.

36. In the Case of Golam Mostafa V. Bangladesh 2007 (XV) BLT (HCD) 128, the High Court Division explained the concept of legitimate expectation (P. 152) : "44. The upshot of the decisions noted above are that judicial review may be allowed on the plea of frustration of

59

legitimate expectation in the following situations : i)

If there is a promise by the authority, expressed either by their representations or by conducts.

ii) The decision of the authority was arbitrary or unreasonable within the Wednesbury principle, iii) There was a failure on the part of the concerned authority to act fairly in taking the decision, iv) The expectation to be crystallized into a legitimate one, it must be based on clear facts and circumstances leading to a definite expectation and not a mere anticipation or a wish or hope and also must be reasonable in the circumstances. v) Judicial review may allow such a legitimate expectation and quash the impugned decision even in the absence of a strict legal right unless there is an overriding public interest to defeat such an expectation.�

37. Apart from the decisions discussed above, the following decisions of the superior Courts from home and abroad are also considered: Reg. V. Liverpool Corporation ex-parte Liverpool Taxi Fleet Operators' Association (1972) 2 QB 299, Hughes V. D.H.S.S (1985) 1 AC 776, Findlay V. Secretary of State (1984) 3 All ER 801, Navjyoti Coo-Group Housing Society V. Union of India AIR 1993 SC 155, Union of India V. Hindustan Development Corporation AIR 1994 SC 988, Attorney General for New South Wales V. Quin (1990) 64 Australian LJR 327, Madras City Wine Merchants' Association V. State of T.N. (1994 5 SCC 509, Punjab Communications Ltd. V. Union of Indio AIR 1999 SC 1813, Managing Director, Dhaka WASA V. Superior Buildings and Engineers Ltd. 51 DLR AD 1999. R.V. Secretary

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Government of Bangladesh and others Vs. Md. Jahangir Alam and others (A.B.M. Khairul Haque, CJ.)

of State for the Home Department, Ex P. Hargreaves (1997) 1 WLR 906. Dr. Chanchal Goyal V. State of Rajasthan (2003) 3 SCC 485.

Howrah Municipal Corpn. V. Ganges Rope Co. Ltd. (2004)1 SCC 663. Kuldeep Singh V. Govt. of NCT of Delhi (2006) 5 SCC 702. Ram Pravesh Singh V. State of Bihar (2006) 8 SCC 381.

Jitendra Kumar V. State of Haryana (2008) 2 SCC 161.

VI)

if from the evidence it is apparent that contractual term, is frequently departed from to some thing beneficial to the incumbent, his expectation may be crystallized into a legitimate one,

VII)

if the practice is well established that it would be unfair on the part of the Government to depart from the said practice, legitimate expectation may rise that the incumbent can reasonably expect the said practice to continue to his benefit, even though he may not have strict legal right to the said benefit.

38. An examination of the various decisions discussed and noted above would show that the principle of legitimate of expectation may arise or be applicable both in the subjective or procedural sense in the following manner: I)

although the concerned person may not have the legal right but because of well established prior practice, he would have an expectation which is crystallized into a legitimate one, based on the consistent conduct of the concerned authorities, unless there is overwhelming public interest to do otherwise;

II)

mere indulgence may create an expectation in the mind of the incumbent but on its own, without more, would not render it a legitimate one;

III)

it is however, a legitimate expectation on the part of the incumbent that the concerned authorities, under the circumstances of the case, would act fairly;

IV)

when an incumbent has an expectation which is reasonable in the circumstances, capable of including expectations which may go beyond enforceable legal rights and render it legitimate;

V)

a public authority is bound to follow a certain procedure which is culminated into a promise or undertaking, because of its express or implied consistent practice unless, of course, it does not contravene any statutory duty;

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VIII) if some benefit or advantage which a class of persons had in the past been allowed by the Government which they can legitimately expect to continue unless there is some rational grounds for the authority to withdraw it, IX)

not a mere anticipation or a wish or a hope it must be a definite expectation, which is reasonable and fair in the circumstances based on clear facts and consistent practice, so that a person or a class of persons may feel that there is no reason to discontinue the practice to his or their disadvantage, then the said expectation would be crystallized into a legitimate one and in such a case, the power of judicial review would be available to protect the said legitimate expectation unless there is overwhelming public interest against it.

39. The Memo dated 31.10.2006 is based on Memo dated 06.08.1973 and Memo dated 21.03.1972. The Memo dated 21.04.1972 is based on a Memo dated 28.03.1969, issued by the Regulation Branch of Services and General Administration Department of the then Government of East Pakistan. The said Memo dated 28.03.1969 is earliest in this respect. It reads as follows (Annexure-B to the Writ Petition No. 4040 of 2007):

I LNJ AD (2012) Government of Bangladesh and others Vs. Md. Jahangir Alam and others (A.B.M. Khairul Haque, CJ.)

No. SGA/RI/18-33/69/71(350), dated Dacca, the 28th March, 1969.

Subject: Conversation of temporary posts into permanent ones and contingent and work charged staff into regular establishment.

In supersession of all previous orders on the subject noted above, Government have been pleased to decide in consultation with the Finance Department as follows : (1) All temporary class-Ill and class-IV posts of permanent nature which have been in existence for five years or more may be converted into permanent ones in consultation with the Finance Department.

(2) All posts in class III and Class IV which are paid from contingency and continuing for ten years or more may be brought into regular establishment in consultation with Finance Department.

(3) Fifty per cent of the non-gazetted posts in the work-charged establishment existing for ten years or more may be brought into regular establishment in consultation with Finance Department.

All Departments and Directorates are requested to take up the question of converting the temporary posts into permanent ones and bringing the posts paid from contingency and 50% of the posts in the work charged establishment into regular establishment on the principle enunciated in items 1, 2 and 3 respectively in consultation with the Finance Department.

40. The above memo envisages 3(three) kinds of employees. The employees in 3rd category is relevant for our purpose. It stipulates that 50% those employees who held non-gazetted posts for 10 (ten) years or more may be brought into regular establishment. This provision did not stipulate that only once this regularisation could be made.

41. After independence of Bangladesh, conversion of worked charged staff into regular establishment was allowed vide Memo No.

61

Estb./RI/S-46/72/55 dated 21.4.1972 issued by the Establishment Division (Annexure-C to the Writ Petition No. 4040 of 2007) which is as follows: Memo No. Estb./RI/S-46/72/55, dated, Dacca, 21st April, 1972.

Subject: Conversation of temporary posts into permanent ones arid contingent and work charged staff into regular establishment.

The government under Memo No. SGA/Rl/lS-33/69/71(350), dated 28th March, 1969 (copy enclosed) issued orders for conversion of certain temporary posts in to permanent ones and contingent and work charged staff into regular establishment. It appears that these decisions have not been fully implemented as a result of which the employees concerned have not yet got the benefit of the said decisions. It has, therefore, been decided that the decisions referred to above should be implemented immediately. It has further been decided that the conversion, as decided earlier, of the posts which have been in existence for 5/10 years or more, should be done with effect from the date the posts were created and the employees should be absorbed against the post with effect from the date of their appointment. In absorbing the employees the persons who have the longest period of service and are retiring or are on the verge of retirement should be given preference so that they get retirement benefit of retirement under the President's Order No. 14 of 1972.

42. This Memo although refers to the earlier Memo dated 24.03.1969, but did not stipulate that such conversion of work-charged employees to regular establishment should be made once.

43. The Memo No. Ed(R-IV)-IR-27/72-195 dated 6.8.1973 issued by the Establishment Division was also mentioned in certain subsequent memorandums. It is quoted below (Annexure-D to the Writ Petition No. 4040 of 2007):

62

Government of Bangladesh and others Vs. Md. Jahangir Alam and others (A.B.M. Khairul Haque, CJ.)

No. Ed(R-IV)-IR-27/72-195, dated the 6th August, 1973.

SUBJECT: Fixation of age of retirement of the contingent and WorkCharged employees.

REF: This Divn. Memo. No. Ed(R-IV)IM-5/72-96(500) dated 28-41972.

Government have been pleased to decided that the contingent and WorkCharged employees shall retire after completion of 60 years of age.

2. The above decision shall not be applicable to the contingent and WorkCharged employees who have been brought to the regular establishment in terms of Memo. No. S 8s GA/RI/IS53/69-71 (950) DATED 28-3-69 and No. Estabt. /RI/S-46/72-55 dated 21-4-72.

These employees shall retire after completion of 55th years of age like other employees of the regular establishment.

44. But this memo is only in respect of the retiring age of the Work-charged employee. It has nothing to do with their eligibility for conversion into regular establishment.

45. Another memorandum was issued by the Ministry of Public Works & Urban Development, Public Works Division vide Memo No. Sec.ll/Ec4/73/409/1 dated 12.11.1974, in respect of conversion of the posts for work-charged and contingent staff into regular establishment. It is as follows (Annexure-E to the Writ Petition No. 4040 of 2007): Memo No. See. 1 l/EC-4/73/409/1 Dated the 12th November 1974 Form: Mr. S. M. Rahman.

Deputy Secretary

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Sub: Conversion of the posts for workcharged and contingent staff into regular establishment.

The undersigned in directed to say that it has been decided in consultation with the Establishment Division that the conversion of the posts for Work-Charged and contingent staff which have been in existence for 10 years or more may be brought into regular establishment and work-charged establishment and the employees concerned should be absorbed against the posts with effect from the date of their appointment in pursuance of the instructions, contained in the Memo. No. Estbt. BI/S-46 72-55 dated 21.04.72 the Ministry of Cabinet Affairs, Establishment Division, Regulation wing 1 (Copy enclosed).

In absorbing the employees the persons who have the learned period of service and are retiring or are on the verge of retirement should be given preference so that they got retirement benefit on retirement under the President's order No. 14 of 1972.

2. The persons who have already retired since the promulgation of the President's order No. 14 of 1972 should be in pursuance of the instructions contained in the above mentioned memo, of the Ministry of Cabinet Affairs, Esbt. Division regulation Wing be give the benefit of absorption into regular establishment by issue of orders retrospectively and giving retirement benefit provided the) had the prescribed length of service.

To:

3. The charge will proceed against the appropriate Heads of Accounts of the budget provision under the Building Directorate.

Bangladesh public Works Department and Government Accommodation Directorate.

1. The Chief Engineer, Building Directorate.

4. This has the concurrence of the Ministry of Finance.

2. The Additional Chief Engineer, Bangladesh Public Works Deptt.

3. The Directorate of Govt. Accommodation.

46. The Cabinet Secretariat, Establishment Division, issued a memo on the same subject vide O.M. o. Ed (Reg-III)M-48/80-62(500) dated

I LNJ AD (2012) Government of Bangladesh and others Vs. Md. Jahangir Alam and others (A.B.M. Khairul Haque, CJ.)

5.8.1980 which is as follows (Annexure-F to the Writ Petition No. 4040 f 2007): CABINET SECRETARIAT Establishment Division Regulation III O.M. No.ED (Reg.-IIIM-48/80-62 (500), dated the 5th August, 1980.

SUBJECT: Conversion of Temporary posts into permanent ones and Contingent and workcharged staff into regular establish-ment.

Government have reviewed the above issue in the light of the recommendations of the Committee for Enquiry on Improvement of Service Conditions of Non-Gazetted employees, setup under order No.ED/SW-II1/5-110, dated 1/4/80 of this Division and have decided(1) All Ministries/Divisions/Departments /Offices should take immediate steps for conversion of temporary posts into permanent ones and contingent 85 work-charged staff into regular establishment in accordance with the decisions contained in Memo No. SGA/RI/1S-33/69/71(350), dated 28th March, 1969 of the then S & G.A. Deptt. of the Government of East Pakistan and No. Estb/Rl/S-46/72/55, dated 21st April, 1972 of this Division (copy enclosed), which have continued applicability.

(2) The vacancies in the regular establishment should, as a matter of policy, be filled up first by appointment from amongst workcharged and contingent staff on the basis of seniority and subject to fulfillment of requisite qualifications.

(3) While implementing the decision of conversion of temporary posts into permanent ones the instructions contained in this Division letter No.

63

ED(AD-II)-157/79- 523(75) and No. ED (AD-II)-157/79-524(75), dated the 29th May, 1979 shall have to be kept in view.

(4) This issues with the concurrence of the Ministry of Finance.

47. This memo stipulates that work-charged and contingent employees should get preference when vacancies arise.

48. The Office Memo No. ED/REG-III-M-8/8253 dated 4.8.1982 stipulates that the recruitment rules should be followed in converting the temporary employees in contingency and wordcharged employees into regular establishment (Annexure-H to the Writ Petition No. 4040 of 2007).

49. In the meantime, the Government by its Memo No. 7162/Works/Lnpl-3" 266 dated 28.07.1986, decided to set up a standing committee to deal with the issue of regularisation of the work-charged employees serving under different organizations under the Ministries/ Divisions (Annexure-G to the Writ Petition No. 4040 of 2007).

50. Accordingly, a standing committee constituted by the Establishment Ministry considered the regularisation of work-charged employees of Housing Directorate and the Public Works Directorate, in its meeting held on 17.12.1987. It resolved, among others, to regularise the 50% of the 400 employees of Housing Directorate and 19,452 employees of the PWD. by transferring them to regular establishment. The relevant portion of the minutes of the meeting of the standing committee held on 17.12.1987 are enclosed herewith (Annexure-I to the Writ Petition No. 4040 ff 2007): MYcÖRvZš¿x evsjv‡`k miKvi ms¯’vcb gš¿Yvjq msMVb I e¨e¯’vcbv AbywefvM mgš^q kvLv welqt IqvK©PvR©W/Kw›Ub‡RÝx Kg©Pvix‡`i wbqwgZKiY welqK ó¨vwÛs KwgwUi 17/12/87Bs Zvwi‡L AbywôZ mfvi Kvh© weeibx|

64

Government of Bangladesh and others Vs. Md. Jahangir Alam and others (A.B.M. Khairul Haque, CJ.)

IqvK©PvR©W/Kw›Ub‡RÝx Kg©Pvix‡`i wbqwgZKiY welqK ó¨vwÛs KwgwUi 4_© mfv KwgwUi AvnevqK I ms¯’vcb gš¿Yvj‡qi hyM¥mwPe (mIe¨) Rbve we, Avi, †PŠayixi mfvcwˇZ¡ 17/12/87 Zvwi‡L AbywôZ nq| mfvi Av‡jvP¨ myPx wQj (1) M„n ms¯’vb Awa`ßi Ges (2) MYc~Z© Awa`߇ii IqvK©PvR©W Kg©Pvix‡`i wbqwgZKiY welq we‡ePbv Kiv| 4| c~Z© gš¿Yvjq nB‡Z cÖvß ZvwjLv Abhvqx M„n ms¯’vcb Awa`߇ii †gvU 400 Rb Ges MYc~Z© Awa`߇ii †gvU 19,452 Rb wewfbœ K¨vUvMixi mg©Pvix IqvK©PvR©W wfwˇZ wb‡qvwRZ Av‡Pb| miKvix bxwZgvjvi Av‡jv‡K 23-10-86 Zvwi‡Li c~‡e© wb‡qvMK…Z GZ`msµvšÍ Kg©Pvix‡`i g‡a¨ hvnviv 10 ermi ev Z`ya©Kvj PvKzix Kwiqv‡Qb Zvnv‡`i 50% fvM A¯’vqx wbqwgZ Góvwjm‡g‡›U ¯’vbvšÍwiZ nB‡e|

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ms¯’vcb gš¿Yvjq I AvnŸvqK ó¨vwÛs KwgwU| 51. Following the above procedure, out of the total work-charged employees of PWD as on 23.01.1986, the service of 6654 employees were transferred to regular establishment in phases till 2002.

52. In due course, the Housing and PWD by its Memo No. kv-2/2B-2/2004/100 dated 17.03.2005, requested the Establishment Ministry to regularise 50% of the rest 1951 of their work-charged employees. On being asked, they also supplied the list of 951 work-charged employees with their seniority (Annexure-N to the Writ Petition No. 4040 of 2007).

5| mfvq we¯ÍvwiZ Av‡jvPbvi ci wb¤œ wjwLZ wm×všÍ M„nxZ nq|t

53. Apparently, the above issue dragged on for some time and then another committee was formed to examine the matter.

(1) gš¿Yvjq/wefvM/Awa`ßi ¯^ ¯^ msMVb mgy‡n wb‡qvwRZ IqvK©PvR©W Kg©Pvix‡`i wbqwgZKi‡Yi wbwg‡Ë c`Iqvix mgwš^Z †R¨ôZv ZvwjKv (kZKiv 50% c‡`i) cÖ¯‘Z Kwiqv ô¨vwÛs KwgwUi AvnŸvq‡Ki Aby‡gv`‡bi (Confirmation) Rb¨ †cÖiY Kwi‡eb|

54. The said committee submitted its report vide Memo No. mg (wewa-3)-Kw›Ub-3/2006-32 dated 31.10.2006. The relevant portion of its report reads as follow (Annexure-P to the Writ Petition No. 4040 of 2007):

(2) ‡h mKj IqvK©PvR©W Kg©Pvix GKvwaK c‡` PvKzix Kwiqv‡Qb/Kwi‡Z‡Qb wKš‘ GKB c‡` 10 ermi c~Y© nq bvB †m‡ÿ‡Î cÖZg c‡`i PvKzixi mv‡_ cieZ©x c‡`i PvKzix wgjvBqv 10 ermi nB‡jI wbqwgZ nIqvi we‡ePbvq Avwm‡eb| wKš‘ Zvnv‡K cÖ_g c‡`B wbqwgZ Kwi‡Z nB‡e| (3) A¯’vqx wbqwgZ Góvweøk‡g‡›U ¯’vbvšÍwiZ GB mKj Kg©Pvixi Aemi MÖnY, c`Z¨vM wKsev Ab¨ Kvi‡Y c` k~b¨ nB‡j GB mKj c` ZvrÿwYKfv‡e wejyß ewjqv MY¨ nB‡e| (4) miKvi KZ©„K 20-1-86 Zvwi‡K wb‡lavÁv Rvixi c~‡e© wb‡qvwRZ IqvK©PvR©W Kg©Pvix hvnv‡`i PvKzix 10 ermi bv nIqvi Kvi‡Y 1-12-87 Zvwi‡L AbywôZ ó¨vwÛs KwgwUi mfvq we`¨gvb bxwZi Av‡jv‡K wbqwgZKi‡Yi we‡ePbvq Av‡bb bvB cieZ©x‡Z 10 ermi c~b© nB‡j A_© weev‡Mi mv‡_ Av‡jvPbvµ‡g cÖkvmwbK gš¿Yvjq Zvn‡`i PvKzix wbqwgZKi‡Yi c`‡ÿc MÖnY Kwi‡eb| ¯^vt/= (we,Avi, †PŠayix) 24-12-87 hyMœ-mwPe (mIe¨)

MYcÖRvZš¿x evsjv‡`k miKvi ms¯’vcb gš¿bvjq wewa-3 kvLv bs

mg (wewa-3)-Kw›Ub-3/2006/32 16 KvwZ©K 1413 31 A‡±vei 2006 wLªóvã

ZvwiLt

welqt gš¿Yvjq/wefvM/Awa`ßi/cwi`ß/`߇i Kg©iZ IqvK©PvR©W/Kw›Ub‡R›U Kg©Pvix‡`i wb‡qvM I wbqwgZKiY msµvšÍ| miKvi wewfbœ gš¿Yvjq/wefvM/Awa`ßi/cwi`ßi/`߇i Kg©iZ IqvK©PvR©W/Kw›Ub‡R›U Kg©Pvix wb‡qvM I wbqwgZKi‡Yi welqwU we`¨gvb miKviwi mvK©yjvi I wewaweavbmg~‡ni Av‡jv‡K ch©v‡jvPbvc~e©K A_© wefv‡Mi mgBZµ‡g wb¤œiƒc wm×všÍ MÖnY Ki‡jb t(K) -------------------------------------------------------------------------------------------------(M) `k eQi ev Z`ya© mgq Pjgvb mKj 3q I 4_© †kÖYxi IqvK©PvR©W c‡`i gZKiv 50 fvM wbqwgZ ms¯’vc‡b Avbqb Kiv †h‡Z cv‡i| Kg©Pvix‡`i‡K wbqwgZ ms¯’vc‡b Avbq‡bi †ÿ‡Î 21 GwcÖj, 1972 Zvwi‡Li No. Estb/RI/S-46/72/55 ¯§vi‡Ki wb‡`©kbv AbymiY Kiv n‡e| G wbqwgZKiY

I LNJ AD (2012) Government of Bangladesh and others Vs. Md. Jahangir Alam and others (A.B.M. Khairul Haque, CJ.)

†KejgvÎ 23 Rvbyqvix, 1986 wLªóvã ZvwiL ev Zvi c~‡e© wb‡qvMK…Z I †hvM`vbK…Z‡`i †ÿ‡Î cÖ‡hvR¨ n‡e| B‡Zvg‡a¨ wbqwgZ ms¯Ívc‡b AvbqbK…Z‡`i kZKiv 50 fvM wnmv‡e †gvU msL¨v n‡Z ev` w`‡q Aewkó‡`i wbqwgZ ms¯’vc‡b Avbqb Kiv hv‡e| kZKiv 50 fv‡Mi GB wnmve †KejgvÎ GKev‡ii Rb¨ cÖ‡hvR¨ n‡e| G‡ÿ‡Î 6 AvM÷, 1973 Zvwi‡Li no. ED(R-IV)-IR-27/72-195 ¯§viK cÖ‡hvR¨ n‡e| (N) 20 †deªæqvwi, 1990 wLªóvã ZvwiL ev Zvi c~‡e© wb‡hvMK…Z I †hvM`vbK…Z Kw›Ub‡›U Kg©Pvix‡`i mK‡jB wbqwgZKi‡Yi AvIZvq Avi‡eb| The paragraph ÔMÕ above imposed a new condition which is: ÔkZKiv 50 fv‡Mi GB wnmve †KejgvÎ GKev‡ii Rb¨ cÖ‡hvR¨ n‡e|Õ 55. This clause made a great difference from the earlier policy in transferring work- charged employees from their temporary posts to regular establishment. This will be apparent from the minutes of the meeting of the scrutiny committed for bringing the services of 951 work-charged employees to regular establishment held on 19.02.2007. The relevant portions of the minutes are as follows (Armexure-Q to the Writ Petition No. 4040 of 2007): MYcÖRvZš¿x evsjv‡`k miKvi ms¯’vcb gš¿Yvjq mIe¨ kvLv-1 M„nvqb I MYc~Z© gšÍYvjqvaxb MYcyZ© Awa`߇ii 951 Rb Kvh©wfwËK Kg©Pvix‡K wbqwgZ cÖwZlVv‡b Avbqb wel‡q 19/02/2007 Zvwi‡L AbywôZ hvPvB evQvB KwgwUi mfvi Kvh©weeiYx| -------------------------------------------------2| .............................................................. ..................................................................

4| ............................................................... .................................................................... eZ©gv‡b Aewkó Kvh©wfwËK mg©Pvixi msL¨v n‡”Q 1906 Rb| wZwb Av‡iv Rvbvb †h, wewa-3 kvLvi 31 A‡±vei, 2006 Zvwi‡Li mg (wewa-3)-Kw›Ub3/2006-32 bs ¯§vi‡K ÒG wbqwgZKiY †KejgvÎ 23 Rvbyqvix, 1986ZvwiL ev Zi c~‡e© wb‡qvMK…Z I

65

†hvM`vbK…Z‡`i †ÿ‡Î cÖ‡hvR¨ n‡e| B‡Zvg‡a¨ wbqwgZ ms¯’vc‡b AvbqbK…Z‡`i kZKiv 50 fvM wnmv‡e †gvU msL¨v n‡Z ev` w`‡q Aewkó‡`i wbqwgZ ms¯’vc‡b Avbqb Kiv hv‡e| kZKiv 50 fv‡Mi GB wnmve †KejgvÎ GKev‡ii Rb¨ cÖ‡hvR¨ n‡e|Ó ‡h‡nZz BZtc~‡e© ch©vqµ‡g MYc~Z© Awa`߇ii Kvh©wfwËK Kg©Pvix‡`i 50% Gi †ekx‡KB wbqwgZ cÖwZôv‡b Avbqb Kiv n‡q‡Q weavq cÖ¯ÍvweZ Kg©Pvix‡`i wbqwgZ cÖwZôv‡b Avbq‡bi †Kvb my‡hvM bvB| 05| G ch©v‡q mfvcwZ D™¢zZ wel‡q cÖkvmwbK gš¿bvj‡qi cÖwZwbwai e³e¨ AvnŸvb K‡ib| cÖkvmwbK gš¿Yvj‡qi cÖwZwbwa Rvbv †h, BZtc~‡e© †hfv‡e 9,143 Rb Kvh©wfwËK Kg©Pvix‡`i ga¨ n‡Z ch©vqµ‡g 6,654 Rb‡K wbqwgZKiY Kiv n‡q‡Q, GKBfv‡e Aewkó 1,906 Rb Kvh©wfwËK Kg©Pvixi 50% wn‡m‡e 951 Rb‡K wbqwgZ cÖwZôv‡b Avbqb Ki‡Z †Kvb evav †bB mfvcwZ mfv‡K Rvbvb †h, ms¯’vcb gš¿Yvj‡qi 31/10/2006 Zvwi‡Li mg(wewa-3)Kw›Ub-3/2006-32 msL¨K ¯§viKwU ¯^e¨vKL¨vZ Ges Kw›Ub‡RwÝ I Kvh©wfwËK Kg©Pvix‡`i wbqwgZKi‡Yi †ÿ‡Î miKvi KZ©„K cÖYxZ me¨‡kl wb‡`©kgvjv| Dh³ ¯§vi‡Ki wb‡`©kgvjv Abymv‡i MYc~Z© Awa`߇ii 9,143 Rb Kvh©wfwËK Kg©Pvixi 50% wn‡m‡e 4,572 Rb‡K wbqwgZ cÖwZôv‡b Avbqb Kiv hv‡e| A_P B‡Zvg‡a¨ ch©vqµ‡g 6,654 Rb Kvh©wfwËK Kg©Pvix‡K wbqwgZ cÖwZm&Vv‡b Avbqb Kiv n‡q‡Q| A_©vr †`Lv hv‡”Q †h, MYc~Z© Awa`߇ii Kvh©wfwËK Kg©PvixM‡Yi g‡a¨ cÖvc¨Zvi AwZwi³ 2,182 Rb‡K wbqwgZ cÖwZôv‡b Avbqb Kiv n‡q‡Q| miKvi KZ©„K cÖYxZ Kvh©wfwËK Kg©PvixM‡Yi wbqwgZKi‡Yi wel‡q me©‡kl wb‡`©kgvjv Aby‡mv‡i MYc~Z© Awa`߇ii Aewkó 1906 Rb Kvh©wfwËK Kg©Pvixi 50% wn‡m‡e 951 Rb‡K wbqwgZ cÖwZôv‡b Avbq‡bi †Kvb my‡hvM †bB| 06| GgZve¯’vq, mfvq me©m¤§Zfv‡e wm×šÍ M„nxZ nq †h, MYc~Z© Awa`߇ii 951 Rb Kvh©wfwËK Kg©Pvix‡K wbqwgZ cÖwZôv‡b Avbq‡bi †Kvb my‡hvM †bB| 56. However, the question is whether those office-memorandums and the regularisation of the work-charged employees, based on the officememorandums from 1969 to 1987, can create an expectation which in due course flourished into a legitimate one. We have already quoted above those Office Memorandums starting from the Memo dated 28.3.1969 (Annexure-B).

66

Government of Bangladesh and others Vs. Md. Jahangir Alam and others (A.B.M. Khairul Haque, CJ.)

57. It appears that the concerned authorities were aware of the unfair dealings towards its workcharged employees. As such, by the memo dated 28.3.1969, all departments and Directorates were requested to take up the question of converting the temporary posts into permanent ones and 50% of the posts in the work-charged establishment into regular establishment who had completed service of ten years or more.

58. This principle was followed all along by the subsequent various Office Memorandum's issued form time till 1987 as mentioned above.

It appears that there were 9,143 work-charged employees in the PWD as on 23.01.1986. Out of those employees, following the principle and criteria mentioned in the above noted Office Memorandums, the services of the following 6,654 work-charged employees were regularised in phasesYear

No. of employees regularised

1987

.......................................

1693

1988, 1989 & 1990

.......................................

1991

.......................................

834

1992

.......................................

641

200 & 2001

.......................................

1140

2002

.......................................

515 6,654

1831

59. It appears that following the principles enunciated in the Memo dated 28.03.1969 and other subsequent memorandums till 1987, 6,654 work-charged employees were transferred in phases to regular establishment at the rate of 50% of the leftover work-charged employees. There are still 1906 work-charged employees left in the PWD and the authorities of the PWD sent a proposal to the Ministry of Establishment for regularisation of 951 work-charged employees which is 50% of the left-over 1906 work-charged employees. This step was taken in accordance with the long standing practice based on the various office-Memorandums since 1969.

I LNJ AD (2012)

60. But in the meantime, the Memorandum dated 31.10.2006 made a departure from the earlier practice and introduced a new criteria, such as, that transfer of 50% of the total work-charged employees to the regular establishment, can be done once only, j Accordingly, the meeting held on 19.02.2007 took objection that 50% of total 9,143 work-charged employees as on 23.01.1986 comes to 4,572 but instead, 6,654 work-charged employees had already been regularised, as such, the meeting opined that there is no scope for further regularisation.

61. As a matter of public law, it is expected that the concerned authority shall always act reasonably in the circumstances and not arbitrarily.

It must observe the rules of natural justice and act fairly in carrying out their decision making process. If a public authority promises to follow certain procedure and which is actually acted upon, for years together, it should follow the said procedure, unless of course, some legal impedement has been created against it. An expectation may be crystallized into a reality from the representations expressed on behalf of the concerned authority or from their consistent conduct and regular practice which is expected to continue unabated.

62. In considering the issue of legitimate expectation, the Court would consider whether the concerned authority has a rational basis to alter its position and discontinue a long standing practice. Besides, the Court must consider whether the authority in changing its policy acted fairly and not arbitrarily in the circumstances. Even inspite of an expectation which is legitimate but if the Court finds that overwhelming public interest is against allowing such an expectation, as in the case of Council of Civil Service Unions (1985 AC 374), it may disallow it. It appears that the concerned authorities were alive and responsive to the expectation of the work-charged employees, as such, since 1969; so many office-memorandums were issued from time to time to absorb them into regular establishment. This matter was finally

I LNJ AD (2012) Government of Bangladesh and others Vs. Md. Jahangir Alam and others (A.B.M. Khairul Haque, CJ.)

settled in the meeting held on 17.12.1987 (Annexure-I). Their expectation was crystalised into a legitimate one when since 1987, almost every year till 2002, the services of the workcharged employees were being transferred to regular establishment. In this manner, out of total 9,143 work-charged employees, 6,654 had already been regularised in the PWD. 63. Now, the authorities cannot abruptly without any rhyme or reason, change their consistent policy adopted since 1969 till the year 2002.

64. The expectation of the work-charged employees to be transferred to regular establishment had been recognized in the Memo dated 28.03.1969 (Annexure-B) and were confirmed in subsequent memorandums and lastly by the decision of the standing committee in its meeting held on 17.12.1987 (Annexure-I). Their such decision was also acted upon and almost every year till 2002, the services of the work-charged employees were regularized.

65. Under these circumstances, in the words of Lord Scarman (in re Findley 1985 AC 318, 338), "But what was their legitimate expectation?"

66. Their expectation is that the concerned authorities would follow their own policy decision contained in the memorandums since 1969 which was also acted upon for many years till 2002.

67. The next question is "Is there any public interest in refusing the transfer of workcharged employees who are working for the last 20 to 30 years. The clear answer is 'no', rather it is other way around. The public interest demands that after putting so many years of service, they should be transferred into regular establishment.

68. The next question is “ Is there any allegation against them ?” The learned Deputy Attorney General replied to our quiry that to his knowledge, there is no allegation against those employees.

They are working to the satisfaction of the concerned authorities.

67

69. The next question is "Is the concerned committee, in its report contained in memo dated 31.10.2006, acted reasonably in holding ÔkZKiv 50 fv‡Mi GB wnmve †KejgvÎ GKev‡ii Rb¨ cÖ‡hvR¨ n‡e|Õ The answer is clearly 'no' since there was no change of situation of either the Government or the concerned work-charged employees, vis-a-vis their regularisation in service. Besides, no reason was assigned for introducing such a new condition. It is rather unfair on the part of the said committee to introduce such a new condition in breach of a long standing and consistent practice to regularise the rest of the work-charged employees in phases.

This unfair conduct on the part of the committee tantamounts to misuse of power.

70. It is apparent that because of the various memorandums and specially due to the decision of the standing committee on 17.12.1987, an expectation for regularisation in the service arose in the minds of the work-charged employees, employed before 23.01.1986. Their expectation was crystalised into a legitimate one, giving rise to a right, because of the actual regularisation of 6,654 work-charged employees since 1987 till 2002 in phases, in almost every year.

71. Under the circumstances, [the concerned authorities can not now deviate from their consistent policy pursued since 1969, specially when there is no overwhelming reason to do otherwise. The introduction of a new condition, by the memo dated 31.10.2006 (Annexure-P to the Writ Petition No.4040 of 2007) under the circumstances, is not only unfair but it is arbitrary also. It cannot be allowed to stand.

72. The High Court Division arrived at a decision which is not only right in law but is just in fact.

In the result, all the appeals are dismissed but without any order as to costs.

Ed.

I LNJ (2012)

The State and others Vs. Ashraf Ali and others (M. Enayetur Rahim, J.)

HIGH COURT DIVISION (Criminal Appellate Jurisdiction) Mr. Mashuque Hosain Ahmed, J. And Mr. M. Enayetur Rahim, J. Judgment 12.11.2009.

}

The State VS } Ashraf Ali and others

} } } } } } } } } }

Ashraf Ali and others ....Appellants Vs. The State ....Respondents Md. Asad @ Kamal @ Ashraf @ Raja Ashraf ....Appellant Vs. The State ....Respondent Md. Ashraf Ali ...Appellant Vs. The State ....Respondent

Code of Criminal Procedure (V of 1898) Sections 164 & 364 Evidence Act (I of 1872) Section 24 After going through the cross-examination of PW.17 and PW.20, who are confessional statement recording Magistrate and I.O. respectively, a reasonable suspicion could give rise in the mind of a prudent man that condemned prisoner Ashraf Ali might have been tortured when he was under police remand for 3 days and after such remand several injuries were found on his body which made the confessional statement untrue and not voluntary and it is unsafe to base conviction only on such a confessional statement which is doubtful and questionable. Moreso, the recording Magistrate did not fill up the column Nos. 8, 9 and 10 of the form for which it is difficult to hold that the *Death Reference No. 96 of 2005 with Criminal Appeal No. 3243 of 2005 with Jail Appeal Nos. 768, 769 and 770 of 2005.

371

confessional statement made under sections 164, Cr.P.C. is a voluntary and same was recorded in compliance with the mandatory provision of law. ...(57, 59, 61 and 66) Code of Criminal Procedure (V of 1898) Sections 161 and 164 Evidence Act (I of 1872) Section 30 From the evidence of PWS. 4,7,8 and 12 it manifests that the witnesses made contradictory statements regarding the presence of witnesses in whose presence the alleged extrajudicial confession was made and they also contradict one another . The delay in making such statement under section 161, Cr.P.C. render their evidence shaky and the chace of embellishment cannot be ruled out. Learned judge acted illegality in relying on such extrajudicial confession of the condemned prisoner without having any independent corroborative evidence. Confession of an accused cannot be treated as substantive evidence against another co-accused but it can only be used to lend assurance to other evidence. There was absolutely no legal and trustworthy evidence against any of the non confessing accused persons and thus the conviction of the nonconfessing accused persons relying on such confessional statement of co-accused is illegal and cannot be sustainable in law. The abscondsion of accused Saiful Islam and Abdul Jalil cannot be treated as corroborative evidence of judicial and extra-judicial confess-ion of condemned prisoner Ashraf Ali in the absence of any other direct evidence. ... (70, 72, 75 & 77) Code of Criminal Procedure (V of 1898) Sections 339 B (1) In the notification Police Station case number had been mentioned as Nator Police Station but the present case is Naldanga Police Station Case No.3 dated 05.04.2003. Thus, this notification can not be said a proper and legal notification

372

The State and others Vs. Ashraf Ali and others (M. Enayetur Rahim, J.)

and subsequent proceeding is illegal and it vitiates the trial, so far the absconding accused persons are concerned. ...(78) Code of Criminal Procedure (V of 1898) Sections 342 The learned Tribunal is not justified in ignoring the statements of the said accused persons recorded under section 342 of the Code of Criminal Procedure and by such nonconsideration the merit of the case had been materially affected. …(79) Shibu Pada Acharjee – Vs- State, 56 DLR(HC), Page-285; State –Vs- Moslem, 55 DLR, Page-116; Salauddin –Vs- the State, 32 DLR, Page-227; State –Vs- Md. Abdus Samad Azad alias Samad and another case, 9 BLC; Lutfun Nahar Begum – Vs- State, 27 DLR(AD); Babor Ali Molla and others –Vs- State, 44 DLR(AD); Mofazzal Hossain Mollah and others –Vs- State, 45 DLR(AD); Ustar Ali –Vs- State, 3 BLC(AD); Mrs. Jobaida Rashid – Vs- the State,1997 B.L.D; Amir Hossain Hawlader –Vs- the State,1984 BLD(AD); Salauddin –VsState, 32 DLR(HC); Abul Hossain and others –VsThe State,13 BLD; Sarwan Singh Rattan Singh – Vs- State of Punjab, P.L.D 1957(SC)555; Mrs. Jobaida Rashid –Vs- State,17 B.L.D; Mst. Saida Begum –Vs- The State, P.L.D 1958(Lahore) ref.

Mr. F.R.M. Nazmul Hasan D.A.G. with Mr. Md. Moniruzzaman A.A.G, Mr. S.M. Asad Ullah Tarique, A.A.G. and Mrs. Nur Jahan Mukta. A.A.G ....For the state.

Mr. Reaz Uddin Khan ....For the Appellant (In Crl. Appeal No. 3243 of 2005) Mr. Hafizur Rahman Khan, State Defence Lawyer. ....For absconding convict Judgment M. Enayetur Rahim, J: This reference under section 374 of the Code of Criminal Procedure has been made by the learned Judge, Druta Bichar Tribunal, Rajshahi for confirmation of sentence of death imposed upon

I LNJ (2012)

accused Ashraf Ali son of late Abesh Ali, Ataur Rahman son of late Idris Ali @ Idi Fakir, Ashraf alias Raja son of late Ahad Ali, f¡mL ¢fa¡x- Rajab Ali, Saiful Islam alias Ripon, son of A. Jabber, A. Jalil alias Shimul, son of late Kapir Mondal on their conviction for the offence punishable under section 302/34 of the Penal Code passed on 05.07.2005 in Druta Bichar Tribunal Case No.16 of 2005 arising out of G.R. No. 170 of 2003 corresponding to Naldanga (Nator) Police Station Case No.03 dated 05.04.2003. Condemned-Prisoner Ashraf Ali, Ataur Rahman and Ashraf alias Raja have also preferred Criminal Appeal No.3243 of 2005 and Jail Appeal Nos.770 of 2005, 769 of 2005 and 768 of 2005 respectively. All the cases are taken together to dispose of by this common judgment.

2.

Prosecution case, in short, is that P.W. 1 Md. Abdul Malek Miah, Officer in Charge of Naldanga Police Station, Nator himself on 05.04.2003 lodged a First Information Report stating, inter alia, that on 05.04.2003 at 2.35 hours he received a wireless message that a dead body was laying beside the railway line at Madhnagar. Receiving the said information he made a G.D being No.136 dated 05.04.2003 and he along with his companion forces reached to the place of occurrence at about 3.50 hours and found the dead body of Majedur Rahman Mridha alias Maju beside the rail line, 500 yards away from Madhnagar rail station.

Matenur Rahman, younger brother of Majedur Rahman Mridha alias Maju, identified the dead body and found Majedur Rahman in slaughtered condition, caused by sharp cutting weapons. The informant in presence of witnesses A. Jabber, Lutfar Rahman, Soleman, Belal, Lutfar Rahman, A. Kuddus prepared the inquest report. From witnesses Moulana Mohammad Ali Dewan, Al-haj Azizur Rahman Mridha, A. Jabber Mridha, Akter Hossain, Akkas Ali and Matenur Rahman, the informant came to know that deceased Majedur Rahman along with Azizur Rahman Mridha, A. Jabber Mridha and Akter Hossain were returning back from ‘Islami Jalasha’ at about 1.00 A. M on 05.04.2003 and when they reached 30 yards away from the west side of the rail line, they saw that three unknown persons were sitting in a position

I LNJ (2012)

The State and others Vs. Ashraf Ali and others (M. Enayetur Rahim, J.)

as if they were making water and they asked them who they were and one of them suddenly dealt a blow on the head of Majedur Rahman by sharp cutting weapon and instantly he felt down on the paddy field on the southern side of the road and thereafter other persons, who were waiting besides the road, came forward and participated in slaughtering Majedur Rahman Mridha alias Maju with sharp cutting weapon. The miscreants pointed arms to Azizur Rahman and Akter Hossain and asked them to keep silent and eventually the said Azizur and Akter Hossain managed to escape from the place of occurrence. At that time, the accusedpersons went on raising slogans in the name of Purbabangla Communist Party and fled away.

Akter Hossain and Azizur Rahman informed the said fact to the village people and the villagers came forward to the place of occurrence. One Shahidul Islam Bachchu informed about the occurrence to the Officer-in-Charge of the Police Station.

3.

On the basis of the said First Information Report, Naldanga Police Station Case No.3 dated 05.04.2003 under section 302/34 corresponding to G.R.No.170 of 2003 was started.

4.

P.W 19 S I Abdul Hai started the initial investigation but ultimately P.W 20 Dina Bandhu Das had completed the same and submitted the charge sheet being No.64, dated 24.09.2003 under sections 120-B/302/34 of the Penal Code against 9(nine) persons. In the instant case although charge sheet was submitted against nine persons but 4 (four) accused persons of them have filed two separate Criminal Revision before this Court and obtained rule and order of stay and eventually the present convicts were put on trial before the learned Judge, Druta Bichar Tribunal, Rajshahi and the learned Judge of the Tribunal by his order dated 03.04.2005 framed charges against 5(five) persons including the condemned prisoners under section 302/34 of the Penal Code to which the accused persons, who were on dock pleaded not guilty and prayed for trial.

5.

At the time of the trial, the prosecution examined as many as twenty (20) witnesses out of twenty nine (29) charge sheeted witnesses to prove

373

it’s case. Defence cross-examined them but did not adduce any witness or evidence.

6.

From the trend of cross-examination the case of the defence in short, is that, they have been implicated in this case falsely. They were not in any way connected with the alleged murder and the alleged extra judicial and judicial confession of accused Ashraf Ali is not a true and voluntarily one, rather the same was obtained by torture.

7.

After closing of the evidence, the accused persons present in the dock were examined under section 342 of the Code of Criminal Procedure and they again claimed their innocence and made their respective statement.

8.

The learned Druta Bichar Tribunal after considering the evidence and materials on record by it’s judgment and order dated 05.07.2005 found accused (1) Ashraf Ali, (2) Ataur Rahman, (3) Ashraf alias Raja, (4) Saiful Islam alias Ripon and (5) A. Jalil alias Shimul guilty under section 302/34 of the Penal Code and sentencing them to death.

9.

It is to be mentioned here that convict-Saiful Islam and A. Jalil alias Simul were all along absconding during trial and they were defended by the state defence lawyer and still they are absconding and also in this Court they have been defended by the State defence lawyer.

10. Mr. F.R.M. Nazmul Hasan, learned Deputy Attorney General with Mr. Md. Moniruzzaman, A.A.G, Mr. S. M. Asad Ullah Tarique, A.A.G and Mrs. Noor Jahan Mukta A.A.G appeared in support of the reference. Learned Deputy Attorney General submits that the reference may be accepted as the prosecution successfully has proved it’s case beyond all reasonable doubt. The extra judicial and judicial confession of accusedAshraf Ali is rightly found true and voluntarily by the trial Court and P.W. 17 Md. Nazmul Haque, the Magistrate, who recorded the confessional statement of accused-Ashraf Ali under section 164 of the Code of Criminal Procedure, proved the statement as true and voluntary and there is no scope to disbelieve P.W 17. He further submits that judicial confessional statement, made by

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The State and others Vs. Ashraf Ali and others (M. Enayetur Rahim, J.)

Ashraf Ali, is corroborated by his extra judicial confession and P.Ws. 4, 7, 8, 12 and 16 in their deposition categorically stated about the substantiality of the extra judicial confession made

by Ashraf Ali. He further submits that the absconsion of accused-Saiful Islam and A. Jalil is an incrementing circumstance and corroborative evidence of confessional statement of accusedAshraf Ali. He also contends that minor discrepancies or variance in adducing the evidence will not make the prosecution case doubtful and discrepancy has to be distinguished from contradiction. In support of his said contention he cited the case of Shibu Pada Acharjee – Vs- State reported in 56 DLR(HC), Page-285.

11. He also refers the case of State –Vs- Moslem reported in 55 DLR, Page-116, where it has been held that conviction can be based on judicial confession if it is established that it is true and voluntary and is substantiated by other evidence, whether direct or circumstantial and materials on record.

12. Learned Deputy Attorney General also submits that non filling of some columns or partly filling of columns 8, 9 and 10 of the prescribed form does not render the confession in admissible and in support of his said submission he refers the case of Salauddin –Vs- the State reported in 32 DLR, Page-227and regarding extra judicial confession he also refers the case of State –VsMd. Abdus Samad Azad alias Samad and another case reported in 9 BLC, Page-39.

13. Mr. Reaz Uddin Khan appeared for the appellants in Criminal Appeal No.3243 of 2005.

Mr. Khan assailing the impugned judgment and order of conviction and sentence submits that in the instance case there is no eye witness though P.W 2, P.W 5 and P.W 9 were accompanying the deceased at the time of occurrence and they failed to identify the accused-persons. He submits that judicial and extra judicial confession of condemned-prisoner Ashraf Ali can not be said true and voluntarily and same is the act of torture by the police. In support of his said submission he refers the deposition of P.W 17, Md. Nazmul Haque, the Magistrate, who recorded the statement

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under section 164 of the Code of Criminal Procedure, and submits that from the crossexamination of said P.W 17, it would be evident that while accused-Ashraf Ali was on police remand he was seriously tortured and several marks of injury were found on his body. His further contention is that the conviction of condemned prisoner Ataur Rahman and Ashraf Ali can not be sustained as there are no corroborative evidence of alleged confessional statement of coaccused-Ashraf Ali and confession of an accused can not be treated as substantive price of evidence against another accused person and in support of his said contention he refers the case of Lutfun Nahar Begum –Vs- State reported in 27 DLR(AD), Page-53, the case of Babor Ali Molla and others –Vs- State, reported in 44 DLR(AD), Page-10, the case of Mofazzal Hossain Mollah and others –Vs- State, reported in 45 DLR(AD), Page175, the case of Ustar Ali –Vs- State, reported in 3 BLC(AD), Page-53.

