Section 1(2) & 339C—Applicability of the Code to proceedings before Special Tribunals: The Act provides that the provisions of the code shall apply to a case under the Act if they are not inconsistent with its own provisions. Section 339C of the Code being not inconsistent with any provisions of the Act shall apply to the proceedings before Special Tribunals constituted under the Act. Section 339C is intended for expeditious trial; the special statute is intended for “more speedy trial”. If the provision for speedy trial is not applied to trial under the Act, it will bring a situation not intended by the law-makers. Kamruzzaman vs State 42 DLR (AD) 219.
Sections 1(2) & 417(1)—Appeal filed under section 417(2) CrPC against the judgment and order of acquittal passed by a Special Tribunal is not maintainable—An appeal against a judgment of Special Tribunal will have to be filed under section 30—i) of the Special Powers Act—The Code of Criminal Procedure shall not affect any special forum of procedure prescribed by any law. State vs Wanur Rahman 40 DLR 346.
Section 2—The order passed by the Sessions Judge taking cognizance in revision from naraji petition has no support of law as it is the duty of the Magistrate to take cognisance of the case and by the impugned order, the Sessions Judge usurped the jurisdiction of the Magistrate which the law does not permit him to do. Abdul Aziz Master vs State 59 DLR 468.
Section 2—The effect of the amendment is that the accused may be released on bail by the Magistrate or by the Sessions Judge in case of failure of the Investigating Officer to complete investigation within the specified period. Amalendu Majumder vs State 49 DLR 204.
Sections 2(h) & 200—The term ‘naraji’ means disapproval of the Final Report True. It may either challenge the report on certain grounds and pray for its rejection or may pray for further action by the Court and rejection of the report by reiterating the allegations made in the petition of complaint. When the naraji does not contain allegation of any offence but is more a protest petition it does not take the nature of a complaint and there is no question of examining the complainant and taking fresh cognizance of any offence.
The action upon the naraji petition by the Court depends on whether the naraji petition is made before or after the order of discharge has been passed by the Magistrate. If it is filed after an order of discharge it will in all probability be treated as a complaint by the Magistrate as in almost all such cases it will contain allegation of offence and the person filing the naraji petition will be examined by the Magistrate as a complainant under section 200 of the Code of Criminal Procedure. In case of discharge by the Magistrate the only course remaining open to the complainant is by way of approaching the Sessions Judge with an application for further investigation. But if the naraji petition is filed before an order of discharge has been passed, the Magistrate can take cognizance without examining the complainant if the intention appears only to draw the attention of the Magistrate by way of protest, or the Magistrate may treat it as a complaint and examine the complainant, as he thinks fit. Abu Bakar vs State 46 DLR 684.
Section 4(1)(q)—The meaning assigned to the word “public” strongly indicates that a particular case may also be tried in a place other than the normal place where the sitting of the Court of Sessions takes place. Sayeed Farook Rahman vs Sessions Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157.
Sections 4(1) and 167—The provisions intend to prevent any possible abuse by the police officer of his power while trying to make discovery of crime by means of wrongful confinement and do not intend to protect illegal act of the police officer. Saifuzzaman vs State 56 DLR 324.
Section 4(h)—Definition of expression “Complaint”—whether a Special Judge can be said to have taken cognizance on a complaint after it is taken cognizance of and then sent to him by the Magistrate. The expression “complaint” has been defined in section 4(h) of the Code of Criminal Procedure. It is defined there to mean an allegation made in writing or verbally to a Magistrate. Therefore, a complaint made orally or in writing to a Magistrate would be a complaint and when the Magistrate would be sending that complaint to the Special Judge along with the deposition of the witnesses and his comments for the deposition of the witnesses and his comments for the Special Judge to take cognizance and if that cognizance is taken again it could not be said that the Special Judge had not taken cognizance on a complaint. Matiur Rahman vs State 40 DLR 385.
Sections 4(b), 195(1)(c) & 417A(2)—The word “complainant” occurring in section 417A(2) must be extended upto the “aggrieved person” otherwise legislation so far it relates to a proceeding under section 195(1) of the Code will be of no avail. The aggrieved person at whose instance complaint petition was filed by the Magistrate under section 195(l)(c) is to be considered as a “complainant” as required under section 417A(2) with the aid of definition of complaint appearing in section 4(h) though not for all other purposes. Abdul Ahad vs State 58 DLR 311.
Section 5—The urge of the petitioners to get their matter disposed of by the High Court Division or by this Division through Islamic law has got no leg to stand in view of the aforesaid provisions. Under Article 152 of the Constitution, the word “law” means any Act, Ordinance, etc. having the force of law in Bangladesh. The urge of the petitioners for trying their cases in accordance with Islamic law is nothing but an imaginary dream. Iftekhar Hasan (Md) @ Al Mamun vs State 59 DLR (AD) 36.
Sections 5(2) and 167(5)—The powers conferred under the general provisions of the Code are subject to any special provisions enacted under the Special Powers Act. The Special Powers Act having made provisions with regard to the offence in question must be deemed to supersede the provisions of the Code. Taslima Begum vs State 42 DLR 136.
Sections 5(2) & 339D—Where the charge has been framed under section 409 of the Penal Code and section 5(2) of Act II of 1947, and in the absence of any provision for revival of the case on the expiry of the period of 2 years provided in section 8(a) of the Criminal Law Amendment (Amendment) Act there was no legal authority to revive the case under the provision of the Code of Criminal Procedure. Nur Israil Talukder vs State 52 DLR (A D) 51.
Sections 6 & 7—The new Act has effected a change in the procedural law but it has not affected any vested right of the accused and the prosecution, because the accused had not, in fact, any absolute and vested right of stoppage and release.
In that view of the matter it cannot be said that the appellant had any vested right under the old provision of sub-section (4) of section 339C to be released on the proceeding being stopped. The effect of repeal of the old provision followed by its reenactment will be that in the pending cases the new procedural law will apply because as a general rule alterations in the form of procedure are retrospective in character unless there is some contrary provision in the enactment. In our considered opinion the provision of sub-section (4) of section 339C of the Code of Criminal Procedure as amended by Act No. XLII of 1992 will be applicable to the pending cases. Abdul Wadud vs State 48 DLR (AD) 6.
Sections 9, 17, 408 & 409—Admission of appeal or revision do not fall in the category of urgent application as mentioned in sub-section (4) of section 17 of the Code. When provisions of sections 9, 17,, 408 and 409 of the Code are considered together, it is clear to me that a Sessions Judge-in-charge cannot admit an appeal. Ibrahim Khalil vs State 50 DLR 192.
Section 9(2)—The order that was passed was absolutely without jurisdiction inasmuch as the place where it was passed was not a Court of Sessions Judge as contemplated under section 9(2) of the Code of Criminal Procedure. HM Ershad [former President Lieutenant General (Retd)] vs State 48 DLR 95.
Section 9(2)-A special order cannot be restricted to mean a particular situation according to a pre set formula. Sayeed Farook Rahman vs Sessions Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157.
Section 9(2)—Section 9(2) gives the Government the power to direct at what place or places the Court of Sessions shall hold its sitting. Sayeed Farook Rahman vs Sessions Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157.
Section 9(2)—The contention that a Court of Sessions cannot have two sitting places is negatived by the very language of the section itself. Sayeed Farook Rahman vs Session Judge of the Court of Sessions, Dhaka 49 DLR (AD) 157.
Section 9(2)-If there is a special order to try a particular case at a particular place the original place of sitting continues to remain the place of sitting of the Court of Sessions and the new place indicated in the special order is meant for trial of only that case or class of cases which the special order specifically provides. Sayeed Farook Rahman vs Sessions Judge, 49 DLR (AD) 157.
