Issue July Cover with 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 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

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)

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 Indiathe 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.

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