14. Mr. Reza Uddin Khan, also submits that provision of sub-section (3) of section 164 of the Code of Criminal Procedure is mandatory one and non filling of some column by the Magistrate is clear violation of the said law and failure to comply with the provision of law makes the confession of no value and any defect of it is not curable under section 537 of the Code of Criminal Procedure. In this connection he also refers the case of Mrs. Jobaida Rashid –Vs- the State, reported in 1997 B.L.D, Page-352.

15. Mr. Hafizur Rahman Khan, the State defence lawyer adopted the argument made by the learned Advocate Mr. Reza Uddin Khan and further submits that the Druta Bichar Tribunal acted illegally in convicting the accused-Saiful Islam and A. Jalil relying upon the confessional statement of accused-Ashraf Ali and the learned Tribunal also erred in law in holding that the circumstance of absconsion is a corroborative evidence of confessional statement and in this connection he refers the case of Amir Hossain Hawlader –Vs- the State reported in 1984 BLD(AD), Page-193 where Appellate Division held that mere abscondence is not corroboration.

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He also refers the cases cited by learned Advocate Mr. Reza Uddin Khan.

Maju and he did not mention any name to the police.

16. Now let us scan the evidence on record to ascertain whether the learned Tribunal rightly awarded the conviction and sentence.

20. P.W 3 Most. Ferdosi Begum, wife of the deceased in her deposition narrated the First Information Report story and further stated that she heard the name of the accused persons from the villagers and she failed to disclose the name of the accused persons definitely. In cross she stated that P.W 2, Md. Akter Hossain and other witnesses who were accompanying her husband, disclosed the name of the accused persons and at the time of occurrence he was at Natore town and hearing the news she came to her home and saw the dead body in the morning.

17. P.W 1 Md. Abdul Malek Miah, the Officerin-Charge of Naldanga Police Station in his deposition reiterated the statement made in the First Information Report and he proved the same and identified his signature on it as exhibits-1, 1/1, 1/2, 1/3.

18. In his cross-examination he stated that he prepared the inquest report through S.I Abdul Hai. Wife and younger brother of the deceased did not lodge the First Information Report as their mental conditions were not found sound. He asked about the occurrence to the witnesses named in the First Information Report and prepared inquest report but the witnesses did not mention any name of suspected accused persons. In the First Information Report there was no name of any suspected accused-person.

19. P.W 2 Md. Akter Hossain Mridha in his deposition stated that on 04.04.2003 at 1 O’clock at night he along with deceased Majedur Rahman Maju, Mohammad Ali Dewan, Aziz Mridha, Jabber Mridha were returning home after ending of ‘Islami Jalsha’. Majedur Rahman was the chief guest of said ‘Jalsha’ and when they came 20-30 yards from the Mosque, they saw that two persons facing western side and two persons facing eastern side were sitting in a position as if they were making water. Then they asked them about their identity. In reply to that they said that they were in the “Shava” and Maju told them that he did not see them in “Shava” and thereafter he along with deceased Maju and others again started to walk and after sometimes he heard a sound like ‘W¡p' and when he looked back two persons came to him and asked him to remain silent, otherwise he would be killed but he managed to escape from the place of occurrence and went to the village and raised hue and cry and when the village people came forward, he asked them to go towards the rail line. He saw the slaughtered body of deceased

21. P.W-4 Md. Matinur Rahman alias Matu Mridha, the younger brother of the deceased, in his deposition stated that while he was in the house at the time of occurrence, one of his neighbour Fajila shouted ‘J h¡h¡ j¡S¤−L ®j−l ®gm−m¡' and hearing the same he came out from the house and he went to the place of occurrence and found the dead body of Majidur Rahman on the road. He could not realize who killed his brother. Sometimes after the aforesaid occurrence, again in night some persons were focusing light from the side of ‘Halatir Bill’ towards their village while the village people, after the occurrence of the previous occurrence on 05.04.2003, had arranged for petrol duty (¢hV f¡q¡l¡) for there security and the village people apprehended accused-Asharaf Ali with a torch light and took him at the college field and where Ashraf disclosed and admitted that he was a party to the killing of Maju and Ripon was with him, who dealt a rod blow on the head of Maju and Ataur Rahman had slaughtered Maju by sharp cutting weapon. Shimul was also with him.

Hasanuzzaman, Majibur Rahman Mridha, Momtaz and Wares had made a plan to kill the deceased Maju and for that purpose Ataur Rahman took Tk.1,00,000/- from Hasanuzzaman, Mozibur Rahman, Momtaz 4 (four) days before the occurrence and after 12 days of the said killing they also took Tk.1,00,000/- from Hasanuzzaman.

This witness identified accused-Ashraf Ali on the dock. In cross-examination he stated that on reaching at the place of occurrence he found the

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dead body of his brother and he heard about the incident from Azizur Rahman Mridha, Akter Hossain and Mawlana Mohammad Ali. He was not available around when Ashraf was apprehended. He got the news from reading the news paper and Daroga about the confessional statement of Ashraf and he also heard from Ashraf directly about the said killing. He said that he might have given the statement on 30.05.2003 to the police and he could not remember when Ashraf made confessional statement. Ashraf made confession at Madh Nagar College and at that time Azizur Rahman, Akter Hossain, and Mohammad Ali Dewan were not present there, but Sabed Ali and Madhu was there. After half an hour police came to the college filed. He denied the suggestion that accused-Ashraf did not make any extra judicial confession before them.

22. P.W 5 Mawlana Mohammad Ali Dewan in his deposition made statement in the line of the First Information Report and he further stated that sometimes after the killing, Ashraf Ali was apprehended from ‘Halatir Bill’ and Ashraf Ali voluntarily confessed about his participation in the killing and disclosed that Ataur Rahman, Shimul, Raja and Ripon were with him in committing the offence and he took Tk.2,00,000/- to commit the killing and they had a contract with Hasanuzzaman and he took advance money of Tk.1,00,000/-. This witness also stated that he did not hear the same directly from the mouth of accused.

23. In cross-examination he stated that they failed to identify the accused persons though he was with the deceased at the relevant time. He made statement before the police on 30.05.2003 and in his statement he did not disclose the name of accused-Ashraf and Ataur Rahman and he came to know that Ashraf was apprehended from ‘Halatir Bill’ from the news papers and village people.

24. P.W 6 Md. Afaz Uddin in his deposition stated that on the following day of the alleged occurrence he found the dead body of Maju in the place of occurrence. As a hearsay witness he also stated that when Ashraf was apprehended, he confessed that out of the Tk.2,00,000/- Ripon,

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Shimul, Raja and Ataur shared the same and committed the offence and Ashraf took money from Hasanuzzaman. Mazibur Rahman was the founder of Madh Nagar Degree College and subsequently he was ousted from the college for misappropriation of money. Subsequently Majedur Rahman established a girls school at Madh Nagar and Mozibur Rahman Mridha tried to resist to establish the same. Mazibur Rahman also established a Technical & Business Management College at Madh Nagar and deceased Majedur Rahman opposed it and ultimately affiliation of said college was cancelled. Regarding the election of Union Parishad there was enmity between deceased and Hasanuzzaman and because of that enmity said Hasanuzzaman made conspiracy and had killed Majedur Rahman by the accusedpersons. When Ashraf was apprehended then he made confession before the public and the Magistrate as well. He was not present while accused-Ashraf made his confession before the public.

25. In cross-examination he admitted that he made statement before the police voluntarily, but in his statement before the Court, he said what he had not said before the police.

26. P.W 7 Md. Azizul Haque (Madhu) in his deposition stated that on 06.06.2003 at night. He was on ‘¢hV ¢XE¢V’ and they saw the focus of a torch light from ‘Halatir Bill’ and they thought that the dacoits were preparing to commit dacoit in the village and they called the village people and forwarded to wards the light of torch. Suddenly, they saw that one person was trying to hide himself under the drain of paddy field. They apprehended him, who disclosed his name as Ashraf and he told them not to bit him and thereafter Ashraf was taken to Madh Nagar college field and there Ashraf confessed that he was involved with the killing of Maju Mridha. Ashraf also disclosed that Hasanuzzaman gave Tk.20,000/to Ataur and from that amount Ataur give him Tk.5,000/- and at the time of committing murder Raja, Ataur, Shimul and Ripon were along with him. Raja dealt a rod blow on the head of Maju and Ataur had slaughtered Moju.

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27. In cross-examination he stated that he could not remember whether he made the statement before the police prior or after the statement of accused Ashraf before the Magistrate. He along with 15/20 others apprehended Ashraf and thereafter Ashraf was taken to the college field.

Matinur Rahman was there but principle, Azizur Rahman, Abdul Jabber and Ferdosi Begum were not there. He told the said fact to Daroga but did not say anything to the villagers.

33. P.W 10 Md. Belal Hossain in his deposition identified the inquest report and his signature on it as exhibit-4/2. Defence declined to cross him.

28. P.W 8 Md. Sabed Ali in his deposition stated that he, Madhu and Siddique apprehended accused-Ashraf from ‘Halatir Bill’ and thereafter Ashraf was taken to Eidgoan field and thereafter college field and he disclosed before the members of public that they had killed Maju Mridha and Ataur Rahman had slaughtered him. Shimul was with them. Ashraf also told that Hasan and Mamtaz gave Tk.2,00,000/- to them. He received Tk.1,00,000/- prior to the occurrence and after 12 days of the occurrence he received Tk.10,000/-.

Thereafter Ashraf was handed over to police. This witness identified accused-Ashraf on dock and also identified the material exhibits-I, II that is the blood stain cloth, sandal and the seizer list and his signature thereon as exhibits-3, 3/1.

36. P.W 12 Md. Siddique in his deposition stated that he, Sabed, Modhu and others apprehended Ashraf from ‘Halatir Bill’ and they took Ashraf to college field where Ashraf confessed that he along with Ataur, Ripon, Raja and Shimul killed Maju the also disclosed that for this murder he took Taka 2,00,000/-from Hassan.

29. In cross-examination he stated that when the police prepared the seizer list he was asked by the police but he did not mention the name of any accused person. After the arrest of Ashraf he again made statement before the Daroga. When acusedAshraf made confession Azizur Rahman, Abdul Jabber Mridha, Mawlana Mohammad Ali Dewan and Principle Afzal Uddin and wife of the deceased were present there.

30. P.W 9 Md. Lutfar Rahman Mridha in his deposition reiterated the First Information Report story.

31. He identified the inquest report and his signature on it as exhibits-4, 4/1.

32. In cross-examination he stated that before the police he stated that Majedur Rahman and 5 persons were coming from ‘Jalsha’ towards the Mosque.

34. P.W 11 Sree Santosh Pramanik alias Sree Santosh Kumar is a hearsay witness and he also identified his signature on inquest report as exhibit-4/3.

35. In cross he denied the suggestion that Ashraf did not make any extra judicial confession.

37. In cross-examination he stated that he made statement before the police after 2 (two) months of arrest of accused-Ashraf. Daroga took Ashraf from collage field and at that time Akter, Azizur, Matinur, Mohammad Ali, Afaz Uddin, Solaiman, Belal Hossain, Sabed Ali, Madhu and Piyal were there.

38. P.W 13 Md. Habibur Rahman is the Police Constable, who took the dead body to morgue.

39. P.W 14 Md. Asadul Haque Dewan in his deposition stated that on the date of occurrence he being A.S.I was working in Naldanga Police Station and as per the instruction of officer in charge he along with S.I. Abdul High went to the plance of occurrence and found the dead body.

Defence did not cross-examine the said witness.

40. P.W 15 Md. Akkas Ali was one of the witness of inquest report. In his deposition he stated that after 2 (two) months of the alleged occurrence Ashraf was apprehended from ‘Halatir Bill’ and Ashraf confessed that he along with Ataur, Ripon, Raja, Shimul killed Maju Mridha.

He was examined by the police and he told the police that Ashraf had confessed that he took Tk.2,00,000/- from Muzibar Mridha, Hassan, Momtaz and Wares.

41. In cross-examination he failed to say the date when Ashraf was taken to the college field and at

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The State and others Vs. Ashraf Ali and others (M. Enayetur Rahim, J.)

that time Siddique and Matinur were there. He also could not say whether Azizur Rahman was there; Jabbar Mridha and Mawlana Mohammad Ali were not there. He made statement before the police after the arrest of Ashraf and he could not say whether he made any statement on 07.08.2003. He denied all the suggestion given by the defence.

42. P.W 16 Md. Yar Ali in his deposition, he reiterated the deposition made by P.W. 15 and in cross-examination he stated that he is a active member of B.N.P and deceased Maju was the president of B.N.P Union unit. He failed to say the date when Ashraf was apprehended and he made statement after 7/8 days of the arrest of Ashraf. He denied all the suggestions given by the defence.

43. P.W 17 Md. Nazmul Haque, Magistrate, 1st Class who recorded the confessional statement of accused-Ashraf, under section 164 of the Code of Criminal Procedure in his deposition stated that after observing all the formalities as per law and rule, he recorded the statement of accused-Ashraf under section 164 of the Code of Criminal Procedure. He gave him enough time for reflection and he told him that he was a Magistrate, not a police man and he would not hand him over to the police and thereafter the accused-Ashraf voluntarily made his statement under section 164 of the Code of Criminal Procedure. He identified the said recorded statement as exhibit-5 and his signatures thereon as exhibits-5/1, 5/2, 5/3, 5/4. He also stated that accused-Ashraf put his thump impression on it.

44. In his cross-examination he stated to the following effect: “fË−u¡S−e ®LE Ap¤Øq q−m a¡l ¢Q¢Lvp¡l

B−cn j¡e¢hL L¡l−e ¢c−u b¡¢Lz f¤¢mn ®fËga¡l L−l¢Rm Bp¡j£−L La a¡¢l−M Ascertain L¢l¢ez f¤¢m−nl Custody®a La pju ¢Rm hm−a f¡¢le¡z Cw 11/06/2003 a¡¢l−M 12|00 V¡u Bj¡l L¡−R Bp¡j£−L EÃpq¡fe L−lez B¢j 3|10 Hl fl Sh¡eh¢¾c ¢m¢fhÜ öl² L¢lz ®mM¡ LV¡l pju öl² L¢lz E−õM ®eCz Cw 8/6/2003 a¡¢l−Ml B−c−n 3 ¢c−el Remand j”¤l q−u¢Rmz Bp¡j£ Ap¤Øq ¢Rm Hl²f ¢LR¤ h¡ a¡−L ¢Q¢Lvp¡ ®cu¡

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fË−u¡Se Hl²f ¢LR¤ ®eCz I B−c−n a¡l nl£−l ®L¡e SMj ®f−u¢R E−õM ®eCz Cw 11/6/2003 a¡¢l−Ml B−cn Bj¡l ®mM¡z ac¿¹L¡l£ A¢gp¡l Bp¡j£−L ¢lj¡ä ®n−o ®L¡−VÑ q¡¢Sl L−l a¡l Sh¡eh¢¾c ®g±x L¡x ¢hx 164 d¡l¡ ®j¡a¡−hL ®lLXÑ Ll¡l B−hce L−l−Rez Bp¡j£l f¡ pq nl£−ll AeÉ¡eÉ Øq¡−e SM−jl ¢Qq² B−Rz Bp¡j£l ¢Q¢Lvp¡ fœ f¡Ju¡ ®Nmz Bp¡j£l ®c¡o ü£L¡−l¡š²£ ¢m¢fhÜ Ll¡ qmz a¡−L ®Sm q¡S−a ®fËle Ll¡ ®q¡Lz Bp¡j£ Bnl¡g SeNe La«ÑL dªa qJu¡l pju SMj q−u¢Rm j−jÑ S¡¢e−u−Rez a¡l ¢Q¢Lvp¡l hÉhØq¡ Ll¡l SeÉ L¡l¡N¡l La«Ñfr hÉhØq¡ NËqe Ll−hez” He further stated to the effect: “HC Sh¡eh¢¾c ®üµR¡ fË−e¡¢ca J p¢WL ¢Rm HC j−jÑ B¢j p¡¢VÑ¢g−LV ¢c−u¢R HC i¡o¡u E−õM ®eCz Bp¡j£ ®mM¡fs¡ S¡−e ¢Le¡ ¢S−‘p L¢l¢ez paÉ eu ®k, Bp¡j£−L j¡l−d¡l Ll¡l SeÉ pC −cu¡l ®L¡e rja¡ h¡ ®pSeÉ Af−ll ¢Vf ¢e−u¢Rz HC ¢Vf Bj¡l ¢fue pe¡š² L−l−Rz B¢j Bp¡j£l i¡o¡−a Sh¡eh¢¾c ¢m−M¢Rz------z Bf¢e ®c¡o ü£L¡l e¡ Ll−m f¤el¡u f¤¢m−nl L¡−R ®cu¡ q−h e¡ fË−nÀ E−õM ®eCz”

45. This witness denied the suggestion of the defence that he did not record the statement properly and applying judicial mind.

46. P.W 18 Doctor Abdul Kalam Azad, the Residential Medical Officer, held the post mortem and he found the following injuries: 1. Incised injury over frontal head 04"X01"X bony injury.

2. Incised injury over anterior aspect of right shoulder 04"X01"X Joint deep.

3. Incised injury over vertex 04"X01"X Scalp.

4. Incised injury over occipital region 03"X01"X Scalp.

5. Incised injury over vertex 02"X01"X Scalp.

6. One cut throat injury over anterior Lateral aspect of neck 05"X01"X

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injury of neck, vessels and respiratory tract.

7. Multiple small incised injuries over left face and anterior chest wall.

Opinion:- Death in my opinion was due to hemorrhage and shock as a result of cut throat injury(No-6) Which was ante mortem & homicidal in nature.

47. In cross-examination he stated that he did not mention in his report the age of injuries and time of death. He did not mention the nature of injuries and about the type of weapon as was used.

He denied the suggestion that if the deceased would be given treatment immediately he might not have been died. He denied the suggestion that he gave vague report.

48. P.W 19 S. I Abdul Hai, the 1st investigating officer in his deposition stated that he found the dead body 30 yards away from the western side of the rail way line and the relatives of the deceased identified the dead body. He prepared the inquest report and identified his own signature thereon as exhibit-4/5. He also seized alamats namely blood stain cloth, blood stain grass and sandal and identified the seizure list as exhibit-3/2. He took the photo graphs of the dead body and the place of occurrence which were marked as exhibit-8 and 9 respectively and he also identified the alamats namely blood stain cloth, grass, sandal, ‘chadar’, trouser and panjabi as material exhibits-I, II, III, IV, V and VI. He prepared sketch map and index which were marked as exhibits-10 and 11. He arrested 9 persons out of suspicion. He recorded the statement of some of the witnesses under section 161 of the Code of Criminal Procedure.

49. In cross-examination he stated that deceased Majedur Rahman was the cousin (M¡m¡a i¡C) of State Minister Dulu and Maju was the President of Union Unit of B.N.P and he did not know whether the witnesses belong to any political party. He did not seize any ‘leaflet’ of Purba Bangla Communist Party and he denied the suggestion that he, with malafide motive, refrained from seizing leaflets from the place of occurrence. He asked number of people but none mentioned the name of any

379

accused person and he also admitted that the name of the said persons was not mentioned in the case diary. He arrested two members of the Purba Bangla Communist Party namely Ohi and Jahi and ultimately final report was given in favour of them. He denied the various suggestions given by the defence. On recall he stated that in the photographs there was no signature and he denied the suggestion that with malafide motive he made the photograph as part of the C.D and he also denied the suggestion that he investigated the case under the influence of the Minister.

50. P.W 20 Din Bandhu Dash the 2nd I.O, who ultimately submitted the charge sheet in his deposition stated that the accused-Ashraf had confessed his guilt before him and thereafter he sent him before the Magistrate to record his statement. After investigation he submitted the charge sheet against 9 persons under section 120(kha)/302/34 of the Penal Code. In crossexamination he stated that on 20.09.2003 he was given charge to investigate the case and up to 11.06.2003 he took statement under section 161 of the Code of Criminal Procedure of 7(seven) witnesses. Afaz Uddin, Anisur Rahman, Akter Hossain did not mention any name of accused persons. Ashraf Ali was apprehended by the villagers on 06.06.2003 and he was handed over to him on 07.06.2003 at 15.10 hours and S.I. Zahangir Alam and A.S.I Md. Asadul Haque took Ashraf Ali to him. He also stated that he did not record any statement of any witness between the days 07.06.2003 and 11.06.2003 and he recorded the statement of the witness after the statement of Ashraf. He further stated to the following effect: “p¡r£

j¢ae¤−ll Sh¡eh¢¾c 30/5/2003 a¡¢l−M 161 L−l¢Rz ®p h−m¢e ®k, OVe¡l ¢LR¤¢ce fl q¡m¢al ¢h−m m¡CV j¡l¢Rmz NË¡−jl ®m¡L Baw¢La qu ®k, NË¡−j j−e qu X¡L¡a f−s−Rz h¡ NË¡jh¡p£ ¢hV f¡q¡l¡l ®m¡L−cl p¡−b L−l ®e−j Bnl¡g−L d−l L−mS j¡−W ¢e−u B−pz --------------------p¡r£ A¡¢SS¤m qL jd¤l Sh¡eh¢¾c 13/6/2003 a¡¢l−M ¢e−u¢Rz ®p Bj¡−L h−m¢e ®k, ¢hV f¡q¡l¡l hÉhØq¡ L¢lz a−h NË¡−j Duty Hl hÉhØq¡ L¢l h−m−Rz l¡−a f¡q¡l¡ Qm¢Rm h−m¢ez a−h l¡−a Duty ¢Rm

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h−m−Rz ®p h−m¢e ®k, “q¡m¢al ¢h−m V−QÑl B−m¡ NË¡j−l ¢c−L j¡l−Rz ----------z ®p h−m¢e ®k, qW¡v ®c¢M 1 Se ®m¡L ®XÊ−el j−dÉ m¤L¡−µRz aMe a¡−L d¢l h−m¢ez ---------z p¡r£ p−hc Bm£−L 13/6/2003 a¡¢l−M 161 L−l¢Rz ®p h−m¢e ®k, "q¡m¢al ¢h−m' VQÑ j¡l−a b¡−Lz -------z q¡m¢al ¢h−m Bnl¡g−L d¢l E−õM ®eCz -------z p¡r£ ¢p¢Ÿ−Ll Sh¡eh¾c£ Cw 20/7/2003 a¡¢l−M 161 L−l¢Rz Bp¡j£ Bnl¡−gl ü£L¡−l¡š²£l fË¡u 1 j¡p fl HC p¡r£l Sh¡eh¾c£ ®lLXÑ L¢lz ®p h−m¢e ®k, OVe¡l f−l l¡−a ¢hV ¢c¢µRm¡jz h¡ "¢hm' ®b−L m¡CV j¡l¢Rmz ---------z ®p h−m¢e jd¤, ®p, p−hc pq ¢e−u Bp¡j£ Bnl¡g−L d−lz ---------z ®p h−m¢e ®k, Bj¡−L ®jle¡ ü£L¡l Ll−h¡z ®p h−m¢e ®k, ®p Ba¡El, ¢lfe, ¢nj¤m, l¡S¡ V¡L¡l ¢h¢ej−u M¤e L−l¢Rz ----z Cw 8/7/2003 a¡¢l−M p¡r£ B‚¡R Bm£l Sh¡eh¢¾c 161 L¢lz ®p qaÉ¡L¡l£ pÇf−LÑ ¢LR¤ h−m¢ez p¡r£ Cu¡l Bm£ Bnl¡−gl ü£L¡−l¡š²£ J Bp¡j£l pl¡p¢l qaÉ¡L¡−äl Lb¡ h−m¢ez --------z A¢i−k¡Nf−œ Bp¡j£−L q¡m¢al ¢h−m dl¡ qu J SeN−el L¡−R ü£L¡l L−l E−õM ®eCz” 51. He denied the defence suggestion that accused Ashraf Ali was seriously tortured when he was taken to police remand and to save himself he disclosed that the villagers had bitten accused Ashraf. He also denied the suggestion that because of the influence of the Minister he compelled to submit the charge sheet against the accused persons.

52. After closing the evidence, the accused persons, who were present before the Tribunal were examined under section 342 of the Code of Criminal Procedure and accused Ashraf Ali in his statement under section 342 stated to the effect: ----------------------------------| fËnÀx Bfe¡l Bl ¢LR¤ hm¡l B−R ¢L? “Ešlx- qyÉ¡z X¡L¡¢a q¢µRmz HLSe ®jðl Bj¡−L h−m ®a¡j¡l ¢hV ¢XE¢V Ll−a q−hzz a¡l fl A¡j¡−L ¢hV ®b−L ®X−L NË¡−jl ®m¡LSe j¡−lz A¡j¡−L L−mS j¡−W d−l ¢e−u B−pz HV¡ j¡S¤ jªd¡ j¡l¡ k¡Ju¡l fË¡u 3 j¡p flz Bj¡−L j¡−W H−e j¡l−d¡l L−l h¡−nl p¡−b T¥m¡Cz B¢j A‘¡e AhØq¡u Lb¡ h−m¢Rz Hl fl N¡¢s−a ¢e−u k¡u f¤¢mn H−pz Hl fl

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b¡e¡u ¢e−u k¡uz ------- Bj¡−L c¤¢ce fl ®L¡−VÑ ¢e−u k¡u J 3 ¢c−el ¢lj¡−ä ¢e−u B−pz jÉ¡¢S−øÊV−L h¢m ¢hV ®b−L d−l L−mS j¡−W j¡−l J ¢lj¡−ä ¢e−u j¡−lz e¡−V¡l -----H−e j¡−lz jÉ¡¢S−øÊVÊ −L h¢m AaÉ¡Q¡l L−lz B¢j jÉ¡¢S−øÊ−Vl L¡−R ¢L h−m¢R e¡ h−m¢R hm−a f¡l−h¡ e¡z” 53. Accused-Ataur at the time of the examination under section 342 also stated to the effect: ------------------------------------z fËnÀx Bfe¡l Bl ¢LR¤ hm¡l B−R ¢L? “Ešlx- qyÉ¡z ®qm¡m c¡l¢S−al p¡−b A¡j¡l f¡¢lh¡¢lL ®N¡mj¡m B−Rz a¡l¡ B.N.P Hl ®ea¡−cl m¡N¡uz B¢j j¡X¡Ñl pÇf−LÑ ¢LR¤ S¡¢e e¡z ®qm¡m Bj¡−L h−m¢Rm ®a¡−L ®c−M ¢ehz a¡l fl HC j¡jm¡u Bj¡l ¢hl²−Ü Q¡SÑn£V ®cuz ®qm¡m h−m ®S−ml i¡a M¡zÓ

54. We have heard the learned Advocates of the respective parties, perused the impugned judgment and scrutinized the evidence and other materials on record.

55. In the instance case, there is no eye witness of the alleged murder although P.W 2, P.W 5 and P.W 9 were accompanying the deceased Majidur alias Maju. They could not identify the accused persons neither at the time of the occurrence nor after the occurrence. The learned Druta Bichar Tribunal in fact awarded the conviction relying upon the Judicial and extra Judicial confession of condemned prisoner Ashraf Ali and the learned Tribunal found that the confessional statement of accused-Ashraf Ali made before the Magistrate was true and voluntarily, as the same was recorded by the P.W 17 Md. Nazmul Haque, Magistrate 1st Class with due compliance of law.

56. Now let us consider whether the statement under section 164 of the Code of Criminal Procedure made by condemned prisoner Ashraf Ali is true and voluntary one.

57. From the cross-examination of P.W 17, the Magistrate, who recorded the statements under

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The State and others Vs. Ashraf Ali and others (M. Enayetur Rahim, J.)

section 164 of the Code of Criminal Procedure, of condemned prisoner Ashraf Ali, it is manifested that when Ashraf Ali was produced on 11.06.2003 before him by the police after remand, several marks of injury were found on his body, although he stated that said injuries were caused on his person when he was apprehended by the villagers.

This explanation of P.W 17 is not acceptable to us.

When accused-Ashraf was first produced before him on 08.06.2003 in the order sheet he did not mention anything about such injury/ injuries and P.Ws 4, 7, 8, 12 and 16, who stated about the extra judicial confession made by the accused-Ashraf Ali, neither in their deposition nor in crossexamination they stated like that when accusedAshraf Ali was apprehended by the villagers the unruly villagers assaulted accused-Ashraf Ali, but they deposed clearly and consistently that Ashraf Ali was taken by the police from college filed.

58. P.W 20, the investigating officer in his crossexamination admitted that accused-Ashraf Ali was placed before him on 07.06.2003 at 15.10 by S.I. Zahangir Alam and A.S.I Asadul Haque. Said police officers were not produced before the Court and examined by the prosecution as P.Ws, which also creates doubt about the manner of very arrest of the condemned prisoner Ashraf Ali. If we carefully scrutinize the cross-examination of the P.W 17 and P.W 20, a reasonable suspicion would give rise in the mind of a prudent man that accused-Ashraf Ali might have been tortured, when he was under police remand. The confessional statement was allegedly made after 3 days of police remand and after remand when accused-Ashraf Ali was produced before the Magistrate, several marks of injury were found on his body and in such attending facts and circumstances of the case, the truth and voluntariness of the confessional statement, exhibit-5 becomes highly questionable and doubtful and it would not be safe and legal to convict a person relying upon only a such doubtful and questionable confessional statement and

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sentence him to death by awarding capital punishment.

59. Moreover, it appears from exhibit-5, the confessional statement, that the recording Magistrate did not fill up the column Nos. 8, 9 and 10 of the form. Column No.8 of the form reads as follows: “8. Brief statement of Magistrate’s reason for believing that the statement was voluntarily, made.

[Note.- Any complaints of ill-treatment of injuries noticed on the accused or referred to by the accused should appear under paragraphs 6 and 7 but should be specifically noticed here and the action taken by the Magistrate thereon should be mentioned. When the confession is recorded otherwise than in the Court building and during Court hours the Magistrate’s reasons are likewise to be recorded here.]”

And column 10 of the form reads as follows: “10. The accused is forwarded to ………………..at.”

60. Regarding the non filling of the said columns of the form, the learned Deputy Attorney General referred the case of Salauddin –Vs- State, reported in 32 DLR(HC) Page-227 and submits that it is a mere irregularity and failure to comply with requirement of column 8, 9 and 10 of the form at best it will mean violation or non-compliance of same circulars and same is curable under section 357 of the Code of Criminal Procedure. On the other hand the learned Advocate of the defence submits that the mandatory provision of law as contemplated in section 164(3) of the Code of Criminal Procedure has been violated in not filling the said columns under the requirement of law and in support of his confession he referred to the case of Abul Hossain and others –Vs- The State,

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reported in 13 BLD, Page- 311wherein it has been held that:

""Bf¢e ®c¡o ü£L¡l e¡ Ll−m f¤el¡u f¤¢m−nl L¡−R ®cu¡ q−he¡ fË−nÀ E−õM ®eCz''

“This sub-section speaks of the manner as to how a confession of an accused is to be recorded by a Magistrate and this is a mandatory provision and failure to comply with it shall make the confession invalid and unreliable. This provision of law along with provisions of section 364 of the Code of Criminal Procedure requires to be strictly observed and followed to make the confession voluntary and true in the real sense to be fit for reliance for convicting an accused on his confession.”

62. In such facts and circumstances is very difficult for us to hold that statement under section 164 of the Code of Criminal Procedure is voluntary one and same was recorded complying the mandatory provision of law.

61. Column 8 of the form bears important significant. A Magistrate after recording statement under section 164 of the Code of Criminal Procedure should have given a certificate that it appears to him that the confession made by the accused is true and voluntary and in a case where mark of several injuries were found on the body of the accused person, he should have satisfied himself that the statement was true and voluntary and it was not the result/ act of any torture and he ought to have given a certificate in his own hand in column 8 of the form as to the truth and voluntariness of such statements and in not giving such certificate, in this particular case, also creates a doubt that the learned Magistrate might have recorded the confessional statement in a casual manner and mechanical way without making necessary endeavour to ascertain the truth and voluntariness of the statement. Column 10 is found blank, which is not desirable and it shows the non application of mind of the recording Magistrate.

Omission to fill up column 10 of the Form creates a presumption that accused was under the threat of being sent back to the police remand instead of sending him in jail hajat. P.W 17, the recording Magistrate in his cross-examination admitted to the effect:

63. In this connection we may refer the case of Sarwan Singh Rattan Singh –Vs- State of Punjab, reported in P.L.D 1957(SC)555, where it has been observed as follows: “The act of recording confession under Section 164 Criminal P.C. is a very solemn act and, in discharging his duties under Section 164, the Magistrate must take care to see that the requirements of sub-section (3) of Section 164 are fully satisfied. It would, of course, be necessary in every case to put the questions prescribed by the High Court circulars but the questions intended to be put under Sub-section(3) of Section 164 should not be allowed to become a matter of mere mechanical inquiry. No element of casualness should be allowed to creep in and the Magistrate should be fully satisfied that the confessional statement which the accused wants to make is in fact and in substance voluntary. The whole object of putting questions to an accused person who offers to confess is to obtain an assurance of the fact that the confession is not caused by any inducement, threat or promise having reference to the charge against the accused person as mentioned in section 24 Evidence Act.” 64. In case of Mrs. Jobaida Rashid –Vs- State, reported in 17 B.L.D, Page-352 their Lordships held:

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383

“Columns 3, 4 and 8 of the prescribed form for recording confessions have not been filled up by the Magistrate.

Therefore this piece of paper (confessional statement of the petitioner) is highly doubtful having no credibility and as such unworthy of consideration by any Court.”

“Bjl¡ k¡l¡ ¢h−V ¢Rm¡j a¡−cl e¡j hm−a f¡¢lz Bp¡j£−L L−mS j¡−W ¢e−u B¢pz aMe fË¢¾pf¡m, B¢SS¤l lqj¡e jªd¡ ¢Rme¡z Bx Sî¡l, ®gl−c±p£ ®hNj ¢Rme¡z j¡−ae¤l lqj¡e ¢R−mez jJm¡e¡ ®j¡q¡Çjc Bm£ ¢R−me ¢Le¡ S¡¢e e¡z -------z Bj¡−L c¡−l¡N¡ ¢S−‘p Ll−m a¡−L h−m¢Rz Hl f§−hÑ Bp¡j£ ü£L¡l L−l−R B¢j L¡E−L h¢m¢ez B¢j NË¡−jl ®m¡L−L h¢m¢ez''

65. In the case of Mst. Saida Begum –Vs- The State, reported in P.L.D 1958(Lahore) Page,559, wherein it has been observed as follows:

And P.W 8 Md. Sabed Ali, in his crossexamination stated to the effect:

“Beside putting the set questions the Magistrate is required to make a real endeavor to find out the voluntary nature of confession, it is a solemn duty which should be performed with great care and caution, and not mechanically.”

66. Having discussed as above and considered the above reported cases together with the crossexamination of P.W.17, the recording Magistrate and P.W 20, the investigating officer and the statement of accused-Ashraf Ali before the Court at the time of examination under section 342 of the Code of Criminal Procedure, we are of the view that the exhibit-5, the confessional statement is not true and voluntary one and the Magistrate recorded it mechanically and failed to perform his solemn duty.

67. Now let us consider how far the extrajudicial confession of condemned prisoner Ashraf would be taken to consideration as evidence in the facts and circumstances of the present case.

68. P.W 4 Md. Matinur Rahman, in his crossexamination stated to the effect: “a−h OVe¡l ®cs j¡p 2 j¡p f¡l q−a f¡−lz

j¡deNl ¢XNË£ L−m−S ®p ü£L¡l L−l¢Rmz aMe B¢SS¤l lqj¡e, BLa¡l ®q¡−pe, ®j¡q¡Çjc Bm£ ®cJu¡e ¢Rme¡z” And P.W 7 Md. Azizul Haque alias Madhu in his cross-examination stated to the effect:

“j¡−W Bp¡j£ Bnl¡g−L dl¡l fl Bj¡−cl L¡−R ü£L¡l L−lz Bp¡j£ dl¡ fl¡l fl c¡−l¡N¡ flha£Ñ−a Sh¡eh¢¾c ®euz aMe Bp¡j£ Bnl¡g ü£L¡l L−l aMe B¢SS¤l lqj¡e Bx Sî¡l jªd¡ ¢Rmz a¡l¡ OVe¡ ö−e−Rz aMe jª−al Øœ£ ¢Rmz jJm¡e¡ ®j¡q¡Çjc Bm£ ®cJu¡e ¢Rmz ¢fË¢¾pf¡m Bg¡S E¢Ÿe ¢Rmz a¡l¡J ®n¡−e B¢jJ ö¢ez”

69. P.W 12 Md. Siddique in his crossexamination stated to the effect:

""c¡−l¡N¡ H−p L−mS j¡W ®b−L Bnl¡g−L ¢c−u k¡uz aMe Bš²¡l, B¢SS¤l, j¡¢ae¤l, jq¡jÈc Bm£, Bg¡S E¢Ÿe, ®p¡m¡uj¡e, ®hm¡m ®q¡−pe ¢Rmz p−hc Bm£ ¢Rmz jd¤ ¢Rmz'' 70. From the said evidence, it manifests that the witnesses made contradictory statements regarding the presence of witnesses, in whose presence the alleged extrajudicial confession was made.

71. Further P.W 12 Md. Siddique admitted in his cross-examination that he was examined by the police after 2 months of the arrest of accusedAshraf Ali. P.W 20, the Investigating Office in his cross-examination admitted to the effect:

""B¢j 7/6/2003 a¡¢lM ®b−L 11/6/2003 a¡¢lM pj−ul j−dÉ k¡l¡ Bp¡j£ Bnl¡g−L d−l¢Rm J Bnl¡g a¡−cl p¡j−e ü£L¡l L−l¢Rm a¡−cl 161 I pj−ul j−dÉ L¢l¢ez 11/06/2003 a¡¢lM Bp¡j£ Bnl¡g Bm£l jÉ¡¢S−øÊ−Vl L¡−R Sh¡eh¢¾c ®cu¡l fl p¡r£−cl 161 L−l¢Rz''

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The State and others Vs. Ashraf Ali and others (M. Enayetur Rahim, J.)

72. This delay in recording the statement under section 161 of the Code of Criminal Procedure of witnesses particularly P.W 4, 7, 8 and 12, who stated about the extrajudicial confessional of Accused-Ashraf Ali, renders their evidence shaky and chance of embellishment can not be ruled out.

It also appears to us that P.W 4, 7, 8, 12 and 16 narrated the extra judicial confession of the Ashraf Ali in different way and the said witnesses contradict each other. In view of the above discussion, we are of the opinion that the learned Judge of Druta Bichar Tribnal acted illegally relying upon the alleged extra judicial confession of accused- Ashraf Ali which was not corroborated by any other legal evidence.

73. We have already found exhibit-5, the confessional statement of accused-Ashraf Ali is not true and voluntarily and not free from doubt and thus the questionable extrajudicial confession of Ashraf Ali can not be said a corroborative evidence of the same and as such the conviction of accused-Ashraf Ali relying upon those is unwarranted in law.

74. As we have already discarded the judicial and extrajudicial confession of accused-Ashraf Ali as legal evidence, the conviction of other accused namely Ataur Rahman, Ashraf alias Raja Saiful Islam alias Ripon and A. Jail alias Simul relying on the same can not be sustained. Further it is well settle principle of law that confession of an accused can not be treated as substantive evidence against another accused but that it can only be used to lend assurance to other evidence. In this connection we can rely upon the case of Lutfun Nahar Begum –Vs- The State, reported in 27 DLR(AD), Page 29, Babor Ali Molla and other – Vs- State, reported in 44 DLR(AD), Page 10 and the case of Ustar Ali -Vs-State, reported in 3 BLC(AD), Page 53 respectively.

75. In the instant case we found that there was absolutely no legal and trust worthy evidence against any of the non-confessing accused persons

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and total absence of such legal and trust worthy evidence against them, the confession of their coaccused persons could not be collect in aid to lend assurance to non-existent evidence on which conviction could be passed and thus, the conviction of accused-Ataur Rahman, Ashraf @ Raja, Saiful Islam @ Ripon and A Jalil @ Simul relying upon the confessional statements of coaccused Ashraf Ali is illegal and same can not be sustainable in law.

76. In the case of Amir Hossain Hawlader –VsThe State, reported in 1984 BLD(AD), Page 193, it has been observed as follows: “In the case of Gul Hassan and another V. The State, PLD 1969 SC 89, the absconsion of an accused was considered to be a corroborating evidence against him, but in that case there was no confessional statement of any co-accused in support of which absconsion of another accused was held to be a corroborating evidence. In that case, one Karim Khan was shot dead by one of the accused within the sight of three witnesses who gave direct evidence that one of the accused had fired a double barrel gun and another accused a pistol after which they absconded. In that case the absconsion was considered to be corroboration to the direct evidence of the eye-witnesses connecting the accused with the murder. Reference to this case has no bearing with the question raised in the instant case. In the case of Md. Bashir V.l The State, Supreme Court Monthly Report (1970) Voll. III, 351, the assailant shot the victim with a pistol, pursued him when the latter ran and again fired two shots and then absconded; he was arrested from a distant place and his absconsion was held to be corroboration of the direct evidence of four witnesses who claimed to have seen him firing upon the deceased

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The State and others Vs. Ashraf Ali and others (M. Enayetur Rahim, J.)

victim. In the case of Md. Rafiq V. The State, PLD (1974) SC 65 the assailant killed his victim by firing a pistol thrice, absconded and was arrested after a year from a distant place; his absconsion was consid-ered to be a corroboration to the direct evidence of three witnesses who claimed to have seen him firing the pistol shots. I fail to understand why these cases have been cited by the learned Deputy Attorney General seeking corroboration in this case of the confessional statement of Sattar Mir so as to implicate thereby these appellants who absconded but against whom there is no evidence except the co-accused Sattar’s confession. No decision could be cited by the learned Deputy Attorney General showing that the absconsion of an accused has been held to be corroboration to the confessional statement of another accused so as to base thereon conviction of the absconding accused.�

77. In view of the said observation of our Appellate Division we are of the opinion that in the attending facts and circumstance of the instant case the absconsion of accused-Saiful Islam and Abdul Jalil can not be treated as corroborative evidence of judicial and extrajudicial confession of accused-Ashraf Ali, in absence of any other direct evidence.

78. The learned State defence lawyer submits that notification as per provision of section 339B(1) of Code of Criminal Procedure published in Daily Ajker Kagoj News Paper is defective one as the police station case number had wrongly mentioned in the notification. We have perused the notification published in the newspaper and found that in the notification Police Station case number had been mentioned as Nator Police Station but the present case is Naldanga Police Station Case No.3 dated 05.04.2003. Thus, this notification can not be said a proper and legal notification and subsequent proceeding is illegal and it vitiates the

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trial, so far the absconding accused persons are concerned.

79. In the instant case convict Ashraf Ali and Ataur Rahman at the time of examination under section 342 of the Code of Criminal Procedure made statement in support of their innocence and also as to their respective confessional statement, but the learned Druta Bichar Tribunal did not at all take notice of those and did not consider the same with reference to the evidence on record. The learned Tribunal is not justified in ignoring the statements of the said accused persons recorded under section 342 of the Code of Criminal Procedure and by such non-consideration the merit of the case had been materially affected.

80. In view of our above discussion we hold without any hesitation that the learned Druta Bichar Tribunal erred in law in passing the impugned judgment and order of conviction and sentence and we are inclined to interfere which the same.

81. Accordingly, the Death Reference No.96 of 2005 is hereby rejected. Criminal Appeal No.3243 of 2005 and Jail Appeal No.768 of 2005, 769 of 2005 and 770 of 2005 are allowed. The impugned judgment and order dated 05.07.2005 passed by the learned Judge, Druta Bichar Tribunal; Rajshahi in Druta Bichar Tribunal Case No.16 of 2005 is hereby set aside. All the convicts are acquitted from the charge brought against them and the condemned prisoners are set at liberty at once, if not wanted in connection with any other case.

82. The learned State defence lawyer submits that the conviction warrant issued by the Trial Court against the absconding accused-Saiful Islam alias Ripon son of A. Jabber, and A. Jalil alias Shimul son of late Kapir Mondal, may be withdrawn. On submission of the learned State defence lawyer, the trial Court is directed to re-call the conviction warrant issued earlier against the above named absconding accused-Saiful Islam alias Ripon and Abdul Jalil alias Shimul.

Send down the lower Court record at once.

Ed.

362

Helena Bewa and others Vs. Md. Mohshin Ali and others (Sharif Uddin Chaklader, J.)

HIGH COURT DIVISION (Civil Revisional Jurisdiction) Mr. Sharif Uddin Chaklader, J. Judgment 21.3.2011.

} Helena Bewa and others. .…. Petitioners. } VS } Md. Mohshin Ali and others } … Opposite-parties.

Code of Civil Procedure (V of 1908) Order VII, rule 11 Limitation Act (IX of 1908) Article 120 The exchange deed was registered on 19.09.1976 when the cause of action was shown on 19.08.1976. It can safely be said that the cause of action as shown by the plaintiff is not correct , rather , it is false and also that S. A. khatian has been finally published in 1970 and hence the cause of action having not been proved the suit is barred by limitation. … (17) Code of Civil Procedure (V of 1908) Order I, rule 10 Whether the Deputy Commissioner had authority or jurisdiction to execute and register the exchange deed in between the parties , before registering the same whether he has consulted S. A. and R.S. Khatian , whether the power of attorney was genuine or not are to be resolved in the suit for which the Deputy Commissioner is a necessary party to the suit. …(16) Transfer of property Act (IV of 1882) Section 118 As the defendant got decree against Monimohan and such decree is still in existence. Neither plaintiff nor his predecessor challenged the said decree. Plaintiff has no right, title and interest in the suit property by exchange deed even if it is found that the exchange is genuine, the plaintiffs have no ownership of the suit property because of such decree has extinguishhed the plaintiffs’ title. ...(19) *Civil Revision No. 3222 of 2007.

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Abdul Rashid vs. State , 27 DLR(AD)1; Abdul Quddus vs. State, 43 DLR (AD) 234; State vs.