Section 9(3), Proviso—Interpretation of statute—A proviso is subservient to the main provision—It is not an enacting clause independent of the main enactment.
Our view is that a proviso cannot possibly deal with an entirely different topic or subject and it is subservient to the main provision. A proviso must be considered in relation to the principal matter to which it stands as a proviso. To treat the proviso as if it were an independent enacting clause instead of being dependent on the main enactment is to sin against the fundamental rule of construction, as observed by Moulton, LJ in RV Dibdin, (1910) (Prob Dn) 57. The same view has been expressed in Corpus Juris Sedondum Vol. 82 (pp. 887-88) Nurul Huda vs Baharuddin 41 DLR 395.
Sections 9(3), Proviso and 28—Canon of construction of provisos—Jurisdiction occurring in sub-section (3) of section 9 is limited to trial jurisdiction if read with section 28.
Applying the afore-quoted well-known canon of construction of provisos, we may now say that Assistant Sessions Judges who shall be deemed to have been appointed as Additional Sessions Judges will carry their appointment for the exact purpose set out in the main sub-section, namely, to exercise jurisdiction in one or more such Courts”, that is, in the Courts of Session. Read with section 28, contained in the same Part II, the “jurisdiction” referred to in sub-section (3) of section 9 is limited to the trial jurisdiction. Hence the Assistant Sessions Judges deemed to be appointed as Additional Sessions Judges under the proviso to sub-section (3) shall exercise only trial jurisdiction as Additional Sessions Judges and nothing else. Part II of the Code does not control or government Part VII of the Code titled “Of Appeal, Reference and Revision.” Nurul Huda vs Baharuddin 41 DLR 395.
Section 9(3), Proviso and 31(4)—Distinction between Court of Sessions and Sessions Judge—Court of Sessions is a Court and the Sessions Judge is an office. Nurul Huda vs Baharuddin 41 DLR 395.
Sections 9(3), Proviso and 31(4)—Assistant Sessions Judge deemed to have been appointed as Additional Sessions Judge does not acquire the status of an Additional Sessions Judge. Nurul Huda vs Baharuddin 41 DLR 395.
Sections 9(3), 29C and 31(4)—Consequence of change brought in sections 29C and 31(4) àf the Code of Criminal Procedure—An Assistant Sessions Judge deemed to be an Additional Sessions Judge shall not be deemed to be an Additional Judge for all purposes under the Code, namely for hearing appeals revisions references and reviews if they are made over and transferred to him by Sessions Judge. Nurul Huda vs Baharuddin 41 DLR 395.
Sections 9(3), 29C, 31(4), 409—An Assistant Sessions Judge deemed to be appointed as Additional Sessions Judge has the limited power of passing higher sentences except a Death Sentence in those sessions cases which are now triable by him by deeming and treating him to be an Additional Sessions Judge, consequent upon the changes brought. He shall not be deemed to be an Additional Sessions Judge for all the purposes under the Code, e.g. for hearing appeals, revisions, reference and reviews if they are made over or transferred to him by the Sessions Judge. Under section 409 the Sessions Judge can transfer the hearing of an appeal only to an Additional Sessions Judge and not to an Assistant Sessions Judge deemed to have been appointed as an Additional Sessions Judge. The dismissal in the instant appeal by the Assistant Sessions Judge and refusal of interference by the High Court Division in revision are therefore illegal. The appeal against conviction is therefore allowed and it is directed that the Sessions Judge may himself dispose of the appeal or transfer it to an Additional Sessions Judge for disposal. Abul Kashem vs State 43 DLR (AD) 77.
Sections 10, 18, 20 & 21—A close look into section 4 of the said Ordinances vis-a-vis sections 10, 18, 20 and 21 of the Code, it would appear that in a Metropolitan Area some of the powers which were dealt with by the District Magistrate, have been given to the Police Commissioner, and some of them have been given to the Chief Metropolitan Magistrates and Metropolitan Magistrates, debarring the District Magistrate to exercise all or any of the powers which could be exercised by him before the promulgation of the said Ordinances and the amendments made in the Code and the Special Powers Act. Anwar Hossain vs State 55 DLR 643.
Sections 18 and 167(7)-The Additional District Magistrate, Mymensingh had the jurisdiction to pass order for revival of the investigation within six months of the release of the accused. Faziul Hoque vs State 41 DLR 477.
Section 26—The statutory provisions recognise the Rule against double jeopardy and the principle of res judicata should apply to criminal proceedings in the same way as to civil proceedings but there being no conviction in the cases under reference, the principle of double jeopardy does not apply. Parveen vs State 51 DLR 473.
Sections 28 and 29(2)—An offence under section 382 of the Penal Code (XLV of 1860) is triable by Court of Sessions as per Column Eight of the Schedule. Karim Dad vs Abul Hossain 40 DLR 441.
Section 29—Labour Court and a Magistrate, 1st Class, having jurisdiction in the relevant matter, shall have concurrent jurisdiction to try an offence punishable under the Industrial Relations Ordinance. Under section 64 of the Ordinance a Magistrate, 1St Class, has also been invested with power to try ‘any offence under this Ordinance. The decision reported in 1985 BLD (AD) 278 is not applicable in the facts of the present case. Kamaluddin Chowdhury vs Mashiudowllah 43 DLR 137.
Section 30—A statement that contains self- exculpatory matter cannot amount to confession, if the exculpatory statement is of some facts which if proved would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms of the offence or, at any rate, substantially all the facts which constituted the offence. State vs Al Hasib Bin Jamal alias Hasib 59 DLR 653.
Section 31—Question of sentence to be imposed on the accused after conviction. Although it is a matter of discretion of the trial Court interference by the appellate Court will be justified when trial Court fails to impose proper sentence. Santosh Mia vs State 42 DLR 171.
Section 31—Sentence increased from 2 years to 5 years because of the appellant’s being a member of the law enforcing agency and the heinousness of the crime. Santosh Mia vs State 42 DLR 171.
Section 31—A sentence must not be lenient vis-a-vis the nature of the offence committed and at the same time it must not be harsh either, so that the offender is sent to a point of no return turning him vindictive to the society. HM Ershad vs State 53 DLR 102.
Section 31—Sentence is essentially a matter of judicial discretion but it must be commensurate with the gravity of the offence.
The appellants have already lost their jobs and they have undergone the sustained spectre of the jail for a pretty long time by which they may be deemed to have purged their sins to a considerable extent and the same may be considered a mitigating circumstance for taking a lenient view in the matter of sentence. Abdur Rouf vs State 51 DLR 192.
Section 31—The trial Courts while awarding sentence must bear in mind that the sentence to be imposed upon the accused must be commensurate with the gravity of the offence. Nurul Alam Chowdhury vs State 51 DLR 125.
Section 31—As a matter of principle, it is not proper that by installments the question of sentence should be considered once in the High Court Division and again in the Appellate Division.
The learned Single Judge of the High Court Division while disposing of the criminal appeal was in seisin of the case both on fact and law and as such, he was competent to reduce the sentence. We do not think that it will be proper in the facts and circumstances of the present case to consider afresh the question of sentence on the ground of old age alone which consideration was there in the High Court Division. Mawlana Abdul Hye vs State, Hatem Ali Howlader vs State 51 DLR (AD) 65.
Section 35—Since both the condemned prisoners are sentenced to imprisonment for life there is no necessity for a separate sentence to be passed against them under section 201 of the Penal Code. State vs Hamida Khatun 50 DLR 517.
Section 35A—On a plain reading of the provision of section 35A, sub-section (1) and consequences thereof appearing in sub-section (2) with the preamble and section 29 of the Act and on consideration of the submissions made by the Attorney-General, the Court holds that provision of section 35A is quite consistent with the scheme of the Act and it will apply to the proceeding of the Act. Hazrat Ali vs State 59 DLR 496.
