Appellate Division Cases
(Criminal)
PARTIES
Alam Hossain Khan and another………………… Petitioners
-vs-
Miah Faiz Majid Miah and another………………………oposite Parties.
JUSTICE
Sheikh Rezowan Ali. J
A.F.M. Ali Asgar. J
JUDGEMENT DATE: 07.3.2004
The Penal Code,Section 467,468,419 420 and 109. The Code of Criminal Procedure, Section 200, 249,403, 561A, 438.
Abul Hossain-vs- Suwalal Agrawalla in PLD 1962 (SC) 242. Abdus Salam Master @ Salam vs The sate in 36 DLR (AD) (1984)-58.
The dismissal of a complaint the stopping of proceedings under Section 249 or the discharge of the accused is not an acquittal for the purpose of this section.” The order of discharge as found by us not being made on merit a second complaint petition is not a bar. In a decision in the case of Abdus Salam Master alias Salam & another Vs The state reported in 36 DLR(AD) at page-58 it has been held by their Lordships after dismissal of a complaint or discharge of an accused, a fresh complaint may be entertained on the same allegation against the same person
whether it is filed by the same complain tent or by a different complainant but only in certain exceptional circumstances. Grounds of this principle are two (1) dismissal of a complaint or discharge of an accused is not “Acquittal” with in the meaning of Section 403 of the Code of Criminal Procedure which expressly prohibits fresh prosecution of a person who has been acquitted; (2) there is no provision in law that prohibits entertainment of a fresh complaint after dismissal or discharge …….(10)
Criminal Rev Cases No. 804 of 1997.
Yusuf Hossain Humayun, Advocate ………………..For the petitioners.
Golam Mohammad Chowdhury, Advocate …………..For the opposite party No. 1
Sheikh Reazul Karim, A.A.G For the State.
JUDGMENT
1. Sheikh Rezowan Ali, J :- On an application by the petitioners under Section 561 A of
the Code of Criminal Procedure a rule was issued calling upon the opposite parties to show cause as to why the order dated 1.7.1997 passed by the Sessions Judge, Barisal in Criminal Miscellaneous Case no. 38 (1) 97 arising out of C.R Case No. 154 of 1996 (of the Court of the Magistrate, 1st Class, Barisal) should not be quashed and/or such other or further order or orders passed as to this Court might seem fit and proper.
2. Facts. Relevant for the purpose of disposal of this rule, in short, are that opposite
party No.l Miah Faiz Ahmed as complainant lodged a complaint petition before the learned Magistrate of the 1st Class, Barisal alleging that his “Phupui” (father’s sister) Hachan Banu was the owner of piece of land. After her marriage without living in her husband’s house she used to live with her fatter. Under the circumstances she did not possess the land in person but used to possess the same jointly with complainant party. It was further alleged that the 5 accused named in the complaint petition (including the
instant petitioner) were the grand sons of one Hayatunnessa, sister of the said Hachan Banu. They used to live in the same village and had a greedy eye upon the same piece of land. Once on the plea of a pleasure trip the 5 accused and their father Mohsaraf Khan took her to their house and further in the name of medical treatment they took her to a doctor and by practicing upon her made her to sign certain blank nonjudicial stamp papers and certain big Volume in the Sub-Registrar’s officer at chakhar. Subsequently, ft transpired that they got a forged and fraudulent sale deed being No. 5244-dated 18.12.1974 executed and registered by her though she never intended to transfer such land. Subsequently, in the name of correction of the description of the property contained
in the said deed they got another forged deed being No. 2934 executed and registered by
means false personation of the said Hachan Banu through another accused namely Jahanara Khatun on 7-3-1979.
3. On receipt of the complaint petition containing the aforesaid allegation the learned
Magistrate examined the complainant opposite party on solemn affirmation under Section 200 of the Code of Criminal Procedure and directed a judicial inquiry into the allegation by a Magistrate of the 2nc\ Class. On receipt of the judicial inquiry report the learned Magistrate issued process against the accused (including to the present 2 accused petitioners) for the offence punishable under Section 467, 468, 419 420 and 109 of the Penal code. Subsequently, on the appearance of the instant 2 accused petitioners the learned Magistrate granted them bail.
4. Thereafter they invoked the jurisdiction of this Court under Section 561A of the Code of Criminal Procedure seeking quashment of the proceedings pending in the Court below and obtained the present Rule.
5. Mr. Yusuf Hossain Humayun, the learned Advocate for the petitioners, has taken us
through the materials on record and has submitted that earlier to the present proceedings pending in the Court below, a complaint case was lodged by one Abdul Majid Miah, father of the present complainant oppositely party against the present accused petitioner and other accused and their father on the selfsame allegation before the Sub-Divisional Magistrate, Sadar, Dakshmin, Barisal on 24.4.1979. The learned Magistrate sent the complaint petition to the local police station at Kotwali, Barisal to register a case whereupon Barisal Kotwali P.S case no. 17 dated 7.8.1979 was registered against j
them for the offence punishable under Section 467, 468, 471, 419 and 420 of the Penal Code (Annexure-“C”)- He has then drawn our attention to Annexure-“D” a certified copy of the G.R case register and has submitted that an expert examination of the disputed document was held by a hand writing expert and a FRT having been submitted by the police on conclusion on investigation into the said case the instant accused petitioners and other accused in the said case were discharged. The learned Advocate has further submitted that under the aforesaid circumstances the present petitioner preferred a Criminal Miscellaneous Case being no. 38 (1)/1997 before the learned Sessions Judge, Barisal for referring the matter under Section 438 of the Code of Criminal Procedure
to the High Court Division for quashment of the present complaint case. But he submits the learned Sessions Judge by his impugned judgment and order dated 1.7.1997 rejected the prayer.
