Appellate Division Cases
Ali Asgar Khan
Registrar Supreme Court of Bangladesh & others …………………Appellants.
Md. Anwarul Islam being dead his
Heirs Most. Afroza Begum & others ……………………………..Respondents.
Md. Ruhul Amin, J.
M.M. Ruhul Amin, J.
Md. Tafazzul Islam, J.
JUDGEMENT DATE: 26th July,2004.
The Penal Code, Section 471, 166,.
The Code Criminal Procedure, Section 476, 195,
In view of the above findings of the High Court Division we fail to understand how the High Court Division directed the Additional Registrar of the Supreme Court to enquire into the allegations against the Registrar of the Court and to submit his report to that Division Bench on 05.12.1996 and why observation was made that the respondent can file a complaint petition against the appellant under section 471 Cr. P.C. in the Court of Chief Metropolitan Magistrate, Dhaka if so advised………. (6)
Thus it is clear that the findings and observations of the High Court Division are self contradictory and on this count alone the impugned judgment can not be sustained……………….(7)
Civil Appeal No. 119 of 1998. (From the Judgment and order dated 14.11.19% passed by the High Court Division in Civil Rule No. 290 (FM) of 1996.)
Abdur Razzaque Khan, Additional Attorney General (Faisal H. Khan, Additional Attorney General with him) instructed by Md. B. Hossain, Advocate-on-Record……………….. For the Appellants.
A.B. Taz Mohammad, Advocate instructed by Md. Nawab Ali, Advocate-on-Record……………………. For the Respondents.
1. M.M. Ruhul Amin, J: This appeal by leave is directed against the judgment and order dated 14.11.1996 passed by a Division Bench of the High Court Division in Civil Rule No. 290(FM) of 1996 discharging the Rule with some directions and observations.
2. Short facts are that the respondents preferred First Miscellaneous Appeal No. 109 of 1996 against the order dated 03.08.1996 passed 1st by the Court of Subordinate Judge (now Joint District Judge), Dhaka in Title Suit No. 167 of 1996. By judgment and order dated 20.08.1996 the said’Division Bench of the High Court Division allowed the appeal and directed that the suit be withdrawn and transferred to the said Division Bench for disposal and also directed the records be brought by 24.08.1996 by a special messenger and to list it as a transferred suit in the cause list on 25.08.1996 for order. The appellants, who were defendants in the suit and respondents in First Miscellaneous Appeal No. 109 of 1996, moved civil petition for leave to appeal No. 520 of 1996 and obtained leave and stay of the aforesaid order dated 21.08.1996 from this Division. Earlier, they obtained stay of the aforesaid order from the Judge in Chamber in C.M.P. No. 153 of 1996. After the said Division Bench passed the judgment and order dated 21.08.1996 in First Miscellaneous Appeal No. 109 of 1996 the respondents filed an application on 29.10.1996 before the said Division Bench under section 476 of the Code of Criminal Procedure praying for drawing up a criminal proceeding against the appellants on certain allegations. The said Division Bench issued a Rule in Civil Rule No. 290(FM) of 1996 on 30.10.1996 upon the appellants. By judgment and order dated 14.11.1996 the said Division Bench discharged the Rule in Civil Rule No. 290 (FM) of 1996 but directed that (1) the Additional Registrar will inquire into the allegations of interpolation made in the Civil Rule and report the same to the Division Bench on 28.11.1996. (2) that the Additional Registrar will also inquire whether the appellants made any delay in signing the file of appointing a special messenger so that appellant No. 1 can get the order of stay in C.M.P. No. 153 of 1996 from the Appellate Division and submit his report on 05.12.1996 to the said Bench and (3) that the appellant-respondents can file complaint petition against appellant No. 1 under section 471 of the Penal Code in the Court of the Chief Metropolitan Magistrate. Dhaka, if so advised.
3. Leave was granted to consider the submission that the allegations contained in the application filed by the respondents under section 476 of the Code of Criminal Procedure having been found to be not maintainable and having been adjudged to be a case of alleged misconduct on the part of officers of the Supreme Court, the Division Bench of the High Court Division exercising civil appellate jurisdiction has no authority under the Constitution or under any law or Rule to adjudicate upon the allegations made against the appellants and therefore the Division Bench exceeded its jurisdiction in giving the impugned directions and further submission that the Division Bench having held that the respondents’ application under section 476 Cr. PC. was unnecessary and not maintainable, committed and error of law and acted without jurisdiction in making observations against the appellant No.l and giving a direction to the Additional Registrar to iqquire into the allegations against him and also observing that the respondents can file a complaint petition against appellant No.l under section 471 of the Penal Code in the Court of Chief Metropolitan Magistrate, Dhaka, if so advised.
4. We have heard Mr. Abdur Razzaque Khan, the learned Additional Attorney General for the appellants and Mr. A.B. Taz Mohammad, the learned Advocate for the respondents an perused the judgment of the High Court Division and other connected papers.
5. The High Court Division in the impugned judgmem observed as follows:”Without examining as to whether the opposite party has committed an offence under section 166 of the Penal Code or not, we hold that thereby the opposite party did not cause injury to the petitioner (respondent) so that the petitioner can lodge complaint under this section. Furthermore section 166 is not included in section 195 Cr. P.C. so that an enquiry is necessary within the scope of section 476 Cr.P.C Thus it is clear that the provision of section 195 is attracted when an offence is committed by a party only in a pending proceedings. In the instant case offence was committed after the appeal was disposed of. Furthermore the alleged forgery was committed outside the Court, it did not affect any proceedings of the Court and it was committed against the petitioner personally. We, therefore, find that the petitioner’s application under section 476, Cr. P.C. was unnecessary and not maintainable.”
6. In view of the above findings of the High Court Division we fail to understand how the High Court Division directed the Additional Registrar of the Supreme Court to enquire into the allegations against the Registrar of the Court and to submit his report to that Division Bench on 05.12.1996 and why observation was made that the respondent can file a complaint petition against the appellant under section 471 Cr. P.C. in the Court of Chief Metropolitan Magistrate, Dhaka if so advised.
7. Thus it is clear that the findings and observations of the High Court Division are self contradictory and on this count alone the impugned judgment can not be sustained.
The appeal is, accordingly, allowed. There is no order as to cost.
Source: I ADC (2004), 523