Section 35A—The inclusion of section 35A in the Code of Criminal Procedure was intended to deduct the period of custody from the total imprisonment. There is no provision in section 35A that such benefit will be applicable only in case of convict triable under the Penal Code. The intention of inclusion of 35A is to give benefit to all classes of convicts including the convict tried under the Special Powers Act. Nur Hossen Md vs State 60 DLR 363.
Section 35A—The offence committed by the accused, found aggressive with the intention of committing murder, is a culpable homicide not amounting to murder falling within exception No. 1 of section 300, Penal Code considering the state of his mind and it is a punishable offence under section 304 part—I of the Penal Code. Abdul Mazid vs State 58 DLR 355.
Section 35A—It is apparent that the provisions of the Code are applicable to a special law if a specific provision has been made to that effect either in the special law itself or in the Code. In this connection the decision in the case of Gahena vs State reported in 20 DLR (WP) 271 is relevant. Hiru Mia vs State 58 DLR 607.
Section 35(d)—Transitory Provisions, purpose of—Investigation pending immediately before commencement of the Ordinance—Magistrate did not accept the Final Report and directed further investigation—Police on further investigation submitted charge-sheet far beyond the “specified period” of 60 days as stated in section 167(5) and also of 90 days as stated in section 35(d) of the Transitory Provision—Charge-sheet was submitted one year after the Magistrate’s order for further investigation—Accused-respondents, whether entitled to be released—Provision in section 3 5(d) of the Ordinance is not mandatory and intended to save an investigation which had started at the time when there was no time limit for its conclusion—Investigation on which the Police submitted charge-sheet, not governed by section 167, and the charge-sheet not hit by section 167(7)-Consequently the charge-sheet stands. Kazi Abdul Jalil vs Jashem Munshi 43 DLR (AD) 116.
Section 54—The provisions of this section shall also apply when a police officer receives any credible information that a person may be concerned in any cognizable offence or has a reasonable suspicion that a man might have com-mitted an act in any place out of Bangladesh which if committed in Bangladesh would have been punishable as an offence. Kalandiar Kabir vs Bangladesh 54 DLR 258.
Section 54-The word ‘concerned’ used in the section is a vague word which gives unhindered power to a police officer to arrest any person stating that the person arrested by him is ‘concerned’ in a cognizable offence. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.
Section 54-A police officer can exercise the power if he has definite knowledge of the existence of some facts and such knowledge shall be the basis of arrest without warrant. There can be knowledge of a thing only if the thing exists. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.
Section 54-If a person is arrested on the basis of credible information nature of the information, source of information must be disclosed by the police officer and also the reason why he believed the information. Bangladesh Legal Aid & Services Trust vs Bangladesh 55 DLR 363.
Section 54-if a person is arrested on ‘reasonable suspicion’, the police officer must record the reasons on which his suspicion is based. If the police officer justifies the arrest only by saying that the person is suspected to be involved in a cognizable offence, such general statement cannot justify the arrest. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.
Section 54-The power given to the police officer under this section to a large extent is inconsistent with the provisions of Part Ill of the Constitution. In view of this position such inconsistency is liable to be removed. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.
Section 54-The very system of taking an accused on ‘remand’ for the purpose of interrogation and extortion of information by application of force is totally against the spirit and explicit provisions of the Constitution. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.
Section 54-If the right to be informed of his grounds for arrest and the right to consult a legal practitioner are denied this will amount to confining him in custody beyond the authority of the Constitution. So some amendments in section 54 are needed so that the provisions of this section are made consistent with the provisions of Part III of the Constitution. Bangladesh Legal Aid and Services Trust vs Bangladesh 55 DLR 363.
Section 54-Police officer cannot arrest a person under section 54 of the Code with a view to detain him under the Special Powers Act. Such arrest is neither lawful nor permissible under section 54. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.
Section 54—The “reasonable suspicion” and “credible information” must relate to definite averments considered by the police officer himself before arresting a person under this provision. What is a “reasonable suspicion” must depend upon the circumstances of each particular case, but it should be at least founded on some definite fact tending, to throw suspicion on the person arrested and not on a mere vague surmise. Saifuzzaman vs State 56 DLR 324.
Section 54—A bare assertion without anything more cannot form the material for the exercise of an independent judgment and will not therefore amount to credible information. Saifuzzaman vs State 56 DLR 324.
Section 54—The authority made the orders of detention the moment the police officer made proposal for detention after arrest under section 54 of the Code. This shows the report of the police officer replaced the “satisfaction” of the authority in making an order of detention. It is beyond the scheme of the law that an order of detention can be made in respect of a person on the basis of a report of the police officer after his arrest under section 54 of the Code. Saifuzzaman vs State 56 DLR 324.
Section 54-First information report—It can be used for the purpose of testing the truth of the prosecution story and the Court may note any departure therefrom. State vs Billal Hossain Gazi 56 DLR 355.
Sections 54, 161, 163 & 167—It is not understandable how a police officer or a Magistrate allowing ‘remand’ can act in violation of the Constitution and provisions of other laws including this Code and can legalise the practice of ‘remand’. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.
Sections 54 and 167—This Court, in exercise of its power of judicial review when finds that fundamental rights of an individual has been infringed by colourable exercise of power by the police under section 54 or 167 of the Code, the Court is competent to award compensation for the wrong done. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.
Sections 54 and 167—Provisions of these Sections are to some extent inconsistent with the provisions of the Constitution—To remove the inconsistencies some recommendations as given herein are needed. Bangladesh Legal Aid and Services Trust (BLAST) vs Bangladesh 55 DLR 363.
Sections 54 and 167—”State terrorism”— There are complaints of indiscriminate arrest of innocent persons who are subjected to third degree methods with a view to extracting confessions. This is termed by the Supreme Court of India as “state terrorism” which is no answer to combat terrorism. Saifuzzaman vs State 56 DLR 324.
Sections 61 & 167—An accused cannot be detained in custody of the police for a longer period than under all the circumstances of the case is reasonable and such period must not, without an order of remand by a Magistrate, exceed 24 hours, exclusive of the time necessary for the journey from the place of arrest to the Court of the Magistrate.
In the instant case before us, no incriminating articles, e.g. currency notes, soiled notes or stamps were recovered within the first 24 hours of arrest pursuant to any information given by accused Farook Mahajan, and so it cannot be said with an equal degree of certainty that the unlawful detention of the prisoner without any order of remand beyond 24 hours had no effect on the confession made by him. Faruque Mahajan vs State 49 DLR 47.
Sections 61 and 167—Since some incriminating articles were recovered within 24 hours of the arrest, the High Court did not find any harmful effect of the illegal detention in violation of sections 61 and 167 of the Code on the confession made by the accused. Hasmat Ali vs State 53 DLR 169.
Sections 61 and 167—There is no evidence that the appellants were detained in police custody under an order of remand of any Magistrate and hence their such custody beyond 24 hours is unauthorised. Belal vs State 54 DLR 80.
Sections 74 & 114(e)—Objection as to admissibility of evidence is to be taken at the first instance. In the instant case no such objection was raised against the Commissioner’s report in question which can also be relied upon as the same is an official document and was prepared in due course. Abdul Quader Chowdhury vs Sayedul Hoque 43 DLR 568.
Sections 87 & 88—The prerequisites for publication of a proclamation are the issuance of a warrant and abscondance of the accused so as to evade the execution of the warrant. Attachment under section 88 of the Code of the property, movable or immovable, belonging to the proclaimed person can be made after the order of proclamation issued under section 87. Maulana M A Mannan vs State 48 DLR 218.