Khadem Mondal, 10 BLD (AD)228; Hajee Khabiruddin Ahmed vs. Md. Salam Kabir, 34 DLR (AD)-271; Sajeda Khatoon vs. Mostafa Khatoon and others, 28 DLR-221; Ibrahim vs. Surendra Kumar Dhar, 9 DLR-16; Atikullah and others vs.

Zafala Begum and others, 54 DLR (AD)74; Md. Abdus Sattar and others vs. Lalon Mazar Sharif and Seba Sadar, 24 BLD(AD)125; Dr. Razia Khatun vs Bhanu Guha and others 1986 BLD(AD) 135; Abdus Sobhan vs. Anwar Rahim and others, 53 DLR(AD)110 ref.

Mr. A.K.M. Nazrul Islam, Advocate ....For the petitioners.

Mr. M. Yousuf Ali, Advocate ....For the opposite party Nos. 1-6.

Judgment Sharif Uddin Chaklader, J. This rule by the defendants directed against judgment and decree dated 14.5.2007 passed by the learned Joint District Judge, 1st Court, Natore allowing Title Appeal No. 152 of 1996 thereby decreeing Other Class Suit No. 21 of 1994 on reversing those dated 23.10.1996 passed by the learned Senior Assistant Judge, Singra, Natore.

2.

Plaintiffs instituted the aforesaid suit against the defendant-petitioners for declaration of plaintiff’s 16 annas title over the suit property.

3.

It is the case of the plaintiffs that the suit land originally belonged to Hayetullah Sarker and Mojo Fakir, they sold the suit land to Md. Abdul Jabbar and Md. Abdur Rashid by deed on 19th Joishtha, 1315 B.S, who sold the suit land to Razzak Munshi, father of the defendant Nos.1 and 2. Subsequently Razzak Munshi transferred the suit land to Sree Mohini Mohan Lahiri who possessed the same but C.S. record was prepared wrongly in the name of Abdul Jabbar Munshi, Abdur Rashid Munshi, Moyen uddin Munshi, Mojibor Rahman Munshi inspite of that, Mohini Mohon possessed the suit land. Mohini Mohan died leaving 3 sons in Monomohan Lahiri,

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Helena Bewa and others Vs. Md. Mohshin Ali and others (Sharif Uddin Chaklader, J.)

Monindra Mohan Lahiri and Upendra Mohan Lahiri and S.A. record was prepared in their names. During the continuation of their possession, they proposed to the plaintiffs to make exchange the land with the land of the plaintiffs which is situated in India and they exchanged the land between them and on 11.9.1976 the Deputy Commissioner, Rajshahi gave registered title exchange kabala to the plaintiff vide kabala No. 31835 through Exchange Case No. 7 (Nato)75-76 but S.A. record was prepared in favour of the previous owner of the suit land and it was, further case of the plaintiffs that they borne in mind the mistake may be corrected during S.A. operation but S.A. record also prepared wrongly and collusively in the names of the defendants, hence the suit.

4.

The petitioners, who are defendants Nos.1, 3 and 8 make out their case in written statement, that disputed holding of C.S. khatian No.30/31 was recorded in the name of Hayetullah and Mojo Fakir under the superior landlord who sold the suit land by separate kabalas to Abdul Jabbar Munshi, Abdur Rashid Munshi, Moyenuddin and Mojibur Rahman. Rojek Masud father of the aforesaid 4 brothers was the owner of 16 annas share of C.S. khatian No. 20. Rojek Mahmud with his 4 sons started permanently residing at village Kaichar, Bogra and possessed and enjoyed the suit property giving borga to the local people. Local people hatched conspiration to take the suit land as lease from the landlords, so Rojek Mahmud and his two sons, Abdul Jabbar and Abdur Rashid Munshi create benami kabala infavour of Mohini Mohan Lahiri only to protect the suit land. Mohini Mohan and his heirs as per said kabala did not claim the suit land at no point of time. C.S. record was prepared within the knowledge and co-operation of Mohini Mohan. After the death of Rojek Mahmud, total property devolved upon his 4 sons i.e. Abdul Jabbar, Abdur Rashid, Moyenuddin and Mojibor and they possessed the suit land as ejmali which caused some difficulties, so one of the son,

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Mojibur filed Partition Suit No.127 of 1959. The suit was finally decreed and each heirs of Rojek Mahmud took possession through Court. During possession and enjoyment of the suit, one of the son, Abdul Jabbar died leaving heirs who sold their share, 1 anna to Ashraf Ali and delivered possession. C.S. khatian No.30/31 was prepared in the name of 4 sons of Rojek Mahmud and they possessed the same by paying rent to the government and during their possession they sold their shares to others. In R.S. survey the suit property was recorded in the name of Mojibor Rahman, Dr. Moyenuddin and in the name of the heirs of Abdul Jabbar and purchaser, Haji Ashraf and Abdur Rashid in R.S. Khatian No. 68/79/70 /81/94/97. Tenant of C.S.No.30/31 khatian, Mojibor Rahman and Dr. Moyenuddin gifted 1.32 acres of land to Sukan Gari Madrasha by registered kabala dated 5.6.1958. S.A. khatian was prepared in the name of 4 sons of Rajek Masud but some portion of the suit land was incorporated in S.A. khatian No.34 in the name of sons of Mohini Mohan Lahiri which was wrong. One son Moni Mohan filed suit by using one Asmat Ali Fakir against the defendant under section 145 of the Code of Criminal Procedure but in vain. The suit property was sold by the heirs of Rojek Mahmud to several persons. The exchange deed and registered kabala created by the plaintiff is false and fabricated as such the suit is liable to be dismissed.

5.

Learned Assistant Judge, Singra, Natore framed 8 issues, issue No.1, whether the plaintiff has cause of action and locustandi for filing the suit, issue No.2, whether the suit is barred by limitation, issue No.3, whether the suit is bad for defect of parties, issue No.4, whether all the properties have been brought into hotchpotch and whether the suit is in proper form, issue No.5, whether the suit is barred by estoppels, waiver and acquisition and whether the plaint is vague, issue No.6, whether the plaintiffs have title and possession over the suit land, issue No.7 whether

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Helena Bewa and others Vs. Md. Mohshin Ali and others (Sharif Uddin Chaklader, J.)

the suit has been filed properly and court fees have been properly paid and issue No.8, whether the plaintiffs are entitled to any other relief or reliefs.

6.

Learned Assistant Judge dismissed the suit and in dismissing the suit learned judge found that plaintiffs have no locusstandi to file the suit and the suit is bad for defect of parties as Dr. Moyenuddin was not made a party, the suit is barred by res-judicata and the plaintiffs failed to prove his possession over the suit property.

7.

Title Appeal No.152 of 1996 was taken by the plaintiffs. The appeal was heard by the learned Joint District Judge who by the impugned judgment allowed the appeal and on setting aside the decree of the trial court decreed the suit finding that exchange was made correctly, the suit is not bad for defect of parties and plaintiffs have able to prove their possession over the suit property.

8.

Mr. A.K.M. Nazrul Islam, learned Advocate appearing for the defendant-petitioners, submits that, Court of appeal below was wrong in not holding the suit is bad for defect of parties as Deputy Commissioner was necessary party and in absence of whom, factum of exchange can not be correctly assessed and decide. Learned Advocate further submits that under section 115(1) of the Code of Civil Procedure High Court Division although has limited power to set aside findings of fact arrived at by the learned Judge Court of Appeal below but when it is found that learned Judge of the Court of Appeal below misread the evidence and mis apply the law and thereby arrived at a contrary finding arrived at by the learned Judge of the trial Court then this Court have jurisdiction to set aside the judgment and decree passed by the Court of Appeal below.

Learned Advocate elaborate his submission as Court of Appeal below did not at all consider the exhibits filed by the parties and depositions of the witnesses and by cursory manner allowed the appeal. Learned Advocate on reference to the finding of the trial Court on exhibit 7 that unless

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the property vest in the government Deputy Commissioner has no authority to exchange the property to a citizen but learned Judge of the court of Appeal below without adverting the findings of the trial Court held exchange as made was made correctly which is not legal and not supported by any law. Learned Advocate further submits that trial Court on consideration of series of exhibits i.e. two registered kabalas finds that defendant has proved possession over the suit land and plaintiff did not produced any evidence to that effect as such, learned judge of appellate Court committed gross illegality in reversing the finding of the trial Court on the question of possession. Learned Advocate in support of his submission relied on the decision of Hajee Khabiruddin Ahmed vs. Md. Salam Kabir, 34 DLR(AD)-271, the case of Sajeda Khatoon vs. Mostafa Khatoon and others, 28 DLR-221, the case of Ibrahim vs. Surendra Kumar Dhar, 9 DLR-16, the case of Atikullah and others vs. Zafala Begum and others, 54 DLR (AD)74, the case of Md. Abdus Sattar and others vs. Lalon Mazar Sharif and Seba Sadar, 24 BLD(AD)125.

9.

Mr. M. Yousuf, learned Advocate, appearing for the plaintiff-opposite parties, on the other hand, submits that, the decisions arrived at by the Court of Appeal below unless perverse is finding upon this Court under Section 115(1) of the Code of Civil Procedure. Learned Advocate further submits that the learned Judge of the Court of the Appeal below on consideration of the entire materials before him found that plaintiffs have able to prove the case by adducing oral and documentary evidence as such the judgment being passed on materials on record should not be disturbed by this Court. Learned Advocate on the question of defect of parties submits that when genuinity of registered deed calls in question whether Sub-Register is a necessary party to be impleaded in the suit as such Deputy Commissioner was not a necessary party in the suit as such the suit is not bad for defect of parties.

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10.

Helena Bewa and others Vs. Md. Mohshin Ali and others (Sharif Uddin Chaklader, J.)

Let me proceed with my judgment.

11. Plaintiffs in order to prove their case filed exhibits, certified copies of the deeds No.2238 and 2237 dated 1.6.1908 as exhibit 1 and 1(ka), certified copy of deed No.2272 dated 10.3.1914 as exhibit 1(kha), 3 rent receipts as exhibits 2-2kha, certified copies of C.S. khatian Nos.20, 30, and 31 as exhibits Nos.3 – 3(B). Certified copies of S. A. khatian Nos. 56 and 34 as exhibit Nos.4 – 4(1), certified copies of R.S. khatian Nos. 14, 68, 79, 80, 81 and 97 as exhibit Nos. 5 – 5(V), certified copy of the order dated 14.3.1973 passed in Execution Case No. 2 of 1970 as exhibit No.6 and exchange deed No.31835 dated 119.1976 as exhibit No.7. Before I enter into the merit of the case I find the documents exhibited by the plaintiffs are all in certified copies.

12. Defendants exhibited certified copies of C.S. Khatian Nos.30, 31 and 20 as exhibit Nos.A to A2, original copy of S.A. khatian Nos.56, 70, 71 and 34 as exhibit Nos.B – B(3). Original copy of R.S. khatian Nos.14, 68, 79, 80, 81, 97 as exhibit Nos.C- C(5), original copy of R.S. khatian Nos.22, 24, 25, 26, 200 and 201 as exhibit Nos. D – D(5), 14 recent receipts of Government as exhibit Nos.E – E(13). The plaint, decree and commissioner report of Partition Suit No.127 of 1959 as exhibit Nos.F-F(2), the application, possession certificate and commissioner report of Execution Case No.10/61 as exhibit Nos.G-G(2), certified copies of the plaint, written statement and orders in Case No.231/Cros/59 as exhibit Nos.H-H(2), the certified copies of the application, plaint and written objection of Criminal Case No.65 as exhibit Nos. I – 1(2). The notice address to the Deputy Commissioner Case No.91/66 as exhibit Nos. J- J(1), the order sheet of the order dated 24.10.66 in Case No.91/66 as exhibit No. J(2), the certified copy of the deed No.10106 dated 5.6.68 as exhibit No. K, the original kabala No.467 dated 8.1.63 as exhibit No. L. The original kabala No.468 dated 9.1.63 as exhibit No. M, the original

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heba beel deed No.465 dated 8.1.63 as exhibit No.N, the original registered kabuliat in fvour of P.W.2 and others 22 in numbers as exhibit Nos. O – O21. 3 unregistered kabuliyat Nos.62, 63 and 45 as exhibit Nos. O(22)- O(24), one copy of dakhila as exhibit No. E, filed S.A. khatian No.33 and R.S. khatian No. 75 as exhibits Nos. E-E1.

13. Plaintiffs case is that they got the suit land by exchange. I have read the judgment of the Court of appeal below very minutely, I find that learned judge in deciding the appeal find that it is admitted possession that Hayatullah Sarker and Mojfakir were owners of the suit land who sold the suit land to A. Jabbar and A. Rashid and A. Jabbar Munshi, A. Rashid Munshi and Razzak Munshi sold the suit land to Mohini Mohan Lahiri, upto this, case of the parties are similar but learned judge left aside from deciding whether the plaintiffs have proved their case or not. Before discussing on the findings of the trial Court, learned judge of the appellate court was of the opinion that: GB †gvKÏgvi Zv‡`i Dfq cÿ‡KB Zvnv‡`i ¯^ ¯^ `vex cÖgvb Kwi‡Z nB‡e| Thereafter learned judge left aside the plaintiffs case and observed that; weev`xM‡bi `vex †h Avt ReŸvi gyÝx I Avt iwk` gyÝxi mwnZ Zvnv‡`i `yB fvB g‡qb DwÏb I gwRei ingvb bvwjkx m¤úwË Lwi` Kwiqv‡Qb| GB †gvKÏgvq weev`xcÿ Dc‡iv³ `vex †Kvb †gŠwLK I `vwjwjK cÖgvb Øiv cÖgvb Kwi‡Z mg_© nb bvB| Learned judge thereafter suddenly jumped on exhibit-7and without discussing the contends of the documents just in one line held that: D³ wewbgq `wjj nB‡Z Bnv my®úó fv‡e cÖgvwbZ nq †h, bvwjkx ¯§cwË ev`x Avt Mdzi wewbgq my‡Î cÖvß nBqv‡Qb| Learned Judge thereafter on the findings of the trial Court observed that trial Court believed the exchange deed but did not give any findings as to genuinity of the deed make and comment as-

366

Helena Bewa and others Vs. Md. Mohshin Ali and others (Sharif Uddin Chaklader, J.)

weÁ wb¤œ Av`vj‡Zi Dc‡iv³ e³e¨ mgyn Av‡`Š mwVK b‡n ewjqv Av`viZ g‡b K‡i| †Kbbv eZ©gvb †gvKÏgvwU wewbgq †K‡mi Kvh©µ‡gi ˆeaZv‡K P¨v‡jÄ Kwiqv Avbqb Kiv nq bvB| Learned Judge failed to consider that the entire case of the plaintiffs rests on exchange deed.

Learned Judge considered possession of the plaintiffs and considered the depositions of P.Ws.1 to 5 and also observed P.Ws.1 to 5 and particularly that P.W.2 in his examination in chief stated that he saw plaintiffs possessed the suit land, P.w.3, in his deposition stated that he borga cultivated dag No.21 under the plaintiffs, p.w.4 in his deposition stated that he borga cultivated dag No.118 and P.W.5 in his deposition stated that he cultivated dag No.115 of the plaintiffs. Thereafter learned judge without discussing the depositions of the witnesses for the defendants held as: cÿvšÍ‡i weev`xM‡Yi Reve‡i eY©bv nB‡Z †`Lv hvq †h, weev`xMb bvwjkx †gŠRvq evm K‡ib bv Kv‡RB weev`xMb‡K GB †gvKÏgvq Zvnviv bwjkx m¤úwË wefv‡e dim K‡ib Zvnv cÖgvb Kwi‡Z nB‡e| Learned Judge disbelieved 22 kabuliats, filed by defendants as: ‡Kbbv †Kn †Kvb KeywjqZ m¤úv`b I †iwRóªx Kwiqv w`‡j Zvnv †Kv_vq Kiv nBqv‡Q Zvnv Aek¨B ewj‡Z cvwi‡ebv| And learned Judge further observed as: D³ KeywjqZ ¸wj Bs 66 mv‡ji KeywjqZ wKš‘ D³ KeywjqvZ ¸wji †gqv` BËxY© nIqvi ci weev`x c‡ÿi Dc¯’vwcZ mg_©Kvix ¯^vÿxMb‡K KZ ZvwiL nB‡Z bvwjkx Rwg eM©v w`‡q‡Qb Ges †K †Kvb weev`xi Aax‡b KZUzKz Rwg eM©v w`qv‡Qb GB welq¸wj weev`xM‡bi mvÿxM‡ib mvÿ¨ `vb nB‡Z my®úó b‡n| On these observations learned Judge held that plaintiffs are in possession of the suit property.

14. On the question whether the suit is barred by limitation and bad for defect of parties and on waiver and acquiescence, learned Judge just in one line find that:

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hvnv Av‡`Š AvBbvbyM nq bvB| †Kbbv GB †gvKÏgvi wewbgq `wj‡ji `vZv †WcywU Kwgkbvi ivRkvnx Av‡`Š Aek¨Kxq cÿ b‡n Ges gvwj‡Ki KviY D™¢ze nIqvi ZvwiL nB‡Z ev`xcÿ h_vh_ mg‡q‡i g‡a¨ †gvKÏgvwU Avbvqb Kwiqv‡Qb| Learned Judge on these findings decreed the suit.

15. Let me find on reference to the exhibits whether findings of the learned judge of the Appellate court, master of fact and final Court are justified or not.

16. Exhibit-7 is the exchange deed dated 11.9.76. It appears that this deed was executed by the Deputy Commissioner, Rajshahi. On consideration of exhibit-7 it appears that in this exhibit7 some lands of Dakshmin Sukhan gari under J.L. No.226, S.A. khatian No.33, dag Nos.1, 28, 354, 232, 228 in total 1.53 acres of land have been impleaded but these lands have not been properly mentioned or described properly. Next, I find in exhibit-7 that in total 5.61 acres of land including in the suit and some other non suited land have been included and Deputy Commissioner by his order registered the deed of exchange. In registering the exchange deed questions relating to registration envies i.e. whether Deputy Commissioner has authority to register and execute the exchange deed in between the civilian, before registering exchange deed whether the Deputy Commissioner consulted S.A. and R.S. record, whether the power of attorney was genuine or not and whether Deputy Commissioner has jurisdiction to register exhibit-7 as such I am of the view that Deputy Commissioner is a necessary party.

From exhibit Nos.4-4(1), S.A. khatian Nos.56 and 34 it appears that in the remark column it has not been recorded plaintiffs have possessed the suit property. It is the case of the plaintiffs that R.S. khatian in preliminary form recorded the name of the plaintiffs but from the aforesaid exhibits filed by the plaintiffs I do not find any such exhibits from the side of the plaintiffs. On consideration of the depositions of the plaintiff's witnesses particularly from P.W.1 it appears he stated that he did not know when and in what year R.S. khatian

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Helena Bewa and others Vs. Md. Mohshin Ali and others (Sharif Uddin Chaklader, J.)

was prepared and also admitted that he did not file R.S. khatian. P.W.1 i.e. plaintiff further stated that he did not know anything about revenue. P.W.1 also stated that: evox‡Z Avi/Gg Gi Lmov LwZqvb Av‡Q wKbv ej‡Z cv‡ib bv| P.W.1 further stated that Gm/G G¨v± Gi 19(1), 19(2) avivg‡Z AvcwË w`qv‡Qb wKbv Zvi g‡b †bB| During pendency of the suit and continuation of the deposition of P.W.1, P.W.1 died and P.W.6, his son, deposed that R.S. record started in 1966 and finally recorded in 1970 and at that time he was 18 years old. He further deposed that his father collected the copy of R.S. khatian and also P.W.6 admitted that his father, P.W.1 knows about the recording of S.A. khatian but after knowing the fact that khatian has not been prepared in the name of his father, why his father did not file any case under section 19(1) -19(2) of the State Acquisition and Tenancy Act for correction of the same, he could not say. Exhibit 5 series are R.S. khatian dated 20.5.70, 5.8.70, 30.5.70, 2.5.70, these are the printed form which are found in possession of the plaintiff i.e. P.W.1 and admission of P.w.6, son of P.W.1, proved that cause of action as shown on 19.8.1976 is false.

On a reading of the cause of action it appears that plaintiff does not stated from when his title and possession was threatened.

17. Exhibit 7 is exchange deed, registered by the Deputy Commissioner on 19.9.76 as such cause of action shown on 19.8.76 is totally false as before registering the title deed no one can had any cause of action for title as it was not in his domine. It safely said that cause of action shows by the plaintiff was not correct one and false and also that S.A. khatian has been finally published in 1970, and since cause of action has not been proved this suit is barred by limitation.

18. On a reading of exhibit 7 it appears that by this exchange deed the land of S.A. khatian Nos.33, 56 and 34 has been exchanged but in the

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plaint, plaintiff filed the suit for 14 dags and 57 decimals of land of dag No.118 has not been claimed, plaintiff claimed 5.90 decimals of land from dag No.115 but in dag No.115 it is clear the quantum of land is 5.68 as such plaintiffs claim .22 decimals of land more which has not been exchanged through exchange deed. It also appears from exhibit 7 that in dag No.10/402 quantum of land was 1.26 decimals but plaintiff claimed only .53 decimals of land. It also appears from exhibit 7 that in dag No.116 there is 1.33 acres of land but plaintiffs in the plaint claimed from dag Nos.50,51,52, 180, 184, (23+10+62+63+66) in Total 2.54 acres of land but it fact plaintiffs claimed 1.33 decimals of land. There is no explanation for the remaining land. It also appears from exhibit 7 that part of some dags has been exchanged but there was no specification for the same.

19. On the question whether Deputy Custodian is a party in the suit learned judge of the trial Court consider memo No.10/73/710(19) dated 29.11.1973 wherein before 6.9.65 all exchange cases were divided in two classes i.e. exchange deed before 10.10.64 which was enemy property and exchange deed after 10.10.64 to 5.9.65 which was land under Disturbed Person Ordinance. For the first class, if the Assistant Custodian/Superintendent (land and buildings) be satisfied then he could register the exchange deed and give certificate to that effect. But for the 2nd class exchange deed, if Deputy Commissioner satisfied then on behalf of Government he promulgate a notification for 'confiscation' of the land and will settled the land to the landless people. On consideration of exhibit-7, the learned Assistant Judge found that this land belonged to the category/class of No.1 where Deputy Commissioner has no authority to register the same. Learned Judge of the trial Court found on exhibit-7 that it was registered by the Deputy Commissioner, Rajshahi in violation in the order under memo No.1108(18) E.P.236/70 dated 4.5.70

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Helena Bewa and others Vs. Md. Mohshin Ali and others (Sharif Uddin Chaklader, J.)

and memo No.6-10/73/710(91) dated 29.11.73. It also appears that exchange land has not been fallen either of the category of abandoned property or enemy property. Learned Judge also found from exhibit J series that in Case No.91/66 government did not issue any notice to the defendant for relinquishing the said land as no notice has been served upon the defendants and the case was dismissed. Exhibits C and D, are S.A and R.S khatian. It appears that the suit land is not included either as enemy property nor as vested property as such government does not acquire any title over the suit land. It appears from the depositions of P.W.1 that he did not know about the government land. Plaintiff in his deposition stated that he came to this land in 1961/62 and he can not say about C.S to S.A. operation and who possessed the suit land. Before C.S khatian, the suit land was homestead of the predecessor of the defendants. P.W.1 further stated that he knew Monimohan who went to India but he did not prove that fact. In cross-examination, P.W.1, admitted that in khatian No.73 he has no land. But from exhibits Nos.2, 2(ka), 2(kha) it appears that he paid rents for 7.14 decimals of land of khatian No. 73 although khatian No. 73 does not belonged to him. P.w.1 in his deposition does not state whether defendants got decree against Monimohan, what is the result of the case filed under section 144 of the Code of Criminal Procedure, whether government admitted in Case No. 91/96 that suit land belonged to the defendant.

P.W.3 in his examination in chief frankly stated that on the request of plaintiff he came to depose falsely. It appears from the deposition of P.W.4 that he borga cultivated the land of dag No.118 on behalf of the plaintiff. He could not say other dag Nos. of the adjacent land. P.W. 5 does not specifically state the quantum of land of dag No. 115. P.W. 5 stated that he got kabuliyat from the plaintiffs and he delivered crops to the plaintiffs but he did not produce any paper before the Court.

Considering exhibits G – G(2) it appears that

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through Execution Case No.18/61 defendant got decree against Monimohan and decree is still in existence, neither plaintiff nor his predecessor challenge the decree. Since the decree stand plaintiff has no right, title and interest of the suit property by exchange deed. Even if it is found to be genuine then also plaintiffs have no ownership of the suit property as by the decree of the court title of the plaintiffs have been extinguished.

20. Now the decisions filed by the learned Advocate for the petitioners. In the case of Md. Abdus Sattar and others vs. Lalon Mazar Sharif and Seba Sadan committee and others, 24 BLD (AD)-125 it has been held in paragraph 6 that the trial court after giving finding on all the 5 issues framed in the suit including the maintainability of the suit decreed the suit in favour of the plaintiffs and declared right, title, interest and possession of the plaintiffs in the suit land. The appellate court it appears without adverting to the findings given by the trial court reversed the findings of the trial court and sent back the suit on remand for trial afresh without assigning any cogent reason. It is needless to mention that remand can not be allowed as matter of course to fill in the lacuna of the case of any party. It appears that the appellate court relied upon inadmissible evidence namely report of the Advocate commissioner since the Advocate commissioner was not examined by the parties. It is to be mentioned here that the report itself of the Advocate Commissioner is not evidence, but if the Advocate Commissioner deposes on oath before the court then the same is evidence. It further appears that the appellate court mainly relied upon the evidence of P.W. 1 in coming to the conclusion that the defendants have homestead in the suit land and hence they are in possession of the same.

21. In the case of Akitullha and others vs. Zafala Begum and other 54 DLR(AD) 74 it is held that in view of the clear finding of the trial Court regarding Hiba-bil-Ewaz as aforesaid we are of the view that this open remand order for a fresh decision in the suit allowing parties to adduce fresh evidence is designed to fill in the lacuna of

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Helena Bewa and others Vs. Md. Mohshin Ali and others (Sharif Uddin Chaklader, J.)

the pleadings of the parties, which is not the intent and object of the order of remand contemplated under Order XLI rule 23 of the Code of Civil Procedure.

22. In the case of Dr. Razia Khatun vs Bhanu Guha and others 1986 BLD(AD) 135, it is observed that “The long line of judicial decision is to the effect that the remand order should be avoided as far as possible and even the Privy Council in some cases observed that indiscriminate order of remand tantamounts to shirking the responsibility.�

23. In the case of Abdus Sobhan vs. Anwar Rahim and others, 53 DLR(AD)110, it is held that we have gone through the judgment of the trial Court as well as of the High Court Division. It appears that the trial Court decreed the suit on consideration of the evidence on record and it was found that there is no truth in the defence version of the case. The trial Court also found that there was no scope for service of summons of the earlier suit upon the predecessor of the present plaintiff and that the plaintiffs are in possession of the suit property but the appellate Court found that in collusion with the defense lawyer decree was obtained. It also found that illegality has been committed in not calling for the record of the earlier Title Suit No. 21 of 1968 over which the present suit has been filed. The appellate Court also found that defendant ought to have been given a chance to adduce evidence in support of their claim and for that matter passed the order of remand. But from the perusal of the record it appears that the present petitioner took no step for giving additional evidence before the appellate Court and also has not taken any step for calling for the record of the earlier suit. What the appellate Court did was nothing but giving an opportunity to the defence to fill up the lacuna which law has not permitted. No step was taken before the appellate court by the present petitioner to adduce additional evidence or to call for the record of the earlier disposed of suit. There is nothing on record to show that there was collusion in between the plaintiff and the defence Advocate.

In such a situation the High Court Division rightly

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found that the suit could not be sent back on remand for filing up lacuna. We have considered the submission made by the learned Advocate for the petitioner but we find nothing to interfere with the judgment of the High Court Division. The learned Advocate failed to point out any legal infirmity in the judgment of the High Court Division which may call for our interference.

24. In the case of Ibrahim vs. Surendra Kumar Dhar, 9 DLR-16 it is held that 'on examination of the record discloses that there is hardly any substance in this contention. It appears that in 1937 the defendant Surendrakumar Dhar brought a suit being S. C.C. Suit No. 219 of 1937, against the plaintiff, Ibrahim, for recovery of his dues under a pro-note. The plaintiff was then away in Burma and summons was served by hanging at his village residence in the district of Chittagong.

There was no appearance on behalf of the plaintiff on the date of the hearing of the suit, and the result was that it was decreed ex parte. Thereafter the decree was put into execution and the plaintiff’s homestead was brought to sale and purchased by the defendant himself on the 9th November, 1943.

Then on the 20th March, 1947, the plaintiff brought this suit for setting aside the ex parte decree and the sale held in execution thereof alleging that the decree had been brought about by fraudulent suppression of summons, and the sale held in execution thereof had been brought about by causing suppression of all the execution processes including sale-proclamation. In a case like this, the plaintiff in order to succeed must prove how, when and under what circumstances the fraud was practiced, but he has hopelessly failed to discharge it. In the plaint we find general allegations of fraud, but it is well settled that general allegations, however strong may be the words in which they are stated, are insufficient to an averment of fraud.

Mr. Hakim having failed to make any headway in this direction proceeds to challenge the legality of the decree on the ground that the mode of service as reported by the peon was not in accordance with the rule of Order 5 of the Code of Civil Procedure.

The same point was broached before the Subordinate Judge and the learned Judge overruled it with the following observations.

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Helena Bewa and others Vs. Md. Mohshin Ali and others (Sharif Uddin Chaklader, J.)

“According to the C.P.C. personal service has to be attempted, but if there is no possibility of it, there are alternate procedures of service which may be adopted to meet the situation. The first alternative procedure is the service on the empowered agent, but Abdul Latif, the cousin of the plaintiff, does not appear to have had any such authority. The next best way is to serve the summons on a male member living jointly with the person to be served. In the return of the process server; Abdul Latif to whom the summons was tendered at the first instance is described as having been in joint mess with the plaintiff. But of such a case, there is no evidence. On the other hand, the plaintiff has given the denial. Under the Mohammedan Law again, there is no presumption of jointness in the case of a Muslim. The statement of the process-server is not of any value; in such a matter, he could not have any personal knowledge.

The tender to Abdul Latif cannot accordingly be regarded as sufficient in law but there is still the last procedure of hanging up the summons to the dwelling house of the defendant under Order 5, rule 15, C.P.C. From the peon’s return, it can be presumed that such a procedure was ultimately adopted in the case of the plaintiff. The incompetent witnesses on the side of the plaintiff can hardly have displaced the presumption raised by the service-return. It is significant that neither Abdul Latif nor the witnesses named in the service return have been examined by the plaintiff, though to disprove the service they could furnish the best evidence; about the actual service by hanging up the summons to the residence of the plaintiff, there can, therefore, be no doubt.

‘But the question is whether under the circumstances of the present case it was sufficient Substituted service under Order 5, rule 20, C.P.C, might be adopted. In fact, in case of the execution proceedings one piece of processes was served under such special procedure. But it cannot be said as a matter of course that if the defendant be found absent, summons for him must be served under Order 5, rule 20, C.P.C. In the present case, the plaintiff had left his wife behind. Some arrangement for management of his affairs must have been made by him consequently the service of summons by hanging it up to his residence could not be regarded as insufficient. With his people the plaintiff was in communication then. It is only at a later stage that communication broke down due to

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war. Under such circumstances, the service by hanging up the summons to the residence of the plaintiff could not be regarded as insufficient and invalid. It might have been known that the plaintiff was away to Rangoon. But there is nothing to show that his address was known or could be known by the defendant. Consequently to serve the plaintiff personally with summons was hardly possible for the defendant. And to insist on personal service under such circumstances would be asking the defendant to perform impossibilities.

“Such being the position, I cannot see how the service of summons in the S.C.C. suit could be regarded as bad or insufficient. Apart from the question of irregularity or otherwise of the summons, fraud must be established before, in a suit like this, the decree in question can be set aside. For it is only in case of a decree obtained by fraud that a suit to set it aside lies; in the present case, there is nothing to show that the claim was false. Rather the half admission of the plaintiff suggests otherwise” I do not find any lacuna anywhere in the finding Mr. Hakim contends that the service, not being in accordance with rule 17 of Order 5, Civil Procedure Code, is no service in the eye of law, and consequently the decree passed on the basis thereof cannot but be regarded as illegal and unenforceable."

25. Since I have decided on merit the judgment of the Appellate Court is not sustainable in law and dismissed the suit, the decission so referred are not required to be consider on the fact of the given case and the learned Advocate for the petitioner is advised to cite this in an appropriate case.

26. On an over all consideration of the entire materials on record I find substance in this rule.

27. In the result this rule is made absolute. No costs.

28. The judgment and decree passed by the learned Joint District Judge, 1st Court, Natore in Title Appeal No. 152 of 1996 is set aside. The Judgment and decree passed by the learned Senior Assistant Judge, Singra, Natore in Other Class Suit No. 21 of 1994 is restored.

Send down the lower Court records at once.

Ed.

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Md. Alauddin Kazi and others Vs. Government of Bangladesh and another (Sheikh Abdul Awal, J.)

HIGH COURT DIVISION (Civil Revisional Jurisdiction) Md. Alauddin Kazi and others. .…. Petitioners.

VS Government of Bangladesh and another.

Mr. Sheikh Abdul Awal, J. } Judgment 12.01.2012.

} } }

… Opposite-parties.

Code of Criminal Procedure (V of 1908) Section 115 The finding of the court of appeal below and the trial court as well is contrary to the evidence on record and also is a product of misreading and non-consideration of material evidence on record in as much as in the present case the plaintiff had produced their kabala, S.A. Khatian and the rent receipt in the trial court to show their continuous possession but the courts below failed to consider the same as a result of which the judgment and decree of the Court below is set aside and the suit is decreed. ... (26 & 31) Abul Bakar Siddique Vs. A.D.C. Kurigram and others, 48 DLR(AD) 154; Abdul Mazid Howlader and another Vs. Lahajuddin Howlader and others, 48 DLR(AD) 160; Rajkumari Baishnabi Vs. Shyama Bibi in Calcutta Weekly Notes (Volume 25) 165; Bangladesh Vs. Tabarak Ali Mia and others 43 DLR(AD) 130; Akrab Ali and others Vs. Zahiruddin Kari and others 30 DLR(SC) 81; Erfan Ali Vs. Joynal Abedin Mia 35 DLR(AD) 216, 2 BLC(AD) 134 ref.

Mr. Mokhlesur Rahman with Mr. S. A. Hasan, Advocates ....For the petitioners.

Mr. Md. Abdus Salam Mondal, D.A.G. with Mr. Arobinda Kumar Roy, A.A.G. ....For the opposite parties.

Judgment Sheikh Abdul Awal, J. This Rule was issued calling upon the opposite parties to show cause as to why the *Civil Revision No. 821 of 2009.

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impugned judgment and decree dated 9.11.2008 passed by the learned Additional District Judge, 5th Court, Dhaka in Title Appeal No. 825 of 1999 affirming those dated 17.10.1999 passed by the learned Subordinate Judge, 1st Court, Dhaka in Title Suit No.16 of 1988 dismissing the suit should not be set-aside.

2.

Material facts of the case as necessary for disposal of the Rule are that the petitioners as plaintiffs brought the aforesaid suit being Title Suit No. 16 of 1988 in the Court of the then Subordinate Judge, 1st Court, Dhaka for declaration of title of the suit as described in schedule to the plaint comprising of .62 acres under Mouza-Uttarkhan, C.S. Khatian No.145, Dag No. 1481. The plaintiff’s case, in short, is that the suit land was originally belonged to Bhawal Court of Wards Estate who granted pattan in favour of the plaintiffs on payment of Tk. 26/- as salami; that the plaintiffs thereafter, on the basis of the said pattan mutated their name, paid rents to the Government regularly and during last S.A. operation their names were rightly recorded in the S.A. Khatian No. 13; that when the pattan was granted in favour of the plaintiffs, the nature of the suit land was a pond and after taking pattan the plaintiffs filled up half portion of the suit land by earth-filling and built dwelling house thereon and the rest being cultivable land under their possession; that during last R.S. operation the suit land was wrongly recorded as khas land of the Government as a result of which Settlement Case being No. 54/86-87 was started with Chandpara Shahi Moshjid and thereupon, notices were served upon the plaintiffs infringing their right and title.

Hence, the suit.

3.

The defendant contested the suit by filing written statement denying most of the averments of the plaint contending, inter-alia, that the suit land was originally belonged to Bhawal Court of Wards Estate and subsequently, the same was recorded as khas land of the Government; that the

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Md. Alauddin Kazi and others Vs. Government of Bangladesh and another (Sheikh Abdul Awal, J.)

suit is barred by limitation and during last R.S. operation the record of right was rightly prepared and published in the name of the Government and later on, the Government leased out the property in favour of the Chandpara Shahi Moshjid Committee through Settlement Case No. 54/86-87. The suit land was never gave pattan by the Bhawal Court of Wards Estate in favour of the plaintiffs, the plaintiffs have no right, title and interest of the suit land and as such the suit is liable to be dismissed.

4.

The trial Court on the pleadings of the parties framed the following issues for determination namely: (i) whether the suit is maintainable in its present form and manner? (ii) whether the case is barred by limitation? (iii) whether the plaintiffs have right, title and possession in the suit land? (iv) whether the settlement case in question was void, illegal and beyond jurisdiction? (v) whether the plaintiffs are entitled to get decree, as prayed for?

5.

During trial plaintiffs examined 3 (three) witnesses and exhibited a series of documents and defendant side examined 1 (one) witness to prove their respective cases.

6.

The trial Court below on consideration of the materials on record dismissed the suit by its judgment and decree dated 17.10.1999 (decree signed 27.10.1999) on the findings, inter alia, that the plaintiffs neither proved their right, title and possession in the suit land nor proved their pattan (Ext.1) by adducing evidence.

7.

The unsuccessful plaintiffs then preferred an appeal being Title Appeal No. 825 of 1999 before the learned District Judge, Dhaka which

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was ultimately heard by the learned Additional District Judge, 5th Court, Dhaka, who by his judgment and decree dated 9.11.2008 affirmed the decision of the trial Court below holding that the plaintiffs could not prove that the pattan (Ext.1) was granted by the Bhawal Court of Wards Estate in favour of the plaintiffs.

8.

Being aggrieved by the aforesaid judgment and decree dated 9.11.2008 the plaintiff-appellantpetitioners have come before this Court and obtained the present Rule.

Mr. Mokhlesur Rahman, the learned Advocate 9. appearing for the petitioners in the course of his argument after placing the judgments of two Courts below, deposition of witnesses, exhibits and other relevant materials on record submits that judgments of both the Courts below are not in fact based on correct evaluation of facts and materials of the case and as such the impugned judgment and decree are liable to be set aside. He next submits that the plaintiff-petitioners in support of their claim proved as many as 4(four) vital documents namely; (i) pattan dated 4.4.1939 (Ext.1), (ii) 5(five) rent receipts (Ext. 2-2Gha), (iii) S.A. Khatian (Ext.3) and (iv) rent receipt under S.A. Khatian (Ext.4) but both the Courts below mere on surmise and conjecture mechanically held that the plaintiffs could not prove their pattan as well as right, title and possession in the suit land by educing evidence.

10. Referring to the deposition of sole D.W-1, Mr. Mokhlesur Rahman contends that it is apparent from the evidence of sole D.W-1 that this witness in his deposition admitted that the S.A. Khatian of the suit land was prepared in the name of the plaintiff-petitioners and there is nothing on record to suggest that the Government leased out the suit property in favour of Chandpara Shahi Moshjid Committee and as such the judgment of both the Courts below are based on gross misreading and misinterpretation of material evidence on record. He also submits that both the

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Md. Alauddin Kazi and others Vs. Government of Bangladesh and another (Sheikh Abdul Awal, J.)

Courts below ought to have decreed the suit inasmuch as the plaintiffs examined as many as 3(three) witnesses and all of them in their respective testimony categorically testified that the plaintiffs got the suit land by way of pattan dated 4.4.1939 granted by Bhawal Court of Wards Estate (Ext.1), mutated their name and since then the plaintiffs have been possessing the suit land by paying rent regularly to the Government as direct tenant of the Government. Mr. Rahman, finally submits that taking rent from the plaintiff-petitioners it does not lie in the mouth of the defendant opposite party No. 1 that the suit property was vested in the Government and the plaintiffs are not in possession over the suit property.

11. On the other hand, Mr. Md. Abdus Salam Mondal, the learned Deputy Attorney General appearing for the Government by filing counter affidavit opposes the Rule. He submits that both the Courts below on due consideration of the entire materials on record rightly arrived at a finding that the plaintiff-petitioners could not prove their right, title and possession on the basis of their so-called unregistered pattan. He further submits that both the Courts below rightly arrived at a concurrent finding that Pattan (Ext.1) was forged, collusive and illegal document which has never been acted upon and as such question of interference does not arise at all.

12. I have heard the learned Advocate and the learned Deputy Attorney General at length and perused the judgments of two Courts below, deposition of witnesses and other materials on record. To appreciate the contentions of the learned Advocate and the learned Deputy Attorney General, it is necessary to scrutinize the material evidence on record to arrive at a correct decision whether both the Courts below committed any illegality in holding that the plaintiff-petitioners having failed to prove their right, title and possession on the basis of Ext.1 (Pattan).

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13. Plaintiff No. 1, Alauddin Kazi himself was examined as PW-1, who in his deposition stated that: bvwjkx m¤úwË fvIqvj †KvU© Ae IqvW©m Gi Lvm m¤úwË wPj| Avwg 4/4/1939 Zvwi‡L 26/- (QvweŸk) UvKv †mjvgx w`‡q bvwjkx m¤úwË cËb †bB| Avwg Avgvi bvg Rvix Kwi| LvRbv †`B| cËb bvgxq LvRbvi iwk` 4wU `vwLj Kwijvg| weMZ Gm, G, Rwi‡ci mgq Gm, G, LwZqv‡bi Avgvi bvg my×fv‡e †iKW© nq| Gm, G, cP©vi mwn gûix bKj `vwLj Kwijvg| 992 Bs mb ch©šÍ LvRbv w`‡qwQ| LvRbvi iwk` mgyn `vwKj K‡iwQ| bvwjkx mgBˇZ Avwg `L‡j AvwQ| This witness in his deposition also stated that earlier the suit land was a pond, who by filling earth thereon started cultivating and fishing. This witness in his cross examination denied that the suit property has been leased out in favour of the Chandpara Shahi Moshjid. PW-2, Abdur Rahman Kazi, stated in his deposition that the plaintiffs got the suit property by the Bhawal Court of Wards Estate by way of pattan and the suit property was mutated in their name and S.A. record was also prepared in the name of the plaintiffs. PW-3, Kazi Lehazuddin, stated in his deposition that: bvwjkx m¤úwË Avgvi evox †_‡K A‡bK `y‡i| Avwg ev`x‡K wPwb| ev`xMb bvwjkx m¤úwË †fvM `Lj K‡i| bvwjkx m¤úwˇZ cyKzi K‡i I wKQz Rwg‡Z dmj Pvl K‡i ev`xMb, bvwjkx m¤úwË gmwR` KwgwU †fvM `Lj K‡i bv| This witness in his crossexamination denied the suggestion that Chandpara Shahi Mosjid Committee has been possessing the suit property.

14. DW-1, Md. Zulfiqur Ali stated in his deposition that the suit property has been leased out in favour of Chandpara Shahi Mosjid Committee though Settlement Case No. 54/86-87. This witness also stated that pattan of the plaintiffs was forged, collusive and Bhawal Court of Wards Estate never granted pattan in favour of the plaintiffs. This witness in his cross-examination admitted that S. A. kahtian of the suit property was prepared in the name of Alauddin Kazi and Shamsuddin Kazi (plaintiffs) being Dag No. 1481. This witness in his cross-examination also stated that: bvwjkx Rwg miKvix Lvm Rwg nIqvq GUv Pvbcvov kvnx gmwR`‡K e‡›`ve¯Í

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Md. Alauddin Kazi and others Vs. Government of Bangladesh and another (Sheikh Abdul Awal, J.)

†`Iqv n‡q‡Q| D³iƒ‡c Gm, G, †iKW© evwZj n‡q‡Q| H e‡›`vm‡¯Íi †Kvb KvMR `vwLj KwiwY| Bs‡iRx 1988 m‡bi eb¨vq bw_ bó nq| Bs‡iRx 1988 m‡bi eb¨vq bw_ bó nevi mg_©‡b †Kvb KvMR `vwLj KiwQ wK bv Zv g‡b co‡Q bv| 15. On a close perusal of the evidence of PW-1, PW-2, PW-3 and DW-1 together with the Exhibits namely, (i) pattan dated 4.4.1939 (Ext.1), (ii) 5(five) rent receipts (Ext.2-2Gha), (iii) S.A. Khatian (Ext.3) and (iv) rent receipt under S.A. Khatian (Ext.4), it appears that the plaintiffpetitioners in support of their right, title and possession over the suit property adduced sufficient corroborative evidence both oral and documentary. It also appears that the defendantopposite parties could not make the case shaky of the plaintiff-petitioners by way of crossexamination.

16. Mr. Mokhlesur Rahman at the end of the day in support of his lengthy argument has referred to some decisions reported in 2 BLC(AD) 134, 30 DLR(SC) 84, 48 DLR(AD) 160, 48 DLR(AD) 154, 43 DLR(AD) 130, Calcutta Weekly Notes (Volume 25) 165 and 35 DLR(AD) 216.

17. Now, in order to appreciate the legal aspects involved in this case, it would be useful if I consider the cited decisions.

18. In the case of Abul Bakar Siddique Vs. A.D.C. Kurigram and others reported in 48 DLR(AD) 154, it has been held that: The learned Single Judge of the High Court Division having independently assessed the evidence and having found a case of non-consideration of material evidence on record and consequently nonreversal of material findings interfered with the finding of fact. To our mind, the revisional Court is competent to interfere in a case of non-consideration of material evidence which is specifically material for the determination of the material issue,

359

namely, the issue of shifting of the school to the new mouza.

19. In the case of Abdul Mazid Howlader and another Vs. Lahajuddin Howlader and others reported in 48 DLR(AD) 160, it has been held that: There being a total non-consideration of all the witnesses of the pre-emptees, the learned Single Judge acted wrongly in refusing to exercise his revisional jurisdiction in a case where due to non-consideration of the material evidence on record an erroneous decision has been arrived occasionning a grave failure of justice.

20. In the case of Rajkumari Baishnabi Vs. Shyama Bibi reported in Calcutta Weekly Notes ( Volume 25) 165, it has been observed that: Their Lordships passed the following judgment:- We are of the opinion that this appeal must be allowed. The learned District Judge has decided one question and one question only, namely, that the unregistered deed produced in the case was not admissible in evidence. On this ground he has held that the tenancy alleged to have been held by Shyama under Rajkumari has not been established.

