Anowara Begum Vs. The State

Appellate Division Cases

(Criminal)

PARTIES

Anowara Begum …………………….Appellant

-vs-

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

JUSTICE

Md. Ruhul Amin. J

M.M. Ruhul Amin. J

Md. Tafazzul Islam. J

JUDGEMENT DATE: 7th March, 2004.

The Cruelty to Women (Deterrent Punishment) Ordinance, 1983, Section 6, 9.

The allegation of abetting the alleged offence of causing grievous hurt to the informant took place in Dhaka and it was not the informant’s case that the appellant was present in Dhaka at the relevant time of the alleged offence and therefore, that it was not the case of the informant that on 07.03.1992 when the

informant was allegedly beaten by her husband at Sylhet the Appellant in any way

instigated her husband to commit the alleged offence and as such it does not fall within the mischief of abetment of the alleged offence under Section 6 of the said Ordinance. As such the framing of Charge against the Appellant under Section 6/9 of the said Ordinance is liable to be set aside and the learned Judges of the High Court division acted illegally in dismissing the appeals…………………..(3)

Criminal Appeal No. 15 of 1997 (From the judgment and order dated 26.02.1997

passed by the High Court division in Criminal Appeal No. 706 of 1996)

Khandker Mahbub Hossain, Senior Advocate, instructed by Mvi, Md. Wahidullah, Advocateon-Record……………………. For the Appellants.

Md. Sajjadul Huq, Advocate –on Record……………………….Not represented. No.2

Not represented……………………Respondent No.l

JUDGMENT

1. M. M. Ruhul Amin, J :- This appeal by leave is directed against the judgment and order dated 26.02.1997 passed by the High Court Division in Criminal Appeal No. 706 of 1996 dismissing the appeal.

2. Short facts are that informant was married to one M. A. Malik on 11.10.1991. On

28.02.1993, the informant filed an application before the Deputy Commissioner Sylhet alleging that after her marriage she found her husband a greedy person who started demanding dowry from her and in his demand for dowry he was instigated by his mother, the appellant and others. The further case is that on 07.03.1992 informant was assaulted by her husband on demand of dowry. Subsequently at the intervention of both the parties she came back to her husband’s house in Dhaka but again she was assaulted by her husband for dowry and thereafter her husband left for London and she went back to her father’s house at Sylhet for treatment. On his return from London her husband issued a legal notice claiming huge amount allegedly taken away by the informant from his house at Banani, Dhaka. The Deputy Commissioner Sylhet on receipt of the petition referred the matter to Kotwali Police Station, Sylhet and the same was treated as F.I.R and Kotwali, P.S Case No. 4(3) 93 under Sections 6/9 of the Cruelty to Women (Deterrent

Punishment) Ordinance, 1983 was started against her husband M.A Malik and another

M.A Sadeque and the present Appellant. After investigation police submitted charge sheet under Sections 6/9 of the Cruelty to Women (Deterrent Punishment) Ordinance, 1983 against M.A Malik and final report against others. The informant filed a naraji petition and after hearing, the learned Special Judge took cognizance in the case under section 6/9 of the Cruelty to Women (Deterrent Punishment) Ordinance, 1983 against appellant and others. The case was Transferred to the learned Additional Sessions Judge and Judge of Nari-o-Shishu Nirjatan bishesh Adalat, Sylhet for trial. On 26.05.1996 charge was framed under Section 6/9 of the Ordinance against the accused persons including the present Appellant. Being aggrieved with the framing of the charge against the Appellant preferred Criminal Appeal No. 706 of 1996 in the High Court division. The High Court Division it appears on consideration of the materials on record dismissed the appeal.

3. Leave was granted to consider the submissions that the learned Additional Sessions

Judge and Judge of Nari-o-Shishu Nirjatan Daman Bishesh Adalat, Sylhet had no territorial jurisdiction to try the case and there is no material on record to show that the appellant in any way abetted the alleged offence under Section 6/9 of the Said Ordinance and the further submission is that in the F.I.R. All that the informant alleged against the appellant is that her husband at the instigation of the appellant and her another son often threatened to kill her if she could not realize the dowry of Tk.l Core from her father. The allegation of abetting the alleged offence of causing grievous hurt to the informant took place in Dhaka and it was not the informant’s case that the appellant was present in Dhaka at the relevant time of the alleged offence and therefore, that it was not the case of

the informant that on 07.03.1992 when the informant was allegedly beaten by her husband at Sylhet the Appellant in any way instigated her husband to commit the alleged offence and as such it does not fall within the mischief of abetment of the alleged offence under Section 6 of the said Ordinance. As such the framing of Charge against the Appellant under Section 6/9 of the said Ordinance is liable to be set aside and the learned Judges of the High Court division acted illegally in dismissing the appeals.

4. We have hared Mr. Khandker Mahbub Hossain, the learned Counsel for the appellant

and Mr. Md. Sajjadul Huq, learned Advocateon-Record for the respondent No.2 and perused the judgment of the High Court Division and other connected papers.

5. The point for consideration is whether the trial court was justified in framing charge

against the appellant under sections 6/9 of the Ordinance for allegations of offence alleged to have been committed by husband of the informant under Section 6 of the Cruelty to women (Deterrent Punishment) Ordinance, 1983.

6. For ready reference let us quote below sections 6 and 9 of the Ordinance: 6. “Penalty for causing death, etc. For dowry whoever, being a husband or parent, guardian or relation of the husband of any woman, causes or attempts to cause death or grievous hurt to that woman for dowry shall be punishable with death or with imprisonment for life or with rigorous imprisonment for a term which may extend to fourteen years and shall

also be liable to fine.

7. Explanation In this section “dowry” means any property or valuable security

demanded from the wife or her parent, guardian or any other relation as consideration for the marriage, but does not include dower or Mohr in the case a person to whom the Musilm personal Law (Shariat) applies.” 9. “Abetment of offences Whoever abets any offence Punishable under this Ordinance shall if the act abetted is committed in consequence of the abetment, be punishable with the punishment provided for the offence.”

8. Mr. Hossain, mainly argued that the allegation is that husband of the informant at the

instigation of the appellant and her another son often threatened to kill her if she could not realize the dowry of Tk. 1 Crore from her father is not based on materials on record. He further argued that the allegation is that on 07.03.1992 when her husband allegedly beaten the informant at Sylhet, the appellant who lives in Dhaka was not present and as such framing of charge against her under Section 6/9 of the Ordinance for abetment of the alleged offence under Section 6 of the Ordinance was not justified.

9. On perusal of the First Information Report and relevant papers it appears that there

is no allegation against the appellant that she abetted the causing or attempted to cause death or grievous hurt to the informant of the case for dowry. The allegation appears to be that she instigated the husband of the informant to demand /realize dowry from the informant.

10. Therefore, considering the facts and circumstances of the case and the nature of allegations against the appellant we are of the view that the High Court Division was not justified in dismissing the appeal and thereby affirming the framing of charge against the appellant by the trial court. The appeal is accordingly allowed.

Ed

Source: I ADC (2004), 459

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