Sections 87, 88 & 339B(1)—Notice as to absconding accused—The notice with regard to the absconding accused was not published in two widely circulated newspapers, as required under section 339B(1) of the Code, rather, it was published in two dailies, namely, ‘Karatoa’ and ‘Nowab’, of which the latter was hardly known and was far from being widely circulated. Although the daily ‘Nowab’ cannot be regarded as having a wide circulation, the other daily has a wide circulation. Therefore, there is substantial compliance with the provisions of section 339B(1) of the Code since prior to such publication, the compliance with the provisions of sections 87 and 88 of the Code of Criminal Procedure is found to have been duly complied. State vs Hamidul 61 DLR 614.
Sections 87 & 88—There is a gulf of difference between absence and abscondance— absence is not abscondance. For holding that a person is an absconder something more has to be shown. Jobaida Rashid, wife of Khondaker Abdur Rashid vs State 49 DLR 189.
Sections 87 & 88—The trial Court without taking steps or ascertaining about the compliance of sections 87 and 88 of the Code directed publication of notice. On such facts it cannot be said that the accused was concealing himself from appearing in Court and publication of notice in news-paper and commencing the trial was in clear violation of the mandatory provision of law. So the case is sent back on remand for retrial giving opportunity to the petitioner for cross-examining the PWs already examined. Balayet Howlader vs State 49 DLR 520.
Sections 87 and 88-From a careful reading of the provisions of sub-section (6) of section 27 of the Act it appears that the lawmakers have consciously excluded the use of the provisions of
Sections 87, 88 and 339B—For compelling an absconder accused to be brought to trial coercive power under sections 87 and 88 could be used—Section 339B added to the Code to provide for trial in absentia. This trial in absentia, needs to be held only when all attempts had failed to bring the offender to trial and not just as a matter of course of only, on police showing them in the chalan to be absconders. Lal Mia vs State 42 DLR 15
Sections 87, 339B and 537—The expression ‘in at least one news-paper’ occurring in section 339B CrPC is mandatory and, in this view of the matter, the learned Sessions Judge ought to have condoned the delay and should not have dismissed the appeal summarily without deciding the same on merit. The order passed by the learned Sessions Judge on 19-11-1986 dismissing the appeal summarily on the ground of limitation is set aside. Moktar Ahmed vs Haji FaridAlam 42 DLR 162.
Section 94—A Court or an officer-in-charge of a police station may issue summons or a written order to the person in whose possession or power such document or thing is believed to be there, for investigation, requiring him to attend and produce it at the time or place stated in the summons or order. Abdus Satter Bhuiyan vs Deputy Commissioner, Dhaka 42 DLR 151.
Section 94—Section 94 CrPC speaks of production of any document or other thing but not of seizure by any police officer from any bank relating to bank’s account. The Sessions Judge acted illegally in passing the order according permission to seize the record from the bank’s custody. Arab Bangladesh Bank Ltd vs Md Shahiduzzaman 51 DLR 14.
Sections 94, 155 & 156—The combined effect of the provisions of sections 94, 155 and 165 is that without an order of a competent Magistrate a police officer cannot investigate a non-cognizable case; and even if he is authorised, he has to observe the formalities as laid down in sections 94 and 165 of the Code before he can compel the production of any document or seize any incriminating article. Humayun Majid vs Bangladesh Bureau ofAnti-Corruption 54 DLR 12.
Sections 94 and 160—The contention that action of notice by the respondent No. 3 was violative of Article 35(4) of the Constitution is of no substance since the same were issued in connection with an enquiry as regards the information received against the petitioners. The petitioners are not accused of any offence and, as such, protection under Article 35(4) is not available to them. Abu Siddique vs Ministry of Defence 54 DLR (AD) 154.
Sections 94 and 160-The officers of the Anti-Corruption Bureau in connection with investigation of a complaint to ascertain the truth thereof are authorised to issue notice under section 160 CrPC. Abu Siddique vs Ministry of Defence 54 DLR (AD) 154.
Sections 94 & 160-No police officer can ask any person to attend or to appear before him and no person is required to attend a police officer merely because he is ordered or required verbally or in writing unless his attendance is so required in connection with investigation of a criminal case or any proceeding. M Mohsin Hossain vs Government of the People’s Republic of Bangladesh 55 DLR 56.
Sections 94 & 160—The authority of the Anti-Corruption Officer requiring the petitioners to attend and give statements before him in the interest of an inquiry under the provisions of section 94 of the Code cannot be questioned. Abdul Hafiz vs Director General, Bureau of Anti-Corruption, Bangladesh 51 DLR 72.
Section 94(1)—The information asked for by the impugned order from the petitioner is not something which is capable of being searched. Therefore the information asked for does not conform to section 94 of the Code. The impugned order purported under section 94 of the Code and Articles 31/50 of the Anti-Corruption Manual is unauthorised and illegal as they do not confer any power to direct a person to give information.
The information asked for the purpose of inquiry was of a roving nature and was merely fishing for information. If we are to believe that the inquiry was in response to the information received by the anonymous letter then the wholesale information of all cases handled by the petitioner from 1393 to 20394 cannot be said to be connected with the alleged remittance of the sale proceeds of the house at Motijheel and Guishan. The asking for such wholesale information of the cases handled by him for that period appears to us to be malafide, fishing for information only to harass the petitioner. Imtiazur Rahman Farooqui (Md) (MI Farooqui) vs Bureau ofAnti-Corruption 51 DLR 421.
Section 94(1)—The inquiry stage of an offence, the provisions of Clause (a) to the Proviso to sub-section (1) of section 94 of the Code cannot be called in aid and the same are only meant for the purpose of investigating offences under sections 403, 406, 408 and 409 and sections 421 to 424 (both inclusive) and sections 465 to 477A (both inclusive) of the Penal Code, with the prior permission in writing of the Sessions Judge concerned. Tofail Ahmed vs Chairman, Anti- Corruption Commission 62 DLR 33.
Section 94(1)(a)—The applicability of Clause (a) to the Proviso to sub-section (1) of section 94 of the Code to the investigation of an offence under any of the sections of the Penal Code has not been brushed aside by the Appellate Division in the case reported in 1996 BLD (AD) 200 = 2 BLC (AD) 78. Tofail Ahmed vs Chairman, Anti-Corruption Commission 62 DLR 33.
Section 96—The submission that by search and seizure no fundamental right of the petitioner is violated is misconceived on the facts of the instant case. Government of Bangladesh vs Husssain MohammadErshad 52 DLR (AD) 162.
Section 96(1)(3)—Appeals disposed of on a petition of compromise—High Court Division later vacated the order and restored the two appeals on the allegation of the respondents that the petition of compromise was forged and collusively created.
On a petition of compromise the two appeals were disposed of by the High Court Division on 17th May, 1983 in terms contained in that petition. The respondents filed an application for the restoration of those appeals on the ground that the petition of compromise was created collusively and it was a forged document. The High Court Division vacated the order dated 17th May, 1983 and restored the two appeals to their file and number by an order dated 6th April, 1986. This Court refused on 31st August, 1986 to interfere with that order. Abdul Gafur vs State 41 DLR (AD) 127.
Section 98—Provision of section 98 is applicable only when the magistrate is satisfied that the place to be searched is used for deposit or sale of stolen property. Qari Habibullah Belali vs Captain Anwarul Azim 40 DLR 295.
Section 98—Even if the facts disclosed in the complaint are true and the properties of the complainant are wrongfully retained, recovery of such goods by issuing search warrant is not at all contemplated under section 98 of the Code. Saiduzzaman vs Munira Mostafa 56 DLR 274.
Section 99A—Forfeiture Notice—Forfeiture of a book is a preventive provision so that the author or the publisher of the book does not continue to commit the offence. Under the scheme of law forfeiture is provided and the remedy against the forfeiture having been provided under section 99B of the Code, the Government was not required to issue any notice to the author or publisher of the book giving him opportunity of being heard before passing the impugned order. Sadaruddin Ahmed Chisty vs Bangladesh 48 DLR 39.