The District Judge, however, has overlooked that in this country it is possible to establish a tenancy without the production of a lease by proof of payment of rent by the tenant and acceptance of rent by the landlord.

21. In the case of Bangladesh Vs. Tabarak Ali Mia and others reported in 43 DLR(AD) 130, it has observed that: Patni taluk had its origin on the estates of the Raja of Burdwan but has since been extended to other Zamindaris. The character of this tenure is that it is a taluk

360

Md. Alauddin Kazi and others Vs. Government of Bangladesh and another (Sheikh Abdul Awal, J.)

(etymologically, 'taluk' stands for some intermediate interest being derived from 'alak'= to suspend from) created by the Zaminder, to be held at a rent fixed in perpetuity by the lessee and his heirs for ever. Zaminder is the landlord, patnidar is his tenant. A patni although in form a lease, is not a mere lease-hold property. A patnidar may let out the lands in any manner conducive to his interest, provided his interest was subsisting.

22. In the case of Akrab Ali and others Vs. Zahiruddin Kari and others reported in 30 DLR(SC) 81, it has been held that: According to section 103(B)(5) of The Bengal Tenancy Act every entry in a record of rights finally published shall be evidence of the matter referred to in such entry and shall be presumed to be correct until it is proved to be incorrect. The learned Judges of the High Court appear to have started with the view that the Court of appeal below was palpably wrong in presuming title in favour of the defendants from a mere entry in the records of right and that the defence having admitted title of the predecessor of the plaintiff, the plaintiff was relieved of the burden of proving the title of Aftabuddin Sarkar. Their Lordships were not correct in their view as to the effect of the entries in a finally published record of right and in relieving the plaintiff, in the face of the said entries of the burden of proving the title of Aftabuddin Sarkar.

The entries in the Khatian Ext. A that Faizuddin Haji was in the occupation of the holding appertaining to the jote of Aftabuddin Sarkar on the basis of purchase for a consideration of Rs. 50/and that the land was fit for assessment of rent but there was no payment were not beyond the scope of the survey held under

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Chapter X Part 1 of the Bengal Tenancy Act, 1885.

23. In the case of Erfan Ali Vs. Joynal Abedin Mia reported in 35 DLR(AD) 216, it has been held that: The rent receipts were excluded from consideration by the lower Appellate Court taking the view that these are provisional receipts and that they carry little weight in that "any person interested in a land may pay rent to the Government Acquired Estate". This view is erroneous, for rent-receipts, though not documents of title, are important items of evidence of possession and may be used as collateral evidence of title since possession generally follows title. Again, plaintiff's name has also been recorded in the S.A. Khatian prepared in the period immediately following the whole-sale stateacquisition in 1956 and all objections raised by defendant No.1 were overruled by the Revenue-officer and then by the appellate authority.

24. Thus, from all the decisions, it is clear that a patnidar may let out the lands in any manner conducive to his interest, provided his interest was subsisting. Rent receipts and S.A. Khatian are evidence of possession and may be used as collateral evidence of title and a finding of fact whether concurrent or not, arrived at by the lower Court is binding on this Court, as a Revisional Court except in certain well-defined exceptional circumstances such as non-consideration or misreading of material evidence on record affecting the merit of the case.

25. I have already noticed that in this case, the plaintiff-petitioners in order to prove their right, title and possession in the suit property produced so many important documents namely, pattan dated 4.4.1939 (Ext.1), 5(five) rent receipts (Ext.2-

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Md. Alauddin Kazi and others Vs. Government of Bangladesh and another (Sheikh Abdul Awal, J.)

2Gha), S.A. Khatian (Ext.3) and rent receipt under S.A. Khatian (Ext.4). The Court of appeal below by the impugned judgment affirmed the decision of the trial Court with the observation that: c~‡e©v³ Av‡jvPbv I mvÿ¨ cÖgvb ch©v‡jvPbv‡šÍ Av`vjZ GB Awfg‡Z Av‡m †h, bvwjkx m¤úwË eve` ev`x fvIqvj †KvU© Ae IqvW©m †óU nB‡Z cËb MÖnb Kiv Ges D³ cˇbi Av‡jv‡K ¯^Z¡ cÖwZwôZ nIqv Ges D³ ¯§cwˇZ ¯^Z¡evb I `LjKvi _vKvi welqwU ev`xcÿ cÖgv‡b mg_©b nb bvB| †mBw`b †_‡K ev`x Zvnvi ¯^‡Z¡i †NvlbvgyjK wWµx cvB‡Z cv‡ib bv| weÁ wb¤œ Av`viZ Z`ªæc wm×všÍ cÖ`vb Kivq Av`vj‡Zi n¯Í‡ÿc Kivi †Kvb Kvib bvB& bvwjkx m¤úwË m¤ú~b© As‡k ev`x c‡ÿi wbisKzk `Lj bv _vKvq mywbw`©ó cÖwZKvi AvB‡bi 42 aviv g‡Z ¯^Z¡ †Nvlbvi †gvKÏgv Pwj‡Z cv‡i bv g‡g© weÁ wb¤œ Av`viZ †h wm×všÍ cÖ`vb Kwiqv‡Qb Zvnvi mwnZ AÎv`viZ GKgZ †cvlb K‡ib| 26. In the given facts and circumstances of the case and the uniform decisions of the highest Court as cited above, I have no hesitation to hold that the above quoted finding of the Court of appeal below is product of misreading and non considering the material evidence on record inasmuch as in this case the plaintiffs had produced their kabala, SA Khatian and rentreceipts in the trial Court to show their continuous possession but the Courts below did not consider the same.

27. By the way, it may be mentioned that in this case the learned Deputy Attorney General took time again and again lastly on 8.12.2011 by filing an application took time till one week after the vacation for collecting the record of settlement case No. 54/86-87 though, he failed to collect the same.

28. There is another aspect of the case should also be looked into. Mr. Mokhlesur Rahman, the learned Advocate for the petitioners while elaborating his submission inviting my attention to Annexure ‘C’ and ‘D series’ of the supplementary affidavit dated 29.11.2011 and submits that city survey khatian No. 16259, dag No. 8219 & 8222 respectively in respect of the suit property have

361

been prepared in the name of the petitioners and the Appeal Case being No. 69700 of 2002 filed by the defendant-opposite parties under section 31 of the Bengal Tenancy Act before the settlement officer was rejected with the observation that: Òbvwjkx Rwg Avi, Gm, †iKW© Z`šÍ Kvjxb mg‡q wKfv‡e A_ev †Kvb KvM‡Ri wfwˇZ miKv‡ii 1 bs LwZqv‡b †iKW© nBqv‡Q GB g‡g© cÖkœ K‡i Rvb‡Z PvIqv nB‡j AvcxjKvix cÿ Rvbvb †h, Avi, Gm, †iKW© wKfv‡e bvwjkx Rwg †iKW© nBqv‡Q Zvnv wZwb Rv‡bb bv| GB g‡g© †Kvb KvMRcÎ †`LvB‡Z wZwb AcviMZv Rvbvb| wZwb e‡jb †h, †h‡nZz Avi, Gm †iKW© PzovšÍfv‡e cÖKvwkZ I †M‡RU weÁwcZ&i gva¨‡g miKv‡ii wbKU n¯ÍvšÍi Kiv nBqv‡Q, †m‡nZz Bnv miKvix Lvm Rwg wnmv‡e Mb¨ nB‡e| wZwb bvwjkx Rwg miKv‡ii 1bs LwZqv‡Y †iKW© Kivi `vex Rvbvb| ......AvcxjKvixc‡ÿ `vex †Iqw³K wfwË bv _vKvq Zvnv‡`i bv‡g †iKW© Kivi `vex we‡ePbv Kiv †Mj bv|Ó And, as such at any rate judgments of both the Courts below do not deserve to be sustained.

29. To this, the learned Deputy Attorney General finds it difficult to repel the contention of Mr. Mokhlesur Rahman, the learned Advocate for the petitioners.

30. For the reasons stated above, I am inclined to hold that both the Courts below erred in law in passing the judgments under challenge without following the correct principle relating to the appreciation of the evidence and materials on record and the same has resulted in an error in the impugned decisions occasioning failure of justice.

31. In the result, the Rule is made absolute without any order as to costs. The impugned judgment and decree dated 9.11.2008 (decree signed on 9.11.2008) passed by the learned Additional District Judge, 5th Court, Dhaka in Title Appeal No.825 of 1999 affirming those dated 17.10.1999 passed by the learned Subordinate Judge, 1st Court, Dhaka in Title Suit No.16 of 1988 dismissing the suit is set aside and thus, the suit is decreed.

Let a copy of the judgment along with the lower Court's record be sent down at once.

Ed.

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AKM Fayekuzzaman Vs. The State and another (Siddiqur Rahman Miah, J.)

HIGH COURT DIVISION (Criminal Revisional Jurisdiction) Mr. Siddiqur Rahman Miah, J. and Mr. Md. Abdul Hye, J. Judgment 09.12.2010.

} } } }

341

Ms. Salma Rahman, AAG . . . For the state.

Judgment

AKM Fayekuzzaman .…. Petitioner VS The State and another … Opposite Parties

Code of Criminal Procedure (V of 1898) Sections 265 C and 439 Negotiable Instruments Act (XXVI of 1881) Section 138 There is sufficient materials before the High court Division for believing that the accused petitioner committed no offence under section 138 of the Negotiable Instruments Act and as such there will be substantial injustice if this court does not interfere in this case and there will be fragrant violation of justice. The High court Division under section 439 of the Code having supervisory jurisdiction can scrutinize and can go into the fact of a case to examine the propriety of the order passed under section 265C of the Code of Criminal Procedure.

Hence the application by the accused petitioner under section 265C of the Cr.P.C. is maintainable against the order of framing charge against the accused. ...(34) Reazuddin Ahmed Md vs. State and another 1997 49 DLR (AD)64 1997 BLD AD 123; Md. sami Ullah Khan vs. The State (1963) 15 DLR(SC)150; Firoj Khan vs. Captain Golam Nabi (1966) 18 DLR (SC)289; Abdur Rashid Khondaker vs.

Chandu Master (1964) 16 DLR (SC)505 ref.

Mr. Habibur Rahman with Mr. Delwar Hossain Lasker … For the petitioner Mr. M.A. Mazid ...For the opposite Party No. 2.

Mr. Zahirul Haque Zahir, DAG with * Criminal Revision No. 1025 of 2010

Siddiqur Rahman Miah, J: This Rule was issued on an application under section 439 read with section 435 of the Code of Criminal Procedure filed by the informant petitioner against the order dated 09.02.2009 for framing charge against the accused petitioner which was passed by the learned Sessions Judge, Rangpur in Sessions case No. 383 of 2008 arising out of CR case No. 300 of 2008 under section 138 of the Negotiable Instruments Act, 1881 now pending before the Metropolitan Sessions Judge, Dhaka as Metro. Sessions case No. 858 of 2010.

2.

Prosecution case, in short is that one Rejena Begum, proprietor of Nepa Enterprise, filed CR Case No. 300 of 2008 against AKM Fayekuzzaman, proprietor of M/S. Khandoker Business International stating, inter alia, that the complainant is a contractor and her husband Md. Eakub Ali is a 1st Class Government officer who is acquainted with the accused who is a reputed 1st class contractor; that the accused approached to the complainant that he got five work orders whose contract value stands at Taka 13,17,36,515.60; that he needs some money for the completion of those works; that the accused expected to earn taka about more than two crores out of those works and he would pay complainant half of the profit if she gave him some money and that the complainant as per the proposal of the accused gave loan of Taka 2,25,00000/= within 23.09.2006 to 21.02.2008.

3.

It is further stated that the complainant, later on, pressed the accused to repay his loan and accordingly the accused issued a cheque of taka 1,50,00,000.00 being No. NCCB/C 5710308 from his current account No. 01016899 of NCC Bank Ltd. Rangpur; that later on when the complainant again pressed the accused to repay his loan with profit, then the accused again issued a cheque of Taka 75,00,000/= ; that the complainant placed the

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AKM Fayekuzzaman Vs. The State and another (Siddiqur Rahman Miah, J.)

cheque of taka 1,50,00,000/= in the relevant bank for encashment but the cheque was dishonored; that the complainant approached to accused for immediate repayment of loan but he failed for which the complainant issued legal notice on 03.06.2008 to the accused through his lawyer which was received by the office of the accused on 08.06.2008 but the accused did not take any step to repay the loan; that in reply to the legal notice the accused stated that there was a written contract between them, which is not correct and that when the complainant presumed that the accused would not repay the loan, then she was compelled to file the case against the accused petitioner under section 138 of the Negotiable Instruments Act, 1881.

4.

Thereafter the accused petitioner voluntarily surrendered before the Chief Judicial Magistrate and got bail. Subsequently the case was transferred before the Sessions Judge, Rangpur for trial and the accused petitioner got bail by the learned Sessions Judge, Rangpur and on 09.02.2009 was fixed for framing of charge. On behalf of the accused petitioner, an application under section 265C was filed which was rejected by an order dated 09.02.2009. Later on, by the order of High Court Division the case transferred to Metropolitan Sessions Judge, Dhaka and now the case is pending before the Metropolitan Sessions Judge, Dhaka and last date of hearing was on 21.04.2010.

5.

The defence case as it appears from the record is that the accused petitioner is a bonafide businessman and he got some work orders for erecting some buildings at Rangpur and at that time, husband of the complainant i.e. Yeakub Ali was the PIO (Project Implementation Officer) of the Rangpur who proposed to the accused petitioner that his wife had a business firm and she is able to discharge the work and there will be no problem if the works are given to the complainant. On good faith, the accused petitioner on the basis of a deed of contract supplied the

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works to the complainant along with sufficient cash and 10(ten) blank cheques of NCC Bank Rangpur being Nos. 5710301 to 5710310 were given to the complainant. Out of the 10 (ten) cheques, the complainant used 7 (seven) cheques i.e. cheque Nos. 5710301 to 5710307 and drew Taka 57,04,000/= and for getting back his blank cheques, the accused petitioner filed a petition case No. 6 dated 17.06.2008 to recover the blank cheques. Simultaneously the accused wrote a letter to the Bank to stop payment because the 10% of the work was not done by the complainant but amount of more bills was already withdrawn by her.

6.

In view of the above facts and circumstances of the case, the points for determination is whether the case of the complainant under section 138 of the Negotiable Instruments act is at all maintainable and whether the framing of charge dated 09.02.2009 against the accused petitioner is at all tenable in law.

7.

There is no denying of the fact that the complainant, Rejina Begum, proprietor of Nepa Enterprise and the accused Petitioner AKM Fayekuzzaman, proprietor of M/S. Khondaker Business International business man and women and the husband of the complainant, Md. Yakub Ali, was PIO ( Project Implementation Officer ) of Rangpur area and there was acquaintance between the husband of the complainant and the accused petitioner.

8.

Mr. M A Mazid, the learned Advocate of the opposite party No. 2 submits that the accused took loan of taka 2,25,00,000/= on different dates starting from 23.09.2006 to 21.02.2008 giving her assurance to pay her 50% profit of schedule work and on the demand and pressure of the complainant the accused issued a cheque of Taka 1,50,00,000/= from his current account of NCC Bank Ltd. Rangpur; that the complainant requested the accused to repay the loan but he failed to repay the loan; that complainant issued legal notice

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AKM Fayekuzzaman Vs. The State and another (Siddiqur Rahman Miah, J.)

through his lawyer and in stead of getting the notice, the accused failed to repay the loan for which she filed a case under section 138 of the Negotiable Instruments Act and that matter has been decided by the High Court Division. He further submits that the charge framed against the accused petitioner being legal will be maintained and thus the application under section 439 of the Code of Criminal Procedure are liable to be discharged.

9.

Mr. Zahirul Haque Zahir, Deputy Attorney General along with Mrs. Salma Rahman, Assistant Attorney General for the State has adopted the submission of the learned Advocate for the complainant opposite party No. 2.

10. Mr. Habibur Rahman with Mr. Delwar Hossain the learned Advocate for the petitioner submits that the charge against the accused petitioner is not at all maintainable under section 138 of the Negotiable Instruments Act as there is a Civil contract between the complainant opposite party and the accused petitioner in the following terms: Ò1g c‡ÿi gvwjKvbvaxb cÖwZôv‡bi bv‡g wkÿv-cÖ‡KŠkj Awa`ßi nB‡Z cÖvß 2wU KvR myôz ev¯Íevq‡bi Rb¨ wjwLZ k‡Z© Avgiv Dfq cÿ GB Pzw³c‡Î Ave× nBjvg| kZ©vejx 1| 1g c‡ÿi e¨emvqxK e¨¯ÍZv I kvixwiK Amyweavi Kvi‡Y wgÿv cÖ‡KŠkj Awa`ßi, XvKvi KZ©„K Bmy¨K…Z Kvh©v‡`k †g‡gvt bs 4949 ZvwiL 07/08/06Bs I 4938 ZvwiL 07/08/06Bs| Kv‡Ri cwigvb UvKv 2,04,08,185-30 I 6497432/59| D³ KvR 2wU m¤úbœ Kivi Rb¨ Avgvi cÖwZôv‡bi c‡ÿ †gmvm© wbcv G›UvicÖvBR Gi ¯^Z¡vwaKvix 2q cÿ eive‡i ewY©Z Kv‡Ri Pzw³ g‡Z wbR A_©vq‡b m¤úbœ Kivi `vwqZ¡ KZ©„Z¡ cÖ`vb Kwiqv GKwU cvIqvi Ae GUwb© cÖ`vb KwiqvwQ| hvnvi ZvwiL -- †bvUvix bs--| 2| 2q cÿ GB Pzw³ cÎ Abyhvqx ewY©Z KvR 2wU m¤úbœ Kwi‡Z hveZxq wewb‡qvM Kwi‡eb Ges KZ©„c‡ÿi wm×všÍ Abyhvqx KvRwU h_vixwZ wbR `vwq‡Z¡ m¤úbœ Kwi‡eb| GB e¨vcv‡i 1g c‡ÿi †Kvb `vq `vwqZ¡ iwnj bv| mswkøó KvR‡i hveZxq wej Gbwmwm e¨sK wjt, iscyi kvLvq 1g c‡ÿi bv‡g PjwZ wnmve

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b¤^i 01016899 Gi †PK b¤^i 5710301-10 †gvU 10wU cvZv 1g cÿ ¯^vÿi Kwiqv 2q cÿ‡K cÖ`vb Kwijvg| hvnv Øiv wZwb ïay gvÎ Dc‡iv³ Kvh©v‡`k eve` we‡ji mgy`q A_© e¨vsK nB‡Z D‡Ëvjb Kwiqv jB‡Z cvwi‡eb| Bnv‡Z 1g c‡ÿi †Kvb IRi AvcwË AvBbMZ fv‡e AMÖvn¨ nB‡e| 2q cÿ GB †PK vb¨ †Kvb Kv‡R e¨eüZ Kwi‡Z cvwi‡e bv| 3| Dc‡iv³ wVKv`vix KvR 2wU e¨vq I jf¨vsk eve` †gvU 14,00,000 †PŠÏ jÿ) UvKv 2q cÿ 1g cÿ‡K cÖ`vb Kwi‡eb| Zvi g‡a¨ A`¨ 26/09/2006&s Zvwi‡L 2,50,000 (`yB jÿ cÂvk nvRvi) UvKv bM‡` cwi‡kva mn evKx UvKv AvMvgx Aí mg‡qi g‡a¨ 2q cÿ 1g cÿ‡K cwi‡kva Kwi‡eb|Ó 11. He further submits that on good faith the accused petitioner on the basis of contract supplied the works to the complainant along with sufficient cash and 10 (ten) blank cheques of NCC Bank Ltd. Rangpur being 5710301 to 5710310; that out of the 10 (ten) cheques the complainant used 7 (seven) cheques i.e. cheque Nos.5710301 to 5710307 and withdrew taka 57,04,000/= from the relevant account of the accused petitioner and the accused petitioner filed a petition case No. 6 dated 17.06.2008 to recover the blank cheques and simultaneously the accused wrote a letter to the Bank concerned to stop payment in the case filed under section 138 of the Negotiable Instruments Act because the 10% of the work was not done by the complainant but more amount of bill was drawn.

12. He further submits that the accused petitioner has filed the complainant petition being No. 3346 of 2008 under section 406/420/109 of the Penal Code by annexure–‘F’. The learned Chief Metropolitan Magistrate forwarded the petition to O.C., Ramna PS for enquiry and report.

Officer-in-charge, Ramna endorsed the matter to SI Mr. Aksed, who enquired into the matter submitted enquiry report marked annexure-‘D’ stating ÒNUbvi e¨vcv‡i wRÁvmvev` Kwi Ges welqwU †Mvc‡b I cÖLv‡k¨ wRÁvmvev` Kwi| Avgvi mwVK Z`šÍ, cÖ`Ë ¯^vÿ¨ cÖgvb, wewfbœ WKz‡g›U I mvÿ¨ BZ¨vw`‡Z ev`xi AvbxZ `t wet 406/420/109 avivi Awf‡hvM cÖ_wgKfv‡e cÖgvwbZ nBqv‡Q|Ó

344

AKM Fayekuzzaman Vs. The State and another (Siddiqur Rahman Miah, J.)

13. On the finding of the report submitted by SI Akshed, Metropolitan Magistrate, Ms. Sayeda Minhajum Munir without taking cognizance of the case against accused Yukub Ali and Rejina Begum discharged them relating to Ramna PS Case No. 45(7)08 and GR case No.382 of 2008 under section 420/406/109 of the Penal Code against which accused petitioner AKM Fayekuzzaman filed Naraji Petition being Metropolitan Criminal Revision case No.92 of 2009 which was transferred to the learned Additional Metropolitan Sessions Judge, Dhaka for hearing who after detained discussion held that learned Metropolitan Magistrate committed illegality in not taking cognizance of the case on the basis of police report dated 05.07.1008 filed by SI Aksed and illegally discharged the accused Yeakub Ali and Rejina Begum from charge and consequently he allowed the Revisional application which stoutly upheld that contention of the present accused petitioner A.K.M. Fayekuzzaman to the effect that the accused petitioner did not take loan from the complainant opposite party Rejina Begum rather the accused petitioner gave 10 (ten) blank cheques being No.5710301 to 5710310 out of which the complainant opposite party Rejina Begum used cheque Nos. 5710301 to 5710307 and withdrew Tk. 57,04,000/= completing only 10% of the work violating the terms of contract dated 13.09.2006 between the parties . This fact clearly shows that the complainant opposite party Rejina Begum violating the terms of the contract illegally and fraudulently had written the huge amount of Taka 1,50,00,000 on the blank cheque and filed the case under section 138 of the Negotiable Instruments act for illegal gain. This fraudulent conduct of the complainant opposite party Rejina Begum cannot be encouraged allowing to proceed her case under section 138 of the Negotiable Instruments Act. The Negotiable Instruments Act was enacted for the holy purpose relating to promissory notes, bill of exchange and cheques. But this law has not been enacted for materializing such fraudulent

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cheques. The above facts clearly proves that the complainant opposite party Rejina Begum has illegally taken the shelter of this law like Negotiable Instruments Act to materialize her illegal gain. Record shows that the complainant opposite party Rejina Begum violating the terms of contract illegally withdrew Tk. 57,04,000/= using seven cheque Nos.5710301 to 5710307 and moreover she fraudulently and illegally attempted to snatch away Taka 1,50,00,000/= from the accused petitioner A.K.M. Fayekuzzaman using blank cheque No.5710308 misusing the holy purpose of the Negotiable Instruments Act. Negotiable Instruments Act is a very hash law wherein it is to be seen if whether cheque is dishonoured within stipulated time whether legal notice has been served in time, and whether case was filed within specific time, then there is every possibility of being convicted with heavy fine. In the instant case, when the basic document like cheque is fraudulent there is no scope to see other factors. Because fraud vitiates everything Negotiable Instruments Act cannot be allowed to use for fraudulent purpose and for the illegal gain of the complainant opposite party Rejina Begum. To get relief under this law, the complainant opposite party Rejina Begum has to come to the court with clean hand. The contract between the accused petitioner A.K.M. Fayekuzzaman and complainant opposite party Rejina Begum is civil in nature. She may get relief on the basis of the contract. The contract between parties is a secret document. No one can go beyond the contract. In the instant case, the whole thing is to be settled on the basis of contract which the parties solemnly signed. The complainant opposite party Rejina Begum by passing the contract which she signed can not take the shelter of fraud and her fraudulent cheque which she manufactured illegally using the blank cheque which accused petitioner gave her in good faith to draw the amount of bill after completion of work but the complainant opposite party Rejina adopted illegal means under grab of Negotiable

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AKM Fayekuzzaman Vs. The State and another (Siddiqur Rahman Miah, J.)

Instruments Act to get the huge amount from the accused petitioner AKM Fayekuzzaman in a easy way fraudulent converting the blank cheque.

14. Mr. Habibur Rahman, the learned Advocate for the accused petitioner A.K.M. Fayekuzzaman in reply to the question of Settlement of the matter of section 138 of the Negotiable Instruments Act by the High court Division presided by Mr. Afzal Hossain Ahmed, submits that commitment of fraud on the blank cheque by the complainant Rejina Begum has surely escaped the notice of the learned Judge, otherwise the matter was not decided in such a mechanical way. He further stoutly submits that fraud always vitiates everything and that the present forum is different wherein this court can decide everything on the basis of the facts of the case. We find substance in the submission of the learned Advocate for the petitioner.

15. The accused petitioner AKM Fayekuzzaman filed application before the learned Sessions Judge, Rangpur under section 265C of the Code of Criminal Procedure for discharging him from the charge as the complainant opposite party fraudulently converted the blank cheque into the alleged cheque.

16. Now let us see whether the accused petitioner may get any relief under section 265C of the Code of Criminal Procedure. Section 265C runs thus “265C – Discharge. If upon consideration of the record of the case and the documents submitted therewith and after hearing the submission of the accused and the prosecution in this behalf, the court considers that there is no sufficient ground for proceeding against the accused, it shall discharge the accused and record the reasons for so doing.�

17. The section has made a beneficent provision to save the accused from planned harassment which is a necessary concomitant of a protracted criminal trial. The object of section 265C of the

345

Code of Criminal Procedure is to inquire into the materials on record for prima facie satisfaction of the court as to whether the accused should be discharged or proceeded against so that innocent persons may not be harassed on false and frivolous allegations. If on the other hand, if the court finds that there is ground for presuming that the accused has committed an offence it shall frame necessary charges against him under section 265D of the Code. Even if now cases are sent to the court of Sessions upon a charge sheet or otherwise under section 265C of the Code of Criminal Procedure it is the duty of the court of Sessions to discharge those accused against whom it appears to the court from the record that there is no ground for proceeding after recording its reasons upon a consideration of the materials on record and after hearing both the parties so that frivolous cases and cases of no evidence do not occupy the time of the Sessions Court and innocent persons are not harassed unnecessarily by being put to the trouble and expense of undergoing a sessions trial. We find support of the above view in the case reported in 11 DLR (SC)394.

18. Trial court may discharge accused without framing charge if material on record is not sufficient. If before framing the charge, the Sessions court considers that there is no sufficient ground for proceeding against the accused, then it shall discharge the accused and record the reason for so doing under section 265C Cr.P.C. 19. The legislature has enacted section 265C apparently to protect the accused from facing the agony of futile and useless trial when the statements of the complainant and evidence available on record do not make out any prima facie case against the accused. Just as the accused is to be presumed innocent till he is proved to be guilty similarly the prosecution or the person wronged can not be throttled by the court arbitrarily and capriciously and must be given due opportunity to prove his case against the alleged

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AKM Fayekuzzaman Vs. The State and another (Siddiqur Rahman Miah, J.)

wrong doer if on initial scrutiny is found that his allegation does disclose the commission of a criminal offence against an accused.

20. Under section 265C Cr.P.C. it is duty of the court of sessions upon consideration of the materials on record and after hearing the parties, to discharge those accused persons against whom it appears to the court that there is no ground for proceeding so that frivolous cases and cases of no evidence do not occupy the time of the court and innocent persons are subjected to the rigorous and expenses of a full scale trial.

21. The Role of High Court Division is to see whether thing are done rightly. High Court Division by its inherent jurisdiction can impart justice and can also eliminate injustice. This Division is empowered to see whether the charge against the accused petitioner has framed rightly or not under section 439 of the Code of Criminal Procedure .

22. The revisional powers of the High court vested in it by section 439 read with section 435 do not create any right in the litigant, but only conserve the power of the High court to see that justice is done in accordance with the recognized rules of criminal jurisdiction and that subordinate courts do not exceed their jurisdiction or abuse their powers vested in them by the code. In hearing and determining cases under section 439, the High Court discharges its statutory function of supervising the administration of justice on the Criminal side.

23. The High Court Division may suo motu call for the record of the courts subordinate to it and set aside any order passed by such courts in any legal proceeding which has caused miscarriage of justice (Reazuddin Ahmed Md vs. State and another 1997 49 DLR (AD)64 1997 BLD AD 123.

24. The object of this section to confer a kind of paternal or supervisory jurisdiction to correct flagrant miscarriage of justice in matters coming up for adjudication before a criminal court. The main question which the High court has to consider in revision is whether substantial justice

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has been done. This power is to be exercised in aid of justice and to prevent injustice.

25. The discretion of High Court to interfere with the proceedings pending in a subordinate court is unfettered though this section cannot be interpreted to mean interference with each and every order passed by a subordinate court. The power of revision has to be exercised sparingly and only when grave injustice is likely to be done or where there has been clear miscarriage of justice or the order is illegal or perverse or the impugned order is such that no reasonable court would pass it or when it appears that great injustice has been done by the impugned order.

26. Power possessed by court under section 435/439 Cr.P.C. do not impinge, curtail or limit in any manner whatsoever. The powers under section 435/439 Cr.P.C. are independent and jurisdiction can be exercised under section 439, Cr.P.C to secure the ends of justice.

27. In view of the provision of law on mentioned above and on perusal of the record it clearly appears to us that the learned Sessions Judge Rangpur illegally framed charge on 09.02.2009 without going to the root of the matter and the learned Sessions Judge, Rangpur had done glaring irregularities materially affecting the proceeding and also committed paten improprieties vitiating the impugned order dated 09.02.2009. Since there is glaring defect and error in law and since there is a flagrant miscarriage of justice in the impugned order, thus High Court Division has jurisdiction to cure the injustice.

28. The impugned order dated 09.02.2009 for framing charge is bad in law and fact and full of non consideration of vital point of law and also the trial court failed to consider that the complainant opposite party was employer of the accused petitioner who came in a contract for discharging the work order of the accused petitioner. The accused petitioner has become a victim of circumstances as the complainant filed this false, fabricated and concocted case to harass and humiliated the accused petitioner for momentary gain.

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AKM Fayekuzzaman Vs. The State and another (Siddiqur Rahman Miah, J.)

29. More over on perusal of the record it clearly appears to us that the present facts and circumstances of the case does not attract section 138 of the Negotiable Instruments Act as the complainant opposite party has taken the shelter of fraud for materialsing her monetary gain and as such the case of complainant opposite party under section 138 of the Negotiable Instruments Act does not attract at all.

30. The accused petitioner AKM Fayekuzzaman filed application before the learned Sessions Judge, Rangpur for discharging him under section 138 of the Negotiable Instruments act as he framed the charge without considering the material facts Section 265C of the Code of Criminal Procedure empower the court to discharge the accused if there is sufficient ground for not proceeding against the accused. The learned Sessions Judge ought to have discharged his power judiciously after applying his mind to the material facts and examining the evidence on record carefully. It is not open to a court to base its finding on the assumption. The learned Sessions Judge, Rangpur had based its decision on assumption without going through the facts of the case. On perusal of the record it is abundantly clear that the complainant opposite party manufactured the cheque in question under section 138 of the Negotiable Instruments act interpolating the amount in the blank cheque which was given to the complainant opposite party by accused petitioner for official use. It is alleged by the complainant opposite party that Tk. 2,50,00,000/= was given loan to accused petitioner, who is a stranger, without any written document and the loan-money was alleged to have been sent through S.A. paribahan in different dates but the complainant opposite party could not submit any document of sending such amount and more over on the prayer of the accused petitioner the SA Paribahan authority had denied the assertion of the complainant opposite party Rejina Begum. On the other hand, from the document, enquiry report and other evidence on record, it clearly appears to us that the accused

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petitioner gave those 10 (ten) blank cheques on the basis of contract between the parties to facilitate to draw the bill amount after completion of work. It further reveals that the complainant opposite party withdrew more money from the account of the accused petitioner through seven cheques without completing the work as per contract and out of the rest three cheques, one blank cheque was given to a shop keeper from whom the complainant opposite party took construction materials but that shop keeper on oath denies the assertion of the complainant opposite party and on the other hand admitted the case of the accused petitioner. It further reveals from the facts and evidence on record of the accused petitioner that the complainant opposite party fraudulently converted the rest two cheques interpolating the amount filed two cases against the accused petitioner under section 138 of the Negotiable Instruments Act. 31. The above facts were on the record before the learned Sessions Judge, Rangpur while he rejected the application of the accused petitioner under section 265C of the Code of Criminal Procedure. Such non-consideration of the facts on the part of the learned Sessions Judge, Rangpur clearly shows his non-application of judicial mind to the materials on record.

32. As per decision cited in the case of Md. sami Ullah Khan vs. The State (1963) 15 DLR(SC)150, in the case of Firoj Khan vs.

Captain Golam Nabi (1966) 18 DLR (SC)289 and in the case of Abdur Rashid Khondaker vs.

Chandu Master (1964) 16 DLR (SC)505,High court’s power under section 439 of the Code of criminal Procedure is very wide. It can revise the order passed by the inferior criminal court in exercise of its revisional jurisdiction in a proper case. High court, in proper cases, can interfere with question of fact wrongly decided by the trial court. Under section 439, Cr. P.C. High court exercises of its revisional Jurisdiction, in appropriate case and can go into the fact and disturb the finding of fact as for example where the subordinate courts have wrongly applied the law and

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AKM Fayekuzzaman Vs. The State and another (Siddiqur Rahman Miah, J.)

procedure or not applied the correct principles relating to the appraisement of evidence or ignored the important pieces of evidence altogether High Court Division can interfere. Normally though a revisional court should not take upon itself the task of weighing the evidence a fresh, but its power can not be defined to question of law along and in a fit case, the High court Division can also deal with question of facts where the finding of the court below are unreasonable, perverse and absolutely wrong against the weight of evidence. Considering the facts and circumstances and evidence on record, we are of the firm view that the impugned order dated 09.02.2009 passed by the learned Sessions Judge, Rangpur is unreasonable, perverse and absolutely wrong in view of the prevailing facts and circumstances of the case.

33. We may profitably refer the decision in the case of State vs. Khondaker Md. Moniruzzaman reported in BLT (AD) 9 wherein it is decided that where there is no sufficient ground to proceed against the accused, the High court under section 265C of the Code of Criminal Procedure can discharge accused from charge. The facts of the present case clearly indicate the innocence of the accused petitioner and his false implication in this case under section 138 of the Negotiable Instruments Act. The learned Sessions Judge, Rangpur ought to have allowed the application of the accused petitioner under section 265C of the Cr.P.C. discharging accused petitioner A.K.M. Fayekuzzaman from the charge under section 138 of the Negotiable Instruments Act for ends of justice in view of the defence plea. The facts and circumstances require interference for correction of a manifest illegality or the prevention of a gross miscarriage of justice. The exercise of power under section 439/435 of the Code of Criminal Procedure is discretionary with the High Court.

Considering the facts and circumstances of the present case, we are of the view that this is a fit case for exercising its discretion as the complainant opposite party Rejina Begum has committed double fraud as she withdrew the excess money of the accused petitioner using seven cheques and secondly she converted the present two cheques inserting huge amount by different hand which is a

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manifest and patent injustice apparent on the face of the record which calls for prompt redress. High Court Division will surely interfere where a person like accused petitioner is being harassed by an illegal and fraudulent proceeding.

34. There is sufficient materials before the High court Division for believing that the accused petitioner committed no offence under section 138 of the Negotiable Instruments Act and as such we are of opinion that there will be substantial injustice if this court does not interfere in this case and there will be fragrant violation of justice. The High court Division under section 439 of the Code having supervisory jurisdiction can scrutinize and can go into the fact of a case to examine the propriety of the order passed under section 265C of the Code of Criminal Procedure. Hence the application by the accused petitioner under section 265C of the Cr.P.C. is maintainable against the order of framing charge against the accused.

35. In the present case we have already found that the learned Sessions Judge, Rangpur acted without jurisdiction in passing the impugned order dated 09.02.2009 which is clearly illegal and we are of the view that in order to prevent the same for the ends of justice, the power vested in the High court Division under section 439 of the Code of Criminal Procedure should be exercised in the present case. We, therefore, find that the impugned order dated 09.02.2009 being illegal and without jurisdiction which is liable to be set aside.

In the result, the Rule is, therefore, made absolute and the impugned order dated 09.02.2009 passed by the learned Sessions Judge, Rangpur in Sessions Case No. 383 of 2008 arising out of CR case No. 300 of 2008 is set aside. Accused AKM Fayekuzzaman be discharged from the charge levelled against him under section 138 of the Negotiable Instruments Act, 1881 as the present facts and circumstances of the case do not attract section 138 of the Negotiable Instruments Act. Complainant opposite party Rejina Begum may take shelter under appropr-iate law to redress her grievance, if any, if she wishes under actual facts.

Let a copy of this judgment be sent to the trial court at once for necessary action.

Ed.

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Abul Basher and another Vs. The State (Siddiqur Rahman Miah, J.)

HIGH COURT DIVISION (Criminal Appellate Jurisdiction) Mr. Siddiqur Rahman } Abul Basher and Miah, J. another and } .…. Appellants Mrs. Krishna Debnath, J. VS The State Judgment } … Respondent 13.05.2010.

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Osena Begum vs. The State, 55 DLR 299; Abdur Rashid vs. State, 27 DLR (AD)- 1; Abdul Quddus vs. State, 43 DLR (AD) 234; State vs. Khadem Mondal, 10 BLD (AD) 228 ref.

Mr. Hasan M.S. Azim … For the petitioner Mrs. Sakila Rowshan DAG . . . For the state.

Judgment

Nari-O-Shisu Nirjaton Daman Ain (XVIII of 1995) Sections 10(2) & 14 Evidence Act ( I of 1872) Section 45 Scanning the evidence of PWs it is evident that the allegation regarding demand of dowery has not been substantiated and the alleged occurence does not come within the ambit of section 10(2) of the Ain. On appreciation of the evidence on record it appears that the main allegation against the accused appellants that they firstly assaulted the victim and then poured poison into his mouth have not been proved. It is settled principle that the positive evidence in a case is that of the eye witness who had seen and narrated the occurrence. The evidence of a medical man or an expert is merely an opinion which only lends corroboration to the direct evidence. These glaring inconsistencies between the existence of the injuries on the dead body of victim as found by the post mortem doctor and the evidence of the prosecution witnesses about the injuries caused by the appellants irresistibly lead us to a conclusion that the occurrence did not take place in the manner as alleged by the prosecution. Such failure to exhibit the original copy of the post-mortem report, the possibility of such carbon copy being a fabricated copy cannot be ruled out. The learned Judge of the trial court below substituted “moral conviction for legal evidence” which is not allowed in law and, thus the impugned judgment and order of conviction and sentence is illegal and liable to be set aside. ....(39, 48, 52 & 53) * Criminal Revision No. 1025 of 2010

Siddiqur Rahman Miah, J: This Criminal Appeal is directed against the judgment and order dated 06.11.2007 passed by the learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal No. 3, Chittagong, in Nari-O-Shishu Nirjatan Case No.177 of 2003 arising out of Fatikchari PS. Case No.6 dated 14.11.1999 corresponding to GR No. 140 of 1999 convicting the appellants under section 10(2) and 14 of the NariO-Shishu Nirjatan Daman (Bishesh Bidhan) Ain, 1995 (hereinafter refer as Ain) and sentencing each of them to suffer imprisonment for life.

2.

The prosecution case, in short, is that, the deceased Hasina Akhter alias Ratna was given in marriage on 16.05.2007 with the convict-appellant Abul Bashar, that after 10/12 days of marriage, the co-accused Nos.3,4 and 5 including another convict Morium Bibi, mother of Abul Bashar, stared demanding dowry to the tune of Tk.70,000/= for arranging a Saudi Arabian visa for Abul Bashar; that the victim used to inform her father about the demand for dowry; that upon refusal by the family of the deceased Ratna to meet the demand for dowry, the two appellants Abul Bashar and his mother mounted torture on the deceased.

3.

It is further stated that the allegation of beating and demanding dowry was taken to the local Salish where appellant in the presence of PW 1, PW 3 and PW 4 promised not to torture his wife and took her home; that in the night before the date of incident, appellants Morium Bibi and her son Abul Bashar on the excuse of delay in cooking food tortured her again on different parts of her

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Abul Basher and another Vs. The State (Siddiqur Rahman Miah, J.)

body; that the next morning on 29.07.1999 when Ratna was coming to her father’s home, then the appellant Abul Bashar with the order of coaccused Nos.3 and 5 forcefully brought her inside and on her request for water, they poisoned her and strangled her to death after beating.

4.

Sensing death of the victim, a boy from nearby house came to the home of her father Omar Ahmed Khondoker and informed him about the death of his daughter. He went there immediately and found the victim dead. Soon after, he along with the company of PW-3 went to Fatikchari police station and accordingly lodged the UD case No. 20 of 1999 dated 29.07.1999. Thereafter, the brother of the deceased came to know that, in fact, the convict-appellants and other co-accused killed her sister. Accused No, 4 and 5 forging signature of his father made out the said UD case No.20 of 1999 dated 29.07.1999. Stating the above, facts Ratna’s brother Abdul Halim submitted a written complaint to the Magistrate on 31.10.1999. Treating the above complaint as FIR, Fatikchari P.S Case No.6 dated 14.11.1999 u/s 10 (1)and 14 of the Nari-O-Shisu Nirjatan (Bishes Bidhan) Ain, 1995 was recorded against these two convict-appellants and three others named in the ejahar that corresponds to G.R. No 140 of 1999.

5.

After investigation, police submitted the report being Charge sheet No. 12 dated 23.02.2000 against the 4(four) accused persons including the convict appellants and sent them up for trial for committing offence punishable under section 10(1) and 14 of the Nari-O-Shishu Nirjatan Bishesh Bidhan Ain, 1995 stating, inter alia, that the allegations against the accused persons were prima facie found to be true.

6.

After being ready the case was transferred to the learned Nari-O-Shishu Nirjatan Daman Tribunal No. 3 Chittagong and renumbered as Nari-O-Shishu Nirjatan Case No. 177 of 2003 (previously it was numbered as Nari-O-Shishu Case No. 63 of 2000).

7.

The learned Tribunal, thereafter, framed charge against the accused Abul Basher under

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section 4/10(1) of the Nari-O-Shishu Nirjatan ( Bishesh Bidhan) Ain 1995 and under section 4/10(1)/14 of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain 1995 against the other accused Marium Bibi, Shahjahan and Bacchu Miah.

8.

The trial of the case was held before the Tribunal Judge, Chittagong and in total 9 prosecution witnesses appeared before the Tribunal who were examined by the prosecution and cross-examined in part by the defence with the exception of prosecution witness No. 3 who was declared hostile.

9.

The appellants were examined under section 342 of the Code of criminal Procedure and they denied the charges brought and the allegations made against them. The defence did not call for any witness.

10. From the trend of cross examination and the defence case, it appears to be a case of innocence of the accused and that there was no demand of any dowry from the wife and there was any attempt of kill the victim by the accused as alleged by the prosecution but that the victim died by taking poison.

11. After considering the facts circumstances and evidence of the case, the learned Judge, NariO-Shishu Nirjatan Tribunal convicted the accused under section 10(2) and 14 of the Ain, 1995 sentencing them to suffer rigorous imprisonment for life by the judgment and order dated 06.11.2007.

12. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction under section 10(2)/14 of the Nari-O-Shishu Nirjatan Bishesh Bidhan Ain, 1995, the appellants have come up with the present appeal which is opposed by the respondent state through learned Deputy Attorney General.

13. Mr. Hassan S.M. Azim the learned Advocate for the appellant took us to the FIR, the charge so framed, the deposition of the prosecution witnesses, impugned judgment and the material papers and documents which are available in the paper books

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Abul Basher and another Vs. The State (Siddiqur Rahman Miah, J.)

and submits that the convict appellants are totally innocent and they have not committed the crime as alleged by the prosecution; that the learned Tribunal misinterpreted, misread and misunderstood the oral evidence as well as documentary evidence in the case and erred in convicting and sentencing the appellants on such misreading and misapplication of evidence; that the learned Tribunal erred in failing to note the contradictions in the depositions made by the PWs in their own depositions as well as against each other and the learned court failed to apply his judicial mind in assessing the evidence and that the impugned judgment is illegal and unwarranted by facts and circumstances of the case as such the impugned judgment is liable to be set aside.

14. Mrs. Sakila Rowshan, the learned Deputy Attorney General for the state, on the other hand submit that the learned Judge, Nari-O-Shishu Nirjatan Daman Bishesh Adalat No. 3 Chittagong was justified in convicting and sentencing the accused appellants Abul Basher and Marium Bibi on assessing the evidence on record. She further submits that the prosecution has proved its case against the accused by most consistent, corroborative and overwhelming evidence; that the learned Judge was perfectly justified in convicting and sentencing the accused appellants on the basis of the most cogent and reliable evidence and that his judgment does not suffer from any misreading and non-reading of evidence. The learned Deputy Attorney General further submits that all the prosecution witnesses are natural, probable and competent witnesses and there is no internal points of falsehood in their evidence on any point and as such the impugned judgment calls for no interference by the court.

15. The only point for determination in the appeal is whether the learned Judge was justified in convicting and sentencing accused appellants Abul Basher and Marium Bibi under section 10(2)/14 of the Nari-O-Shishu Nirjatan Daman Bishesh Bidhan Ain, 1995 .

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16. In the face of arguments advanced by the learned Advocates of the contending parties, we are now called upon to scrutinize the material evidence on record to come to a proper decision in this appeal.

17. P.W.1, Omer Ahmed Khondaker is the father of the victim who deposed that the inmates of the house of his son-in law informed him that his daughter died taking poison; that his son, who is the informant, was in his duty at Rubber Garden, that accused Abul Basher is also his brother’s son; that accused Sajahan is also his brother’s son and accused Bachu is his nephew; and that his son filed this case 3 three months of his after filing of his UD case.

