Amirul Islam and others Vs. The State and another

Appellate Division Cases

(Criminal)

PARTIES

Amirul Islam and others………………………… Petitioners (On bail)

-Vs-

The State and another ………………………….Respondents.

JUSTICE

Syed J.R. Mudassir Husain CJ

Mohammad Fazlul Karim J

Amirul Kabir Chowdhury J

JUDGEMENT DATE: 29th August 2005

The Code of Criminal Procedure, Section 540 The Penal Code, Sections 120B/302/34

While the victim was being taken to the local hospital for treatment, on the way he

died on…………………. (4)

Charge-sheet against 15 accused-persons including the leave-petitioners under

Section 120B/302/34 of the Penal Code. ………………(4)

It appears that during trial on 03-05-2005 prosecution adduced the evidence of Pw.l on 02-05-2005 and Pws.2 and 3 on 02-052005, 03-05-2005 respectively and they were cross examined and further cross examined by the defence in detail. But on 04-05-2005 accused-persons being on bail submitted an application for recall of Pws.1-3, which was opposed by the prosecution. The learned Judge of Druto Bichar Tribunal, Rajshahi by order dated 04-052005 rejected the prayer for such recall with a finding that the defence cross examined the Pws. at length. It was also found that for recall of these witnesses defence ought to have spelt out the matter left out in cross examination in the form of specific question but the application has not stated the material particulars and upon the aforesaid finding the application for recall was rejected by the trial Court …………..(8)

We are of the view that the High Court Division rightly passed the impugned judgment as aforesaid. We are fully in agreement with the findings and decisions arrived at by the High Court Division and we find no merit in this application.

Accordingly, it is dismissed …………………..(9)

Abdul Majid, Advocate, instructed by A.K.M. Shahidul Huq,  Advocate-on-Record …………….For the Petitioners.

Mansur Habib, Advocate, instructed by Mahmuda Begum, Advocate-on-Record…………For Respondent No.2.

Respondent No.l….. Not represented.

JUDGMENT

1. Syed J.R. Mudassir Husain CJ: This Criminal Petition for leave to appeal is directed

against the judgment and order dated 18-07-2005 passed by a Division Bench of the

High Court Division in Criminal Revision No. 603 of 2005 (arising out of Druto Bichar Case No. 11 of 2005) discharging the Rule and vacating the order of stay.

2. In the aforesaid Criminal Revision, the Rule was issued calling upon the Deputy

Commissioner, Rajshahi to show cause as to why the impugned judgment and order dated

04-05-2005 passed by Druto Bichar Tribunal, Rajshahi rejecting the application of the writ-petitioners for recalling of the Pws. 1,2 and 3 for cross-examination on behalf of the accused-leave-petitioners in Druto Bichar Case 11 of 2005 now pending in the Court of

Druto Bichar Tribunal, Rajshahi should not be set aside.

3. The High Court Division upon hearing the parties discharged the Rule by judgment and order dated 18th July, 2005 in the aforesaid Criminal Revision No. 603 of 2005.

4. The facts, leading to this criminal petition, are that Md. Abdul Latif, son of late Rahim

Uddin Pramanik, of village Jotgazi, P.S. Iswardi, Dist. Pabna as informant lodged FIR with Iswardi P.S. (Case No. 06 dated 09-082003) implicating 19 accused persons and other 4/5, unknown persons including the accused-petitioner, stating, inter alia, that on

09-08-2003 at about 12.05 P.M. the FIR named accused persons along with others suddenly attacked the victim brother of the informant with deadly weapon like pipe gun, knife, tangi etc. One of the FIR named accused fired revolver shot upon the victim causing serious injuries. Thereafter, while the victim was being taken to the local hospital for treatment, on the way he died on receipt of the FIR Iswardi P.S. Case No. 06 dated 09-082003 corresponding to G.R. Case No. 119 of 2003 under Section 120 B/302/34 of the Penal Code was started against the accused persons. Thereafter one Sub-Inspector of Police made a proper investigation of the case and thereafter found prima-faice case made out submitted charge-sheet against 15 accused-persons including the leave-petitioners under Section 120B/302/34 of the Penal Code. In due course, the case sent to the learned Sessions Judge, Pabna for trial, who thereafter transferred the same to the learned Judge, Druto Bichar Tribunal, Rajshahi for trial. During trial prosecution examined witnesses. The accused-petitioners filed petition to recall Pws. 1-3 but it was rejected. The petitioners then moved the High Court Division unsuccessfully. Hence, is this petition.

5. Mr. Abdul Majid, the learned Advocate appearing for the petitioners, firstly contended

that the impugned judgment and order passed by the High Court Division is liable to be set aside because of the fact that the High Court Division failed to consider that the petitioners prayed for recalling of Pws. 1-3 which is very much essential for disposal and for just decision of the case.

6. In elaborating his submissions, he referred to the provision of Section 540 of the Code of Criminal Procedure and argued that the said provision gives wide power to the trial Court to recall witnesses for ends of justice and for fair trial in the event of refusal of recall of witnesses by the trial Court, the accused petitioners have been highly prejudiced and the High Court Division having not considered this aspect committed an error of law in passing the impugned judgment which is liable to be set aside.

7. Mr. Mansur Habib, the learned Advocate appearing for the respondent No.2, on the other hand, contended that the High Court Division having applied judicial mind in consideration of the provision of the 540 of the Code of Criminal Procedure rightly passed the impugned order and there is no illegality or legal infirmity for interference by this Division.

8. We have heard the learned Advocate of both sides and perused the impugned judgment of the High Court Division. It appears that during trial on 03-05-2005 prosecution adduced the evidence of Pw.l on 02-05-2005 and Pws.2 and 3 on 02-05-2005, 03-05-2005 respectively and they were cross examined and further cross examined by the defence in detail. But on 04-05-2005 accused-persons being on bail submitted an application for recall of Pws. 1-3, which was opposed by the prosecution. The learned Judge of Druto Bichar Tribunal, Rajshahi by order dated 0405-2005 rejected the prayer for such recall with a finding that the defence cross examined he Pws. at length. It was also found that for recall of these witnesses defence ought to have spelt out the matter left out in cross examination in the form of specific question but the application has not stated the material particulars and upon the aforesaid finding the application for retail was rejected by the trial Court.

9. The High Court Division having considered the facts and circumstances of the case and in consideration of provision of Section 540 of the Code of criminal Procedure, we are of the view that the High Court Division rightly passed the impugned judgment as aforesaid. We are fully in agreement with the findings and decisions arrived at by the High Court Division and we find no merit in this application. Accordingly, it is dismissed.

Ed.

Source: IV ADC (2007), 175