Section 99A(1)(c)—To forfeit a publication the government is only required to state by notification in the official Gazette the grounds of its opinion, not its satisfaction for formation of opinion. Sadaruddin Ahmed Chisry vs Bangladesh 50 DLR (AD) 119.
Section 99A—Forfeiture of book— Government is not required to issue notice—The provision may be invoked when the writing and publishing of a book constituted a penal offence. The order of forfeiture is a preventive action requiring no notice to the author or the publisher to give them opportunity of being heard. Bangladesh Anjuman-e-Ahmadiyya vs Bangladesh 45 DLR 185.
Sections 100 & 552—A Magistrate cannot detain a person unless he or she is an accused in a criminal case. The petitioner being above 16 cannot be a minor within the meaning of section 361 Penal Code and as such, the Magistrate has no jurisdiction to keep her in custody or to deliver her to the custody of her father. Fatema Begum @ Urmila Rani vs Gageswar Nath and State 46 DLR 561.
Section 103—Applicability of the provision relating to search—For the purpose of conducting search in order to find out as to whether a person is guilty of an offence under section 46 of the Excise Act the provision of section 103 CrPC has no application. Dilip Kumar Ghose vs State 42 DLR 464.
Section 103—Procedure of search— Applicability—The fulfillment of the provision under section 103 CrPC is not required, because the pipe-gun was not recovered by the police on search but it was produced by the accused himself. Abdul Hashem Master vs State 44 DLR 159.
Section 103-Search—The provisions for search to be made in presence of witnesses are designed to create a safeguard against possible chicanery and a concoction on the part of the Investigating Officer and it is obligatory for him to ensure that the search was conducted honestly. Subodh Ranjan vs State 45 DLR 521.
Section 103—Prosecution cannot be disbelieved merely because of the fact that the seizure list witnesses stated that the arms were not recovered in their presence.
Now, the question is whether in a case like this, evidence of the informant and the Investigating Officer can be disbelieved or not. Here, we have found that there is no suggestion from the side of the defence that the informant and the Investigating Officer PW 13 had any enmity with or grudge against the accused persons for which they were falsely implicated in this case. The only suggestion given to the prosecution witness is that the accused persons were falsely implicated by the informant for his personal gain in his service. Rana Madbar vs State 51 DLR 499
Section 103—The Court should not take too rigid a view regarding the provisions of section 103 of the Code. In the absence of any cogent reason to disbelieve the members of law enforcing agency, the Court is competent to convict the accused relying on their testimony without being corroborated by the local seizure list witnesses. Kashem vs State 54 DLR 212.
Section 103—Search for and seizure of incriminating articles without strictly complying with the requirement of section 103 of the Code of Criminal Procedure cannot be held legal. This principle of law is applicable in the instant case. A Wahab vs State 60 DLR 34.
Section 103—There is no legal bar to convict and sentence the accused under Arms Act mainly on the evidence of Police personnel if there appears no falsehood in their evidence. We do not find any bar to convict the accused Mohiuddin on the basis of unimpeachable evidence of the Police witnesses who made the search and seizure. This view finds support in the case of Nurul Islam vs State report in 1988 BLD 106. Mohin Uddin vs State 61 DLR 35.
Section 103—There is no legal bar to convict the accused under Special Power Act mainly on the evidence of police personnel if there appears no falsehood in their evidence. Thus there is no bar to convict the accused Yunus Ali and Shawkat on the basis of unimpeachable evidence of the police witnesses who made the search and prepared the seizure list. Yunus Ali vs State 61 DLR 793.
Section 103-If a person makes a confessional statement to a police officer which led to the discovery of the article or leads the police to the place where it is lying, and the police officer seizes contraband article on compliance of procedures contained in section 103 of the Code, and if such officer proves to the satisfaction of the Court the seizure of the article and the prosecution examines the attesting seizure list witnesses in Court, and proves their signatures in the seizure list, whether or not the attesting seizure list witnesses support the prosecution case, the Court may infer a presumption in favour of the prosecution that the police officer or other officer conducting the search and seizure has acted in an official capacity, that the act of the officer in seizing the articles has been done regularly in discharge of his public duties and that the attesting seizure list witnesses are making obliging statements for fear of reprisal. Rabiya Khatun vs State 58 DLR 458.
Sections 103 & 165—Since the arms were recovered at the instance of the accused, no search was necessary, invoking the application of the provisions provided in law for carrying out a search. No question of following the provisions of sections 103 and 165 of the Criminal Procedure Code and section 25 of the Arms Act therefore arises. Kamruzzaman vs State 47 DLR 416.
Section 103(1)—Search was done on 24-1-2007 whereas the seizure list was made on 31-1-2007 after seven days of the search which clearly proves that the action of the respondent is a malafide which is clear misuse of power and the same should be interfered with by this Court. Insab Au vs Magistrate, Abu Zafar, Jessore 63 DLR 290.
Section 103(1) & (2)—The provision relating to search and seizure provided in subsections (1) and (2) of section 103 of the Code of Criminal procedure are mandatory and any search and seizure without strictly complying with the aforesaid provisions must be deemed to be illegal. Habibur Rahman alias Jane Alam vs State 47 DLR 323.
Section 107—Conspiracy—Its meaning— This word is not defined in the Ain, 1995. The ordinary meaning of the word abetment and also the definition thereof in section 107 of the Penal Code can be taken as a guideline, according to which abetment includes conspiracy or instigation, and also aid to an illegal act or omission. State vs Shahidul Islam alias Shahid 58 DLR 545
Section 144—Status quo is not contemplated in a proceeding under section 144 CrPC. Nazibul Islam vs Dr Amanullah 40 DLR 94.
Section 144—A Magistrate has no jurisdiction under section 144 CrPC to issue notice upon the parties to file written statement before him showing cause by a certain date. Nazibul Islam vs Dr Amanullah 40 DLR 94.
Sections 144 and 145(4)-The instant case is not one of conversion from section 144 to 145 CrPC. By the impugned order the application under section 144 CrPC was disposed of and a proceeding was drawn under section 145 CrPC being satisfied as to the apprehension of serious breach of peace. Nazibul Islam vs Dr Amanullah & the State 40 DLR 94.
Section 145-A proceeding under section 145 CrPC is not a criminal matter. As to proceedings under section 145 CrPC it is erroneous to designate the complainant as an informant, having regard to the provisions of that section. Once an information is brought to the notice of the Magistrate he has to be satisfied that a dispute as to immovable property is likely to cause a breach of the peace. Further proceedings which he starts are not proceedings in the interest of any private party but in the interest of public peace. (See Babu vs Shyam, ILR 1950 All 543). It is, therefore, highly doubtful if a proceeding under section 145 CrPC can properly be termed as a “criminal matter”. Jobeda Khatun vs Momtoz Begum 45 DLR (AD) 31.
Section 145—Bid money—When it cannot be forfeited—Receiver appointed by the Magistrate being an agent of the Court can attach any condition to the auction held for leasing out the attached property. But in the absence of any such condition attached by him or the Magistrate the part of the bid money deposited cannot be forfeited on the bidder’s failure to deposit the balance money, though the bid can be cancelled and fresh auction held. Amir Hossain Farhad vs DrA Mannan 44 DLR 401.
Section 145—Under section 145 CrPC the Court deals with the limited scope of finding possession. Haji Golam Hossain vs Abdur Rahman Munshi. 40 DLR (AD) 196.
Section 145—A Magistrate making an inquiry under section 145 CrPC is to decide the fact of ‘actual possession’ without reference to the merits or the claims of any of the parties of a right to possess the subject of dispute. Aminul Islam vs Mujibar Rahman 44 DLR (AD) 56.