18. He categorically stated in his cross examination that his son in law Abul Basher who is the accused did never demand any dowry from his daughter and thus he does not solicit his punishment.

19. P.W.2, Abdul Halim, is the informant of this case who deposed in his examination in chief that he heard that his sister Hachina Akter died taking poison; that he was not in the house as he served in Holudia Rabber Garden; that he does not know what was written in his case. At this stage the learned court warned this witness to say like the contents of the FIR and thereafter the learned Judge adjourned the case from 18.02.2001 to 20.05.2001. Thereafter he deposed like the contents of the FIR and this sort of attitude of the learned Judge is not desirable which indicates that the learned Judge compelled this witness to depose according to the contents of FIR. 20. In the cross examination, he stated that he filed the case three months after the occurrence; that he did not see the occurrence; that he heard about the occurrence but he did not hear the occurrence from any person who saw the occurrence from his own eyes. He categorically stated in his cross examination that the accused did

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Abul Basher and another Vs. The State (Siddiqur Rahman Miah, J.)

not demand any dowery; that his father informed him that his sister died taking poison and that no salish was held at school field.

21. P.w. 3.Mohammad Hossain, deposed that the father of the victim, Omer Ali Khandaker informed him on 29.09.1999 at about 11/12 hour that his daughter died taking poison.

22. In the cross examination, he denied the defence suggestion that he told to the I.O. that the accused killing the victim poured poison into her mouth; that he did not depose to the I.O. and his statement under section 161 is concocted; that no salish was held regarding demanding of dowery by the accused and that the father or the brother of the victim did never disclose about the demanding of dowery by the accused.

23. P.W.4, Alkas Mia, deposed in his cross examination that he knows nothing about the occurrence.

24. P.W.5, Kala Miah, deposed in his cross examination that he heard that the victim died taking poison.

25. P.W.6, Dr. Prodip Kumar Chowdhury, deposed supporting P.M. report that the victim M Hachina died due to assault and effect of poison.

26. P.W.7, Dr. Aditta Kumar Roy, is a local doctor who deposed that the accused Abul Basher called him in his house on 29.07.1999 at 10.00 as his wife was ill and going there he found that his wife took poison. He categorically deposed that he came to understand by observing her symptom that she took poison for which he washed her stomach by tube mixing potash and water and thereafter he pushed 5000 CC saline and thereafter the victim died in his presence.

27. In the cross examination, he stated that after taking poison, Kornia became small and poison’s saint was coming from her mouth and thus he came to understand that the victim took poison and he found no injury mark inside her mouth.

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28. P.W. 8, SI Sheikh Lutfor Rahman, was the in charge of Datmara Investigation Centre. He testified that on 29.07.1999 the father of the victim filed a written complaint to the effect that his daughter died drinking poison and on the basis of such complaint, an UD case no. 20 dated 29.07.1999 of Fatikchari P.S. was started and the investigation was entrusted on ASI Abdur Razzak who held inquest of the dead body of the victim and prepared an inquest report and sent the dead body to the morgue for holding post mortem examination.

29. In the meantime, the brother of the victim filed a complaint before the Magistrate,1st class who sent the complaint to the Fatikchori PS for treating the same as FIR and accordingly Fatik chori PS case No.06 dated 14.12.1999 under section 10(1)/14 of the Nari-Shishu Nirjatan Daman (Bishesh Bidhan) Ain 1995 was started and this witness was entrusted with the task of investigation of the case and getting the task of investigation, he visited the place of occurrence prepared the sketch map of the place of occurrence and also prepared Index thereof, recorded the statement of witnesses under section161 of the Code of Criminal Procedure and later on he handed over the case docket to the officer in charge.

30. P.W.9, ASI Abdur Razzak held the inquest report of the victim and submitted a report marked exhibit-6 and his signature thereon is marked exhibit 6/1. He categorically deposed that he found no hurt in the dead body.

31. In the cross examination, he deposed that he heard from local people that the victim committed suicide taking poison.

32. These are all the evidence produced by the prosecution.

33. In the instant case, the appellants were convicted under section 10(2)/14 of the Nari-OShishu Nirjatan Daman (Bishesh Bidahan) Ain, 1995.

34. Now let us see the provision of section 10(2)/14 of the Ain which runs thus:

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Abul Basher and another Vs. The State (Siddiqur Rahman Miah, J.)

Òaviv 10| ‡hŠZy‡Ki Rb¨ g„Z~¨ NUv‡bv, BZ¨vw`i kvw¯ÍÐ (1) hw`†Kvb bvixi m¦vgx, m¦vgxi wcZv, gvZv, AwffveK, AvZ§xq ev m¦vgxi c‡¶ Ab¨†Kvb e¨w³†hŠZy‡Ki Rb¨ D³ bvixi g~Z¨ NUvb Zvnv nB‡j D³ m¦vgx, wcZv, gvZv, AwffveK , AvZ§xq ev e¨w³ g„Z~¨`‡Û `Ûbxq nB‡eb| 2| hw`†Kvb bvixi m¦vgx, m¦vgxi wcZv, gvZv, AwffveK, AvZ§xq ev m¦vgxi c‡¶ Ab¨†Kvb e¨w³ †hŠZy‡Ki Rb¨ D³ bvixi g„Zy¨ NUv‡bvi †Póv K‡ib Zvnv nB‡j D³ m¦vgx, wcZv, gvZv, AwffveK AvZ§xq ev e¨w³ hve¾xeb Kviv`‡Û `Ûbxq nB‡ebÓ| Òaviv 14| AcivacÖ‡ivPbvi kvw¯ÍÐ hw` †Kvb e¨w³ GB AvB‡bi Aaxb†Kvb Aciva msNU‡bi cÖ‡ivPbv †hvMvq Ges†mB cÖ‡ivPbvi d‡j D³ Aciva msNwUZ nq, Zvnv nB‡j H Aciva msNU‡bi Rb¨ wba©vwiZ `‡Û cÖ‡ivPbvKix e¨w³ `Ûbxq nB‡ebÓ| 35. Here in this case charge was framed against the accused Abul Basher under section10(2) of Ain and against accused Marium Bibi ( Mother of Abul Basher), Shajahan Mia and Bachu Miah under section 4/10(1)/14 of the Ain. Only accused Abul Bashar and his mother Marium was convicted under section 10(2)/14 of the Ain. No where in the judgment as well as in the framing of charge stated which role was played by which the accused were convicted basing on the lump allegation.

Now let us see how far the prosecution has succeeded in proving the allegation against accused appellants under section 10(2) of the Ain, It is stated in this section if any person commits murder for doweryk he will be convicted under this section. First of all we see whether the allegation of dowery has been proved or not.

36. P.W.2, Omar Ahmed Khonder, father of the victim deposed that accused Abul basher did not demand any dowery from his daughter.

37. P.W.2 Abdul Halim as informant deposed in his cross examination that the accused Abul Basher did not demand any dowery at the time of marriage or later.

38. P.W.3 Mohammad Hossain deposed that he did not do any salish as regards the demand of dowery.

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39. Scanning the evidence of PWs it is evident that the allegation regarding demand of dowery has not been substantiated. Thus we find that the alleged occurrence does not come within the ambit of section 10(2) of the Ain. 40. In this connection we may profitable refer the decision in the case of Osena Begum vs. The State reported in 55 DLR 299. It is held in the said decision “The Ain was promulgated to punish certain heinous offences against the children and women through special Adalat established by it. If the murder were committed for dowry, only then such Adalat would have exclusive jurisdiction to try such offence. Only sentence for such an offence under section 10(1) or section 14 of the Ain is death. No alternative sentence is prescribed . The Ain was no doubt made harsh and intended to prevent amongst others certain heinous offences committed for dowry. The motive for such offence will decide the jurisdiction of such Adalat. The moment the Adalt finds no proof of existence of such, motive of dowry for any offence within mischief of the Ain, it must take its hands off the case. In such situation only course will remain open for the Adalat to follow would be to send the case record to the Sessions Judge for trial.

41. Now let us see whether there will be any fruitful result if the case is sent to Sessions Judge for trial. Before sending the case to sessions Judge for trial we should see whether the main allegation against the accused appellants that the accused assaulted the victim first and then poured poison into her mouth has been proved or not.

42.

In this case 9 PWs have been examined.

P.W.1, Omar Ahmed Khondaker, is the father of the victim. P.W.2, Abdul Halim, is the brother of the victim as well as the informant of this case. P.W.3 Mohammad Hossain, P.W.4 Alkas Miah and PW.5 Kala Miah are neighbouring witnesses. P.W.7 Dr. Aditha Kumar Dey is local doctor who attended the victim immediately after

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Abul Basher and another Vs. The State (Siddiqur Rahman Miah, J.)

occurrence. P.W.8 is SI Sheikh Lutfor Rahman who prepared inquest report. As regards the main allegation, PW.1, father of the victim, at first informed the matter to Datmara Investigation Centre in writing that his daughter died taking poison.

43. P.W.2, brother of the victim, who is informant at first deposed that he heard that his sister died taking poison and later on he shifted his position by the warning of the court and again in his cross examination he stated that he did not see the occurrence but his father informed him that the victim died taking poison.

44. P.W.3, Mohammad Hossain, deposed that PW.1 father of the victim informed him on 29.07.1999 at 11/12 hours that his daughter died taking poison and that PW.1 also informed such information to the police of Datmara Investigation Center in writing.

45. P.W.4, Alkas Miah deposed that he does not know any thing about the occurrence.

P.W.5 Kala Miah deposed that he heard that the victim died taking poison.

46. P.W.7 Dr., Aditia Kumar Dey, the local doctor, deposed that accused Abul Basher, the husband of the victim, went to him on 29.07.1999 at 10 a.m. to bring him as his wife is ill and accordingly he went there and examined the victim and realized that the victim took poison and tried to wash her stomach and later she became weak and died in his presence.

47. P.W.8 SI Sheikh Lutfor Rahman stated that on the written information of PW1, father of the victim, he held surathal of the victim and found no mark of injuries in the body of the victim and he heard from the local people that the victim died taking poison.

48. On appreciation of the evidence on record it appears that the main allegation against the accused appellants that they firstly assaulted the

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victim and then poured poison into his mouth have not been proved.

49. In the case PW.6 Dr. Prodip Kumar Chowdhury opined and deposed that the victim died due to torture and forceful induction of poison. In this respect, are of the view that the doctor PW.6 being Dr. Prodip Kumar Chowdhury while preparing the post mortem report failed to state the age of injuries, such failure on the part of the doctor rendered the post mortem report very unreliable inasmuch as due to such failure it became very difficult to ascertain when those injuries were sustained by the victim, the same being the time of alleged occurrence. It is held in the case of Abdur Rashid vs. State reported in 27 DLR (AD)- 1” The doctor while holding the post mortem examination did not record the age of the injuries. In a case of murder, the age of injuries is an important fact to determine the approximate time of occurrence.”

50. The medical evidence is only corroborative in nature. It has no higher evidentiary value. As opposed to the ocular evidence of the P.W. 7 being Dr. Adittya Kumar Dey to the effect: “Avwg wfKwU‡gi gy‡L wKsev gyL Mne‡i †Kvb AvNv‡Z wPý †`wL bvB “ and also the ocular evidence of P.W.9 being A.S.I Md Abdur Razzak who prepared the inquest report to the effect that “No sign of hurt was found on the dead body”, Which essentially corroborates the evidence of P.W.7, the post-mortem report should not be considered as being very doubtful rendering itself to be unworthy of reliance for a safe conviction.

51. It also held in the case of Abdul Quddus vs.

State, reported in 43 DLR (AD) 234. “It will not be out of place to mention that the medical evidence is only corroborative in nature. In that view, the ocular evidence of the eye-witness which substantially corroborates the major injuries on the person of the deceased must be accepted.”

52. It is settled principle that the positive evidence in a case is that of the eye witness who had seen and narrated the occurrence. The evidence of a medical man or an expert is merely an opinion which only lends corroboration to the

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Abul Basher and another Vs. The State (Siddiqur Rahman Miah, J.)

direct evidence. These glaring inconsistencies between the existence of the injuries on the dead body of victim as found by the post mortem doctor and the evidence of the prosecution witnesses about the injuries caused by the appellants irresistibly lead us to a conclusion that the occurrence did not take place in the manner as alleged by the prosecution. It would be seen from the evidence of the doctor (P.W.6) being Dr. Prodip Kumar Chowdhury that only a carbon copy of the post-mortem report was filed, not the original one, which the P.W.6 admitted as follows: Òm¦v¶x e‡j†h cÖ`wk©Z gqbv Z`‡šÍi wi‡cv‡U©i Kve©b Kwc nB‡jI Bnv Zvi wjLvi Kve©Y KwcÓ Such failure to exhibit the original copy of the post-mortem report, the possibility of such carbon copy being a fabricated copy cannot be ruled out.

53. In view the facts and circumstances of this case, we are view that the learned Judge of the trial court below substituted “moral conviction for legal evidence” which is not allowed in law and, thus the impugned judgment and order of conviction and sentence dated 06.11.2007 is illegal and liable to be set aside. In this regard the convictsappellants heavily rely on the decision of the Hon’ble Appellate Division as the fact of the instant case are almost similar to the fact of the case reported in the case of The State vs. Khadem Mondal, reported in 10 BLD (AD) 228. In the fact of the present case, it will be improper to substitute moral conviction for legal evidence. It may also be considered for ends of justice that the convict-appellant No. 1 has been languishing in jail since 15.11.1999 for about 11 years and the convict-appellant No. 2 is an old lady who have languishing in jail without any fault of them.

54. The allegation against the accused appellants is that they collusively assaulted the victim and thereafter poured poison into her mouth and thus they killed the victim.

55. The defence case is that the victim died taking poison.

56. The fundamental and basic presumption in the administration of criminal law and justice delivery system is that the accused should be

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presumed to be innocent till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence. In a criminal trial, the burden of proving guilt of the accused beyond all reasonable doubt always rests on the prosecution and on its failure, it can not fall back upon the accused. In a criminal case, it is for the prosecution to bring the guilt home to the accused.

57. Though in a wife killing case, the husband is to explain how his wife died. Here in this case, the husband the appellant No. 1 took an alibi to the effect that his wife died taking poison. though the accused appellants have not adduced any witness but his alibi has been substantiated by the evidence of PWs. 58. Considering all the above facts and circumstances and evidence of the case and in view of our finding above we find that the prosecution has totally failed to prove the case beyond reasonable doubt. So we find that the learned Judge Nari-OShishu Nirjataon Daman Tribunal No.3, Chittagong is not justified in convicting and sentencing the accused appellants by the impugned judgment. We therefore, find that the impugned judgment calls for our interference.

59. In the result, the appeal is allowed and the judgment and order of conviction and sentence dated 06.11.2007 passed by the learned Judge, Nari-o-Shishi Nirjatan Daman Bishesh Adalat No.3, Chittagong in Nari-O-Shishu Case No.177 of 2003 is set aside. The accused appellants are acquitted from the charge under section 10(2)/14 of the Nari-O-Shishu Nirjatan ( Bishesh Bidhan) Ain 1995. We direct that the accused appellant Abul Basher be set at liberty forthwith if not wanted in connection with any other case and accused appellant Marioun Bibi is discharged from her respective bail bond.

60. Let a copy of this judgment and order be sent to the Nari-O-Shishu Nirjatan Daman Tribunal No.3, Chittagong for compliance.

Send down the L.C.R at once.

Ed.

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Startus Construction Company Vs Government of Bangladesh (Zubayer Rahman Chowdhury, J.)

HIGH COURT DIVISION (ORIGINAL STATUTORY JURISDICTION) Mr. Zubayer Rahman Chowdhury, J.

} }

Judgment 01.06.2010.

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Startus Construction Company .…. Petitioner VS Roads and Highways Department, Ministry of Communication, Government of Bangladesh … Respondent & Roads and Highways Department, Ministry of Communication, Government of Bangladesh.

- - -Petitioner VS Startus Construction Company . . . Respondent

Arbitration Act (I of 2001) Section 42 (2) and 43 (1) (a) (IV) It appears that no counter claim was filed by the Department concerned. The Arbitral Tribunal travelled beyond its jurisdiction in entertaining and deciding issues which had not been referred to by the contending sides. It would become difficult, if not impossible to sever the determinable issues from the non determinable issues referred to the Tribunal from the final Award which is not before the Court. The impugned order including the modified order are set aside.

From the observation quoted above, it appears that no counter claim was filed by the Roads and Highways Department, but the Tribunal nevertheless proceeded to make an Award in their favour which was beyond their terms of reference.

It is also admitted by Mr. Hassan Ariff, learned Advocate appearing on behalf of the Roads and Highways Department that only three disputes were referred to the Tribunal and upon commenc* Arbitration Application No. 02 of 2004 with Arbitration Application No. 03 of 2004.

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ement of the proceeding, the Tribunal framed as many as seven issues, as has been quoted earlier in this judgment. However, from a reading of the same, it does not appear that it relates to any counter claim filed by the Department. ...(25) It also appears that certain issues, which were not referred to the Tribunal, were taken up and decided by the Tribunal on its own accord. In my view, it would be reasonable to infer that in such circumstances, the Tribunal had indeed acted beyond its jurisdiction. The Tribunal exceeded its jurisdiction by abrogating to itself issues which were not referred to it by the contending sides. The issues relating to, advance, cost of bitumen, retention of advance money, advance income tax are some of the issues which, admittedly, were not referred to the Tribunal, but upon which the Tribunal made a pronouncement and gave an Award in favour of the Department. ...(26) Having regard to the statements made in the application before this Court, the relevant provision of law, the submissions advanced by the learned Advocate for the contending sides and last, but not least, having considered the decisions referred to above, with which I find myself in total and respectful agreement, I am inclined to hold that the Arbitral Tribunal travelled beyond its jurisdiction by entertaining and deciding issues which had not been referred to by the contending sides and the impugned order is liable to be set aside. . . .(34) Varat Cooking Coal Limited, 200 C 8 SCC 154; West Bengal Industrial Infra-Strictire Development Corporation v. M/s. Star Engineering Co., AIR 1987 Calcutta 126; Chetandas and others v.

Radhakrisson Ramchandra and others, AIR 1927 Bombay 553; Bengal Jute Mills vs. Jewraj Heeralal, reported in AIR 1943 Calcutta 13 ref.

Dr. Kamal Hossain, Senior Advocate with Mr. Ashraful Hadi, Advocate with Mr. Tanim Hussain Shawon, Advocate … For the petitioner Mr. A.F. Hassan Arriff, Senior Advocate with Ms. Khaleda Zaman, Advocate with

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Startus Construction Company Vs Government of Bangladesh (Zubayer Rahman Chowdhury, J.)

Mr. Md. Ashik Al Jalil, Advocate with Ms. Ruhi Naz, Advocate ….. For the respondent Mr. A.F. Hassan Arriff, Senior Advocate with Ms. Khaleda Zaman, Advocate with Mr. Md. Ashik Al Jalil, Advocate with Ms. Ruhi Naz, Advocate . . . For the petitioner Dr. Kamal Hossain, Senior Advocate with Mr. Ashraful Hadi, Advocate with Mr. Tanim Hussain Shawon, Advocate … For the respondent Judgment Mr. Justice Zubayer Rahman Chowdhury Arbitration Application No. 02 of 2004 relates to an application for setting aside an arbitration Award under section 42(2) and section 43 of the Arbitration Act, 2001 at the instance of Startus Construction company, a company incorporated in Iran and having its local office Apartment- 5A, House No. 15, Road no. 17, Sector No. 7, Uttara Model Town, Dhaka 1230, Bangladesh. The application is being opposed by the sole respondent, namely Roads and Highways Department, Ministry of Communications, Government of People’s Republic of Bangladesh, Sarak Bhavan, Dhaka, Bangladesh.

2.

Arbitration Application No. 03 of 2004 filed under section 42(2) read with section 43(1)(a)(iv) of the Arbitration Act, 2001, is at the instance of Roads and Highways Department, Ministry of Communi-cation, Government of the People’s Republic of Bangladesh, Sarak Bhaban, Ramna, Dhaka for setting aside portion of the Award dated 13.05.2004 (as modified by Award dated 23.06.2004) passed by the Arbitration Tribunal in an arbitration proceeding between the petitioner and the respondent/opposite-party. The aforesaid application is being opposed by Startus Construction Company, the petitioner of Arbitration Application 2 of 2004.

3.

Since both the applications arise out of the Award dated 13.05.2004 (as modified by order dated 23.06.2004) passed by the Tribunal, Dhaka in an arbitration proceeding between Startus

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Construction (claimant) and Roads and Highways, Government of People’s Republic of Bangladesh and furthermore, since both the petitioner and the respondent in the aforesaid two Arbitration Applications are the same, both the applications were taken up and heard simultaneously and they will be disposed of by this single judgment.

4.

A brief summary of the relevant facts is required to be stated for the purpose of disposal of the two applications before this Court.

5.

Startus Construction Company (hereinafter referred to as the company) entered into a contract with the Roads and Highways, Government of People’s Republic of Bangladesh (hereinafter referred to as the Department) for construction/ rehabilitation of roads and highways between Joydebpur and Kaliakair measuring approximately 26.60 km. After completion of necessary formalities, the company commenced work under the contract and duly completed part of the work upto 5 km. However, while undertaking the work in the first 5 km of the project, the company faced certain obstacles with regard to underground gas pipe lines and requested the Department to take necessary steps for removal of the gas pipe lines in order to enable the company to undertake and complete the project work without any hindrance.

Despite assurance from the respondents, the matter was not resolved and at one stage, the project work was suspended. The parties engaged in discussion and exchange of correspondences, which also invoved various other Ministry/Departments of the Government.

6.

Ultimately, since there was no further progress in the matter which had comes to a standstill, the company issued a notice dated 14.08.2001 determi-ning the contract and claiming compensation as well as requesting for return of the Bank Guarantee which was furnished earlier.

Subsequently, the company also served a notice of Arbitration on 20.08.2001. On the other hand, the Department by its letter dated 16.08.2001, approved various orders and voluntarily extended the contract period upto 06.05.2002, but three days later, it terminated the contract by letter dated 19.08.2001.

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Startus Construction Company Vs Government of Bangladesh (Zubayer Rahman Chowdhury, J.)

7.

The dispute between the parties was referred to a three members Arbitration Tribunal comprising of Mr. Justice Sultan Hossain Khan as Chairman and Mr. Justice M.A. Karim and Mr. Justice M.M. Hoque as members of the Tribunal.

The Department duly entered appearance and participated in the arbitration proceeding.

8.

Upon commencement of the arbitration proceeding, the Tribunal framed the following issues “(1)

Has the Employer committed breach of contract in not removing the gas pipeline and thus prevented SCC from performing the latter’s promise?

(2)

Has the Claimant sustained any loss in consequence of its non-performance of the contract ? If so, what compensation it is entitled to?

(3)

Is the certification of default of the Contractor issued by the Engineer baseless and illegal?

(4)

Is the contract liable to be terminated at the instance of SCC in view of Section 53 of the Contract Act ?

(5)

Has the termination of the contract by the Employer been legal and valid ?

(6)

Has the valuation of the variations by the engineer been legal and valid?

(7)

Is the Claimant entitled to get the Award as prayed for including the additional claim against bitumen and cost of the proceeding ?”

9.

Both sides filed written statements, replies, additional and further statements and replies thereto, documents and other related papers. The Tribunal also examined witnesses.

10. Upon conclusion of the arbitration proceeding, the Tribunal, by order dated 13.05.2004, dismissed the claim of the company and made a Award of Tk. 6,25,46,127.66 (Taka Six Crore Twenty Five Lac Forty Six Thousand One Hundred and Twenty Severn and Paisa Sixty Six) only in favour of the Roads and Highways

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Department. The Tribunal also ordered the release of the Bank Guarantee in favour of the company.

11. Subsequent thereto, upon an application filed by the company for correction of the Award dated 13.05.2004. Consequently, the Tribunal, by order dated 23.06.2004, allowed the application and corrected the Award by reducing the Award amount to Tk. 3,29,82,629.56 (Taka three corer twenty nine lac eighty two thousand six hundred twenty nine and pais fifty six) in favour of the Department. Being aggrieved by the aforesaid Award dated 13.05.2004 (as amended by order dated 23.06.2004), the company filed Arbitration Application No. 2 of 2004 praying for setting aside the award.

12. At the same time, the Roads and Highways Department, as petitioner, also preferred Arbitration Application No. 03 of 2004 praying for correction of the Award by setting aside a part of the Award darted 13.05.2004 (as amended by order dated 23.06.2004), in particular, paragraph 18.6, 18.7, 18.8, 18.9, 22, 24, 25.4 26 and 27 of the Award under section 42 (2) read with section 43 (i)(a)(iv) of the Act and also for passing a corrected Award in terms of prayers A to E of paragraph 7 of the application.

13. At the very outset, this Court takes note of the fact that the pleading and documents annexed in the two arbitration applications runs into hundred, if not thousands of pages. In fact, the related documents had to be brought into the Court in a trunk, which at first sight, made the Court slightly apprehensive. However, having gone through most of the documents and papers, this Court was remind of an age old Bangla saying ÒhZ M‡R© ZZ e‡l© bv|Ó 14. Dr. Kamal Hossain, learned Senior Advocate appears for the Startus Construction Company in Arbitration Application No. 2 of 2004, while Mr. A.F. Hassan Ariff, Senior Advocate appears with Mr. Md. Ashik Al Jalil in support of the Arbitration Application No. 3 of 2004.

15. During the course of his submission, Dr. Kamal Hossain has challenged the Award primarily on the issue of jurisdiction. Dr. Hossain

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Startus Construction Company Vs Government of Bangladesh (Zubayer Rahman Chowdhury, J.)

submitted emphatically that although the respondents in the Arbitration proceeding i.e. the Roads and Highways Department did not make any counter claim before the Tribunal, the Tribunal, on its own volition, made an Award in favour of the Department upon rejecting the claim of the claimant. Dr. Hossain refers to the issues framed at the commencement the arbitration proceeding and submits categorically that no such issue relating to any counter claim was filed by the Department and therefore, in the absence of any claim in that respect, the Award made by the Tribunal allowing counter claim under several heads in favour of the Department is quiet clearly an Award which is beyond the jurisdiction of the Tribunal.

16. Dr. Hossain has also argued with some considerable force on the merit of the Award itself.

However, I do not wish to enter into the merit of the Award for reasons that I shall state at a subsequent stage of this judgment.

17. Dr. Hossain has also referred to two expert’s opinions, which were framed before the Tribunal by the claimant company given by one Engineer A.B.M. Fazley Elahi, former Managing Director, Rupantorito Pakritik Gas Limited RPGL, Petro Bangla and former General Manager, Tital Gas Transmission and Distribution Company Limited as well as the evidence of one Mr. Md. Mobarak Ali, former Chief Instructor of Explosives, Government of Bangladesh. Dr. Hossain has argued that the Tribunal erred and misconducted itself in not considering these two vital pieces of evidence upon which the claimant company had placed considerable reliance. Therefore, according to Dr. Hossain, the impugned Award in question is liable to be set aside, having been passed without jurisdiction and also because of the failure of the Tribunal to consider material evidence which was placed before the Tribunal.

18. Mr. A.F. Hassan Ariff, learned Senior Advocate appearing for the respondent in Arbitration Application No. 02 of 2004 and for the petitioner in Arbitration Application No. 3 of 2004 submits that the impugned Award does not call for any interference from this Court save and except to the extent to which it relates to issues not

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submitted before the Tribunal. Referring to the provision of section 42 and section 43(i)(a)(iv) of the Act, Mr. Ariff submits categorically that the Act itself makes provision for such cases and allows the Award to be separated from the issues which were not submitted before the Tribunal and empowers the Court to set aside the Award so far it relates to matter not referred to the Tribunal. Mr. Ariff argues with some force that having regard to the provision of section 43(i)(a)(iv), the Court has ample power and jurisdiction to severe the Award and set aside such portion of the Award which has been passed by the Tribunal beyond its jurisdiction.

19. During the course of his argument, Mr. Hassan Ariff acknowledged that the Tribunal had indeed acted beyond its jurisdiction to some extent by allowing the counter claim of the Department when, in fact, no such issues were framed before the Tribunal. Elaborating his submission, Mr. Hassan Ariff contends that although the claimant company had not referred certain disputes such as claim for refund against bitumen, the Tribunal allowed such claim in favour of the claimants, thereby acting beyond its jurisdiction. Mr. Hassan Ariff further submits that the issue of retention money or return of the same was not referred for adjudication before the Tribunal as per clause 67 of GCOC and therefore the Tribunal travelled beyond its jurisdiction in allowing the same in favour the claimant company. Similarly, according to Mr. Hassan Ariff, the Tribunal erred and consequently travelled beyond its jurisdiction in awarding a reduction of VAT or its return in favour of the claimant company as well as return of the Bank Guarantee submitted by the claimant company.

20. Lastly, Mr. Hassan Ariff contends that having regard to the provision of section 43(i)(a)(iv) of the Act, the Court is vested with ample power to correct and modify the Award in accordance with the prayer made by the petitioner in Arbitration Application No. 3 of 2004.

21. The moot question which calls for determination by this Court relates to the jurisdiction of the Tribunal itself. A Tribunal is to decide only such

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Startus Construction Company Vs Government of Bangladesh (Zubayer Rahman Chowdhury, J.)

issues as are referred to them by the contending sides. In fact, the power of the Tribunal is confined within the terms of reference made to it by the parties under the contract. Consequently, any deviation therefrom is bound to invoke the question of jurisdiction, as has been done in the instant case.

22. In the instant application before this Court, the petitioner i.e. the company has challenged the Award mainly on the ground that the Tribunal has travel beyond its jurisdiction by deciding issues which were not referred to it. This contention advanced by the company gains support from the affidavit-in-opposition dated 01.11.2009 filed by the respondent itself. In paragraph 4 of the aforesaid affidavit-in-opposition, it has been stated as follows : “The calculation made under the heading “Final Position” is not an outcome of any counter claim made by the respondent rather it is outcome of an unwarranted arithmetic calculation made by the Tribunal on the basis of its discussion on the valid as well as invalid determinable disputes and Annexure 17 to the Award submitted by the claimant/petitioner before the Tribunal. The calculation under the head “Final Position” is not consequential of the adjudication of 3 (three) valid referred dispute under clause 67 of GCOC. The said calculation therefore is not relatable to the three valid referred disputes under clause 67 of GCOC. The “Final Position” is therefore relatable to issue, which were not referred to arbitration as dispute following the mechanism /procedure under clause 67 of GCOC. The “Final Position” is extraneous to the 3 (three) valid referred dispute.”

23. There is further corroboration of the issue in the impugned Award itself, where the Tribunal observed as under: “We have noticed that the Respondent had claimed various amounts as shown by way submissions of summary of additional cost and amount due from the Contractor.

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These claims were not referred to the Arbitrators in terms of Clause 67 of the Contract”. (emphasis added) 24. Moreover, from the dissenting Award dated 13.05.2004 passed by one of the Arbitrators (Mr. Justice M.M. Haque), it appears that the learned Arbitrator found as under : “It may be mentioned here that there is no counter claim by the said ……………..” (page 29 of the Award) 25. From the observation quoted above, it appears that no counter claim was filed by the Roads and Highways Department, but the Tribunal nevertheless proceeded to make an Award in their favour which was beyond their terms of reference.

It is also admitted by Mr. Hassan Arifff, learned Advocate appearing on behalf of the Roads and Highways Department that only three disputes were referred to the Tribunal and upon commencement of the proceeding, the Tribunal framed as many as seven issues, as has been quoted earlier in this judgment. However, from a reading of the same, it does not appear that it relates to any counter claim filed by the Department.

26. It also appears that certain issues, which were not referred to the Tribunal, were taken up and decided by the Tribunal on its own accord. In my view, it would be reasonable to infer that in such circumstances, the Tribunal had indeed acted beyond its jurisdiction. The Tribunal exceeded its jurisdiction by abrogating to itself issues which were not referred to it by the contending sides. The issues relating to, advance, cost of bitumen, retention of advance money, advance income tax are some of the issues which, admittedly, were not referred to the Tribunal, but upon which the Tribunal made a pronouncement and gave an Award in favour of the Department.

27. From the supplementary affidavit dated 17.08.2009 filed by the petitioner, it has been stated on behalf of the petitioner that the expert evidence which was adduced on behalf of the

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claimant company, was also provided to the Department. From the Tribunal’s order sheet dated 06.02.2003, there is affirmation of the aforesaid statement made by the claimant company.

However on a close scrutiny of the Award itself, it appears that the Tribunal has not referred to the expert evidences referred to above. On the issue of non-consideration of the expert report referred to above, it was argued forcefully by Mr. Ariff that such consideration will not invalidate the Award in view of the fact that the Tribunal is not bound to comply strictly with the provision of the Code of Civil Procedure and the provisions of the Evidence Act. Therefore, according to Mr. Hassan Ariff, even if the contention of the claimant company is accepted as to non-consideration of the expert opinion by the Tribunal, that, ifso facto, will not be a ground for setting aside the Award. In support of his contention, Mr. Hasan Ariff referred to section 24 of the Act, which provides that the Arbitral Tribunal was not bound to follow the provisions of the Code of Civil Procedure and the Evidence Act in disposing of a dispute under this Act. 28. To take up Mr. Hassan Ariff’s last contention first, in the case of Varat Cooking Coal Limited, reported in 200 C 8 SCC 154, the Supreme Court of India held that while making the Award, the Arbitrator cannot ignore very material and relevant documents relevant for determining the controversy, so as to render a just and fair decision.

In that case referred to above, it was further held : “there lies a trial distinction between a year within the jurisdiction and error in excess of jurisdiction.”

29. The case of West Bengal Industrial InfraStrictire Development Corporation, v. M/s. Star Engineering Co., reported in AIR 1987 Calcutta 126 related to a matter which had similar issues as in the present case pending before this Court in that no counter claim was filed in the reported case referred to above and the Court adjudicated on a

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imaginary counter claim. While setting aside the Award, the Court held : “In my opinion, this gross mistake has arisen from culpable negligence amounting to legal misconduct in part of the arbitrator in making the Award and as such this Award cannot be upheld.”

30. In the case of Chetandas and others v.

Radhakrisson Ramchandra and others, reported in AIR 1927 Bombay 553, it was held as under : “In cases where an arbitrator enters into the consideration of matters which are not referred to him, or which he has no jurisdiction to try, Blackburn, J. in Ringland v. Lowndes (1) (1864) 12 W.R. 1010) said that The question is not one of waiver or of estoppel, but of authority, and a party continuing to attend the reference after objection taken and protest made down not give the arbitrator authority to make an award. Even if a party under protest continues to attend before arbitrators and cross-examines witnesses, he does not thereby waive his objection, nor is he stopped from saying that the arbitrators have exceeded their authority by awarding on the matter :” 31. In my view, the aforesaid decision referred to above, falls squarely with the scope and nature of the matter before this Court. As to Mr. Hassan Ariff’s contention that this Court has ample power under section 43(1)(a)(iv) of the Act to severe the Award and only set aside that portion of the Award which relates to issues not referred to the Tribunal, it has to be said that the Award which has been passed in the instant case stands embodied under the head “final position” as contained at page 58 of the Award, whereby an Award of Taka 6,00,00,000/- and odd (which was subsequently reduced to Tk. 3,00,00,000/- and odd by order dated 23.06.2004) was made in favour of the Roads and Highways Department, despite the

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Startus Construction Company Vs Government of Bangladesh (Zubayer Rahman Chowdhury, J.)

absence of any counter claim filed on their behalf.

The Roads and Highways Departments itself stated in their affidavit-in-opposition dated 01.11.2009 that “The calculation made under the head “Final Position” is not an outcome of any counter claim made by the respondent rather it is outcome of an unwarranted arithmetic calculation made by the Tribunal on the basis of its discussion on the valid as well as invalid determinable disputes and Annexure 17 to the Award submitted by the claimant/petitioner before the Tribunal. The calculation under the head “Final Position” is not consequential of the adjudication of 3 (three) valid referred dispute under clause 67 of GCOC.” 32. Therefore, the statement made by the Department itself indicates that the Award made under the head of “Final Position” relates to issues, some of which have been referred under clause 67 of the GCOC. In my view, it would became difficult, if not impossible, to sever the determinable issues from the non determinable issues referred to the Tribunal from the final Award which is not before this Court.

33. I am fortified in my view by a decision pronounced more than half a century ago in the case of Bengal Jute Mills vs. Jewraj Heeralal, reported in AIR 1943 Calcutta 13, where it was held, and I quote: “Whilst it is correct that since the recent Arbitration Act there need to be no form of submission, and the authority and jurisdiction of the arbitrator is to be ascertained from the agreement for arbitr-ation, which in this case is contained in the contract, nevertheless when the parties set out specifically what disputes have arisen and what relief is sought in consequence of the alleged default by one party, it seems to me that those are the only matters upon which the arbitrators are required to inquire and to

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adjudicate. The only relief claimed in the present case was confined to an allowance being made in the price on account of the defective quality. The buyers never sought to have other awards given dealing with rejection and fresh tender of the goods. By adding to their award Para. 2(b) and (c), above, it seems to me that the arbitrators have gone beyond what the required for their consideration and have decided questions beyond which they were required to adjudicate. This being the case it must follow that the award is void in toto and must be set aside.”

34. Having regard to the statements made in the application before this Court, the relevant provision of law, the submissions advanced by the learned Advocate for the contending sides and last, but not least, having considered the decisions referred to above, with which I find myself in total and respectful agreement, I am inclined to hold that the Arbitral Tribunal travelled beyond its jurisdiction by entertaining and deciding issues which had not been referred to by the contending sides and the impugned order is liable to be set aside.

35. Accordingly, Arbitration Application No. 2 of 2004 stands allowed.

36. The impugned Award dated 13.05.2004 (as modified by order dated 23.06.2004) is hereby set aside.

37. Consequently, in view of the judgment and order passed in Arbitration Application No. 2 of 2004, Arbitration Application No. 3 of 2004 stands dismissed.

38.

There will be no order as to cost.

39. The parties are at liberty to take necessary steps in the matter, if so advised, in accordance with law.

Before parting with case, this Court would like to put on record its profound appreciation for the valuable assistance rendered by the learned Advocates of the contending sides.

Ed.

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HIGH COURT DIVISION (Special Original Jurisdiction) Mr. Shah Abu Nayeem Mominur Rahman, J. and Mr. Zubayer Rahman Chowdhury, J.

} }

Judgment 01.06.2010.

Brigadier (Retd.)

A.H.M Abdullah .…. Petitioner VS Government of Bangladesh and others … Respondents

Constitution of Bangladesh, 1972 Article 102 (1)(2)(a)(ii) Motor Vehicles Ordinance (LV of 1983) Sections 105,140,152 and 156 Police Regulation Bengal, 1943 Regulations 33 and 260 Police Act (V of 1861) Section 23 Dhaka Metropolitan Police Ordinance, 1976 Sections 16 (e) and 161 Police Officer (Special Provision) Ordinance (LXXXIV of 1976) Sections 2(b),4,5,12 & 48 The Petitioner, a retired Officer in the rank of Brigadier of the Bangladesh Army, has challenged the Charge Report submitted under section 105 of the Motor Vehicle Ordinance , 1983 issued by the Police Officer, the Respondent No. 10 alleging contravention of sections 140,152 and 156 of the said Ordinance. It is contended on behalf of the petitioner that respondent No. 10, despite being informed by the petitioner’s wife that she was unwell, acted in an irresponsible, rude and arrogant manner, causing serious mental agony and distress to her and embarrassment to the petitioner in public. Such action of respondent No. 10, Mr. Khan submits, is in clear violation of the provisions of The Police Act, 1861, Police Regulations Bengal, 1943 and The Dhaka Metropolitan Police Ordinance, 1976.

The police, as the law enforcing agency of the State, are to ensure that the law of the land is obeyed and followed by the general public. It is, * Writ Petition No. 3012 of 2001

therefore, not only a matter of utmost regret, but also of grave concern, when such acts of violation are committed by the police themselves. It is also a sad reality that although police excess occur regularly, such incidents are rarely challenged in a Court of law.

The facts stated in the writ petition, being uncontroverted, are, therefore, deemed to be correct in the eye of the law. Quite clearly, the conduct of respondent No. 10 not only falls within the ambit of the term ‘misconduct’, it is also violative of the other provisions quoted above. As such, the allegation of misconduct against respon-dent No. 10 has been established. The issuance of the impugned Charge Report dated 30.05.2001 is found to be without lawful authority and of no legal effect.

Respondent No. 5 (Inspector General of Police, Bangladesh) and respondent No. 6 (Commissioner, Dhaka Metropolitan Police) are directed to initiate appropriate disciplinary action against respondent No. 10 in accordance with law. ...(3,9,46,52 & 53) Ghani .v. Jones[1970] 1QB, 693; R .v. Guardians of Lewisham Union, (1897) 1 QB 498; I.R.C. .v.

Fed of Self-employed, [1981] 2 All E.R. 93; S.P. Gupta v. President of India, reported in AIR 1982 SC 149; Warburton .v. Loveland (1832) 2 D and Cl. 480; N.D.-State .v. Northwester Pac. Rail Co., 172 N.W. 324, 331; Willingale .v. Norris (1909) 1 K.B. 57; C. Kalbagh .v. State of UP, AIR 1989 SC 1452; Merkur Island Shipping Corporation .v.

Laughton and Others [1983] 2 AC 570 ref.

Mr. M. A. Aziz Khan … For the petitioner No one . . . For the Respondents.

Judgment Zubayer Rahman Chowdhury, J: This Rule Nisi, at the instance of the petitioner, was issued calling upon the respondents to show cause why the Charge Report bearing serial number 0684546 dated 30.5.2001 purportedly issued under the Motor Vehicle Ordinance, 1983 by respondent no. 10 in respect of a Government vehicle bearing Registration No.

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Dhaka Metro Gha-11-2744 shall not be declared to be harassing in nature and without lawful authority and of no legal effect.

2.

Facts necessary for disposal of the Rule, are, as under: The petitioner, a retired officer in the rank of Brigadier of the Bangladesh Army, was, at the relevant time, serving as an Engineering Advisor to a World Bank Project called Road Rehabilitation and Maintenance Project-III under the Roads and Highways Department, Government of Bangladesh.

3.

While serving as such, on 30.05.2001, the petitioner and his wife went to Zia International Airport to receive his son in his above mentioned official car, driven by the official driver Md. Joynal. On reaching the Airport, the petitioner went inside while his wife, being unwell, waited in the car. When the petitioner saw his son coming out of the Airport, he signalled the driver to come to the pick up point. At that moment, on being informed that the police personnel were creating some sort of commotion in front of his car, the petitioner went there and found one police officer shouting at the top of his voice, showing little care or respect for the lady who was sitting inside the car. Although the petitioner’s wife explained to the police officer (respondent No. 10) that as she was very ill, she was unable to get down from the car and she was waiting to pick-up her son who was on his way out, he paid no heed to her and created an unpleasant scene in public. The petitioner disclosed his identity and requested respondent no. 10 to show his identity, as he did not have any name tag on his uniform, as is usually done by all on-duty police personnel.

Respondent no. 10 took a out name tag from inside his pocket bearing the name Ferdous. On being asked by the petitioner as to why he was behaving in such a rude manner, respondent No. 10, without caring to reply, asked for the documents of the car.

The documents, including original fitness

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certificate, insurance certificate and a copy of the registration certificate were produced and he was told that the vehicle was a Government transport.

Respondent no. 10 took the insurance certificate and the fitness certificate and left the place.

Shortly thereafter, when the petitioner was about to leave the Airport along with his wife and son, another policeman came up to the car and handed over a piece of paper to him which turned out to be Charge Report under Section 105 of the Motor Vehicles Ordinance, 1983 issued by said respondent No. 10 alleging contravention of sections 140, 152, 156 with a special note that he has framed charge under the instruction of the OC, Cantonment Police Station and the Chief Security Officer of the Airport and also recommending realisation of full fine.

4.

The petitioner sent a Demand of Justice notice to the respondents through his lawyer on 13.06.01, but the same remained unresponded.

5.

It is in this back-drop that the petitioner moved this Court and obtained the Rule in the aforesaid terms.

6.

Although it appears from the office note dated 15.07.02 of the case record that service of notice has been duly communicated, yet none of the respond-ents appeared to contest the Rule. On our query, the learned A.A.G. submits that she has no instructions in this matter.

7.

Mr. M. A. Aziz Khan learned Advocate, appearing for the petitioner, has taken us through the writ petition and its annexures as well as the relevant provisions of law.

8.

Mr. Khan submitted that the actions of the respondents, who are all public servants, are contrary to the provisions of Article 21(2) of the Constitution of Bangladesh which stipulates that every person in the service of Republic has a duty to strive at all times to serve the people.

9.

He submits that respondent no. 10, despite being informed by the petitioner’s wife that she

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was unwell, acted in an irresponsible, rude and arrogant manner, causing serious mental agony and distress to her and embarrassment to the petitioner in public. Such action of respondent no.

10, Mr. Khan submits, is in clear violation of the provisions of The Police Act, 1861, Police Regulations Bengal, 1943 and The Dhaka Metropolitan Police Ordinance, 1976.

10. Mr. Khan refers to Regulation 260 of the Police Regulations Bengal, 1943 (hereinafter referred to as the Regulation) which is as follows : “260: Investigation officers should carefully abstain from causing unnecessary harassment either to the parties or to the people generally. Only those persons who are likely to assist the inquiry materially should be summoned to attend. Where possible the investigating officer should himself go to the house of the witness to be examined. The proceedings should be as informal as possible. The questioning of witnesses should ordinarily be conducted apart, and in a manner that will not be distasteful to them”.

11. He also refers to Section 23 of The Police Act, 1861 (hereinafter referred to as the Act) which is as follows : “23: It shall be the duty of every policeofficer promptly to obey and execute all orders and warrants lawfully issued to him by any competent authority; to collect and communicate intelligence affecting the public peace; to prevent the commission of offences and public nuisances; to detect and bring offenders to justice and to apprehend all persons whom he is legally authorized to apprehend, and for whose apprehension sufficient ground exists: and it shall be lawful for every police-officer, for any of the purposes mentioned in this section, without a warrant, to enter and inspect any

drinking-shop, gaming-house or other place of resort of loose and disorderly characters”.

12. Mr. Khan then refers to Section 16(e) of the Dhaka Metropolitan Police Ordinance, 1976 (hereinafter referred to as ‘the Ordinance’) which runs as under: “16(e) in dealing with women and children, to act with strict regard to decency and with reasonable gentleness”. (emphasis supplied)” 13. Relying on the aforesaid provisions of law, Mr. Khan submits that although there is a clear stipulation to the effect that the police personnel are not to cause unnecessary harassment to the public in general and to women and children in particular, there has been a gross violation of the same in the instant case. He makes a pointed reference to clause 16(e) of the Ordinance quoted above, which requires the police to act with strict regard to decency and gentleness while dealing with women and children. He further submits that although the police is required by law to prevent the commission of public nuisance, in the instant case, it was respondent no. 10 who was solely responsible for creating public nuisance by his rude and arrogant behaviour.

