Represented by the Deputy Commissioner, Comilla Vs. Md. Kamaluddin @ Pichi Kamal and ors

Appellate Division Cases

(Criminal)

PARTIES

The State,

Represented by the Deputy Commissioner, Comilla ……………..Appellant

-Vs-

Md. Kamaluddin @ Pichi Kamal and ors………………………Respondents

JUSTICE

Syed J.R. Mudassir Husain CJ

M.A. Aziz J

Amirul Kabir Chowdhury J

JUDGEMENT DATE: 10th January 2005

Sections 147/148/341/323/307/379/365 and 34 of the Penal Code read with Sections 3 and 4 of the explosive substance Act.

That for an occurrence alleged to have taken place on 21,07.2001 the First Information Report was lodged on 17.06.2002/22.06.2002 and though the reason has been given in the First Information Report but in fact the said reason appears to be false. He further submits that during the time of alleged occurrence no political party was in power and a neutral Care Taker Government was in power and as such there was no reason for refusal of the police to register the case …………..(4)

That the accused respondent and others have been absolved of the charge under Sections 3 and 4 of the explosive substances Act. Regarding the allegation of offences under other Sections of the Penal Code, he adds that there are allegations against some other co-accused of assault, abduction and confinement of the informant but most of them are enjoying bail…………………. (5)

That there was no ground for refusing the bail by the High Court Division and hence the appeal is liable to be dismissed …………….(6)

Criminal Appeal No. 21 of 2003 (From the judgment and order dated 18.11.2002 passed by the High Court Division in Criminal Miscellaneous Case No.8896 of 2002)

Abdur Razaque Khan, Additional Attorney General, (Md. Faisal H. Khan, Assistant Attorney General, with him) instructed by Ahsanullah Patwary, Advocate-on-Record……………….For the Appellant

Rokanuddin Mahmud, Senior Advocate, (Rafiqul Islam Mia, Advocate, with him) instructed by Sufia Khatun, Advocate-on-Record……………….. For the Respondent

JUDGMENT

1. Amirul Kabir Chowdhury J. At the instance of the State, represented by the Deputy

Commissioner, Comilla this appeal by leave has been preferred against the judgment and order dated 18.11.2002 passed by a Division Bench of the High Court Division in Criminal Miscellaneous Case No. 8896 of 2002 making the rule absolute thereby allowing bail to the respondent in Muradnagar Police Station Case No. 8 dated 22.06.2002 under Sections 147/148/341/323/307/379/365 and 34 of the Penal Code read with Sections 3 and 4 of the explosive substance Act.

2. The facts, in brief, are that one Nazrul Islam on 17.06.2002 filed a petition of complaint before the learned Magistrate, Comilla alleging, inter alia, that he was a contractor and got a work order for construction of a bridge in the locality but the respondent wanted to do the work and since he did not get the work he got angry and threatened the complainant with dire consequence and demanded Tk. 100,000/(one lac) from him as toll and the complainant refused to pay the amount and as such on 21.07.2001 i.e. the day of occurrence while he was riding on his motor bike was met by the accused respondent and others in the way who attacked him with hockey stick etc. and they created terrorism by exploding cocktail and bombs and the respondent snatched away Tk. 1,00,000/- (one lac) from his pocket and the learned Magistrate sent it to the police who recorded the same as First Information Report and thus Moradnagar P.S. Case No. 8 dated 22.06.2002 was started under the provisions of law as mentioned above and that the accused respondent being unsuccessful in getting bail from the courts below moved the High Court Division under Section 498 of the Code of Criminal Procedure praying for bail and the High Court Division by the impugned judgment and order made the rule absolute and thus allowed bail to be respondent. Hence is the appeal.

3. In support of the appeal Mr. Abdur Razaque Khan learned Additional Attorney General submits, inter alia, that the High Court Division though found that there are allegations of snatching away money by the respondent from the informant but still the High Court Division allowed bail to the respondent illegally and that though sufficient explanation was given for the delay in lodging the First Information Report, the High Court Division did not consider the same and thus came to an erroneous decision and as such the appeal may be allowed.

4. Mr. Rokanuddin Mahmud, learned Senior Advocate opposes the appeal submitting, inter alia, that for an occurrence alleged to have taken place on 21.07.2001 the First Information Report was lodged on 17.06.2002/ 22.06.2002 and though the reason has been given in the First Information Report but in fact the said reason appears to be false. He further submits that during the time of alleged occurrence no political party was in power and a neutral Care Taker Government was in power and as such there was no reason for refusal of the police to register the case.

5. He then submits with the reference to order dated 04.07.2004 passed by the learned

Sessions Judge and Special Tribunal No.l, Comilla in Special Tribunal Case No. 188 of

2003 that the accused respondent and others have been absolved of the charge under Sections 3 and 4 of the explosive substances Act. Regarding the allegation of offences under other Sections of the Penal Code, he adds that there are allegations against some other co-accused of assault, abduction and confinement of the informant but most of them are enjoying bail. Placing the First Information Report Mr. Rokanuddin Mahmud submits that the allegations on the face of it appear to be false and concocted.

6. He, therefore, submits that there was no ground for refusing the bail by the High Court

Division and hence the appeal is liable to be dismissed.

7. We have considered the submissions made at the Bar and perused materials on record. It is not denied that the informant alleged the occurrence to have taken place on 21.07.2001 but he lodged complaint for the first time on 17.06.2002 after about a year though explanations have been given in the First Information Report but the said explanations have been seriously challenged on behalf of the respondent.

8. We have perused the First Information Report. In consideration of the facts and circumstances we do not think that at this stage the submissions of Mr. Rokanuddin Mahmud can be brushed aside lightly.

9. We have also perused the judgment and order of the High Court Division wherefrom we find that the High Court Division did not commit any error calling for our interference. In the aforesaid premises we do not find any substance in this appeal.

10. The appeal is, therefore, dismissed without any order as to costs.

Ed.

Source: IV ADC (2007), 266

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