Section 145-Jurisdiction of Magistrate acting under sub-section (1) does not cease until and unless the proceeding is either cancelled under sub-section (5) or is finally disposed of under sub-section (6).
Exercise of power under sub-section (5) not dependent upon the result of inquiry under sub section (4).
The jurisdiction once validly acquired by the Magistrate acting under sub-section (1) of section 145 of the Code of Criminal Procedure does not cease until and unless the said proceeding drawn under sub-section (1) is cancelled under subsection (5) or the subject-matter of the proceeding is finally disposed of under sub-section (6) declaring a party to be entitled to possession thereof. At any stage of the proceeding the Magistrate may come to the conclusion that there is no longer any case for continuing the inquiry.
The exercise of power under sub-section (5) is not dependent upon the result of inquiry under sub-section (4). Moslemuddin Dhali vs Helaluddin Dhali 41 DLR 120.
Section 145-Right to show that no dispute exists or existed—in moving for cancellation for preliminary order a party has liberty to produce evidence—What is evidence depends upon the facts and circumstances of each case—Single piece of paper may prove to the satisfaction of the magistrate that a dispute exists or existed or that there is no apprehension of breach of peace. Moslemuddin Dhali vs Helaluddin Dhali 41 DLR 120.
Section 145—The High Court Division should not interfere with the finding of possession passed by the Magistrate on proper evidence unless the finding is perverse. Soleman vs Ahbarek Khalfa 46 DLR 298.
Section 145-Court’s concern in a proceeding under this section—The basic condition for a proceeding under section 145 of the Code of Criminal Procedure is the existence of a dispute regarding any land, etc, between the rival claimants. The concern of the Court in such a proceeding will therefore be the factum of possession of either claimant at the relevant time and also whether there is any apprehension of breach of peace regarding the possession of the parties and not title or other incidental rights. Abdul Jabbar vs Azizul Haque 46 DLR 416.
Section 145—A Magistrate’s satisfaction while exercising jurisdiction under this section cannot be presumed extrinsic to his order, it must be gathered from the express statements made in the order. Abdul Quddus vs State and Md Mobarak Hossain Ratan 47 DLR 506.
Section 145—Filing of case under section 145 of the Code of Criminal Procedure during pendency of a civil suit between the same parties cannot be said to be proper.
A party to a civil suit, if threatened in his possession, can seek remedy from the civil Court and should not seek such remedy from a criminal Court as civil Court if final arbiter of land disputes. Serajul Islam vs Faziul Haque 47 DLR 480.
Section 145—Dispute of ownership was beyond the scope of determination in a proceeding under section 145 of the Code. Shah Gauhar Jamil Palash vs Shah Md Mansur 57 DLR 298.
Section 145—It is the dispute relating to possession that was for a Magistrate to consider in a proceeding under section 145 of the Code. Shah Gauhar Jamil Palash vs Shah Md Mansur 57 DLR 298.
Section 145—Since appellate Court is in seisin of the matter after a decree of the Court in favour of 2nd party the Magistrate’s power under section 145 CrPC is not available. Abdur Rahman Sikder (Md) vs Nur Mohammad Khan. 57 DLR 239.
Sections 145—In a proceedings under section 145 of the Code the Magistrate is required to decide which of the contending parties was in possession of the disputed property on the date of drawing up of the proceedings or whether two months next before such date on the basis of evidence of possession and not to decide which of the parties has lawful claim of possession therein on the basis of document of title. Shebait Mohanta Sree Kedar Nath Achari vs Sree Khitish Chandra Bhattacharya 52 DLR 176.
Sections 145, 439A and 537—Though the Sessions Judge prematurely intervened, he has passed the order correctly and legally and any irregularity as pointed out is curable by the provisions in section 537 CrPC. Shah Gauhar Jamil Palash vs Shah Md Mansur 57 DLR 298.
Sections 145, 439A and 561A—The revisional jurisdiction at the instance of the second party respondents under section 561A of the Code of Criminal Procedure does not lie as it is a device of invoking a second revision under the garb of an application under section 561A of the Code of Criminal Procedure which is not maintainable. Shamsuddin alias Shamsuddoha vs Mvi Amjad All 56 DLR (AD) 59.
Sections 145 & 146—Dispute as to possession of land—Attachment to continue until civil Court’s decision on title—The parties are litigating their title, as also possession in a Title Suit. It is for them to raise all the questions therein. All comments, observations and findings of the Magistrate in the proceedings under section 145 CrPC and of the High Court Division while disposing of the application under section 561A CrPC with regard to the title and possession of the disputed property (the subject matter of the proceeding under section 145 CrPC) will be ignored by the civil Court while deciding the title suit. It will be fit and proper, in the facts and circumstances of the case, to keep the Magistrate’s order directing the receiver to hand over possession of the case land to the 1st party of section 145 proceeding in abeyance for .the present and it is so ordered. It is further ordered that pending disposal of the title suit the disputed land will remain under attachment and the 1st party is to hand over possession thereof to the receiver. On receipt of judgment in the title suit, the Magistrate shall dispose of the proceeding before him in conformity with the decision of the civil Court. Samirun Nessa vs Kamaluddin 43 DLR (AD) 175.
Sections 145 & 146—Sections 145 and 146 of the Code of Criminal Procedure should be read together as they provide a composite provision to meet a situation as aforesaid. The scheme is that once a proceeding has begun with preliminary order it must be followed by attachment of the property, appointment of a receiver and final determination of right and title by the civil Court.
Unfortunately this aspect of the case was not taken into consideration by the Revisional Court which has resulted in failure of justice. The Courts below have travelled beyond their jurisdiction in finding title of the parties which is not their business but the business of the civil Court. The impugned order accordingly needs to be modified by way of keeping properties in custody of the receiver till such time as the parties decide their respective title in a civil Court in accordance with section 146 of the Code of Criminal Procedure. Abdul Jabbar vs Azizul Haque 46 DLR 416.
Sections 145 & 146—When the receiver is a police officer he could not be dispossessed from the disputed property since he has authority to arrest anyone and send him to jail and also prosecute him for committing a cognizable offence or for violating law and order. Abdul Karim vs Gousddin 51 DLR 259.
Sections 145 & 146-The Magistrate is duty bound as the custodian of the disputed property to take over possession of the same from the 2nd party who is bound by the decree of the civil Court and to make over the same to the first partv. Abdul Karim vs Gousddin 51 DLR 259.
Sections 145 and 146-The Criminal Court exercising the limited summary jurisdiction could regulate the possession of the disputed property. On the failure of the learned Magistrate to ascertain factum of possession in favour of either party direct the parties under section 146 of the Code of Criminal Procedure to go to the Court of competent civil jurisdiction. Shamsuddin vs Mvi AmjadAli 56 DLR (AD) 59.
Sections 145 & 146—Order under section 146 could have been passed only after being satisfied on evidence in the proceeding under section 145 of the Code of Criminal Procedure that neither party could prove his possession in the subject matter of the proceeding and therefore the order passed by the learned magistrate was misconceived and beyond the authority under section 146 of the Code of Criminal Procedure. Bangladesh Co-operative Book Society Ltd vs Md Dastagirul Huq 61 DLR (AD) 62.
Sections 145 and 146(1)—The purpose of the proceeding under section 145 CrPC is to find out the possession of the property. Haji Golam Hossain vs Abdur Rahman Munshi 40 DLR (AD) 196.
Sections 145 and 561A—As the order of the Civil Court was passed earlier there could not be any proceeding under section 145 of the Code of Criminal Procedure in respect of that property. Abdul Alim vs State 53 DLR (AD) 64.