14. Mr. Khan next draws our attention to Annexure ‘Q’ to the writ petition and submits that although the name of the accused person in the Charge Report has been mentioned as Driver Md. Zafar, the petitioner’s driver’s name was Md. Joynal Khan, which is evident from his driving licence, as evidenced by Annexure ‘G’ to the writ petition. It is further submitted that although there is a note that the Charge Report has been issued under the instruction of OC, Cantonment Thana and the Chief Security Officer of the Airport, there was no official endorsement. He submits that respondent no. 10 himself made the endorsement illegally to save his own self.

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15. Mr. Khan then submits that the action of respondent no. 10 in impounding valid documents of the car (i.e. the Fitness Certificate and the Insurance Certificate) was in gross violation of Section 161 of the Ordinance, which authorizes such an action only when there is reason to believe that such documents are false documents within the meaning of Section 464 of the Penal Code. In the instant case, respondent no. 10 had absolutely no basis to form such opinion since the vehicle in question was a Government vehicle. As such, the aforesaid actions of respondent no. 10 was not only in excess of his jurisdiction, but malafide too.

16. Mr. Khan informs the Court that the petitioner, being a law abiding citizen, has duly paid the fine imposed by the impugned Charge Report dated 30.05.2001.

17. Last, but not least, Mr. Khan urges that this Court to take note of the situation that prevails in our society today. He argued, very strongly, that there are many incidents like this occurring everyday relating to police excess and noncompliance of Police Rules and Regulations by the police themselves, but such occurrences remain unreported mostly out of fear of further harassment by the police. More importantly, ordinary citizens neither have the resources nor the ability to stand-up against police excess and bring such incidents to the Court’s notice for redress.

Hence, the instant case should not be dealt with leniently, but be an example against police excess considering the issues in a wider perspective relating to the non-compliance of the provisions of the Act, Regulations and the Ordinance by the police.

18. Although the matter before us raises issues of considerable public importance, Mr. Khan has not referred to any decision in support of his case.

Nevertheless, we made an endeavour to refer to some decisions from our own jurisdiction, but there was hardly any reported decision on the subject. We noted, much to our surprise and

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dismay, that a similar scenario prevails in the English jurisdiction. To quote Prof. H.W.R. Wade: “It is impossible to examine the cases on the status of the police without marvelling at how few they are, and in how many respects their position and powers are still not clearly defined. The police have had remarkable success in avoiding challenge in the courts of law, even though they often stretch their powers and risk actions for trespass.” (Administrative Law, Fifth Edition, page 135)” 19. In Ghani .v. Jones, reported in [1970] 1QB, 693 where the action of the police in impounding the passports and conducting unauthorized searches was challenged by the petitioner, a similar view was expressed by no less an authority than Lord Denning MR himself, when he observed : “The case raises matter of importance on which there is very little direct authority in our books.”

20. It is in this backdrop that we are called upon to decide this matter. We intend to do so, first by considering the relevant Rules and Regulations and the extent of their application and thereafter certain aspects relating to the concept of rule of law.

21. At the outset, it would be appropriate to begin by examining the maintainability of an application of this nature.

22. The pre-requisite of having a specific legal right before issuance of a writ of mandamous was laid down towards the end of the nineteenth century in R .v. Guardians of Lewisham Union, reported in (1897) 1 QB 498. However, since then, there has been a very significant shift, and, so much so, that by the end of the twentieth century, the Courts were inclined to issue mandamous even in cases where the applicant had no specific legal right.

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23. In I.R.C. .v. Fed of Self-employed, [1981] 2 All E.R. 93, Lord Scarman observed: “The decision of the Divisional Court in R .v. Guardian of Lewisham Union was accepted as establishing that an applicant must establish ‘a legal specific right to ask for the interference of the Court by order of mandamous. I agree with Lord Denning MR in thinking this was a deplorable decision”.

any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determine class of persons is by reason of poverty, helpless-ness or disability or socially or economically disadvantaged position, unable to approach the court for relief, any member of the public can maintain an application seeking judicial redress for the legal wrong or injury caused to such person or determi-nate class of persons.”

24. In our own jurisdiction, the position has been summarized as under : “In England, the Lewisham Union Principle was given up as it would have the effect of allowing the public functionaries a free hand in ignoring their public duties. In countries like ours, it will have a far more serious effect as many instances of non-performance of legal duty by government and public functionaries will remain without remedy, thereby eroding the concept of rule of law and constitutionalism. This principle originated in England and when it has been discarded there, there is no rationale for insisting on the application of this principle in our country. Thus, if a person is going to be affected by the failure of a public functionary to do what he is required by law to do, he can claim performance of the legal duty of the public functionary whether or not he has a specific legal right to claim performance of the duty” (M. Islam, Constitutional Law of Bangladesh, Second Edition, page 529).”

26. As noted above, the various provisions in the Police Rules and Regulations are quiet clear in specifying guidelines for the police in their dealings with the public in general and women and children in particular. In this context, we may refer to Regulation 33 of the Regulations which deals with behaveiour of the police towards the public. It states : “33 (a) No police force can work successfully unless it wins the respect and good-will of the public and secures its cooperation. All ranks, therefore, while being firm in the execution of their duty, must show forbearance, civility and courtesy towards all classes. Officers of superior rank must not only observe this instruction themselves but on all occasions impress their subordinates with the necessity of causing as little friction as possible in the performance of their duties. (b) Rudeness, harshness and brutality are forbidden; and every officer of superior rank must take immediate steps for the punishment of any offenders who come to his notice.”

25. A definite jurisprudential basis was laid down in S.P. Gupta v. President of India, reported in AIR 1982 SC 149 where Bhagwati, J, in according standing to the petitioners, observed : “Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of

27.

Similarly, Section 15(c) of the Ordinance

provides :

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“General duties of police officers. – It shall be the duty of every police officer – (a) …………..

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“……………. the words of the statute speak the intention of the Legislature.”

In the words of the distinguished Jurist Sir John Salmond:

(b) ………….. (c) to the best of his ability to prevent commission of public nuisances ; (d) …………….. (e) ……………… (f) ………………..”.

28. Under the 1861 Act, a duty was cast upon the police by Section 23 to “prevent commission of offences and public nuisance.” Almost a century later, in 1943, the Regulations imposed further control on the police by requiring them to “abstain from causing unnecessary harassment either to parties or to the people generally.”

Regulation 33(a) required all ranks to “show forbearance, civility and courtesy towards all classes”. As an additional measure, rudeness, harshness and brutality were forbidden by Regulation 33(b). More recently, in 1976, under the Ordinance, the police was required “to act with strict regard to decency and reasonable gentleness” in dealing with women and children.

29. On a careful analysis, it appears that the conduct of the police vis-a-vis the general public is regulated by certain positive enactments and negative stipulations. The words ‘decency’, ‘gentleness’, ‘courtesy’, forbearance’, ‘civility’, ‘rudeness’, ‘brutality’ etc. have been incorporated in various sections of the Act, Ordinance and Regulations with a definite purpose or intent. The Legislatures, being mindful of the unfettered power the police are considered to exercise, were quite clear in their intent to prevent any abuse or misuse of such powers. To quote Tindal, CJ in Warburton .v. Loveland (1832) 2 D and Cl. 480

“The Courts must in general take it absolutely for granted that the legislature has said what it meant, and meant what it has said. Ita scriptum est is the first principle of interpretation”. (Salmond, Jurisprudence, Twelfth Edition, page 132) Furthermore, as an additional measure, rudeness, harshness and brutality was not only forbidden, but every officer of superior rank was required to take immediate steps for punishment of any offender when it comes to his notice.

30. The imposition of such prohibition is, no doubt, significant. This is in consonance with the concept of ‘Rule of law’ as embodied in our Constitution where the preamble states that it shall be the fundamental aim of the State to secure the rule of law for all citizens.

31. Walber, in his Oxford Companion to Law (1980 Edition, page 1093) explained the term rule of law as under: “The concept implies that the ruler must also be subject to law. It is the subordination of all authorities, legislative, executive and others to certain principles, which would generally be accepted as characteristic of law, such as the ideas of fundamental principles of justice, moral principles, fairness and due process. It implies respect for the supreme value and dignity of the individual”.

32. As observed by Hilaire Barnett in Constitutional and Administrative Law (Third Edition, page 85): “The rule of law insists that every personirrespective of rank and status in society –

338

Brigadier (Retd.) A.H.M. Abdullah Vs. Govt. of Bangladesh and others (Zubayer Rahman Chowdhury, J.) I LNJ (2012)

be subject to the law. For the citizen, the rule of law is both prescriptive-dictating the conduct required by law – and protective of citizens – demanding that government acts according to law”.

33. In S.P. Gupta’s case, cited above, the Supreme Court of India held: “If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective”.

34. The concept of rule of law has been upheld not only by the Courts, it has also been endorsed and adopted by the Universal Declaration of Human Rights more than half a century ago and subsequently, in 1950, by The European Convention for the Protection of Human Rights and Fundamental Freedoms. The International Commission of Jurists, in the Delhi Declaration of 1959, stated: “The function of the legislature in a free society under the rule of law is to create and maintain the conditions which will uphold the dignity of man as an individual.”

35. Having considered the theoretical aspects and the relevant provisions of the Act and the Rules, we now propose to consider one of the core issue in this matter, i.e., ‘the misconduct of the police’.

The term ‘misconduct has been defined in 2(b) of ‘The Police Officers (Special Provisions) Ordinance, 1976’. It states : “(b) ‘misconduct’ means conduct prejudicial to good order or service

discipline or contrary to Government Servants (Conduct) Rules, 1966, or unbecoming an officer or gentleman.”

36. Under the aforesaid Ordinance, if a police officer is found guilty of misconduct or inefficiency (Section 4(i) and 4(vii) respectively), then any one of the penalties mentioned in Section 5(a) to 5(e) may be imposed upon him. Section 5 provides as under: “Penalties.- The following shall be the penalties which may be imposed under this Ordinance, namely :(a)

dismissal from service;

(b)

removal from service;

(c)

discharge from service;

(d)

compulsory retirement; and

(e)

reduction to lower rank.”

37. Furthermore, the provisions relating to an errant police officer has been laid down in Section 12 of the 1976 Ordinance, where clause (g) provides for forfeiture of pay not exceeding one month and Clause (h) provides for forfeiture of increment of pay. Section 48 of the Ordinance reads as under: “48. Penalty for misconduct of policeofficer.- Any police officer who is guilty of cowardice or of any wilful breach of any provision of law or of any rule, regulation or order which it is his duty as such police-officer to observe or obey shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand taka, or with both.”

38. Evidently, the provisions for dealing with an errant police officer are elaborate and stringent.

This, in our view, is necessary for maintaining discipline in the force. It is equally important that

I LNJ (2012) Brigadier (Retd.) A.H.M. Abdullah Vs. Govt. of Bangladesh and others (Zubayer Rahman Chowdhury, J.)

Courts should enforce their application when called upon to do so, or else the provisions would become meaningless.

39. Maxwell on The Interpretation of Statutes has clearly stated that if the language is clear and explicit, the Court must give effect to it (12th edition, page 1).

40. We may also profitably refer to a passage from Broom’s Legal Maxims (10th Edition, page 384) where it has been stated: “If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound the words in their natural and ordinary sense. The words themselves alone do, in such case best declare the intention of the law giver”.

41. Judge Colley, in his Constitutional Limitations, wrote that the police of a state, in a comprehensive sense, embraces, among others, its whole system of internal regulation, by which the state seeks to preserve the public order and to prevent offenses against the state. (Corpus Juris Secondum, Vol. LXXII, page 207).

42. The term ‘Police Regulation’ is used to define a power which resides in the state. In its primary or narrow sense, it refers to the exercise of the police power to protect the health, lives and morals of the people. In its broader acceptation, it embraces everything to promote the general welfare; everything essential to the great public needs. (N.D.-State .v. Northwester Pac. Rail Co., 172 N.W. 324, 331).

43. As to the question of binding force of such rules and regulations, it has been established by judicial pronouncements that rules made under a statute have the force of law.

44. In Willingale .v. Norris (1909) 1 K.B. 57, the question of binding force of Regulations made

339

under a Statute came up for consideration. It was held that where a Statute makes provisions for Rules to be made thereunder, such Rules have the force of law (per Lord Alverstone, CJ).

45. Since the enactment of the Act in 1861, the Regulation in 1943 and the Ordinance in 1976, there has been significant change in the set-up and format of the police force. There is no longer one police force for the entire country. Rather, each Metropolitan city has a force of its own like the Dhaka Metropolitan Police, Chittagong Metropolitan Police, Khulna Metropolitan Police. Today’s police force is a far-cry from the police force of yester years. They are evidently much better equipped and, presumably, better trained. They have sophisticated arms, communications network and fast cars at their disposal and, very recently, a new uniform to go with their image. However, all the expenses are borne by the people of the country. It is, therefore, not only necessary, but also imperative that the police comply strictly with the provisions of the Act, Rules and Regulations which govern their dealing with the public. In C. Kalbagh .v. State of UP, reported in AIR 1989 SC 1452, it was aptly held : “there is the imperative requirement of ensuring that the guardians of law and order in fact observe the code of discipline expected of them and that they function strictly as the protectors of innocent citizens” (Per Pathak, CJ).

46. The police, as the law enforcing agency of the State, are to ensure that the law of the land is obeyed and followed by the general public. It is, therefore, not only a matter of utmost regret, but also of grave concern, when such acts of violation are committed by the police themselves. It is also a sad reality that although police excess occur regularly, such incidents are rarely challenged in a Court of law.

47. We are inclined to accept Mr. Khan’s submission that most people are either reluctant to initiate any actions against the police or are very

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Brigadier (Retd.) A.H.M. Abdullah Vs. Govt. of Bangladesh and others (Zubayer Rahman Chowdhury, J.) I LNJ (2012)

skeptical about any disciplinary action that may be taken against such errant officers. The petitioner deserves to be commended for bringing an issue of such public importance and relevance before this Court. This, no doubt, will serve to create awareness amongst the general public who, though being law abiding, paradoxically remain unaware or ignorant about the law itself. We are reminded of what Lord Donaldson, MR stated in Merkur Island Shipping Corporation .v. Laughton and Others [1983] 2 AC 570: “The efficacy and maintenance of the rule of law, which is the foundation of any parliamentary democracy, has at least two pre-requisites. First, people must underst-and that it is in their interests, as well as in that of the community as a whole, that they should live their lives in accordance with the rules and all the rules. Secondly, they must know what those rules are ….”

48. We have considered the submission of the learned Advocate and have also given our anxious thoughts to the grounds taken in the petition. We also take note of the fact that no affidavit-inopposition has been filed on behalf of any of the respondent nor has any one even entered appearance, although notice has duly been served on them. This is also indicative of their callous and arrogant attitude, to say the least.

49. The facts stated in the writ petition, being uncontroverted, are, therefore, deemed to be correct in the eye of the law. Quite clearly, the conduct of respondent no. 10 not only falls within the ambit of the term ‘misconduct’, it is also violative of the other provisions quoted above. As such, we have no hesitation in holding that the allegation of misconduct against respondent No. 10 has been established.

50. Regrettably, inspite of the matter having been brought to the notice of the superior officers,

as is evidenced by Annexure ‘R’ to the writ petition, no action appears to have been taken against the deliquent officer. This, in turn, makes the superior officers liable for punishment as per the aforesaid provisions.

51. In view of the discussions made above, we find substance in the Rule.

52. Accordingly, the Rule is made absolute. The issuance of the impugned Charge Report dated 30.05.2001 is found to be without lawful authority and of no legal effect.

53. Respondent No. 5 (Inspector General of Police, Bangladesh) and respondent No. 6 (Commissioner, Dhaka Metropolitan Police) are directed to initiate appropriate disciplinary action against respondent No. 10 in accordance with law.

54. Respondent nos. 5 and 6 are further directed to ensure that all police personnel, in whatever rank they are now serving, be made to be acquainted properly with the provisions of the 1861 Act, the 1943 Regulations and the 1976 Ordinance in dealing with the public in general and, in particular, with women and children and also comply with those provisions in letter and spirit.

55. Let a copy of this judgment be sent to respondent Nos. 5 and 6 for implementation of the aforesaid directions and report compliance to the Registrar of this Court within 4 (four) weeks from receiving copy of this order.

56. Let a copy of this judgment be also sent to respondent no. 1 Secretary, Ministry of Home Affairs, Government of Bangladesh to ensure due treatment of the public by the police force.

57. Although we were inclined to award costs to the petitioner, we refrain from doing so.

Ed.

I LNJ (2012)

The State Vs Md. Abdur Rouf Dewan @ Robu (Md. Shamsul Huda, J.)

occurrence i.e. Burirtek 5 times, but nobody's statement was recorded albeit he met with Chairman, Dafadar, school teachers and many other inhabitants of nearby place of occurrence and as per his sketch map there are many institutions in an around the so-called place of occurrence i.e.

Burirtek of Kabirpur. He categorically admitted that he did not see the wearing apparels, spectacles, shoes of the deceased and he never prepared any seizure list either at the place of occurrence or in the medical college hospital during his investin-gation. He visited the house of the deceased several times, but he did not record any statement of any witness which he has admit-ed in his cross examination. He went to VowalMirzapur but he admitted in his cross examination that, ÒAvgvi Z`šÍKv‡j fvIqvj wgR©vcyi evmó¨vÛ Ges fvIqvj wgR©vcyi †_‡K evnv`yicyi n‡q kvóvi evox hvevi moK c‡_i KvBRvjyb ¯‹zj, Rqbvj evRvi, evwjqvevB` eªxR, myjZvbv †W‡Kv‡iUi mn †Kvb ¯’v‡bi gvbwPÎ I m~Px cÖ¯Z ‘ Kwi bvB| Avgvi Z`šÍKv‡j myjZvbv †W‡Kv‡iUi bvgxq ¯’v‡b ev †jvKv‡j Avwg hvB bvB| myjZvbv †W‡Kv‡iUi †Kv_vq Avgvi Z`‡šÍ Avwg cvB bvB| (underlining is made by me).

Avgvi Z`šÍKv‡j Rq‡`ecyi †PŠiv¯Ív n‡q gvóvi evox w`‡q Qz‡K evnv`yicyi w`‡q fvIqvj wgR©vcyi evRvi ch©šÍ wM‡qwQ wKbv ¯§ib bvB| Ó

2.

He further stated that on 3.3.1999 at about 18.25 hours he arrested Ansar Ali from in front of decorator shop of Mazahar of Bahadurpur and after seeing them he did not try to flee away to escape from arrest. He arrested Ansar Ali within jurisdiction of Joydebpur police station but he admitted that he did not make any G.D.E with Joydebpur Police station. He did not record any statement of Ansar Ali under Section 161 of the Code of Criminal Procedure. He denied the suggestion that Ansar Ali was tortured in the police station. He admitted in his cross examination that he did not get any number of Microbus or did not trace any Microbus. He candidly admitted in his cross examination that, ÒAvwg †h mv¶x‡`i Revbe›`x †iKW© Kwi Zviv †KDB e‡jb bvB †h, Avmvgx ie †`Iqvb, kvgmy †`Iqvb, RvwKi wgTv, Ry‡qj I Ab¨vb¨iv k¦vliæ× K‡i evw`bxi ¯^vgx wbnZ bvCg EwÏb‡K myjZvbv †W‡Kv‡iU‡i nZ¨v K‡i| D‡jøwLZ ¯^vÿxMY †KDB Revbe›`x cÖ`vbKv‡j Avgvi Kv‡Q e‡jb bvB †h, evw`bxi ¯^vgxi jvk Kweicy‡ii eywoi †U‡Ki KvPv iv¯Ívi cv‡k¦© Avmvgxiv wb‡q †d‡j iv‡L|

321

wbnZ bvCg DwÏb ev Zvi fvB mv‡bvqvi †nv‡m‡bi †Kvb gUi mvB‡K‡ji KvMRcÎ Rã Kwi bvB| ‡gvKÏgv i“Ryi c~‡e© evw`bx mvfvi _vbvq †gvKÏgv iæRy Ki‡Z hvq, wKš‘ mvfvi _vbv †Kvb gvgjv †bq bvB, GB wem‡q Avgvi Rvbv †bB| 17-2-1999 Bs Zvwi‡Li c~‡e© evw`bx Zvi ¯^vgxi g„Zz¨ msµvš— †gvKÏgv i“Ry Ki‡Z mvfvi hvq wKbv Avgvi Rvbv †bB| Avgvi Rvbv †bB †h, wZwb †gvKÏgv iæRy Ki‡Z wM‡qwQ‡jb wKš‘ mvfvi _vbv KZ©„c¶ †gvKÏgv †bq bvB|Ó 3.

PW. 12 Md. Safaruzzaman, Assistant Superintendent of Police, C.I.D. lastly took up the investigation on 24.02.2001. He perused the case diary and visited the place of occurrence. As per him he located 2 places of occurrence, one is Decorator shop of Bahadurpur where the deceased was killed and another is the place where the dead body of deceased was left by the miscreants and seized alamats including the necessary papers of motor cycle. During his investigation he came to know that there was enmity in between the deceased and accused persons and submitted charge sheet. He added only one witness namely Mayeen Uddin, who was not examined in this case.

4.

P.W. 13 Abu Hena Md. Yusuf, Inspector, CID Dhaka took up the investigation on 20.5.1999 and he prepared sketch map and its index and examined witnesses and recorded their statements and visited the place of occurrence as per the statement of Ansar Ali. In cross examination he stated that nothing is mentioned in the statement of Ansar Ali that murder was committed or anybody murdered the deceased.

He did not prepare any sketch map of the place of where Nayeem Uddin was taken. He further admitted in cross examina-tion that, ÒAvmvgxMb I wbnZ bvCg Dwχbi g‡a¨ †Kvb we‡iva wQj Zr ¯^c‡ÿ †Kvb `wjj I KvMR cÎ Avwg Rã Kwi bvB|Ó He denied the defence suggestion that Ansar Ali was taken on remand although the court directed him to interrogate Ansar Ali with caution. But he made physical torture on Ansar Ali, as a result the learned Magistrate asked him to show cause by his order dated 3.6.1999.

5.

On the other hand defence examined one Md. Akbar Ali as defence witness, who tried to say that Abdur Rouf Dewan went to his village for seeking vote as he was a candidate for

322

The State Vs Md. Abdur Rouf Dewan @ Robu (Md. Shamsul Huda, J.)

guardian representative in the School Managing Committee Election. He was cross examined by the prosecution.

6.

These are the evidences of both the sides in this case.

7.

We have perused the F.I.R. charge sheet, impugned judgment and the sketch map, seizure list and the statement of Ansar Ali recorded under Section 164 of the Code of Criminal Procedure.

8.

At first we propose to discuss about the delay in lodging of the F.I.R. The cause of delay in lodging the F.I.R. is not at all explained in the F.I.R. or in the deposition of P.W. 1. Here it may be noted that the informant herself is a police official and married lady and it has already been pointed out that before lodging of the F.I.R. She went to the concerned police station several times and met the investigating officer for several times and admittedly none prevented her to lodge the F.I.R., but alter lapse of about 1 5/ 16 days he lodged the F.I.R. suspecting some persons without making any specific complain or allegation against them. Rather a vague allegation has been made that there was enmity in between the deceased and the accused persons which cannot be treated as a authentic ground for causing such inordinate delay in lodging the F.I.R. It is well settled that in various decisions of our Apex Court that delay in lodging the F.I.R. gives opportunity to the prosecution for making embellishment and false implications. Further the P.W. 11, the investiga-ting officer admitted in cross examination that before lodging of the F.I.R. he carried on investigation on the basis of a G.D. Entry. It is also settled that if any KI.R. is made in course of investigation that F.I.R. is not an F.J.R. at all which can at best be treated as statement of witness under Section 161 of the Code of Criminal Procedure and it is not admissible in evidence.

9.

Further in this case as per the learned Deputy Attorney General there is no eye witness of the occurrence and it is solely based on circumstantial evidence. Th‘e learned Deputy Attorney General referred a decision reported in 16 DLR, 161 regarding last seen. We have perused the aforesaid reported case and found it difficult to accept the submission that the deceased was last seen with the accused persons by witness Nos. 2 and 4. The fact of the reported

I LNJ (2012)

case and the fact of the present case are quite distinguishable and further the circumstances which the aforesaid two witnesses disclosed in their evidence in this ease do not create any credence that they have seen the deceased with accused persons at about 8.00 am to 8.30 a.m that is accused Rouf Dewan, Hakim Dewan and deceased Naymuddin were standing with a Motorcycle by the side of the Balia Baid Road inasmuch as P.W. 2 staled that he has seen a Microbus which was standing at their right side with 5/7 persons, but nobody could give the number of Microbus or as per P. W. 4 the place is densely populated and there is Bus stand and a big Bazar nearby the place from where he saw his brother-in-law to go away alone by a Motor Cycle which is at a considerable distance from the place he claimed to have seen his brother-in-law and it is not a case that the accused persons have followed him with Microbus and abducted him, so the aforesaid reported case will not help the prosecution at all.

10. The learned Judge of the trial court mainly relied on so-called confessional statement of accused Ansar Ali as basis of conviction.

11. We have perused the statement of Ansar Ali which was marked as Ext. 5. We propose to reproduce his statement for ready reference which is as follows:AvbQvi Avjx Gi †dŠR`vix Kvh©wewa 164 aviv g‡Z Revbe›`xt Avgvi bvgt AvbQvi Avjx, wcZvt jvj kixd Xvjx, MÖvgPv›Uv, _vbv-bwoqv, †Rjv-kwiqZcyi, eZ©gv‡b evnv`yi cyi, _vbvt Rq‡`ecyi, †Rjvt MvwRcyi, eqmt 50| Avwg evnv`yicyi MÖv‡g †gvRnviæj n‡Ki RvqMvq _vwK Ges †W‡Kv‡iU‡ii †`vKvb PvjvB| gvwjKB †W‡Kv‡iUi w`‡q‡Q †mUvi Avq w`‡q Rxeb avib Kwi| gvm `yB GK Av‡Mi NUbv w`b Abyt 10.00 Uvi w`‡K 5/6 Rb gvbyl fwZ© mv`v gvB‡µvevm Avgvi †W‡Kv‡iU‡ii †`vK‡bi mvg‡b G‡m `vovq| Zv‡`i g‡a¨ K‡qKRb wKfv‡e Xz‡K e‡j kvUviwU †d‡j †`| Avwg f‡q kvUvi †d‡j †`B Ges evwn‡i `vovBqv _vwK| wfZ‡i Xz‡K GKRb‡K gviai K‡i| Avwg wPrKvi ïwb| 15/20 wgt Zviv wQj, Zviv Avevi wPrKvi w`‡q kvUvi Lyj‡Z e‡j| evwn‡i Zv‡`i Av‡iKRb wQj †m ZLb kvUvi †Lv‡j †`q Avwg mvnvh¨ Kwi| GKRb †jvK‡K Zviv aivawi K‡i gvB‡µv‡Z DVvq †es Mvox PvjvBqv P‡j hvq| Avwg Avt iDd‡K wPwb| Ab¨ KvD‡K wPwb bv| †`v‡b NUbvi K‡qKw`b Av‡M Avi‡Q GB myev‡` wPwb| Zvici Zviv mevB P‡j hvq| f‡q Avwg KvD‡K NUbv ewjwb| GB Avgvi e³e¨|

I LNJ (2012)

The State Vs Md. Abdur Rouf Dewan @ Robu (Md. Shamsul Huda, J.)

12. In the aforesaid statement Ansar Ali neither implicated himself in the commission of crime nor he implicated himself as abettor of the offence nor he stated that the deceased was killed inside the so-called decorator. Further it has been clearly stated by the learned Magistrate that Ansar Ali declined to make a confession under Section 164 of the Code of Criminal Procedure although he was forwarded for doing so, but he agreed to give some information about the occurrence and his statement was recorded on a white paper like other witnesses who made statement before him on the same date. It is curious to us that how the investigating officer or the prosecution treated this Ansar Ali as accused and how implicated him in the charge sheet, as accused and why the Magistrate considered him as witness? On the other hand the learned Magistrate also forgotten that he was asked to record his statement as an accused by another Magistrate, but he declined to make any confessional statement. It was the duty of the Magistrate to send him to custody without recording his statement as a witness. He has exceded his own jurisdiction and he has played the part of the police officer in recording the statement for which he was not instructed. In this regard the learned Judge of Tribunal referred to a decision of the case of Golam Mohammad Khan Vs. King Emperor, reported in 54 CWN, 464 (PC). But just going through the head note, the learned Judge arrived at a decision that the aforesaid decision is applicable in this case, forgetting that in the body of the judgment it has been held that if the statement recorded following section 164 and 364 of the Code of Criminal Procedure then only the same is admissible in evidence and as such this so-called statement of Ansar Ali is not admissible in evidence inasmuch as it is difficult to ascertain as to whether it was recorded treating him as an accused or a witness and as such is not admissible in eviden-ce, as suggested in the aforesaid case.

13. He has referred another decision which is related to Civil Case and thus it has no manner of application in the present case.

14. The aforesaid act is not expected from a responsible Judge of Druto Bichar Tribunal. He has wrongly amalgamated the terms of admission and confession. Where the question is unsettled,

323

whether the statement of Ansar Ali was recorded as a witness or an accused, even then the learned Judge based his judgment on the so-called statement of Ansar Ali treating it as confession of an accused.

15. We are constrained to hold that the learned Judge having power to inflict even death sentence upon a person should have sound knowledge in law.

16. It may be mentioned here that it has been well settled by the Apex Courts of this SubContinent that an accused can not be convicted on the sole basis of a confession made by co-accused unless it has got corroboration from independent source. In this ease the so-called statement of Ansar Ali is not confession at all, rather it is a statement of witness as admitted by recording Magistrate but he was shown in the column of accused as a result the convict accused persons did not get any scope to cross-examine him.

17. We have given our anxious thought over the whole prosecution case, but we are surprised to note that the police personnel’s have conducted a perfunctory investigation and submitted a belated charge sheet under Section 302/201/34 of the Penal Code and the learned Judge of the Druto Bichar Tribunal conducted the trial and arrived at a decision to inflict death sentence to one of the accused persons without proper appreciation of evidence on record in its true perspective.

18. Belated examination of witness: The delayed examination of witnesses by the Investigating officer afforded an opportunity of concoction and it makes testimony of the witness unreliable .

19. In this connection reference may be made to the case of the Sate Vs. Paran Chandro Baroi: Reported in 2 B.C.R. -292: Relevant Para-12-14: Where it has been held: "' In this connection the power given to the Police officer under Section 175(1) of the Code of Criminal Procedure cannot be over looked. No reason has been given by the prosecution for the delayed examination of these two witnesses. They were examined by the I.O. after 4 days of the occurrence. The delay in examining them has not been explained. The delay in examining P.Ws. 4 and 5 in the

324

The State Vs Md. Abdur Rouf Dewan @ Robu (Md. Shamsul Huda, J.)

circumstance of the case appears to be unjustified. In the facts and circumstances of the case I am of the opinion that it would not be safe to rely or the testimony of P.Ws. 4 and 5.

20. Further reference may be made to 25 BCR (HC)—216: Kazi Mahbubuddin Ahamed Vs. the State.

Held: "Unusual delay cannot be caused in the matter of noting down statement of a person/witness and mandate of law demands immediate recording statements when memory of witness remain fresh as human memory is always fleeting.

Benefit of doubt arising out of the unusual delay of examining and noting down statements would got to accused."

21. On perusal of the ease Diary it appears that the Investigating Officers examined the witnesses on the dates mentioned against their names: A. Rashim 15.3.1999

--------

Osman Gani

"

" on 15.3.1999

Abdur Rob

"

" ------ 29.7.1999

Moksed Ali

"

"—-29.7.1999

Md. Mainuddin "

examined

"—12.9.2002

Sunwar Hossain "

"-—29.12.2001

SagorHossain

"— 11.8.2002

"

Anwar Hossain “ MunnuMia

"

on

“ — 8.10.2002 " —8.9.2002

22. The above chart shows that the prosecution witnesses were examined at a belated stage without any explanation and as result their testimony became untrustworthy and unreliable. Therefore, no convic-tion can be recorded relying on their testimonies and thus from the above facts this case can safely be considered as a case of evidence.

23. We off and on hear through Media that police by exercising their prudence and after facing long trouble used to catch the criminals, but they used to get bail, even acquittal from this court and the general people of this country has been loosing their confidence upon the judiciary

I LNJ (2012)

believing the aforesaid statements, specially made by the police department. But considering the present case we arc surprised to note that one of the police personnel was murdered and another police personnel is the informant in this case and at the same time a High Ranking Police Officer is a relation of the deceased and a perfunctory investigation was conducted consuming long time and changing Investigating Officers one after another, involved the accused persons without having any materials in the whole case records, but arranged to get the accused person convicted and one of them was sentenced to death. It is really shocking to us that the police officers who diverted the case by fabricating the facts for facilitating awarding of conviction towards the so-called enemies of a police officials are kept above law!

24. We also find that charge does not contain any essential materials to give proper notice to the accused persons as to what offence they have committed and thus it has caused prejudice to them.

25. We have given our anxious thought over the whole matters and hold that if we allow the reference and allow the execution of the death penalty, it will be treated as a "judicial murder".

So we are not inclined to commit such murder sitting on the high altar of judiciary.

26. In the result, the reference is rejected and the criminal appeals including the jail appeal are allowed.

27.

Let an advance order be sent to the concerned court and the concerned jail authority to release the condemned prisoner forthwith, if not wanted in connection with any other case.

Other convict appellants be discharged from their bail bond.

28.

Send down lower courts record forthwith.

Let a copy of this judgment be forwarded to the Inspector General of Police with an expectation that he will look into the matter so that general people do not suffer, as those have been done in the present case, making favor to a police family.

Ed.

49

Bangladesh Statutes

I LNJ (2012)

Published in Bangladesh Gazette Extra Ordinary Dated: 20 February, 2012.

(ছ)

‘‘আিথক pিত ান’’ aথ আিথক pিত ান আiন, 1993 (1993 সেনর 27 নং আiন) eর ধারা 2(খ) e সংjািয়ত আিথক pিত ান;

Act No. 5 of 2012.

(জ)

‘‘আদালত’’ aথ sশাল জজ eর আদালত;

মািনলnািরং pিতেরাধ সংkাn িবদ মান আiন o aধ ােদশ রিহতkেম eতd সংkাn আiন পুনঃpণয়েনর uেdেশ pণীত আiন

(ঝ)

যেহতু মািনলnািরং o সংি aন ান aপরাধ pিতেরাধ eবং uহােদর শািsর িবধানসহ আনুষি ক িবষয়ািদ সmেক িবধান pণয়েনর uেdেশ মািনলnািরং pিতেরাধ সংkাn িবদ মান আiন o aধ ােদশ রিহতkেম eতd সংkাn আiন পুনঃpণয়ন করা সমীচীন o pেয়াজনীয়;

‘‘ kাক’’ aথ ei আiেনর আoতায় আদালত কতৃ ক কান সmিt asায়ী িভিtেত সংি কতৃ পk বা আদালেতর িজmায় আনয়ন করা যাহা আদালত কতৃ ক চূ ড়াn িসdাn gহেণর মাধ েম িন িt করা হiেব;

(ঞ)

‘‘gাহক’’ aথ বাংলােদশ ব াংক কতৃ ক সময় সময় সংjািয়ত কান ব িk বা ব িkবগ aথবা সtা বা সtাসমূহ;

(ট)

‘‘ াs o কাmানী সবা pদানকারী’’ aথ কান ব িk বা ব বসা pিত ান যাহা aন কান আiেন সংjািয়ত করা হয় নাi eবং য বা যাহা কান তৃ তীয় পkেক িনmবিণত য কান সবা pদান কিরয়া থােকঃ

সেহতু eতddারা িনmরূপ আiন করা হiলঃ সংিkp িশেরানাম o pবতন --(1) ei আiন মািনলnািরং pিতেরাধ আiন, 2012 নােম aিভিহত হiেব। (2) iহা 3 মাঘ, 1418 ব াb/16 জানুয়াির, 2012 ি sাb তািরখ হiেত কার কর হiয়ােছ বিলয়া গণ হiেব।

(1)

কান আiনী সtা pিত ার eেজn িহসােব দািয়t পালন,

(2)

কান আiনী সtার পিরচালক, সিচব িহসােব দািয়t পালন বা aন কাহােকo িনেয়াগ করা বা aংশীদারী ব বসােয় aংশীদার িহসােব দািয়t পালন aথবা সমপর ােয়র aন কান দািয়t পালন,

2। সংjা – িবষয় বা pসংেগর পিরপnী কান িকছু না থািকেল, ei আiেন— (ক) ‘‘aথ বা সmিt পাচার’’ aথ—

(3)

কান আiনী সtার িনবিnত eেজn িহসােব দািয়t পালন,

(1) দেশ িবদ মান আiেনর ব ত য় ঘটাiয়া দেশর বািহের aথ বা সmিt pরণ বা রkণ; বা

(4)

কান ekেpস ােsর ািs িহসােব দািয়t পালন বা aন কাহােকo িনেয়াগ করা,

(2) দেশর বািহের য aথ বা সmিtেত বাংলােদেশর sাথ রিহয়ােছ যাহা বাংলােদেশ আনয়ন যাগ িছল তাহা বাংলােদেশ আনয়ন হiেত িবরত থাকা; বা

(5)

নিমনী শয়ারেহাlার বা aন কান ব িkর পিরবেত পিরচালক িহসােব দািয়t পালন বা aন কান ব িkেক িনেয়াগ pদান করা,

(3) িবেদশ হiেত pকৃ ত পাoনা দেশ আনয়ন না করা বা িবেদেশ pকৃ ত দনার aিতিরk পিরেশাধ করা; (খ)

‘‘aথ মূল sানাnরকারী’’ aথ eমন আিথক সবা যখােন সবা pদানকারী eকsােন নগদ টাকা, চক, aন ান আিথক in ু েমn (iেলক িনক বা aন িবধ) gহণ কের eবং aন sােন সুিবধােভাগীেক নগদ টাকা বা আিথক in ু েমn বা aন কানভােব সমপিরমাণ মূল pদান কের;

(ঠ) ‘‘তদnকারী সংsা’’ aথ দু নীিত দমন কিমশন আiন, 2004 (2004 সেনর 5 নং আiন) eর aধীন গ ত দু নীিত দমন কিমশন; eবং কিমশেনর িনকট হiেত তদেnর uেdেশ kমতাpাp কিমশেনর কান কমকতা বা aন আiেন যাহা িকছু i থাkক না কন, aন কান তদnকারী সংsার কমকতাo iহার anভু k হiেবন;

(গ)

ৃ aপরাধ ‘‘aপরাধলb আয়’’ aথ pত k বা পেরাkভােব সmk হiেত aিজত, udত ূ সmিt বা কােরা আয়tাধীন বা িনয়ntণাধীন e ধরেণর সmিt;

(ড) ‘‘নগদ টাকা’’ aথ কান দেশর যথাযথ মুdা িহসােব uk দশ কতৃ ক sীকৃ ত কান ধাতব মুdা o কাগেজর মুdা eবং ােভলাস চক, পাsাল নাট, মািন aডার, চক, ব াংক াফট, িবয়ারার বn, লটার aব kিডট, িবল aব ekেচ , kিডট কাড, ডিবট কাড বা pিমজির নাটo uহার anভু k হiেব;

(ঘ)

‘‘aবরুd’’ aথ ei আiেনর আoতায় uপযুk কতৃ পk কতৃ ক কান সmিt asায়ী িভিtেত সংি কতৃ পk বা আদালেতর িনয়ntেণ আনয়ন করা যাহা আদালত কতৃ ক বােজয়াpকরেণর চূ ড়াn িসdাn gহেণর মাধ েম িন িt করা হiেব;

(ঢ) ‘‘িন িt’’ aথ kয়েযাগ , dত পচনশীল aথবা িনিদ সমেয়র পর ব বহার aেযাগ সmিt িবkয় বা aন কান আiেনর aধীন ংস কিরবার uপেযাগী সmিt ংসকরণ বা আiনসmতভােব pকাশ িনলােমর মাধ েম হsাnরo anভু k হiেব;

(ঙ)

‘‘aলাভজনক সংsা/pিত ান (Non Profit Organisation)’ aথ কাmানী আiন, 1994 (1994 সেনর 18 নং আiন) eর ধারা 28 eর aধীন সনদpাp কান pিত ান;

(ণ) ‘‘বােজয়াp’’ aথ ধারা 17 eর আoতায় কান আদালেতর আেদেশর মাধ েম কান সmিtর st sায়ীভােব রাে র aনুkেল আনয়ন করা;

(চ)

‘‘আিথক in ু েমn’’ aথ সকল কাগুেজ বা iেলক িনক দিললািদ যাহার আিথক মূল রিহয়ােছ;

(ত) ‘‘বাংলােদশ ব াংক’’ aথ Bangladesh Bank Order, 1972 (P.O. No. 127 of 1972) eর dারা sািপত Bangladesh Bank;

I LNJ (2012)

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(থ) ‘‘বীমাকারী’’ aথ বীমা আiন, 2010 (2010 সেনর 13 নং আiন) eর ধারা 2(25) e সংjািয়ত বীমাকারী; (দ) ‘‘ বসরকাির unয়ন সংsা (Non Government Organisation)’’ aথ Societies Registration Act, 1860 (Act No. XXI of 1860), Voluntary Social Welfare Agen-cies (Registration and Control) Ordinance, 1961 (Ordinance No. XLVI of 1961), Foreign Donations (Voluntary Activities) Regula-tion Ordinance, 1978 (Ordinance No. XLVI of 1978), Foreign Contrib-utions (Regulation) Ordin-ance, 1982 (Ordinance No. XXXI of 1982) eবং মাiেkােkিডট রগুেলটরী aথির আiন, 2006 (2006 সেনর 32 নং আiন) eর আoতায় aনুেমািদত বা িনবিnত pিত ান যাহারা— (1) sানীয় u স হiেত তহিবল (ঋণ, aনুদান, আমানত) gহণ কের বা aন েক pদান কের; eবং/aথবা

(ঈ) কান আিথক লনেদন eiরূপভােব সmn করা বা সmn কিরবার চ া করা যাহােত ei আiেনর aধীন uহা িরেপাট কিরবার pেয়াজন হiেব না; ৃ aপরাধ সংঘটেন pেরািচত করা বা সহায়তা কিরবার (u) সmk aিভpােয় কান বধ বা aৈবধ সmিtর রূপাnর বা sানাnর বা হsাnর করা; ৃ aপরাধ হiেত aিজত জানা সেtto ei ধরেণর সmিt (ঊ) সmk gহণ, দখেল নoয়া বা ভাগ করা; (ঋ) eiরূপ কান কার করা যাহার dারা aপরাধলb আেয়র aৈবধ u স গাপন বা আড়াল করা হয়; ৃ থাকা, (e) uপের বিণত য কান aপরাধ সংঘটেন aংশgহণ, সmk aপরাধ সংঘটেন ষড়যnt করা, সংঘটেনর pেচ া aথবা সহায়তা করা, pেরািচত করা বা পরামশ pদান করা; (ব) ‘‘িরেপাট pদানকারী সংsা’’ aথ—

(2) য কান ধরেণর বেদিশক সাহায বা ঋণ বা aনুদান gহণ কের;(ধ) ‘‘ বেদিশক মুdা’’ aথ Foreign Exchange Regulation Act, 1947 (Act No. VII of 1947) eর section 2(d) ত সংjািয়ত foreign exchange; (ধ) “ বেদিশক মুdা” Foreign Exchange Regulation Act, 1947 (Act No. VII of 1947) eর section 2(d) ত সঙjািয়ত foreign exhange; (ন) ‘‘ব াংক’’ aথ ব াংক কাmানী আiন, 1991 (1991 সেনর 14 নং আiন) eর ধারা 5(ণ) e সংjািয়ত ব াংক কাmানী eবং anয কান আiন বা আiেনর aধীন ব াংক িহসােব pিতি ত য কান pিত ানo iহার anভু k হiেব; (প) ‘‘মািন চ ার’’ aথ Foreign Exchange Regulation Act, 1947 (Act No. VII of 1947) eর section 3 eর aধীন বাংলােদশ ব াংক কতৃ ক aনুেমািদত বেদিশক মুdা লনেদনকারী ব িk বা pিত ান;

(a)

ব াংক;

(আ)

আিথক pিত ান;

(i)

বীমাকারী;

(ঈ)

মািন চ ার;

(u)

aথ aথবা aথমূল pরণকারী বা sানাnরকারী য কান কাmানী বা pিত ান;

(ঊ) বাংলােদশ ব াংেকর aনুমিতkেম ব বসা পিরচালনাকারী aন কান pিত ান; (ঋ)

(1)

sক িডলার o sক bাকার,

(2)

পাটেফািলo ম ােনজার o মােচn ব াংকার,

(3)

িসিকuির কাsিডয়ান,

(4)

সmদ ব বsাপক;

(ফ) ‘‘মািনলnািরং’’ aথ— ৃ সmিt jাতসাের (a) িনmবিণত uেdেশ aপরােধর সােথ সmk sানাnর বা রূপাnর বা হsাnরঃ (1)

(e)

aপরাধলb আেয়র aৈবধ pকৃ িত, u স, aবsান, মািলকানা o িনয়ntণ গাপন বা ছdাবৃt করা; aথবা

(i) jাতসাের aপরাধলb আেয়র aৈবধ u স গাপন বা আড়াল কিরবার uেdেশ uহার হsাnর, িবেদেশ pরণ বা িবেদশ হiেত বাংলােদেশ pরণ বা আনয়ন করা;

aলাভজনক সংsা/pিত ান Organisation) ;

(Non

Profit

(2) বসরকাির unয়ন সংsা (Non Govern-ment Organisation) ;

ৃ aপরাধ সংগঠেন জিড়ত কান ব িkেক আiনগত (2) সmk ব বsা gহণ হiেত রkার uেdেশ সহায়তা করা; (আ) বধ বা aৈবধ uপােয় aিজত aথ বা সmিt িনয়ম বিহভূ তভােব িবেদেশ পাচার করা;

(1)

(3) সমবায় সিমিত; (ঐ)

িরেয়ল eেsট ডেভলপার;

(o)

মূল বান ধাতু বা পাথেরর ব বসা pিত ান;

(ঔ)

াs o কাmানী সবা pদানকারী;