6. Being aggrieved, the accused petitioners have preferred the instant proceedings under
Section 561A of the Code of Criminal Procedure seeking quashment of the impugned
judgment and order passed by the learned Sessions judge, Barisal in Criminal Misc. Case
No. 38(1)/1997.
7. It has being submitted by Mr. Yusuf Hossain Humayun, the learned advocate for the
accused petitioners, that the present accused petitioners and others having been earlier discharged on FRT submitted by the police on due examination of the disputed document by a hand writing expert the subsequent complaint petition on the same allegation is barred under Section 403 of the Code of Criminal Procedure. Further, he has also cited 2 decisions, one in the case of Abul Hossain-vs- Suwalal Agrawalla reported in PLD 1962 (SC) 242 and another in the case of Abdus Salam Master® Salam and another -vs-The sate reported in 36 DLR (AD) (1984)-58 and has submitted that after discharge of the accused petitioners once a second prosecution against them on the selfsame allegation on the basis of a complaint petition amounts to the harassment for them and that there cannot be prolongation of proceedings indefinitely between the same parties. So according to him the impugned judgment and order of the learned Sessions Judge is liable to be quashed making the rule absolute.
8. Mr. Golam Mohammad Chowdhury, the learned Advocate for the opposite party no.l in his personal capacity and the learned Assistant Attorney General on behalf of the State has submitted that discharge of an accused is no bar for his second prosecution on a complaint petition in view of section 403 of the Code of Criminal Procedure since the discharge in the case of the present accused petitioners was not a case of acquittal. In this connection he has also placed reliance in the case of Abdus Salam Master@ Salam and another-vs- The Sate reported in 36 DLR (AD) (1984) 58 with special reference to
paragraphs 5 and 6 of the said decision. He submits that there being no evidence of any expert examination having been held in respect of the disputed document on the basis of which FRT was submitted by the police, acceptance of the FRT by the Magistrate with discharge of the accused petitioners does not impose any bar for lodging a fresh complaint petition in terms of Section 403 of the Code of Criminal Procedure. So according to him the rule shall stand discharged.
9. We have considered the submissions made by the learned Advocates for both the
sides in association with the case laws cited by them. We have also perused the impugned judgment and order of the learned Sessions Judge passed in Criminal Miscellaneous Case No. 38 (1)/1997 refusing to send the proceeding of C.R. Case No. 154 of 1996 to the High Court Division for quashment of the proceedings under Section 438 of the Code of Criminal Procedure. The impugned judgment and order shows that the accused petitioners could not furnish before the learned Sessions judge the certified copy of final order of the G.R. case relating to Barisal Kotwali P.S. Case No. 17 dated 7.8.1999 . It was further found that the record of the G.R. Case to which the discharge related in consequence of FRT submitted by the police was also available, under the Circumstances the learned Sessions Judge refused to refer the case to the High Court Division for quashment under Section 438 of the code of Criminal Procedure with a positive finding that the order of discharge passed in the G.R Case did not impose bar towards lodging a
second complaint petition in view of the provision of Section 403 of the Code of Criminal Procedure.
10. On our query, the learned Advocate for the accused petitioners could not make any
material available to satisfy us that there was, in fact, any examination of the disputed document by any hand writing expert on the basis of whose report police submitted FRT and the learned Magistrate also discharged the accused petitioners and other on a positive finding in their favour. The learned Advocate has frankly submitted that he has no such material with him. This being so our considered view is that discharge not being an acquittal, a second complaint against the same set of accused on the selfsame allegation was not a bar. Explanation to section 403 of the Code of Criminal Procedure reads as follows. “The dismissal of a complaint the stopping of proceedings under Section 249 or the discharge of the accused is not an acquittal for the purpose of this section.” The order of discharge as found by us not being made on merit a second complaint petition is not a bar. In a decision in the case of Abdus Salam Master alias Salam & another Vs The
state reported in 36 DLR(AD) at page-58 it has been held by their Lordships after dismissal of a complaint or discharge of an accused, a fresh complaint may be entertained on the same allegation against the same person whether it is filed by the same complain tent or by a different complainant but only in certain exceptional circumstances. Grounds of this principle are two (1) dismissal of a complaint or discharge of an accused is not “Acquittal” with in the meaning of Section 403 of the Code of Criminal Procedure which expressly prohibits fresh prosecution of a person who has been acquitted; (2) there is no provision in law that prohibits entertainment of a fresh complaint after dismissal or
discharge.” Such are the circumstances in the present case before us. Further, the accused
petitioners could not furnish any material in support of their definite plea that FRT was submitted in their favour after due examination of the disputed document by a hand writing or finger print expert on consideration of which they were practically discharged by the Magistrate on merit and that the second prosecution on the basis of a complaint petition amounts to harassment. The decision cited by the learned advocate for the accused petitioners in the case of Abul Hossain-vs-Sualal Agarwala reported in PLD 1962 (SC) at Page-242 relates to a case of revival after discharge. Facts and circumstances of the said reported case are not applicable in the present case before us. There is no merit in the rule. In the result, the rule is discharged. Order passed earlier staying the proceedings of the Court below is hereby vacated. Communicate the order to the Court below at once.
Ed
Source: I ADC (2004), 355