Sections 145 and 561A—As the order of the civil court was passed earlier regarding possession of the property, there cannot be any proceeding under section 145 of the Code of Criminal Procedure in respect of the same property. Abdul Alim vs State 52 DLR 616.
Sections 145 and 164—A statement of witness is not legally acceptable evidence to prove or disprove any accusation, particularly when the witness herself is available in the court to depose about the occurrence. Alam vs State 54 DLR 298.
Sections 145 & 561A––Though two civil suits, instituted before the drawing up of the proceeding under section 145 CrPC, are pending, the civil Court has not passed any order regulating possession of the case land, nor a decree for possession or permanent injunction has been granted. In this view of the matter, the jurisdiction of the Magistrate to act under section 145 CrPC is not ousted. Mozaffar Ahmed vs State 49 DLR 485.
Sections 145 & 561A—When the Civil Court is already seized with the question of regulating possession of the land between the same parties, the Magistrate acted without jurisdiction in initiating the impugned proceeding under section 145 CrPC. Abul Bashar vs Hasanuddin Ahmed 51 DLR (AD) 14.
Sections 145 & 561A—When the Civil Court is already seized with the question of regulating possession of the land between the same parties the Magistrate acted without jurisdiction in initiating the proceeding under section 145 CrPC. Abdul Majid Mondal vs State 51 DLR 287.
Section 145(1)—Grounds of satisfaction not stated in the preliminary order—Additional Sessions Judge could inquire whether there were materials on record for such satisfaction and come to a conclusion that the same was not based on materials. Moslem uddin Dhali vs Helaluddin Dhali 41 DLR 120.
Section 145(1)(5)—Subjective satisfaction in passing order under sub-section (1) but not when moved under sub-section 5.
When a Magistrate passes a preliminary order under sub-section (1), he has to exercise a subjective satisfaction with regard to the apprehension of breach of peace. But when he decides to cancel or not to cancel the preliminary order on being moved under sub-section (5), his satisfaction is no longer subjective.
Decision under sub-section (5) is subject to scrutiny on a wider ground than in an order under sub-section (1). This subsequent decision under sub-section (5) is subject to scrutiny by the revisional Court on a wider ground than the Magistrate’s order passed under sub-section (1). Order under sub-section (5) based on objective satisfaction—open to wider challenge on revision. But an order passed under sub-section (5) is based on objective satisfaction and it is open to wider challenge before the revisional Court. Moslemuddin Dhali vs Helaluddin Dhali 41 DLR 120.
Section 145(4) & 561A—When an order of attachment and appointment of receiver was legally made by the Magistrate to prevent serious apprehension of immediate breach of peace, such order is to be restored by setting aside the order of Sessions Judge who illegally set aside the order of the Magistrate in exercise of inherent jurisdiction of High Court Division for securing ends of justice. Alauddin vs State 58 DLR 364.
Section 145(4)—Power in section (4) of section 145 CrPC is an extraordinary power to be exercised in a case of emergency and should not be resorted to as a matter of routine—No apprehension of breach of peace and parties being in joint possession, the order is to be vacated. Gura Miah vs Fazar Ali 42 DLR 70.
Section 145(4)—Before passing any order under sub-section (4) the Court is required to enquire as regards the fact of actual possession of evidence to be adduced by the parties and if the Magistrate does not comply with this mandatory requirement then ex fade the order must be held to be adduced by the parties and if the Magistrate does not comply with this mandatory requirement then ex facie the order must be held to be illegal as in the instant case. Abdul Quddus vs State and Md Mobarak Hussain Ratan 47 DLR 506.
Section 145(5)—Magistrate came to the conclusion that there is apprehension of breach of peace on the basis of a certain material—In revisional jurisdiction a different view may be taken. The Chief Metropolitan Magistrate by his order dated 12-4-87 came to the conclusion that the posting of Ansars is a further material for coming to a conclusion that there is apprehension of breach of peace. Sitting in the revisional jurisdiction from an order under sub-section (5) the learned Additional Sessions Judge was perfectly entitled to take a different view. Moslemuddin Dhali vs Helaluddin Dhali 41 DLR 120.
Section 146—Court’s concern in a proceeding under this section—The basic condition for a proceeding under section 145 of the Code of Criminal Procedure is the existence of a dispute regarding any land, etc. between the trial claimants. The concern of the Court in such a proceeding will therefore be the factum of possession of either claimant at the relevant time and also whether there is any apprehension of breach of peace regarding the possession of the parties and not title or other incidental rights. Abdul Jabbar vs Azizul Haque 46 DLR 416.
Section 147—Removal of obstruction—If the Magistrate, after recording evidence, finds merit in the case, he will pass orders prohibiting interference with the right of using the disputed land as the 1st Party’s pathway. In passing such order the Magistrate has sufficient jurisdiction to pass ancillary orders so as to make his order of prohibition effective and, if necessary, to pass orders for removal of any obstruction in the pathway. Farhad Hossain vs Mainuddin Hossain Chowdhury 46 DLR 127.
Section 154—FIR—delay——The Court has always viewed First Information Report with grave suspicion when there had been unexplained delay in lodging it. It can be presumed that the delay was used for manipulation of the prosecution story. Abdul Latif vs State 44 DLR 492.
Section 154—FIR does not contain detailed facts of the prosecution case. Its main purpose is to give information of a cognizable offence to the public and set the law in action. Ataur Rahman vs State 43 DLR 87.
Section 154—FIR—Effect of departure from FIR story—where the prosecution has a definite case, it must prove the whole of it; partial departure from the prosecution case affects credibility of the witnesses and complete departure makes their testimony to be entirely discarded. Gopal Rajgor vs State 42 DLR 446.
Section 154-A FIR may be lodged by any person for, it is meant just to set the machinery of law in action. Shah Alam vs State 42 DLR (AD) 31.
Section 154—Where FIR does not contain an important statement deposed to by the witnesses, it is clear that there has been subsequent embellishment of the prosecution case which makes it untrustworthy. Nazrul Islam vs State 45 DLR 142.
Section 154—FIR can be used only to corroborate or contradict the maker thereof. There is neither any law nor any principle on the basis of which the testimony of another witness can be ignored or rejected, because the informant had made an omission to mention about the fact which the witness stated in his deposition. State vs Abdus Sattar 43 DLR (AD) 44.
Section 154-The first information report is not a substantive piece of evidence and can be used only for the purpose of corroborating or contradicting the matter thereof, but its value lies in being the earliest version of the prosecution story. Seraj Miah vs State 49 DLR 192.
Section 154––The first information report is not a substantive piece of evidence but it can be used to corroborate the informant or to contradict him. It cannot be used to contradict the evidence of any witness other than the informant. The Court is, of course, entitled to note the conflict between the first recorded version of the prosecution case and the case made out in the course of the trial. State vs Tajul Islam 48 DLR 305.
Section 154-The First Information cannot be treated as the first and the last word of a prosecution case—Weight is to be give to the legal evidence adduced by a witness before the Court at the time of trial. Al Amin vs State 51 DLR 154.
Section 154-When the First Information Report is lodged within minimum possible time, such First Information Report story should not be disbelieved only because of any somersault on the part of the informant.
We have already found that for saving his full brother, the informant suppressed the truth at the time of deposing in the Court and, as such, we are of the view that in this case before us conviction may be given on the basis of the statement made in the First Information Report and on the basis of the evidence of the witnesses who corroborated the First Information Report story. Khorshed vs State 51 DLR 317.
Section 154—The filing of the first information report by the victim’s father that she died after taking poison was no bar to file a second first information report if subsequently it transpires that the death was homicidal in nature. Abdul Khaleque vs State 53 DLR (AD) 102.
Section 154—Publication of a report in a news-paper about commission of a cognizable offence against a particular person is not “information” within the meaning of section 154. Mohammod Hossain, Advocate vs Quamrul Islam Siddique 54 DLR 88.