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সরকােরর aনুেমাদনkেম বাংলােদশ ব াংক কতৃ ক, সমেয়

সমেয়, িবjিp জারীর মাধ েম ঘািষত aন কান pিত ান; (ভ)

(ম)

(য)

‘‘িরেয়ল eেsট ডেভলপার’’ aথ িরেয়ল eেsট unনয়ন o ব বsাপনা আiন, 2010 (2010 সেনর 48 নং আiন) eর ধারা 2(15) e সংjািয়ত য কান িরেয়ল eেsট ডেভলপার বা uহার কমকতা বা কমচারী aথবা eেজn যাহারা জিম, বাসা, বািণিজ ক ভবন eবং াটসহ iত ািদর িনমাণ o kয়-িবkেয়র সিহত জিড়ত; ‘‘সtা’’ aথ কান আiনী pিত ান, সংিবিধবd সংsা, বািণিজ ক বা aবািণিজ ক pিত ান, aংশীদারী কারবার, সমবায় সিমিতসহ eক বা eকািধক ব িkর সমnেয় গ ত য কান সংগঠন; ‘‘সেnহজনক লনেদন’’ aথ eiরূপ লনেদন— (1)

যাহা sাভািবক লনেদেনর ধরণ হiেত িভn;

(2)

যi লনেদন সmেক eiরূপ ধারণা হয় য,

(3)

(র)

(ক)

iহা কান aপরাধ হiেত aিজত সmদ,

(খ)

iহা কান সntাসী কাের , কান সntাসী সংগঠনেক বা কান সntাসীেক aথায়ন;

যাহা ei আiেনর uেdেশ পূরণকেl, বাংলােদশ ব াংক কতৃ ক, সমেয় সমেয়, জারীকৃ ত িনেদশনায় বিণত aন কান লনেদন বা লনেদেনর pেচ া;

‘‘সমবায় সিমিত’’ aথ সমবায় সিমিত আiন, 2001 (2001 eর 47 নং আiন) eর ধারা 2(20) e সংjািয়ত pিত ান যাহা আমানত gহণ বা ঋণ pদান কােজ িনেয়ািজত;

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(4)

চঁ াদাবািজ;

(5)

pতারণা;

(6)

জািলয়ািত;

(7)

aৈবধ aেstর ব বসা;

(8)

aৈবধ মাদক o নশা জাতীয় dেব র ব বসা;

(9)

চারাi o aন ান dেব র aৈবধ ব বসা;

(10) aপহরণ, aৈবধভােব আটকাiয়া রাখা o পণবnী করা; (11) খুন, মারাtক শারীিরক kিত; (12) নারী o িশশু পাচার; (13) চারাকারবার ; (14)

(15) চু ির বা ডাকািত বা দসু তা বা জলদসু তা বা িবমান দসু তা; (16) মানব পাচার; (17)

যৗতু ক;

(18) চারাচালানী o শুl সংkাn aপরাধ; (19) কর সংkাn aপরাধ; (20)

মধাst লংঘন;

(21) সntাস o সntাসী কাের aথ যাগান; (22)

(ল)

দশী o িবেদশী মুdা পাচার;

ভজাল বা st লংঘন কের পণ u পাদন;

‘‘সmিt’’ aথ দেশ বা দেশর বািহের aবিsত— (23) পিরেবশগত aপরাধ; (a)

(আ)

(শ)

য কান pকৃ িতর, দৃশ মান, aদৃশ মান, sাবর বা asাবর সmিt; বা নগদ টাকা, iেলক িনক বা িডিজটালসহ aন য কান pকৃ িতর দিলল বা in ু েমn যাহা কান সmিtর মািলকানা st বা মািলকানা sেt কান sাথ িনেদশ কের;

ৃ aপরাধ (Predicate offence) ’’ arথ িনেm ‘‘সmk uিlিখত aপরাধ, যাহা দেশ বা দেশর বািহের সংঘটেনর মাধ েম aিজত কান aথ বা সmদ লnািরং করা বা কিরবার চ া করা, যথাঃ—

(24)

যৗন িনপীড়ন (Sexual Exploitation) ;

(25) পুিঁ জ বাজার সmিকত মূল সংেবদনশীল তথ জনসmেখ ু pকািশত হoয়ার পূের তাহার কােজ লাগাiয়া শয়ার লনেদেনর মাধ েম বাজার সুিবধা gহণ o ব িkগত বা pািত ািনক সুিবধার লেk বাজার িনয়ntেণর চ া করা (Insider Trading & Market Manipulation); (26) সংঘবd aপরাধ (Organised Crime) বা সংঘবd aপরাধী দেল aংশgহণ; ভীিত pদশেনর মাধ েম aথ আদায়; eবং

(1)

দু নীিত o ঘুষ;

(27)

(2)

মুdা জালকরণ;

(3)

দিলল দsােবজ জালকরণ;

(28) ei আiেনর uেdশ পূরণকেl বাংলােদশ ব াংক কতৃ ক সরকােরর aনুেমাদনkেম গেজেট pjাপেনর মাধ েম ঘািষত ৃ aপরাধ; aন য কান সmk

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(ষ)

‘‘ sশাল জজ’’ aথ Criminal Law (Amendment) Act, 1958 (Act No. XL of 1958) eর section 3 eর aধীন িনযুk Special Judge;

6। তথ pকােশর দ --(1) কান ব িk aস uেdেশ তদn সmিকত কান তথ বা pাসংিগক aন কান তথ কান ব িk, সংsা বা সংবাদ মাধ েম pকাশ কিরেবন না।

(স)

(1)

‘‘sক িডলার o sক bাকার’’ aথ িসিকuির জ o ekেচ জ কিমশন (sক িডলার, sক bাকার o aনুেমািদত pিতিনিধ) িবিধমালা, 2000 eর যথাkেম িবিধ 2 (ঝ) o 2 (ঞ) e সংjািয়ত pিত ান;

(2) ei আiেনর aধীন kমতাpাp কান ব িk, pিত ান বা eেজn কতৃ ক চাkরীরত বা িনেয়াগরত থাকা aবsায় িকংবা চাkরী বা িনেয়াগজিনত চু িk aবসায়েনর পর ত কতৃ ক সংগৃহীত, pাp, আহিরত, jাত কান তথ ei আiেনর uেdশ পূরণ ব তীত aন কান uেdেশ ব বহার বা pকাশ করা হiেত িবরত থািকেবন।

(2)

‘‘ পাটেফািলo ম ােনজার o মােচn ব াংকার’’ aথ িসিকuির জ o ekেচ কিমশন (মােচn ব াংকার o পাটেফািলo ম ােনজার) িবিধমালা, 1996 eর যথাkেম িবিধ 2 (চ) o 2 (ঞ) e সংjািয়ত pিত ান;

(3) কান ব িk uপ-ধারা (1) o (2) eর িবধান লংঘন কিরেল িতিন aনিধক 2 (দুi) ব সর পর n কারাদ বা aনূ 50 (প াশ) হাজার টাকা পর n aথদ বা uভয় দে দি ত হiেবন।

(3)

‘‘িসিকuির কাsিডয়ান’’ aথ িসিকuির জ o ekেচ কিমশন (িসিকuির কাsিডয়াল সবা) িবিধমালা, 2003 eর িবিধ 2 (ঞ) e সংjািয়ত pিত ান;

(4)

(হ)

‘‘সmদ ব বsাপক’’ aথ িসিকuির জ o ekেচ কিমশন (িমuচু য়াল ফাn) িবিধমালা, 2001 eর িবিধ 2 (ধ) e সংjািয়ত pিত ান;

‘‘হাiেকাট িবভাগ’’ aথ বাংলােদশ সুpীম কােটর হাiেকাট িবভাগ।

7। তদেn বাধা বা aসহেযািগতা, pিতেবদন pরেণ ব থতা বা তথ সরবরােহ বাধা দoয়ার দ ।--(1) কান ব িk ei আiেনর aধীন— (ক)

কান তদn কার kেম তদnকারী কমকতােক বাধা pদান কিরেল বা সহেযািগতা pদােন asীকৃ িত jাপন কিরেল; বা

(খ) যুিkসংগত কারণ ব িতেরেক যািচত কান pিতেবদন pরেণ বা তথ সরবরােহ asীকৃ িত jাপন কিরেল; —িতিন ei আiেনর aধীন aপরাধ কিরয়ােছন বিলয়া গণ হiেবন।

3। আiেনর pাধান ।-- ei আiেনর ধারা 9 eর িবধান সােপেk আপাততঃ বলব aন কান আiেন যাহা িকছু i থাkক না কন ei আiেনর িবধানাবলী কার কর থািকেব।

(2) কান ব িk uপ-ধারা (1) eর aধীন aপরােধ দাষী সাব s হiেল িতিন aনিধক 1 (eক) ব সর পর n কারাদ বা aনূ 25 (পঁিচশ) হাজার টাকা পর n aথদ বা uভয় দে দি ত হiেবন।

4। মািনলnািরং aপরাধ o দ --(1) ei আiেনর uেdশ পূরণকেl, মািনলnািরং eক aপরাধ বিলয়া গণ হiেব।

8। িমথ া তথ pদােনর দ --(1) কান ব িk jাতসাের aেথর u স বা িনজ পিরিচিত বা িহসাব ধারেকর পিরিচিত সmেক বা কান িহসােবর সুিবধােভাগী বা নিমনী সmেক কানরূপ িমথ া তথ pদান কিরেবন না।

(2) কান ব িk মািনলnািরং aপরাধ কিরেল বা মািনলnািরং aপরাধ সংঘটেনর চ া, সহায়তা বা ষড়যnt কিরেল িতিন aনূ ন 4 (চার) ব সর eবং aনিধক 12 (বার) ব সর পর n কারাদে দি ত হiেবন eবং iহার aিতিরk aপরােধর সােথ সংি সmিtর িdগুন মূেল র সমপিরমাণ বা 10 (দশ) লk টাকা পর n, যাহা aিধক, aথদে দি ত হiেবন। (3) আদালত কান aথদ বা দে র aিতিরk িহসােব দি ত ব িkর সmিt রাে র aনুkেল বােজয়াp কিরবার আেদশ pদান কিরেত পািরেব যাহা ৃ aপরােধর সােথ সmk ৃ বা pত k বা পেরাkভােব মািনলnািরং বা কান সmk সংি । (4) ei ধারার aধীন কান সtা মািনলnািরং aপরাধ কিরেল সংি সmিtর মূেল র aনূ ন িdগুণ aথবা 20 (িবশ) লk টাকা, যাহা aিধক হয়, জিরমানা করা যাiেব eবং uk pিত ােনর িনবnন বািতলেযাগ হiেব। ৃ aপরােধ aিভযুk বা দি ত হoয়া মািনলnািরং eর (5) সmk কারেণ aিভযুk বা দ pদােনর পূরশত হiেব না। 5।aবরুdকরণ বা kাক আেদশ লংঘেনর দ -- কান ব িk ei আiেনর aধীন কান aবরুdকরণ বা kাক আেদশ লংঘন কিরেল িতিন aনিধক 3 (িতন) ব সর পর n কারাদ বা aবরুdকৃ ত বা kাক আেদশকৃ ত সmিtর মূেল র সমপিরমাণ aথ দ বা uভয় দে দি ত হiেবন।

(2) কান ব িk uপ-ধারা (1) eর িবধান লংঘন কিরেল িতিন aনিধক 3 (িতন) ব সর পর n কারা দ বা aনূ 50 (প াশ) হাজার টাকা পর n aথদ বা uভয় দে দি ত হiেবন। 9। aপরােধর তদn o িবচার --(1) aন আiেন যাহা িকছু i থাkক না কন ei আiেনর aধীন aপরাধসমূহ দু নীিত দমন কিমশন আiন, 2004 (2004 সেনর 5 নং আiন) eর aধীন তফিসলভু k aপরাধ গেণ দু নীিত দমন কিমশন বা কিমশন হiেত তদুেdেশ kমতাpাp কিমশেনর কান কমকতা বা দু নীিত দমন কিমশন হiেত kমতাpাp aন কান তদnকারী সংsার কমকতা কতৃ ক তদnেযাগ হiেব। (2) ei আiেনর aধীন aপরাধসমূহ Criminal Law (Amendment) Act, 1958 (Act XL of 1958) eর section 3 eর aধীন িনযুk sশাল জজ কতৃ ক িবচার হiেব। (3) aিভযুk ব িkর সmিt aনুসnান o সনাk-করেণর িনিমt দু নীিত দমন কিমশন ei আiেনর পাশাপািশ দু নীিত দমন কিমশন আiন, 2004 (2004 সেনর 5 নং আiন) e pদt kমতাo pেয়াগ কিরেত পািরেব eবং দু নীিত দমন কিমশন হiেত kমতাpাp aন কান তদnকারী সংsার কমকতা ei আiেনর পাশাপািশ aন আiেন pদt kমতাo pেয়াগ কিরেত পািরেব। 10। sশাল জজ eর িবেশষ eখিতয়ার --(1) sশাল জজ ei আiেনর aধীন aপরােধর জন িনধািরত দ আেরাপ eবং ktমত, aিধকতর

53

Bangladesh Statutes

তদn, সmিt aবরুdকরণ, kাক, বােজয়াpকরণ আেদশসহ আবশ ক aন কান আেদশ pদান কিরেত পািরেবন। (2) sশাল জজ ei আiেনর aধীন দােয়রকৃ ত কান মামলায় aিধকতর তদেnর আেদশ pদান কিরেল ukরূপ আেদেশ তদnকারী কমকতােক তদn pিতেবদন দািখেলর জন eক সময়সীমা িনিদ কিরয়া িদেবন, যাহা 6 (ছয়) মােসর aিধক হiেব না। 11। aপরােধর আমলেযাগ তা, a-আেপাষ- যাগ তা o aজািমনেযাগ তা --ei আiেনর aধীন aপরাধসমূহ আমলেযাগ (cognizable) , a-আেপাষেযাগ (non compoundable) eবং aজািমনেযাগ (non bailable) হiেব। 12। দু নীিত দমন কিমশেনর aনুেমাদেনর aপিরহার তা --(1) ফৗজদাির কার িবিধ বা আপাততঃ বলব aন কান আiেন যাহা িকছু i থাkক না কন, দু নীিত দমন কিমশেনর aনুেমাদন ব িতেরেক কান আদালত ei আiেনর aধীন কান aপরাধ িবচারাথ আমেল gহণ (cognizance) কিরেবন না। (2) ei আiেনর aধীন কান aপরােধর তদn সমাp হiবার পর তদnকারী কমকতা আদালেত pিতেবদন দািখল কিরবার পূের কিমশেনর পূরানুেমাদন gহণ কিরেবন eবং কিমশন কতৃ ক pদt aনুেমাদন পেtর eক কিপ pিতেবদেনর সিহত আদালেত দািখল কিরেবন। 13।--জািমন সংkাn িবধান --ei আiেনর aধীন aিভযুk কান ব িkেক জািমেন মুিk দoয়া যাiেব, যিদ— (ক) তাহােক জািমেন মুিk দoয়ার আেবদেনর uপর aিভেযাগকারী পkেক শুনানীর সুেযাগ দoয়া হয়; eবং (খ) তাহার িবরুেd আনীত aিভেযােগ িতিন দাষী সাব s হoয়ার যুিkস ত কারণ রিহয়ােছ মেম আদালত সn না হন; aথবা (গ) িতিন নারী, িশশু বা শারীিরকভােব িবকলা eবং তাহােক জািমেন মুিk দoয়ার কারেণ ন ায় িবচার িবি ত হiেব না মেম আদালত সn হন। 14। সmিtর aবরুdকরণ (Freezing) বা kাক (Attachment) আেদশ --(1) দু নীিত দমন কিমশন বা ত কতৃ ক kমতাpাp কান ব িk বা সংsার িলিখত আেবদেনর িভিtেত আদালত দেশ বা দেশর বািহের aবিsত মািনলnািরং aপরাধ বা anয কান aপরােধর সিহত ৃ সmিt aবরুdকরণ বা kাক আেদশ pদান কিরেত পািরেব। সmk (2) uপ-ধারা (1) eর aধীন দু নীিত দমন কিমশন বা ত কতৃ ক kমতাpাp কান ব িk বা সংsা কান সmিtর aবরুdকরণ বা kাক আেদেশর জন আদালেত িলিখত আেবদন দািখেলর সময় uহােত িনmবিণত তথ ািদ uেlখ কিরেব, যথাঃ— (ক)

aবরুdকরণ বা kাক আেদেশর িনিমt সmিtর পূ ণ িববরণ;

(খ)

সmিt মািনলnািরং বা aন কান aপরােধর জন kাকেযাগ eর সপেk যুিk o pাথিমক pমাণািদ;

I LNJ (2012)

(গ)

pাথীত আেবদন মাতােবক আদালত কতৃ ক আেদশ pদান করা না হiেল aিভেযাগ িন িtর পূেরi সmিt aন t হsাnর বা বহাত হiবার আশংকা।

(3) uপ-ধারা (1) eর aধীন কান aবরুdকরণ বা kাক আেদশ pদান করা হiেল আদালত সmিtর পূ ণ িববরণসহ িবষয় সরসাধারেণর aবগিতর জন সরকাির গেজেট eবং aনূ ন 2 (দুi) বহুল pচািরত জাতীয় দিনক পিtকায় [1 (eক) বাংলা o 1 (eক) iংেরজী] িবjিp আকাের pচার কিরেব। (4) ei ধারার aধীন aবরুdকরণ বা kাক আেদেশ aিভযুk ব িkর নাম, িপতা, মাতার নাম, sামী বা stীর নাম, জাতীয়তা, পদবী (যিদ থােক), পশা, ট াk পিরিচিত নmর (TIN) , বতমান o sায়ী কানা eবং aন কান পিরিচিত, যতদূর সmব, uেlখ থািকেব; তেব, ei সকল তেথ র সামান k িবচু িতর কারেণ ei আiেনর িবধান কার কর করা বাধাgs হiেব না। (5) uপ-ধারা (6) eর িবধান সােপেk, ei ধারার aধীন কান ব িkর সmিt aবরুdকরণ বা kােকর জন আদালত আেদশ pদান কিরেল আেদশ কার কর থাকাকালীন, আদালত কতৃ ক িভnরূপ কান আেদশ pদান করা না হiেল, uk সmিt কানভােব বা pকাের aন t হsাnর, uk সmিt সংি কান pকার লনেদন বা uk সmিtেক কানভােব দায়যুk করা যাiেব না। (6) কান ব িkর ব াংক eকাun aবরুdকরণ আেদশ কার কর থাকা aবsায় uk আেদেশ িভnরূপ uেlখ না থািকেল, uk ব িk pাপ হiয়ােছ eiরূপ সমুদয় aথ তাহার aবরুd ব াংক eকাuেn জমা করা যাiেব। 15। aবরুdকৃ ত বা kাককৃ ত সmিt ফরত pদান --(1) ধারা 14 eর aধীন আদালত কান সmিt aবরুdকরণ বা kাক আেদশ pদান কিরেল, aিভযুk ব িk বা সtা ব তীত aন কান ব িk বা সtার uk সmিtেত কান sাথ থািকেল িতিন বা uk সtা uহা ফরত পাiবার জন aবরুdকরণ বা kাক আেদশ pচােরর তািরখ হiেত 30 (িtশ) িদেনর মেধ আদালেত আেবদন কিরেত পািরেবন। (2) uপ-ধারা (1) eর aধীন কান ব িk বা সtা আদালেত আেবদন কিরেল আেবদনপেt িনmবিণত তথ ািদ uেlখ কিরেত হiেব, যথাঃ— (ক)

ৃ aপরােধর সিহত uk সmিtর মািনলnািরং বা কান সmk pত k বা পেরাkভােব কান সংি তা নাi;

(খ)

আেবদনকারী pত k বা পেরাkভােব aিভযুk মািনলnািরং বা ৃ aপরােধর সােথ সmk ৃ নন; aন কান সmk

(গ)

আেবদনকারী aিভযুেkর নিমনী নন বা aিভযুেkর পেk কান দািয়t পালন কিরেতেছন না;

(ঘ)

aবরুdকরণ বা kাককৃ ত সmিtেত aিভযুk ব িk বা সtার কান st, sাথ বা মািলকানা নাi; eবং

(ঙ) aবরুdকরণ বা kাককৃ ত সmিtেত আেবদনকারীর st, sাথ o মািলকানা রিহয়ােছ। (3) ধারা 14 eর uপ-ধারা (5) e যাহা িকছু i থাkক না কন, ei ধারার aধীন সmিt ফরত পাiবার জন আদালত কান আেবদনpাp হiেল আেবদনকারী, তদnকারী সংsা o aিভযুk ব িk বা সtােক শুনানীর সুেযাগ pদান কিরেবন eবং শুনানী aেn, pেয়াজনীয় কাগজািদ পর ােলাচনাkেম o রা ৃ কতৃ ক বিণত সmিtেত pত k বা পেরাkভােব মািনলnািরং বা সmk

I LNJ (2012)

Bangladesh Statutes

ৃ aপরােধর সােথ সmkতার gহণেযাগ সেnেহর কান কারণ uপsাপন না কিরেল, uপ-ধারা (1) eর aধীন দািখলকৃ ত আেবদনকারীর আেবদন সmেক আদালত সn হiেল aবরুdকরণ বা kাক আেদশ বািতলkেম সmিt , আেদেশ uিlিখত িন ধািরত সমেয়র মেধ , আেবদনকারীর aনুkেল হsাnেরর আেদশ pদান কিরেবন। 16। সmিtর aবরুdকরণ বা kাক আেদেশর িবরুেd আপীল।--(1) ei আiেনর aধীন আদালত কান সmিtর aবরুdকরণ বা kাক আেদশ pদান কিরেল ukরূপ আেদেশর িবরুেd সংkb ু ব িk বা সtা 30 (িtশ) িদেনর মেধ হাiেকাট িবভােগ আপীল কিরেত পািরেবন। (2) uপ-ধারা (1) eর aধীন কান আপীল দােয়র করা হiেল আপীল আদালত পkবৃnেক, শুনানীর জন যুিkস ত সময় িদয়া, শুনানী aেn যiরূপ uপযুk মেন কিরেব সiরূপ আেদশ pদান কিরেত পািরেব। (3) ধারা 14 eর aধীন কান সmিtর িবষেয় আদালত কতৃ ক pদt aবরুdকরণ বা kাক আেদেশর িবরুেd কান সংkb ু ব িk বা সtা আপীল কিরেল eবং আপীল আদালত কতৃ ক িভnরূপ কান আেদশ pদান করা না হiেল আপীল িন িt না হoয়া পর n ukরূপ aবরুdকরণ বা kাক আেদশ কার কর থািকেব। 17। সmিtর বােজয়াpকরণ --(1) ei আiেনর aধীন কান ব িk বা সtা মািনলnািরং aপরােধ দাষী সাব s হiেল আদালত aপরােধর সিহত ৃ দেশ বা দেশর বািহের aবিsত য কান সmিt pত k বা পেরাkভােব সmk রাে র aনুkেল বােজয়াp কিরবার আেদশ pদান কিরেত পািরেব। (2) uপ-ধারা (1) e যাহা িকছু i থাkক না কন ei আiেনর aধীন মািনলnািরং aপরােধর সােথ সংি কান aনুসnান o তদn বা িবচার কার kম চলাকালীন সংি আদালত pেয়াজনেবােধ দেশ বা দেশর বািহের aবিsত য কান সmিt রাে র aনুkেল বােজয়াp কিরবার আেদশ pদান কিরেত পািরেব। (3) ei আiেনর aধীন মািনলnািরং aপরােধর জন দাষী সাব s কান ব িk পলাতক থািকেল বা aিভেযাগ দািখেলর পর মৃতু বরণ কিরেল ৃ সmিto রাে র aনুkেল আদালত uk ব িkর aপরােধর সিহত সmk বােজয়াp কিরবার আেদশ pদান কিরেত পািরেব। ব াখ া।—

যথাযথ কার ব বsা gহণ করা সেtto gফতারী পেরায়ানা জারীর তািরখ হiেত 6 (ছয়) মােসর মেধ যিদ aিভযুk ব িk আদালেত আtসমপণ কিরেত ব থ হয় বা uk সমেয়র মেধ তাহােক gফতার করা না যায় তাহা হiেল uk ব িk ei ধারার uেdশ পূরণকেl পলাতক বিলয়া গণ হiেবন।

(4) ei ধারার aধীন আদালত কতৃ ক কান সmিt বােজয়াp কিরবার আেদশ pদােনর পূের িকংবা মামলা বা aিভেযাগ দােয়র কিরবার পূের যিদ কান ব িk বা সtা সরল িব ােস eবং uপযুk মূল pদান সােপেk বােজয়ােpর জন আেবদনকৃ ত সmিt kয় কিরয়া থােকন eবং আদালতেক িতিন বা uk সtা ei মেম সn কিরেত সkম হন য, িতিন বা uk সtা uk সmিt মািনলnািরং ৃ বিলয়া jাত িছেলন না eবং িতিন বা uk সtা সরল িব ােস eর সিহত সmk সmিt kয় কিরয়ািছেলন, তাহা হiেল আদালত uk সmিt বােজয়াp কিরবার আেদশ pদান না কিরয়া uহার িবkয়লb aথ রা ীয় কাষাগাের, আদালত কতৃ ক িনধািরত সময়সীমার মেধ , জমা দoয়ার জন দাষী সাব s ব িk বা সtােক িনেদশ িদেত পািরেব।

54

ৃ aপরােধর সােথ pত k বা (5) আদালত যিদ মািনলnািরং বা সmk পেরাkভােব সংি সmিtর aবsান িনধারণ বা বােজয়াp কিরেত না পােরন বা সmিt aন কানভােব ব বহােরর ফেল aিst িবলুp হয়, তাহা হiেল— (ক)

ৃ নয় aিভযুk ব িkর eমন সমমূেল র aপরােধর সােথ সmk সmিt বােজয়াp কিরবার আেদশ pদান কিরেত পািরেব;

(খ)

aিভযুk ব িkর িবরুেd য পিরমাণ সmিt আদায় করা যাiেব না তাহার সমপিরমাণ আিথক দ pদান কিরেত পািরেব।

(6) ei ধারার aধীন কান সmিt বােজয়াp করা হiেল বােজয়াp আেদেশর না শ আদালত কতৃ ক য ব িk বা সtার িনয়ntেণ সmিt রিহয়ােছ সi ব িk বা সtার সরেশষ jাত কানায় রিজsাড ডাকেযােগ পাঠাiেত হiেব eবং সmিtর তফিসলসহ সকল িববরণ uেlখkেম সরকাির গেজেট eবং aনূ ন 2 (দুi) বহুল pচািরত জাতীয় দিনক পিtকায় [1 (eক) বাংলা o 1 (eক) iংেরজী] িবjিp pচার কিরেত হiেব। (7) ei ধারার aধীন আদালত কান সmিt বােজয়াp কিরবার আেদশ pদান কিরেল uk সmিtর মািলকানা রাে র uপর ন s হiেব eবং বােজয়াp কিরবার তািরেখ সmিt যাহার িজmায় বা মািলকানায় থািকেব িতিন বা সংি সtা যথাশী সmব, uk সmিtর দখল রাে র বরাবের হsাnর কিরেবন। (8) pত k বা পেরাkভােব aপরাধ লb সmিt যিদ বধ uপােয় aিজত aথ বা সmিtর সিহত সংিমি ত করা হiয়া থােক তাহা হiেল uk সmিtেত আদালত কতৃ ক িনধািরত aপরাধ লb aথ বা সmিtর মূেল র uপর aথবা aপরাধ লb বা সmিtর মূল িনধারণ করা সmব না হiেল aজেনর uপায় িনিরেশেষ সংিমি ত সmণূ aথ বা সmিt রাে র aনুkেল বােজয়াp আেদশ pদান করা যাiেব। 18। বােজয়াpকৃ ত সmিt ফরত pদান --(1) ধারা 17 eর aধীন আদালত কান সmিt বােজয়াp কিরবার আেদশ pদান কিরেল uk সmিtেত দাষী ব িk বা সtা ব তীত aন কান ব িk বা সtার কান st, sাথ বা aিধকার থািকেল িতিন বা uk সtা uহা ফরত পাiবার জন বােজয়াpকরেণর িবjিp পিtকায় সরেশষ pচােরর তািরখ হiেত 30 (িtশ) িদেনর মেধ আদালেত আেবদন কিরেত পািরেবন। (2) uপ-ধারা (1) eর aধীন কান আেবদনpাp হiেল আদালত মামলা দােয়রকারী, দাষী ব িk বা সtা eবং আেবদনকারীেক, শুনানীর জন যুিkস ত সময় িদয়া, শুনানী aেn িনmবিণত িবষয়সমূহ িবেবচনা কিরয়া pেয়াজনীয় আেদশ pদান কিরেত পািরেব, যথাঃ— (ক)

aপরাধ সংঘটেনর সিহত আেবদনকারী বা বােজয়াpকৃ ত সmিtর বা সmিtর কান aংেশর কান সংে ষ িছল িক না;

(খ)

বােজয়াp সmিt aজেন আেবদনকারীর বধ aিধকার রিহয়ােছ িক না;

(গ)

aপরাধ সংঘটেনর সময়কাল eবং বােজয়াpকৃ ত সmিt আেবদনকারীর মািলকানায় আিসয়ােছ eiরূপ দািবকৃ ত সময়কাল; eবং

(ঘ)

আদালেতর িনকট pাসি ক িবেবিচত aন য কান তথ ।

19। বােজয়াpকরণ আেদেশর িবরুেd আপীল --(1) ei আiেনর aধীন আদালত কান সmিt বােজয়াp কিরবার আেদশ pদান কিরেল ukরূপ

55

Bangladesh Statutes

I LNJ (2012)

তেব শত থােক য, uk িহসােবর লনেদন সmিকত স ক তথ u ঘাটেনর pেয়াজন দখা িদেল লনেদন sিগত বা aবরুd রািখবার ময়াদ aিতিরk 30 (িtশ) িদন কিরয়া সেরাc 6 (ছয়) মাস বিধত করা যাiেব;

আেদেশর িবরুেd সংkb ু পk 30 (িtশ) িদেনর মেধ হাiেকাট িবভােগ আপীল কিরেত পািরেবন। (2) uপ-ধারা (1) eর aধীন কান আপীল দােয়র করা হiেল আপীল আদালত uভয় পkেক, শুনানীর যুিkস ত সুেযাগ pদান কিরয়া, শুনানী aেn যiরূপ uপযুk মেন কিরেব সiরূপ আেদশ pদান কিরেত পািরেব। 20।বােজয়াpকৃ ত সmিtর িন িtকরণ pিkয়া --(1) ei আiেনর aধীন কান সmিt বােজয়াp হiেল সরকার, আদালেতর aনুমিত সােপেk, যi সmিt aন কান আiেনর aধীন ংস কিরেত হiেব সi সmিt ব তীত aন ান সmিt, pকাশ িনলােম বা বািণিজ কভােব লাভজনক aন কান আiনসmত uপােয় িবkয় বা aন কানভােব িন িt কিরেত পািরেব। (2) uপ-ধারা (1) eর aধীন সmিt িবkয় বা aন কান আiনগত uপােয় িন িtর মাধ েম pাp aথ রা ীয় কাষাগাের জমা হiেব। 21। aবরুdকৃ ত, kাককৃ ত বা বােজয়াpকৃ ত সmিt রkণােবkেণর জন ব বsাপক বা তttাবধায়ক িনেয়াগ।--ei আiেনর aধীন কান সmিt aবরুd, kাক বা বােজয়াp করা হiেল, তদnকারী সংsা বা uহার িনকট হiেত kমতাpাp কান কমকতার আেবদেনর pিkেত ukরূপ সmিtর সmণূ বা আংিশক িনয়ntণ, ব বsাপনা, তদারিক বা aন কানভােব িন িtর জন , আদালত, sীয় িবেবচনায়, যiরূপ uপযুk মেন কিরেব সiরূপ শেত কান আiন pেয়াগকারী সংsােক uk সmিtর ব বsাপক বা তttাবধায়ক িনেয়াগ কিরেত পািরেব। 22। আপীল --আপাততঃ বলব aন কান আiেন যাহা িকছু i থাkন না কন, আদালত কতৃ ক ei আiেনর aধীন pদt কান আেদশ, রায়, িডিk বা আেরািপত দ dারা সংkb ু পkষ, ukরূপ আেদশ, রায়, িডিk বা দnােদশ pদােনর তািরখ হiেত 30 (িtশ) িদেনর মেধ হাiেকাট িবভােগ আপীল কিরেত পািরেব। 23। মািনলnািরং aপরাধ দমন o pিতেরােধ বাংলােদশ ব াংেকর kমতা o দািয়t –-(1) ei আiেনর uেdশ পূরণকেl বাংলােদশ ব াংেকর িনmরূপ kমতা o দািয়t থািকেব, যথাঃ— (ক)

কান িরেপাট pদানকারী সংsা হiেত pাp নগদ লনেদন o সেnহজনক লনেদন সmিকত তথ ািদ িবে ষণ বা পর ােলাচনা o িবে ষণ বা পর ােলাচনার uেdেশ aিতিরk য কান তথ িরেপাট pদানকারী সংsা হiেত সংgহ eবং uহার ডাটা সংরkণ করা eবং ktমত, সংি আiন pেয়াগকারী সংsােক pেয়াজনীয় কার kম gহেণর জন uk তথ ািদ pদান করা;

(খ)

ৃ aপরাধ eর কান লনেদন মািনলnািরং বা কান সmk ৃ বিলয়া ধারণা কিরবার যুিkসংগত কারণ সিহত সmk থািকেল িরেপাট pদানকারী সংsা হiেত ukরূপ লনেদন সmিকত য কান তথ বা pিতেবদন সংgহ করা;

(গ)

কান aপরাধ সংঘটেনর মাধ েম কান aথ বা সmিt কান িহসােব জমা হiয়ােছ মেম সেnহ কিরবার যুিkসংগত কারণ থািকেল কান িরেপাট pদানকারী সংsােক aনিধক 30 (িtশ) িদেনর জন uk িহসােবর লনেদন sিগত বা aবরুd রািখবার িনেদশ pদান করাঃ

(ঘ)

মািনলnািরং pিতেরাধ কিরবার uেdেশ িরেপাট pদানকারী সংsােক, সময় সময়, pেয়াজনীয় িনেদশনা pদান করা;

(ঙ)

িরেপাট pদানকারী সংsা বাংলােদশ ব াংক কতৃ ক যািচত তথ বা pিতেবদন স কভােব pরণ কিরয়ােছ িকনা িকংবা তdকতৃ ক pদt িনেদশনা যথাযথভােব পিরপালন কিরয়ােছ িকনা তাহা তদারিক করা eবং pেয়াজেন, িরেপাট pদানকারী সংsা সেরজিমন পিরদ শন করা;

(চ)

ei আiেনর সু ু pেয়াগ িনি ত কিরবার uেdেশ িরেপাট pদানকারী সংsাসহ বাংলােদশ ব াংেকর িবেবচনায় য কান সংsা বা pিত ােনর কমকতা o কমচারীেদর জন pিশkেণর ব বsাসহ সভা, সিমনার, iত ািদর আেয়াজন করা;

(ছ)

ei আiেনর uেdশ পূরণকেl pেয়াজনীয় aন য কান কার সmাদন করা।

(2) মািনলnািরং বা সেnহজনক লনেদন তদেn তদnকারী সংsা কান তথ সরবরােহর aনুেরাধ কিরেল, pচিলত আiেনর আoতায় বা যিদ aন কান কারেণ বাধ বাধকতা না থােক, তাহা হiেল বাংলােদশ ব াংক uk তথ pদান কিরেব। (3) কান িরেপাট pদানকারী সংsা ei ধারার aধীন কান যািচত তথ যথাসমেয় সরবরাহ কিরেত ব থ হiেল বাংলােদশ ব াংক uk সংsােক pিতিদন 10 (দশ) হাজার টাকা িহসােব সেরাc 5 (পঁাচ) লk টাকা পর n জিরমানা কিরেত পািরেব eবং কান সংsা 1 (eক) aথ ব সের 3 (িতন) বােরর aিধক জিরমানার সmখীন ু হiেল বাংলােদশ ব াংক uk সংsা বা সংsার কান শাখা, সািভস সnার, বুথ বা eেজেnর বাংলােদেশ কার kম পিরচালনা রিহত কিরবার uেdেশ িনবnন বা লাiেসn sিগত কিরেত পািরেব বা ktমত, িনবnনকারী বা লাiেসn pদানকারী কতৃ পkেক uk সংsার িবরুেd যথাযথ ব বsা gহেণর িনিমt িবষয় aবিহত কিরেব। (4) কান িরেপাট pদানকারী সংsা ei ধারার aধীন যািচত িবষেয় কান ভু ল বা িমথ া তথ বা িববরণী সরবরাহ কিরেল বাংলােদশ ব াংক uk সংsােক aনূ ন 20 (িবশ) হাজার টাকা o সেরাc 5 (পঁাচ) লk টাকা পর n জিরমানা কিরেত পািরেব eবং কান সংsা 1 (eক) aথ ব সের 3 (িতন) বােরর aিধক জিরমানার সmখীন ু হiেল বাংলােদশ ব াংক uk সংsা বা সংsার কান শাখা, সািভস সnার, বুথ বা eেজেnর বাংলােদেশ কার kম পিরচালনা রিহত কিরবার uেdেশ িনবnন বা লাiেসn sিগত কিরেত পািরেব বা ktমত, িনবnনকারী বা লাiেসn pদানকারী কতৃ পkেক uk সংsার িবরুেd যথাযথ ব বsা gহেণর িনিমt িবষয় aবিহত কিরেব। (5) কান িরেপাট pদানকারী সংsা বাংলােদশ ব াংক কতৃ ক ei আiেনর আoতায় জারীকৃ ত কান িনেদশনা পিরপালেন ব থ হiেল বাংলােদশ ব াংক uk সংsােক pিতিদন 10 (দশ) হাজার টাকা িহসােব সেরাc 5 (পঁাচ) লk টাকা পর n pিত aপিরপালনীয় িবষেয়র জন জিরমানা কিরেত পািরেব eবং কান সংsা 1 (eক) aথ ব সের 3 (িতন) বােরর aিধক জিরমানার সmখীন ু হiেল বাংলােদশ ব াংক uk সংsা বা সংsার কান শাখা, সািভস

I LNJ (2012)

Bangladesh Statutes

সnার, বুথ বা eেজেnর বাংলােদেশ কার kম পিরচালনা রিহত কিরবার uেdেশ িনবnন বা লাiেসn sিগত কিরেত পািরেব বা ktমত, িনবnনকারী বা লাiেসn pদানকারী কতৃ পkেক uk সংsার িবরুেd যথাযথ ব বsা gহেণর িনিমt িবষয় aবিহত কিরেব। (6) কান িরেপাট pদানকারী সংsা uপ-ধারা (1) eর দফা (গ) eর আoতায় বাংলােদশ ব াংক কতৃ ক িনেদিশত কান aবরুdধ বা sিগত আেদশ পিরপালেন ব থ হiেল বাংলােদশ ব াংক uk িরেপাট pদানকারী সংsােক aনূ ন uk ব াংক িহসােব িsিতর সমপিরমাণ জিরমানা কিরেত পািরেব যাহা িনেদশনা জারীর তািরেখ িহসােব িsিতর িdগুেনর aিধক হiেব না। (7) ei আiেনর ধারা 23 o 25 aনুযায়ী বাংলােদশ ব াংক কতৃ ক আেরািপত জিরমানা কান ব িk বা সtা বা িরেপাট pদানকারী সংsা pদােন ব থ হiেল বাংলােদশ ব াংক সংি ব িk বা সtা বা িরেপাট pদানকারী সংsার িনজ নােম য কান ব াংক বা আিথক pিত ান বা বাংলােদশ ব াংেক পিরচািলত িহসাব িবকলনপূরক আদায় কিরেত পািরেব eবং eেkেt জিরমানার কান aংশ aনাদায়ী থািকেল তাহা আদােয় pেয়াজেন বাংলােদশ ব াংক আদালেত আেবদন কিরেত পািরেব eবং আদালত যiরূপ uপযুk িবেবচনা কিরেব সiরূপ আেদশ pদান কিরেব। (8) uপ-ধারা (3), (4), (5) o (6) aনুযায়ী কান িরেপাট pদানকারী সংsােক জিরমানা করা হiেল ei জন দায়ী uk সংsার মািলক, পিরচালক, কমকতা-কমচারী বা চু িkিভিtক িনেয়ািজত ব িkগেণর িবরুেdo বাংলােদশ ব াংক aনূ ন 10 (দশ) হাজার টাকা o সেরাc 5 (পঁাচ) লk টাকা পর n জিরমানা কিরেত পািরেব eবং pেয়াজেন সংি সংsােক pেয়াজনীয় pশাসিনক ব বsা gহেণর জন িনেদশনা pদান কিরেত পািরেব। 24। বাংলােদশ ফাiন ািnয়াল iেnিলেজn iuিনট (BFIU) pিত া।--(1) ei আiেনর ধারা 23 e বাংলােদশ ব াংেকর uপর aিপত kমতা o দািয়t পিরপালেনর লেk বাংলােদশ ব াংেক বাংলােদশ ফাiন ািnয়াল iেnিলেজn iuিনট (Bangladesh Financial Intelligence Unit বা BFIU) নােম eক sতnt iuিনট থািকেব। (2) ei আiেনর uেdশ পূরণকেl সরকাির, আধা-সরকাির, sায়tশািসত সংsাসমূহ বা aন কান সংি pিত ান বা সংsা তdকতৃ ক সংরিkত বা সংগৃহীত তথ ািদ বাংলােদশ ফাiন ািnয়াল iেnিলেজn iuিনটেক spেণািদ-তভােব বা aনুেরােধর সূেt সরবরাহ কিরেব। (3) বাংলােদশ ফাiন ািnয়াল iেnিলেজn iuিনট aন ান আiন pেয়াগকারী সংsােক মািনলnািরং o সntাসী কাের aথ যাগান সংি তথ ািদ pেয়াজেন s-uেদ ােগ সরবরাহ কিরেত পািরেব। (4) ei আiেনর িবধান aনুযায়ী aন কান দেশর সিহত সmািদত কান চু িk বা ব বsার aধীন সংি দেশর ফাiন ািnয়াল iেnিলেজn iuিনটেক মািন লnািরং বা সntাসী কাের aথায়ন বা কান সেnহজনক লনেদন সmিকত তথ ািদ সরবরাহ কিরেব eবং aন কান দেশর িনকট হiেত aনুরপূ তথ চািহেত পািরেব। (5) uপ-ধারা (4) e বিণত চু িk বা ব বsা ছাড়াo বাংলােদশ ফাiন ািnয়াল iেnিলেজn iuিনট ktমত, spেণািদতভােব aন দেশর ফাiন ািnয়াল iেnিলেজn iuিনটেক তথ সরবরাহ কিরেত পািরেব। 25। মািনলnািরং aপরাধ pিতেরােধ িরেপাট pদানকারী সংsার দায়-দািয়t --(1) মািনলnািরং aপরাধ pিতেরােধ িরেপাট pদানকারী সংsার িনmরূপ দায়-দািয়t থািকেব, যথাঃ—

56

(ক)

uহার gাহেকর িহসাব পিরচালনাকােল gাহেকর পিরিচিতর স ক o পূ ণা তথ সংরkণ করা;

(খ)

কান gাহেকর িহসাব বn হiেল বn হiবার তািরখ হiেত aনূ ন 5 (পঁাচ) ব সর পর n uk িহসােবর লনেদন সংkাn তথ সংরkণ করা;

(গ)

দফা (ক) o (খ) eর aধীন সংরিkত তথ ািদ বাংলােদশ ব াংেকর চািহদা মাতােবক, সময় সময়, সরবরাহ করা;

(ঘ)

ধারা 2 (য) e সংjািয়ত কান সেnহজনক লনেদন বা লনেদেনর pেচ া পিরলিkত হiেল s-uেদ ােগ aিবলেm বাংলােদশ ব াংেক ‘সেnহজনক লনেদন িরেপাট’ করা।

(2) কান িরেপাট pদানকারী সংsা uপ-ধারা (1) eর িবধান লংঘন কিরেল বাংলােদশ ব াংক — (ক)

uk সংsােক aনূ ন 50 (প াশ) হাজার টাকা eবং সেরাc 25 (পঁিচশ) লk টাকা পর n জিরমানা কিরেত পািরেব; eবং

(খ)

দফা (ক) eর aধীন আেরািপত জিরমানার aিতিরk uk সংsা বা সংsার কান শাখা, সািভস সnার, বুথ বা eেজেnর ব বসািয়ক কার kেমর aনুমিত বা লাiেসnস বািতল কিরেত পািরেব বা ktমত, িনবnনকারী বা লাiেসn pদানকারী কতৃ পkেক uk সংsার িবরুেd যথাযথ ব বsা gহেণর িনিমেt িবষয় aবিহত কিরেব।

(3) uপ-ধারা (2) eর aধীন আেরািপত জিরমানার aথ বাংলােদশ ব াংক ত কতৃ ক িন ধািরত পdিতেত আদায় কিরেব eবং আদায়কৃ ত aথ রা ীয় কাষাগাের জমা কিরেব। 26। িবেদশী রাে র সিহত চু িk --(1) ei আiেনর uেdশ পূরণকেl সরকার িd-পািkক বা বহু পািkক চু িk, কনেভনশন বা আnজািতক আiেন sীকৃ ত aন কানভােব কান িবেদশী রাে র সিহত চু িk কিরেত পািরেব। (2) ei ধারার aধীন সরকার কান িবেদশী রাে র সিহত চু িkবd হiেল মািনলnািরং aপরাধ pিতেরােধ সরকার— (ক)

uk িবেদশী রা বা সংsার িনকট pেয়াজনীয় তথ ািদ চািহেত পািরেব; eবং

(খ)

uk িবেদশী রা eবং সংsা কতৃ ক যািচত তথ ািদ, জাতীয় িনরাপtার pিত হু মিক না হiেল, সরবরাহ কিরেব।

(3) ei আiেনর uেdশ পূরণকেl বাংলােদশ ফাiন ািnয়াল iনেটিলেজn iuিনট (িবeফআiiu) িবেদশী ফাiন ািnয়াল iনেটিলেজn iuিনট aথবা aন ান সংি সংsার সােথ সমেঝাতা sারক sাkর কিরেত পািরেব eবং sাkিরত সমেঝাতা sারেকর আoতায় িবeফআiiu— (ক)

uk িবেদশী ফাiন ািnয়াল iনেটিলেজn iuিনট বা সংsার িনকট pেয়াজনীয় তথ ািদ চািহেত পািরেব; eবং

(খ)

uk িবেদশী ফাiন ািnয়াল iনেটিলেজn iuিনট eবং সংsা কতৃ ক যািচত তথ ািদ, জাতীয় িনরাপtার pিত হু মিক না হiেল, সরবরাহ কিরেব।

57

Bangladesh Statutes

I LNJ (2012)

(4) ei আiেনর uেdশ পূরণকেl, কান চু িkর aধীন কান িবেদশী রাে র আদালেতর কান আেদশ কার কর কিরবার জন বাংলােদেশ aবিsত কান সmিt বােজয়াp কিরবার বা ফরত দoয়ার pেয়াজন হiেল eটনী জনােরেলর aিফেসর আেবদনkেম আদালত যiরূপ uপযুk মেন কিরেব সiরূপ আ দশ pদান কিরেত পািরেব; eকiভােব বাংলােদেশ আদালেতর বােজয়াpকরণ আেদশ বা uk সmিt ফরত আনয়েনর আেদশ বাsবায়েনর জন চু িk বা সমেঝাতা sারেকর aধীনs রা েক eটনী জনােরেলর aিফস aনুেরাধ কিরেত পািরেব।

(3) ukরূপ রিহত হoয়া সেto Foreign Exchange Regulation Act, 1947 (Act No. VII of 1947) eবং uk আiন o aধ ােদেশর আoতাধীন কান aপরাধ সংগ ত হiেল বা তদnাধীন বা িবচারাধীন থািকেল uk aপরাধসমূহ ei আiেনর িবধান aনুযায়ী eiরূেপ িন n হiেব যন uহা ei আiেনর aধীন দােয়রকৃ ত বা গৃহীত হiয়ােছ।

(5) aন কান আiেন যাহা িকছু i থাkক না কন ei আiেনর uেdশ পূরণকেl পারsিরক আiনগত সহেযািগতার আoতায় কান িবেদশী রাে র uপযুk কতৃ পেkর িনকট হiেত pাp দিললািদ সংি িবচািরক আদালেত সাk িহসােব gহণীয় হiেব।

Act No. 6 of 2012.

27। সtা ক তৃ ক aপরাধ সংঘটন --ei আiেনর aধীন কান aপরাধ কান সtা কতৃ ক সংঘ ত হiয়া থািকেল ukরূপ aপরােধর সিহত pত k সংি তা রিহয়ােছ সtার eiরূপ pেত ক মািলক, পিরচালক, ম ােনজার, সিচব বা aন কান কমকতা বা কমচারী বা pিতিনিধ uk aপরাধ সংঘটন কিরয়ােছন বিলয়া গণ হiেবন, যিদ না িতিন pমাণ কিরেত সkম হন য, uk aপরাধ তাহার ajাতসাের সংঘ ত হiয়ােছ aথবা uk aপরাধ রাধ কিরবার জন িতিন যথাসাধ চ া কিরয়ােছন। ব াখ া।—

ei ধারায় ‘‘পিরচালক’’ বিলেত সtার কান aংশীদার বা পিরচালনা বাড, য নােমi aিভিহত হuক, eর সদস েকo বুঝাiেব।

28। সরল িব ােস কৃ তকার রkণ --ei আiেনর বা িবিধর aধীেন সরল িব ােস কৃ ত কান কােজর ফেল কান ব িk kিতgs হiেল বা kিতgs হiবার সmাবনা থািকেল, সiজন সরকার বা সরকােরর কান কমকতাকমচারী বা বাংলােদশ ব াংক বা বাংলােদশ ব াংেকর কান কমকতা-কমচারী বা দু নীিত দমন কিমশন বা কিমশেনর কান কমকতা-কমচারী বা কান িরেপাট pদানকারী সংsা বা uহার পিরচালনা পষদ বা uহার কান কমকতা-কমচারীর িবরুেd কান দoয়ানী বা ফৗজদারী বা pশাসিনক বা aন কান আiনগত কার ধারা দােয়র করা যাiেব না। 29। িবিধ pণয়েনর kমতা --সরকার, সরকাির গেজেট pjাপন dারা, ei আiেনর uেdশ পূরণকেl িবিধ pণয়ন কিরেত পািরেব। 30। আiেনর iংেরজী aনুবাদ pকাশ --(1) ei আiেনর pব তেনর পর সরকার, যথাশী সmব, সরকাির গেজেট pjাপন dারা, ei আiেনর বাংলা পােঠর iংেরজীেত aনূিদত eক িনভরেযাগ পাঠ (Authentic English Text) pকাশ কিরেব। (2) বাংলা পাঠ eবং iংেরজী পােঠর মেধ িবেরােধর kেt বাংলা পাঠ pাধান পাiেব। 31। রিহতকরণ o হফাজত --(1) মািনলnািরং pিতেরাধ আiন, 2009 (2009 সেনর 8 নং আiন) o মািনলnািরং pিতেরাধ aধ ােদশ, 2012 (2012 সেনর 2 নং aধ ােদশ), aতঃপর uk আiন o aধ ােদশ বিলয়া uিlিখত, eতddারা রিহত করা হiল। (2) ukরূপ রিহত হoয়া সেto uk আiন o aধ ােদেশর aধীন গৃহীত কান কার kম, দােয়রকৃ ত কান মামলা বা গৃহীত কান কার ধারা aিন n থািকেল uহা eiরূেপ িন n হiেব যন uহা ei আiেনর aধীন দােয়রকৃ ত বা গৃহীত হiয়ােছ।

Published in Bangladesh Gazette Extra Ordinary Dated: 20 February, 2012.

সntাস িবেরাধী আiন, 2009 (2009 সেনর 16 নং আiন) eর সংেশাধনকেl pণীত আiন যেহতু িনmবিণত uেdশ সমূহ পূরণকেl সntাস িবেরাধী আiন, 2009 (2009 সেনর 16 নং আiন) eর সংেশাধন সমীচীন o pেয়াজনীয়; সেহতু eতddারা িনmরূপ আiন করা হiলঃ— 1। সংিkp িশেরানাম o pবতন |- (1) ei আiন সntাস িবেরাধী (সংেশাধন) আiন, 2012 নােম aিভিহত হiেব। (2) iহা aিবলেm কাযকর হiেব। 2। 2009 সেনর 16 নং আiেনর ধারা 2 eর সংেশাধন |- সntাস িবেরাধী আiন, 2009 (2009 সেনর 16 নং আiন), aতঃপর uk আiন বিলয়া uিlিখত, eর ধারা 2 eর uপ-ধারা (2), (10) o (14) eর পিরবেত িনmরূপ uপ-ধারা (2), (10) o (14) pিতsািপত হiেব eবং uপ-ধারা (15) eর পর িনmরূপ নতু ন uপ-ধারা (16), (17), (18), (19), (20), (21), (22), (23), (24), (25), (26), (27), (28), (29) o (30) সংেযািজত হiেব, যথাঃ— ‘‘(2) ‘ast’ aথ ast আiন, 1878 (1878 সেনর 11 নং আiন) eর ধারা 4 e বিণত astশst eবং য কান ধরেনর পারমাণিবক, রাসায়িনক o জীবাণু as্ রo uহার anভু k হiেব; (10) ‘ব াংক’ aথ ব াংক কাmানী আiন, 1991 (1991 সেনর 14 নং আiন) eর ধারা 5 (ণ) e সংjািয়ত ব াংক কাmানী eবং aন কান আiন বা aধ ােদেশর aধীন ব াংক িহসােব pিতি ত য কান pিত ানo iহার anভু k হiেব; (14) ‘সmিt’ aথ দেশ বা দেশর বািহের aবিsত— (a)

ব tগত বা aব tগত, sাবর বা asাবর, দৃশ মান বা aদৃশ মান য কান ধরেণর সmিt o uk সmিt হiেত udত ূ লাভ, eবং কান aথ বা aেথ রূপাnরেযাগ িবিনময় দিললo (negotiable instrum-ent) iহার anভু k হiেব;

(আ)

নগদ টাকা, iেলক িনক বা িডিজটালসহ aন য কান pকৃ িতর দিলল বা in ু েমn যাহা কান সmিtর মািলকানা st বা মািলকানা sেt কান sাথ িনেদশ কের;

(16) ‘সেnহজনক লনেদন’ aথ eiরূপ লনেদন—

I LNJ (2012)

58

Bangladesh Statutes

(1) যাহা sাভািবক লনেদেনর ধরণ হiেত িভn;

(ঐ) িরেয়ল eেsট ডেভলপার;

(2) যi লনেদন সmেক eiরূপ ধারণা হয় য,

(o) মূল বান ধাতু বা পাথেরর ব বসায়ী;

(ক) iহা কান aপরাধ হiেত aিজত সmদ,

(ঔ)

(খ) iহা কান সntাসী কা©‡h, কান সntাসী সংঘটনেক বা কান সntাসীেক aথায়ন;

(aa) আiনজীবী, নাটারী, aন ান আiন পশাজীবী eবং eকাuেnn;

(3) যাহা ei আiেনর uেdশ পূরণকেl, বাংলােদশ ব াংক কতৃ ক, সমেয় সমেয়, জািরকৃ ত িনেদশনায় বিণত aন কান লনেদন বা লনেদেনর pেচ া;

(aআ) সরকােরর aনুেমাদনkেম বাংলােদশ ব াংক কতৃ ক, সমেয় সমেয়, িবjিp জারীর মাধ েম ঘািষত aন কান pিত ান;

(17) ‘সtা’ aথ কান আiনী pিত ান, সংিবিধবd সংsা, বািণিজ ক বা aবািণিজ ক pিত ান, গা ী, aংিশদারী কারবার, সমবায় সিমিতসহ eক বা eকািধক ব িkর সমnেয় গ ত য কান সংগঠন;

(21) ‘মািন চ ার’ aথ Foreign Exchange Regulation Act, 1947 (Act No. VII of 1947) eর section 3 eর aধীন বাংলােদশ ব াংক কতৃ ক aনুেমািদত বেদিশক মুdা লনেদনকারী ব িk বা pিত ান;

(18) ‘আিথক pিত ান’ aথ আিথক pিত ান আiন, 1993 (1993 সেনর 27 নং আiন) eর ধারা 2(খ) e সংjািয়ত আিথক pিত ান;

(22) (a) ‘sক িডলার o sক bাকার’ aথ িসিকuির জ o ekেচ কিমশন (sক িডলার, sক bাকার o aনুেমািদত pিতিনিধ) িবিধমালা, 2000 eর যথাkেম িবিধ 2(ঝ) o 2(ঞ) e সংjািয়ত pিত ান;

(19) ‘বীমাকারী’ aথ বীমা আiন, 2010 (2010 সেনর 13 নং আiন) eর ধারা 2(25) e সংjািয়ত বীমাকারী; (20) ‘িরেপাট pদানকারী সংsা’ aথ— (a) ব াংক; (আ) আিথক pিত ান;

(ঈ) মািন চ ার; (u) aথ aথবা aথমূল pরণকারী বা sানাnরকারী য কান কাmানী বা pিত ান; বাংলােদশ ব াংেকর aনুমিতkেম পিরচালনাকারী aন কান pিত ান;

ব বসা

(ঋ) (1) sক িডলার o sক bাকার (2) পাটেফািলo ম ােনজার o মােচn ব াংকার (3) িসিকuির কাsিডয়ান (4) সmদ ব বsাপক; (e) (1) a-লাভজনক সংsা/pিত ান (Non Profit Organisation) (2)

বসরকারী unয়ন সংsা (Non Government Organisation) o

(3) সমবায় সিমিত;

(আ) ‘ পাটেফািলo ম ােনজার o মােচn ব াংকার’ aথ িসিকuির জ o ekেচ কিমশন ( মােচn ব াংকার o পাটেফািলo ম ােনজার ) িবিধমালা, 1996 eর যথাkেম িবিধ 2(চ) o 2(ঞ) e সংjািয়ত pিত ান; (i) ‘িসিকuির কাsিডয়ান’ aথ িসিকuির জ o ekেচ কিমশন (িসিকuির কাsিডয়াল সবা) িবিধমালা, 2003 eর িবিধ 2(ঞ) e সংjািয়ত pিত ান;

(i) বীমাকারী;

(ঊ)

াs o কাmানী সবা pদানকারী;

(ঈ) ‘সmদ ব বsাপক’ aথ িসিকuির জ o ekেচ কিমশন (িমuচু েয়ল ফাn) িবিধমালা, 2001 eর িবিধ 2(ধ) e সংjািয়ত pিত ান; (23) ‘a-লাভজনক সংsা/pিত ান (Non Profit Organisation) ’ aথ কাmানী আiন (বাংলােদশ), 1994 (1994 সেনর 18 নং আiন) eর ধারা 28 eর aধীন সনদ pাp কান pিত ান; (24) ‘ বসরকাির unয়ন সংsা (Non Government Organisation) ’ aথ Societies Registration Act, 1860 (Act No. XXI of 1860), Voluntary Social Welfare Agencies (Registration and Control) Ordinance (Ordinance No. XLVI of 1961), Foreign Donations (Voluntary Activities) Regulation Ordinance, 1978 (Ordinance No. XLVI of 1978), Foreign Contributions (Regulation) Ordinance, 1982 (Ordinance No. XXXI of 1982) ), সমবায় সিমিত

59

Bangladesh Statutes আiন, 2001 (2001 সেনর 47 নং আiন) eবং মাiেkােkিডট রগুেলটরী aথির আiন, 2006 (2006 সেনর 32 নং আiন) eর আoতায় aনুেমািদত বা িনবিnত pিত ান যাহা— (ক) sানীয় u স হiেত তহিবল (ঋণ, aনুদান, আমানত) gহণ কের বা aন েক pদান কের; eবং/aথবা (খ) য কান ধরেণর বেদিশক সাহায বা ঋণ বা aনুদান gহণ কের;

(25) ‘বাংলােদশ ফাiন ািnয়াল iেnিলেজn iuিনট (BFIU) ’ aথ মািনলnািরং pিতেরাধ আiন, 2009 eর ধারা 24 (1) eর িবধান aনুযায়ী pিতি ত বাংলােদশ ফাiন ািnয়াল iেnিলেজn iuিনট; (26) ‘বnগত সহায়তা (material support) ’ aথ কান ব িk বা সtা কতৃ ক aন কান ব িk বা সtােক aথ, সবা বা aন কান সmিt সরবরাহ করা বা aন কান সহায়তা করা যাহা dারা ei আiেনর আoতায় বিণত সntাসী কমকাn সmািদত হiয়ােছ বা সmািদত হiেত পাের; (27) ‘হাiেকা ট িবভাগ’ a থ বাংলােদশ সুpীম কােটর হাiেকাট িবভাগ; (28) ‘িরেয়ল eেsট ডেভলপার’ aথ িরেয়ল eেsট unয়ন o ব বsাপনা আiন, 2010 (2010 সেনর 48 নং আiন) eর ধারা 2 (15) e সংjািয়ত য কান িরেয়ল eেsট ডেভলপার বা uহার কমকতা বা কমচারী aথবা eেজn যাহারা জিম, বাসা বা বািড়, বািণিজ ক ভবন eবং াটসহ iত ািদর িনমাণ o kয়-িবkেয়র সিহত জিড়ত; (29) ‘ াs o কাmানী সবা pদানকারী’ aথ কান ব িk বা ব বসা pিত ান যাহা aন কান আiেন সংjািয়ত করা হয় নাi eবং য বা যাহা কান তৃ তীয় পkেক িনmরূপ সবাসমূহ pদান কিরয়া থােকঃ (1)

কান আiনী সtা pিত ার eেজn িহসােব দািয়t পালন;

(2)

কান আiনী সtার পিরচালক, সিচব িহসােব দািয়t পালন বা aন কাহােকo িনেয়াগ করা বা aংশীদারী ব বসােয় aংশীদার িহসােব দািয়t পালন aথবা সমপর ােয়র aন কান দািয়t পালন;

(3)

কান আiনী সtার িনবিnত eেজn িহসােব দািয়t পালন;

(4)

কান ekেpস ােsর ািs িহসােব দািয়t পালন বা aন কাহােক িনেয়াগ করা;

(5)

নিমিন শয়ার হাlার বা aন কান ব িkর পিরবেত পিরচালক িহসােব দািয়t পালন বা aন ব িkেক িনেয়াগ pদান;

(30) ‘জনিনরাপtা’ aথ য কান ব িk বা গাি র জীবন o সmেদর িনরাপtা িবধান।’’ 3| 2009 সেনর 16 নং আiেনর ধারা 3 eর সংেশাধন |- uk আiেনর ধারা 3 eর uপ-ধারা (1) e uিlিখত ‘ ফৗজদাির কা©hিবিধ শbগুিলর পর ‘,মািনলnািরং pিতেরাধ সংkাn িবদ মান আiন’ কমা o শbগুিল সিnেবিশত হiেব।

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4। 2009 সেনর 16নং আiেনর ধারা 5 eর pিতsাপন |- uk আiেনর ধারা 5 eর পিরবেত িনmরূপ ধারা 5 pিতsািপত হiেব, যথাঃ— ‘‘5। aিতরাি ক pেয়াগ।— (1) যিদ কান ব িk বা সtা বাংলােদেশর বািহর হiেত বাংলােদেশর aভ nের কান aপরাধ সংঘটন কের যাহা uk ব িk বা সtা কতৃ ক বাংলােদেশর aভ nর হiেত সংঘ ত হiেল ei আiেনর aধীন শািsেযাগ হiত, তাহা হiেল uk aপরাধ বাংলােদেশ সংঘ ত হiয়ােছ বিলয়া গণ হiেব eবং uk ব িk বা সtা o aপরােধর kেt ei আiেনর িবধানাবলী pেযাজ হiেব। (2)

যিদ কান ব িk বা সtা বাংলােদেশর aভ nর হiেত বাংলােদেশর বািহের কান aপরাধ সংঘটন কের, যাহা বাংলােদেশ সংঘ ত হiেল ei আiেনর aধীন শািsেযাগ হiত, তাহা হiেল uk aপরাধ বাংলােদেশ সংঘ ত হiয়ােছ বিলয়া গণ হiেব eবং uk ব িk বা সtা o aপরােধর kেt ei আiেনর িবধানাবলী pেযাজ হiেব।’’

5। 2009 সেনর 16 নং আiেনর ধারা 6 eর pিতsাপন |- uk আiেনর ধারা 6 eর পিরবেত িনmরূপ ধারা 6 pিতsািপত হiেব, যথাঃ— ‘‘6। সntাসী কার ।্ — (1) (ক) কান ব িk বা সtা বাংলােদেশর aখ তা, সংহিত, নিনরাপtা বা সারেভৗমt িবপn কিরবার জন জনসাধারণ বা জনসাধারেণর কান aংেশর মেধ আতংক সৃি র মাধ েম সরকার বা কান সtা বা কান ব িkেক কান কা©h কিরেত বা করা হiেত িবরত রািখেত বাধ কিরবার uেdেশ — (a)

কান ব িkেক হত া, গুরত ু র আঘাত, আটক, aপহরণ কিরেল বা ei কােজ সহায়তা কিরেল, বা কান ব িk বা সtা বা রাে র কান সmিtর kিতসাধন কিরেল বা kিতসাধন কিরেত সহায়তা কিরেল;

(আ)

কান ব িkেক হত া, গুরত ু র আঘাত, আটক, aপহরণ করার জন pেরািচত কিরেল, বা pেচ া gহণ কিরেল, বা কান ব িk বা সtা বা রাে র কান সmিtর kিতসাধন করার কাের pেরািচত কিরেল, বা pেচ া gহণ কিরেল; aথবা

(i)

uপ-দফা (a) o (আ) eর uেdশ সাধনকেl কান িবেsারক dব , দাহ পদাথ o কান ast ব বহার কিরেল বা িনজ দখেল রািখেল;

(খ) কান ব িk বা সtা বাংলােদেশর aভ nর হiেত aন কান রাে র িনরাপtা িবি ত কিরবার লেk কান aপরাধ সংঘটন কিরেল বা aপরাধ সংঘটেনর pেচ া gহণ কিরেল বা pেরািচত কিরেল বা সহায়তা কিরেল aথবা aন কান রাে র কান সmিtর kিতসাধনকেl কান ব িk বা সtার আিথক সংে ষ থািকেল বা uk aপরাধ কাের িলp হiেল বা pেচ া gহণ কিরেল বা pেরািচত কিরেল বা সহায়তা pদান কিরেল;

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(গ) কান ব িk বা সtা jাতসাের সntাসী কা©h হiেত udত ূ বা কান সntাসী বা সntাসী গা ী কতৃ ক pদt কান aথ বা সmদ ভাগ কিরেল বা দখেল রািখেল; (ঘ) কান িবেদশী নাগিরক বাংলােদেশর aভ nের দফা (ক), (খ) o (গ) eর aধীেন কান aপরাধ কিরেল; —িতিন ‘‘সntাসী কা©h’’ সংঘটেনর aপরাধ কিরেবন। (2) কান ব িk বা সtা সntাসী কার সংঘটন কিরয়া থািকেল, িতিন বা uk সtার সংি ব িk বা ব িkবগ িতিন বা তাহারা য নােমi পিরিচত হuক না কন, মৃতু দ বা যাবjীবন কারাদ বা aনূ িবশ ব সর eবং aনূ ন চার ব সর পর n য কান ময়ােদর স ম কারাদেn দিnত হiেবন, eবং iহার aিতিরk aথদ আেরাপ করা যাiেব।’’ 6।2009 সেনর 16 নং আiেনর ধারা 7 eর pিতsাপন |- uk আiেনর ধারা 7 eর পিরবেত িনmরূপ ধারা 7 pিতsািপত হiেব, যথাঃ— ‘‘7। সntাসী কা©†h aথায়ন সংkাn aপরাধ।— (1) যিদ কান ব িk বা সtা jাতসাের aন কান ব িk বা সtােক aথ, সবা, ব tগত সহায়তা (material support) , বা aন কান সmিt সরবরাহ কেরন বা সরবরােহর aিভpায় pকাশ কেরন যাহােত iহা িব াস কিরবার যুিkস ত কারণ থােক য, uহা সmণূ বা আংিশকভােব কান সntাসী ব িk বা সtা বা গা ী বা সংগঠন কতৃ ক য কান uেdেশ ব বহার করা হiয়ােছ বা হiেত পাের, তাহা হiেল িতিন বা uk সtা সntাসী কাের aথায়েনর aপরাধ সংঘটন কিরয়ােছন বিলয়া গণ হiেবন। (2) যিদ কান ব িk বা সtা jাতসাের aন কান ব িk বা সtার িনকট হiেত aথ, সবা, ব tগত সহায়তা (material support) , বা aন কান সmিt gহণ কেরন যাহােত iহা িব াস কিরবার যুিkস ত কারণ থােক য, uহা সmণূ বা আংিশকভােব কান সntাসী ব িk বা সtা বা গাি বা সংগঠন কতৃ ক য কান uেdেশ ব বহার করা হiয়ােছ বা হiেত পাের, তাহা হiেল িতিন বা uk সtা সntাসী কা©†h aথায়েনর aপরাধ সংঘটন কিরয়ােছন বিলয়া গণ হiেবন। (3) যিদ কান ব িk বা সtা jাতসাের aন কান ব িk বা সtার জন aথ, সবা, ব tগত সহায়তা (material support) , বা aন কান সmিtর ব বsা কেরন যাহােত iহা িব াস কিরবার যুিkস ত কারণ থােক য, uহা সmণূ বা আংিশকভােব কান সntাসী ব িk বা সtা বা গাি বা সংগঠন কতৃ ক য কান uেdেশ ব বহার করা হiয়ােছ বা হiেত পাের, তাহা হiেল িতিন বা uk সtা সntাসী কাের aথায়েনর aপরাধ সংঘটন কিরয়ােছন বিলয়া গণ হiেবন। (4) যিদ কান ব িk বা সtা jাতসাের aন কান ব িk বা সtােক aথ, সবা, ব tগত সহায়তা (material support) , বা aন কান সmিt সরবরাহ বা gহণ বা ব বsা কিরবার kেt eমনভােব pেরািচত কেরন যাহােত iহা িব াস কিরবার যুিkসংগত কারণ

থােক য, uহা সmণূ বা আংিশকভােব কান সntাসী ব িk বা সtা বা গা ী বা সংগঠন কতৃ ক য কান uেdেশ ব বহার করা হiয়ােছ বা হiেত পাের, তাহা হiেল িতিন বা uk সtা সntাসী কা©†h aথায়েনর aপরাধ সংঘটন কিরয়ােছন বিলয়া গণ হiেবন। (5) uপ-ধারা (1) হiেত (4) e বিণত aপরােধ কান ব িk দাষী সাব s হiেল, uk ব িk aনিধক িবশ ব সর o aনূ ন চার ব সর প©hn য কান ময়ােদর কারাদে দি ত হiেবন, eবং iহার aিতিরk aপরােধর সিহত সংি সmিtর িdগুণ মূেল র সমপিরমান বা 10 (দশ) লk টাকা, যাহা aিধক, সi পিরমান aথদ o আেরাপ করা যাiেব। (6) (ক) uপ-ধারা (1) হiেত (4) e বিণত aপরােধ কান সtা দাষী সাব s হiেল ধারা 18 eর িবধান aনুযায়ী ব বsা gহণ করা যাiেব eবং iহার aিতিরk aপরােধর সিহত সংি সmিtর িতনগুণ মূেল র সমপিরমান বা 50(প াশ) লk টাকা, যাহা aিধক, সi পিরমান aথদ o আেরাপ করা যাiেব; eবং (6) (খ) uk সtার pধান, তাহােক চয়ারম ান, ব বsাপনা পিরচালক, pধান িনরাহী বা aন য কান নােম ডাকা হuক না কন, িতিন aনিধক িবশ ব সর o aনূ ন চার ব সর প©hš— য কান ময়ােদর কারাদে দি ত হiেবন, eবং iহার aিতিরk aপরােধর সিহত সংি সmিtর িdগুণ মূেল র সমপিরমান বা 20(িবশ) লk টাকা, যাহা aিধক, সi পিরমান aথদে o দি ত হiেবন যিদ না িতিন pমাণ কিরেত সkম হন য, uk aপরাধ তাহার ajাতসাের সংঘ ত হiয়ােছ aথবা uk aপরাধ রাধ কিরবার জন িতিন যথাসাধ চ া কিরয়ােছন।’’ 7। 2009 সেনর 16 নং আiেনর ধারা 13 eর সংেশাধন |- uk আiেনর ধারা 13 e uিlিখত ‘ scাধীন’ শb িবলুp হiেব eবং ‘ কান মুdণ বা iেলক িনক’ শbগুিলর পর ‘বা aন য কান’ শbগুিল সিnেবিশত হiেব। 8।2009 সেনর 16 নং আiেনর ধারা 15 eর pিতsাপন।-uk আiেনর ধারা 15 eর পিরবেত িনmরূপ ধারা 15 pিতsািপত হiেব, যথাঃ— ‘‘15। বাংলােদশ ব াংেকর kমতা।—(1) ei আiেনর কান aপরাধ সংঘটেনর uেdেশ কান িরেপাট pদানকারী মাধ েম লনেদন pিতেরাধ o সনাk কিরেত বাংলােদশ pেয়াজনীয় পদেkপ gহণ কিরেত পািরেব eবং eতদুেdেশ িনmবিণত kমতা o কতৃ t থািকেব, যথাঃ—

aধীন সংsার ব াংক uহার

(ক)

কান িরেপাট pদানকারী সংsা হiেত সেnহজনক লনেদন সmিকত pিতেবদন তলব করা;

(খ)

uপ-দফা (ক) aনুযায়ী pাp pিতেবদন সংি আiন pেয়াগকারী সংsােক pেয়াজনীয় কা©hkম gহেণর জন pদান করা বা ktমত, বেদিশক আiন pেয়াগকারী সংsার aনুেরােধর pিkেত uk সংsােক pদান করা বা uk pিতেবদেনর িবষেয় তথ িবিনময় করা;

(গ)

সকল পিরসংখ ান o রকড সংকলন o সংরkণ করা;

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Bangladesh Statutes (ঘ)

সকল সেnহজনক লনেদন সmিকত িরেপােটর ডাটা বজ সৃি o রkণােবkণ করা;

(ঙ)

সেnহজনক লনেদন সmিকত pিতেবদন িবে ষণ করা;

(চ)

ৃ মেম সেnহ কান লনেদন সntাসী কা©‡hর সিহত সmk কিরবার যুিkস ত কারণ থািকেল সংি িরেপাট pদানকারী সংsােক uk লনেদেনর িহসাব aনিধক িtশ িদেনর জন sিগত বা aবরুd রািখবার uেdেশ িলিখত আেদশ জারী করা eবং eiরূেপ uk িহসােবর লনেদন সmিকত স ক তথ udাটেনর pেয়াজন দখা িদেল লনেদন sিগত বা aবরুd রািখবার ময়াদ aিতিরk 30 (িtশ) িদন কিরয়া সেরাc 6(ছয়) মাস বিধত করা;

(ছ)

িরেপাট pদানকারী সংsার কার াবলী পিরবীkণ o তদারক করা;

(জ)

সntাসী কা©‡h aথ যাগান pিতহত কিরবার uেdেশ pিতেরাধমূলক পদেkপ gহেণ িরেপাট pদানকারী সংsাসমূহেক িনেদশ pদান করা;

(ঝ)

সntাসী কা©‡h aথায়েনর সিহত জিড়ত সেnহজনক লনেদন সনােkর uেdেশ িরেপাট pদানকারী সংsাসমূহ পিরদশন করা; eবং

(ঞ)

সntাসী কা©‡h aথেযাগােনর সিহত জিড়ত সেnহজনক লনেদন সনাk o pিতেরােধর uেdেশ িরেপাট pদানকারী সংsাসমূেহর কমকতা o কমচারীগণেক pিশkণ pদান করা।

(2)

বাংলােদশ ব াংক, সntাসী কা©‡h aথেযাগােনর সিহত জিড়ত সেnহজনক কান লনেদেনর িবষয় কান িরেপাট pদানকারী সংsা বা iহার gাহকেক সনাk কিরবার সে সে , uহা যথাযথ আiন pেয়াগকারী সংsােক aবিহত কিরেব eবং aনুসnান o তদn কাের uk আiন pেয়াগকারী সংsােক pেয়াজনীয় সকল pকার সহেযািগতা pদান কিরেব।

(3)

aন দেশ সংঘ ত িবচারাধীন aপরােধর kেt বাংলােদশ ব াংক সরকার কতৃ ক গৃহীত কান আnজািতক, আ িলক বা িd-পািkক চু িk, জািতসংেঘর কনেভনশন বা জািতসংেঘর িনরাপtা পিরষদ কতৃ ক গৃিহত সংি রজুেলশেনর আoতায় কান ব িk বা সtার িহসাব জb করার uেদ াগ gহণ কিরেব।

(4)

uপ-ধারা (3) eর আoতায় জbকৃ ত aথ সংি চু িk, কনেভনশন বা জািতসংেঘর িনরাপtা পিরষদ কতৃ ক গৃিহত সংি রজুেলশেনর আেলােক সংি আদালত কতৃ ক িন িtেযাগ হiেব।

(5)

uপ-ধারা (1) হiেত (3) e বিণত দািয়t সmাদেনর sােথ সরকাির, আধা-সরকাির, sায়tশািসত সংsা বাংলােদশ ফাiন ািnয়াল iেnিলেজn iuিনটেক তdকতৃ ক যািচত তথ ািদ সরবরাহ কিরেব, বা ktমত, spেণািদত হiয়া তথ ািদ সরবরাহ কিরেব।

(6)

বাংলােদশ ফাiন ািnয়াল iেnিলেজn iuিনট চািহদা aনুযায়ী বা ktমত, spেণািদতভােব সntাসী কা©‡h বা ৃ তথ ািদ aন দেশর সntাসী কা©‡h aথায়ন সmk

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ফাiন ািnয়াল iেnিলেজn iuিনটেক সরবরাহ কিরেত পািরেব। সntাসী কা©‡h aথায়েনর িবষেয় তদেnর sােথ কান আiন pেয়াগকারী সংsা কতৃ ক কান ব াংেকর দিলল বা কান নিথেত িনmবিণত শেত pেবশািধকার থািকেব, যথাঃ—

(7)

(ক) uপযুk আদালত বা াiবু নােলর আেদশkেম; aথবা (খ) বাংলােদশ ব াংেকর aনুেমাদনkেম।’’ 9। 2009 সেনর 16 নং আiেনর ধারা 16 eর pিতsাপন |-uk আiেনর ধারা 16 eর পিরবেত িনmরূপ ধারা 16 pিতsািপত হiেব, যথাঃ— ‘‘16।

িরেপা ট pদানকারী সংsার দািয়t।—(1) কান িরেপাট pদানকারী সংsার মাধ েম ei আiেনর aধীন কান aপরােধর সিহত জিড়ত aথ লনেদন pিতেরাধ o সনাk কিরবার লেk pেত ক িরেপাট pদানকারী সংsা যথাযথ সতকতা o দািয়tশীলতার সিহত pেয়াজনীয় ব বsা gহণ কিরেব eবং কান সেnহজনক লনেদন িচিhত হiেল spেনািদত হiয়া কান pকার িবলm ব িতেরেক বাংলােদশ ব াংকেক িরেপাট কিরেব।

(2)

pেত ক িরেপাট pদানকারী সংsার পিরচালনা পিরষদ (Board of Directors) বা পিরচালনা পিরষেদর aনুপিsিতেত pধান িনরাহী, বা aন য নােম ডাকা হuক না কন, uহার কমকতােদর দািয়t সmিকত িনেদশনা aনুেমাদন o জারী কিরেব, eবং ধারা 15 eর aধীন বাংলােদশ ব াংক কতৃ ক জারীকৃ ত িনেদশনা, যাহা িরেপাট pদানকারী সংsাসমূেহর জন pেযাজ , pিতপালন করা হiেতেছ িকনা uহা িনি ত কিরেব।

(3)

কান িরেপাট pদানকারী সংsা ধারা 15 eর aধীন বাংলােদশ ব াংক কতৃ ক pদt য কান িনেদশনা পালন কিরেত ব থ হiেল বা jাতসাের কান ভু ল তথ সরবরাহ aথবা িমথ া তথ বা িববরণী সরবরাহ কিরেল, uk িরেপাট pদানকারী সংsা বাংলােদশ ব াংক কতৃ ক িনধািরত o িনেদিশত aনিধক দশ লk টাকা জিরমানা পিরেশাধ কিরেত বাধ থািকেব eবং বাংলােদশ ব াংক ঐ সংsা বা সংsার কান শাখা, সািভস সnার, বুথ বা eেজেnর বাংলােদেশ কাhkম পিরচালনা রিহত কিরবার uেdেশ িনবnন বা লাiেসn sিগত কিরেত পািরেব বা ktমত, িনবnনকারী বা লাiেসn pদানকারী কতৃ পkেক uk সংsার িবরুেd যথাযথ ব বsা gহেণর িনিমt িবষয় aবিহত কিরেব।

(4)

uপ-ধারা (3) মাতােবক বাংলােদশ ব াংক কতৃ ক আেরািপত জিরমানা কান িরেপাট pদানকারী সংsা পিরেশাধ কিরেত ব থ হiেল বা পিরেশাধ না কিরেল বাংলােদশ ব াংক সংি িরেপাট pদানকারী সংsার িনজ নােম য কান ব াংক বা আিথক pিত ান বা বাংলােদশ ব াংেক পিরচািলত িহসাব িবকলনপূ©eক আদায় কিরেত পািরেব eবং uk জিরমানার কান aংশ aনাদায়ী থািকেল uহা আদােয়, pেয়াজেন, বাংলােদশ ব াংক সংি আদালেত আেবদন কিরেত পািরেব। ’’

10। 2009 সেনর 16 নং আiেনর ধারা 17 eর সংেশাধন।-uk আiেনর ধারা 17 eর দফা (ঘ) eর শষাংেশ uিlিখত ‘aথবা’ শb িবলুp

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Bangladesh Statutes

হiেব eবং দফা (ঙ) eর পিরবেত িনmরূপ দফা (ঙ) o (চ) pিতsািপত হiেব, যথাঃ— ‘‘(ঙ) জািতসংেঘর রজুেলশন নmর 1267 o 1373 সহ বাংলােদশ কতৃ ক aনুসমিথত aন ান রজুেলশন-সমূেহর anভু k সংগঠন হয়; aথবা (চ)

aন কান ভােব সntাসী কাের র সিহত জিড়ত থােক।’’

11। 2009 সেনর 16নং আiেনর ধারা 19 eর সংেশাধন।-uk আiেনর ধারা 19 e uিlিখত ‘আেবদনকারীর শুনানী gহণপূরক’ শbগুিলর পর ‘ei আiেনর aধীন pণীত িবিধ মাতােবক’ শbগুিল সিnেবিশত হiেব। 12। 2009 সেনর 16 নং আiেনর ধারা 20 eর সংেশাধন।--uk আiেনর ধারা 20 e uিlিখত ‘ei আiেন বিণত aন ান ব বsা gহণ ছাড়াo,’ শbগুিল o কমার পর ‘ei আiেনর aধীন pণীত িবিধ মাতােবক’ শbগুিল সিnেবিশত হiেব eবং uপ-ধারা (1) eর দফা (খ) eর পিরবেত িনmরূপ দফা (খ) pিতsািপত হiেব, যথাঃ— ‘‘(খ) uহার ব াংক o aন ান িহসাব, যিদ থােক, aবরুd (freeze) কিরেব eবং uহার সকল সmিt আটক কিরেব;’’ 13। 2009 সেনর 16 নং আiেনর ধারা 22 eর সংেশাধন ।-uk আiেনর ধারা 22 e uিlিখত ‘pথম ণীর ম ািজেsট’ শbগুিলর পিরবেত ‘জুিডিশয়াল ম ািজেsট’ শbগুিল pিতsািপত হiেব। 14। 2009 সেনর 16 নং আiেনর ধারা 23 eর সংেশাধন।--uk আiেনর ধারা 23 e uিlিখত ‘pথম ণীর ম ািজেsট’ শbগুিলর পিরবেত ‘জুিডিশয়াল ম ািজেsট’ শbগুিল pিতsািপত হiেব। 15। 2009 সেনর 16 নং আiেনর ধারা 24 eর সংেশাধন --uk আiেনর ধারা 24 eর— (ক)

uপ-ধারা (1) e uিlিখত ‘িtশ িদেনর’ শbগুিলর পিরবেত ‘ষাট িদেনর’ শbগুিল pিতsািপত হiেব;

(খ)

uপ-ধারা (2) e uিlিখত ‘পেনর িদন’ শbগুিলর পিরবেত ‘িtশ িদন’ শbগুিল pিতsািপত হiেব;

(গ)

uপ-ধারা (3) e বােক র শেষ uিlিখত দঁ ািড়র পিরবেত কালন pিতsািপত হiেব eবং aতঃপর িনmরূপ শতাংশ সংেযািজত হiেব, যথাঃ— ‘‘তেব শত থােক য, মামলার তদেnর pেয়াজেন বাংলােদেশর বািহের aন কান দশ হiেত সাk pমান সংgহ কিরবার pেয়াজন হiেল uপ-ধারা (1) হiেত (3) e বিণত তদেnর সময়সীমা pেযাজ হiেব না।’’;

(ঘ)

uপ-ধারা (4) e uিlিখত ‘তাহার িবরুেd িবভাগীয় শািsমূলক ব বsা gহণ করা হiেব’ শbগুিলর পিরবেত ‘তদnকারী কমকতা তাহার uপর aিপত দািয়t পালেন aবেহলার aিভেযােগ aিভযুk হiেবন’ শbগুিল pিতsািপত হiেব।

16 2009 সেনর 16 নং আiেনর ধারা 25 eর সংেশাধন।--uk আiেনর ধারা 25 eর uপ-ধারা (1) e দুiবার uিlিখত ‘ধারা 25’ শbগুিল o সংখ াগুিল eবং uপ-ধারা (2) e uিlিখত ‘ধারা 25’ শb o সংখ ার পিরবেত সকল sােন ‘ধারা 24’ শb o সংখ া pিতsািপত হiেব। 17।2009 সেনর 16 নং আiেনর ধারা 29 eর সংেশাধন।--uk আiেনর ধারা 29 eর uপ-ধারা (6) e uিlিখত ‘পুনঃতদেnর’ শbগুিলর পিরবেত ‘aিধকতর তদn’ শbগুিল pিতsািপত হiেব।

62

18। 2009 সেনর 16 নং আiেনর ধারা 32 eর সংেশাধন।-uk আiেনর ধারা 32 eর দফা (খ) e uিlিখত ‘িবচারক’ শb র পিরবেত ‘ম ািজেsট বা িবচারক’ শbগুিল সিnেবিশত হiেব। 19। 2009 সেনর 16 নং আiেনর ধারা 33 eর সংেশাধন।-uk আiেনর ধারা 33 eর uপ-ধারা (1) e uিlিখত ‘aিভেযাগপt গঠেনর’ শbগুিলর পিরবেত ‘aিভেযাগ গঠন (Charge frame) eর’ শbগুিল pিতsািপত হiেব। 20। 2009 সেনর 16 নং আiেনর ধারা 34 eর pিতsাপন।-uk আiেনর ধারা 34 eর পিরবেত িনmরূপ ধারা 34 pিতsািপত হiেব, যথাঃ— ‘‘34। সntাসী কমকা -লb সmেদর দখল।— (1) কান সntাসী বা aন কান ব িk, গাি , সtা, pিত ান বা সংsা সntাসী কমকা হiেত udত ূ , বা কান সntাসী বা সntাসী গাি কতৃ ক pদt কান aথ বা সmদ ভাগ কিরেত বা দখেল রািখেত পািরেব না। (2)

ei আiেনর aধীন দ pাp হuক বা না হuক, eiরূপ কান সntাসী বা aন কান ব িk বা গাি বা সংsা বা pিত ােনর দখেল থাকা সntাসী কমকা -লb সmদ সরকােরর aনুkেল বােজয়াpেযাগ হiেব।

ব াখ া।-সntাসী কমকা -লb সmদ aথ ei আiেনর aধীন aপরাধ সংঘটেনর মাধ েম aিজত বা লb কান aথ, সmিt বা সmদ। (3)

ei আiেনর আoতায় কান aপরােধর সােথ সংি কান ব িk বা সtার কান সmিt, কান িবেদশী রা বা সংsার aনুেরােধর pিkেত সরকার কতৃ ক জbেযাগ হiেব eবং সংি দেশর সােথ পারsিরক আiনগত সহেযািগতার আoতায় বা ktমত, সরকার কতৃ ক িনsিtেযাগ হiেব।

সরকার কতৃ ক গৃহীত কান আnজািতক, আ িলক বা িd-পািkক চু িk, জািতসংেঘর কনেভনশন বা জািতসংেঘর িনরাপtা পিরষদ কতৃ ক গৃিহত সংি রজুেলশেনর আoতায় কান ব িk বা সtার সmদ জbেযাগ হiেব।’’ 21।2009 সেনর 16 নং আiেনর ধারা 35 eর pিতsাপন।-uk আiেনর ধারা 35 eর পিরবেত িনmরূপ ধারা 35 pিতsািপত হiেব, যথাঃ— (4)

‘‘35। সntাসী কমকা -লb সmদ বােজয়াp — (1) যেkেt িবচারক ei মেম সn হন য, কান সntাসী কা©h হiেত udত ূ হiবার কারেণ কান সmিt জb বা kাক করা হiয়ােছ, সiেkেt িতিন uk সmিt বােজয়াp কিরবার আেদশ pদান কিরেত পািরেবন। (2)

uপ-ধারা (1) eর aধীেন কান সntাসী কা©h হiেত udত ূ কান সmিt বােজয়াp করা হiেল, য সtার িনকট হiেত uk সmিt বােজয়াp হiেব, সi সtার িবরুেd ei আiেনর ধারা 18 o 20 e বিণত আiনানুগ ব বsা সরকার কতৃ ক gহণ করা যাiেব।

(3)

ei আiেনর ধারা 34 eর uপ-ধারা (4) aনুযায়ী জbকৃ ত সmদ সংি চু িk, কনেভনশন বা জািতসংেঘর িনরাপtা রজুেলশেনর আেলােক সংি পিরষদ কতৃ ক গৃিহত সংি আদালত কতৃ ক বােজয়াpেযাগ o িন িtেযাগ হiেব।

বােজয়াpকৃ ত সmেদ দাষী ব িk বা সtা ব তীত aন কান ব িk বা সtার st, sাথ বা aিধকার থািকেল uহা সংি আদালত কতৃ ক ফরতেযাগ হiেব।’’ 22। 2009 সেনর 16 নং আiেনর ধারা 36 eর সংেশাধন।-uk আiেনর ধারা 36 eর uপ-ধারা (1) e uিlিখত ‘িলিখত না শ pদানপূরক বােজয়াp কিরবার কারণ aবিহত না কিরয়া’ শbগুিলর পিরবে ত ‘ ফৗজদাির (4)

63

Bangladesh Statutes

কার িবিধর িবধান aনুসরণপূরক কারণ দশােনার না শ জারী কিরেত হiেব’ শbগুিল pিতsািপত হiেব। 23। 2009 সেনর 16 নং আiেনর ধারা 38 eর সংেশাধন।-uk আiেনর ধারা 38 eর— (ক)

uপ-ধারা (1) e uিlিখত ‘বিহঃসমপন সmিকত’ শbগুিলর পর ‘চু িk মাতােবক’ শbগুিল সিnেবিশত হiেব;

(খ)

uপ-ধারা (3) e uিlিখত ‘ei আiেনর aধীন’ শbগুিলর পিরবেত ‘আnঃরাি ক পার িরক সmিত ব িতেরেক’ শbগুিল eবং বােক র শেষ uিlিখত দঁ ািড়র পিরবেত কালন pিতsািপত হiেব eবং aতঃপর িনmরূপ শতাংশ সংেযািজত হiেব, যথাঃ—

‘‘তেব বাংলােদেশর কান আদালেত eকi aপরােধর aিভেযােগ িবচার চলমান থািকেল বাংলােদেশর কান নাগিরেকর বিহঃসমপণ কার কর করা হiেব না " 24। রিহতকরণ o হফাজত -(1) সntাস িবেরাধী (সংেশাধন) aধ ােদশ, 2012 (2012 সেনর 3 নং aধ ােদশ) eতddারা রিহত করা হiল (2) ukরূপ রিহতকরণ সেtto, রিহত aধ ােদশ dারা সংেশািধত সntাস িবেরাধী আiন, 2009 (2009 সেনর 16 নং আiন) eর aধীন কৃ ত কান কাজকম বা গৃহীত কান ব বsা ei আiন dারা সংেশািধত uk আiেনর aধীন কৃ ত বা গৃহীত হiয়ােছ বিলয়া গন হiেব

I LNJ (2012)