Section 154—The first information report is a matter of special importance when its maker died shortly after he made it. The FIR is clearly admissible in evidence. This may also be treated as a dying declaration in view of the fact that victim himself dictated the ejahar at a time when his condition was really critical. State vs Rashid Ahmed & others 54 DLR 333.
Section 154—There could not be any second first information report and there could not be any investigation on the strength of such a first information report. Kazi Mahbubuddin Ahmed alias Mahbub vs State, represented by the DC, Dhaka 57DLR 513.
Section 154—The entire period of trial is to be calculated on the basis of the concerned Judge’s working days. On 5 occasions the concerned judge was on leave which are to be excluded from the period of trial. Such period excluded, this case is not hit by section 10 of the said Act., This aspect has not also been raised during the trial before the Judge to count his working days as contemplated in section 10 of Act. State vs Naimul Islam 60 DLR 481.
Section 154-FIR—Delay—Mere delay in lodging a case is not a ground for disbelieving a prosecution case, for there are various circumstances in which lodging any case as to the commission of offence may be delayed. (Per SK Sinha J) Major BazIul Huda vs State 62 DLR (AD) 1.
Section 154-Words ‘মামলা দায়ের’ means institution of a case by submission of a charge- sheet by an officer of the Commission, before the concerned Court and certainly not an first information report as envisaged under section 154 of the Code of Criminal Procedure or a complaint (অভিযোগ) as envisaged under Rule 3 and 4 of the Rules.
The irresistible conclusion is that no sanction will be required to file a complaint (অভিযোগ) either with the Commission or with the police. But sanction from the Commission shall be required both under the unamended and the amended section 32, before institution of a case (মামলা দায়েরের ক্ষেত্রে) in the concerned Court. Anti- Corruption Commission vs Dr Mohiuddin Khan Alamgir 62 DLR (AD) 290.
Sections 154 and 157—‘Information’— News-paper Report—The use of the word ‘information’ in section 157 normally means the information received under section 154 of the Code. In section 157, besides using the word ‘information,’ the expression ‘or otherwise’ has also been used. This cannot empower a police officer to start investigation on the basis of a report published in a news-paper. Mohammod Hossain, Advocate vs Quamrul Islam Siddique 54 DLR 88.
Sections 154 and 157—Receipt of information is not a condition precedent for investigation—The officer-in-charge of a police station can start investigation either on “information” or “otherwise”. Saifuzzaman vs State 56 DLR 324.
Sections 154, 156 & 157—If an officer-in-charge of a police station does not investigate a case, some reasons must be recorded and with such reasons he should notify the informant that he would not investigate into the case. Yasmin Sultana vs Bangladesh 54 DLR 269.
Sections 154, 156 & 157—An officer-in-charge of a police station is legally bound to reduce an information of cognizable offence into a first information report and to start investigation into the case. Yasmin Sultana vs Bangladesh 54 DLR 269.
Sections 154 & 161—The GD Entry being the earliest in point of time containing facts of the murder though not signed by the informant was in fact the First Information Report and the information recorded by the police later on the basis of statement of PW 1 could at best be treated as one under section 161 CrPC. Shahjahan vs State 46 DLR 575.
Sections 154 and 161—The information of commission of a cognisable offence earliest in point of time, on the basis of which law was already set in motion, is the first information report within the meaning of section 154 of the Code and the first information report lodged later on during investigation is a statement of PW 1 under section 161 of the Code and, as such, it is inadmissible. State vs Al Hasib Bin Jamal 59 DLR 653.
Sections 154 & 161—The written information that was handed over by PW Ito the SI (PW 12) of the Sonargaon PS and Investigating Officer at 19-45 hours of 4th March, 1987 and on receipt whereof PW 12 started Sonargaon PS.Case No. 2 dated 4th March, 1987, is in the eye of law not a FIR but a statement in writing by PW 1, whoh heard from PW 2 about the incident, to the Investigating Officer, subsequent to commencement of the investigation and, as such, the same is a statement under section 161 of the CrPC (38 DLR (AD) 311). Ansar (Md) Chan Mia vs State 53 DLR (AD) 115.
Sections 154, 161 & 162—First Information Report is an accusation, an information relating to the commission of cognisable offence reported to the Police by any person with the object of putting the Police in motion in order to investigate. Nure Alam vs State 54 DLR 242.
Sections 154 & 162—The document exhibited as FIR in the case should not be treated as an FIR for the reason that an information as to the murder was lodged earlier and there was a GD Entry thereon, but the same had not been produced. Akhtar Hossain vs State 44 DLR 83.
Section 155—A police officer is not to investigate into a non-cognizable case under section 155 CrPC without the order of a Magistrate of the first or second class. Under the l4w when the police has a report of a non-cognizable offence he is bound to refer the informant to the Magistrate for initiating the process of investigation. Aroj Ali Sarder vs State 41 DLR 306.
Sections 155, 190 & 195-There is nothing in the law to prevent a police officer from making a complaint when some facts come to his knowledge even if he cannot investigate them. Abul Hossain vs State 55 DLR (AD) 125.
Sections 155, 190 & 537—Non cognizable offence—Mere irregularity like investigation by an officer not authorised to investigate a non – cognizable offence does not affect the legality of a proceeding of a Court below Investigation by a police officer in the instant case is an antecedent proceeding. It is neither the foundation stone nor a prerequisite of the proceeding nor a sine qua non of a valid trial in the Court. It is difficult for us to see why such an irregularity, i.e. investigation by an officer not authorised, should affect the proceeding in a Court or prevent the Court from taking cognizance of a non-cognizable offence under clause (a) or (b) of section 190(1) of the Code of Criminal Procedure in the absence of a clear enactment, expressed or implied preventing the Court from doing so. Golam Moula Master vs State 46 DLR 140.
Section 155(2)—There is no legal bar on the part of the police officer receiving an information about a non-cognizable offence in recording the same in the general diary and obtaining permission from a competent Magistrate to investigate into the case. Nasiruddin Kazi vs Aleya Khatun alias Fulu 48 DLR 216.
Section 155(2)—Without complying with the provisions of section 155(2) of the Code the police held investigation of the non-GR case. The subsequent taking of cognizance by the Magistrate is certainly an abuse of the process of the Court. Mohiuddin Ahmed vs State 63 DLR 564
Section 155(2), 241A—The matter should be sent back to the Magistrate for hearing specifically on the point whether the investigation can be proceeded and police report can be submitted under section 509 Penal Code without the permission of the Magistrate. Abul Hossain vs State 53 DLR 402.
Sections 156(3) & 200—There is nothing wrong in the procedure adopted by the Magistrate directing the police to hold investigation treating the petition of complaint as a First Information Report Cases reported in 6 DLR (WP) 205 and 54 Cal 305 are not applicable in the facts of the present case. Yakub Ali vs State 47 DLR (AD) 94.
Sections 156(3) & 190(1)-The prayer made by the accused for holding further investigation against some other persons is, in fact, a prayer cancelling the charge-sheet filed against them. This is nothing but an indirect way of reopening the case by making reinvestigation but there is no provision of law for cancelling the charge-sheet once filed against some accused and accepted by the Magistrate. Sukhil Kumar Sarkar vs Kazi Wazed All @ Subed 47 DLR 252.
Section 157—First Information Report— FIR cannot be substituted for evidence given on oath and when there is no other evidence the facts mentioned in the information could not be relied upon as proof of the offence alleged. Babul vs State 42 DLR (AD) 186.
Section 160—Since there is no reference as to any investigation or inquiry in the notice issued by the police officer asking the petitioner to produce documents the same has been issued in an unauthorised manner. Mohsin Hossain vs Bangladesh 49 DLR 112.