Code of Criminal Procedure, 1898
Schedule II Column 4—
Relating to the offences against other laws column 4 of Schedule II of the Code provides that warrant of arrest shall be issued in the first instance against the accused persons if the offence is punishable with imprisonment for not less than two years and not more than five years. Since the offence under section 17 punishable under section 24 of the Securities and Exchange Ordinance entails imprisonment upto five years, no illegality was committed by CMM in passing an order of issuance of warrant of arrest against the accused persons.
Shainpukur Holding Ltd vs Security Exchange Commission 3 BLC 148.
Section 4(h)—
The word “report” in section 25 of the Securities and Exchange Ordinance 1969 instead of the word “complaint” signifies that cognizance of an offence under this Ordinance can be taken on the basis of a report and not on the basis of a “complaint” as defined in section 4(h) of the Code.
Shainpukur Holding Ltd vs Security Exchange Commission 3 BLC 148.
Section 4(p)—
The combined effect of section 4(p) of the Code and the Police Regulation No.207(c) is that when the officer-in-charge of a police station is absent from the police station or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer can assume charge of the police station to exercise any of the
functions of the officer-in-charge of that police station. So, there is no illegality in referring the investigation to the Inspector of the Detective Branch of the Police by the Sub-Inspector of Ramna Police Station who was present at the police station at the relevant time.
Kazi Jawaherul Islam vs Sayedur Rahman 2 BLC 514
Sections 4(1)(1) and 160—
In the absence of any investigation or enquiry of a criminal case a police officer ncannot direct a person to appear before him.
Mohsin Hossain (Md) vs Government of the People’s Republic of Bangladesh and others 2 BLC 44
Sections 5(2) and 561A—
In the absence of any. provision as to in which court the offence under মাদক দ্রব্য নিয়ন্ত্রণ আইন 1990 are triable the provisions of section 5(2), CrPC will apply and the trial should be held in the Court as mentioned in the second schedule to the Code of
Criminal Procedure under the heading “offences against other laws”. As the punishment has provided for the offences under section 19(1), 6(Kha), 22(Ga)and 25 of the Am of 1990 exceeds imprisonment for more than 5 years, the offences are only triable by the Court of Session and the contention that the case is not triable by the Court of Session is not sustainable and the
proceedings are not liable to be quashed.
Arjun Saha and ors vs State 5 BLC 416
Sections 10 & 13—
Under the Code of Criminal Procedure, Sessions Courts are functionally and institutionally separate from the executive organ but the magistrates are members of the administrative service being controlled by the District Magistrate who is also the Deputy Commissioner and controller of the District i.e. top of the administrative head of district but for implementation of the
provisions of Articles 115 and 116 of the Constitution Magistrates performing judicial functions must be separated from administrative Magistrates and brought under the control of the Sessions Judge and through him of the Supreme Court for which the Code of Criminal Procedure is required to be amended immediately. [Appeal allowed in part, see 52 DLR (AD) 82]
Masdar Hossain (Md,) and 440 others vs Bangladesh, through the Ministry of Law and Justice, Government of the People Republic of Bangladesh and others 2 BLC 444.
Section 21—
It appears from section 21 of CrPC beyond shadow of any doubt that the functions performed by the CMM, Dhaka are mainly judicial functions and of course he performs some administrative works incidentally. Admittedly, the Supreme Court has not been consulted by the President in appointing the respondent No. 1 as CMM, Dhaka and such consultation contemplated in Article 116 of the
Constitution is mandatory and not directory and the consultation means an
effective consultation and the President is under legal obligation to consult
with the Supreme Court in appointing, giving promotion, granting leave and
taking disciplinary actions against any Magistrate including CMM in question
exercising judicial functions which having not been done by the President, the
appointment of CMM is ex facie not lawful and violative of Article 116 of the
Constitution.
Idrisur
Rahman vs Shahidullah Ahmed and others 4 BLC 304
Section 28—
In
view of the provisions of section 28 CrPC both the High Court Division and the
Court of Session have concurrent jurisdiction to try any offence including the
offence under section 363 of the Penal Code which is now made triable by a
Magistrate, First Class by an Ordinance and if there is any error or
irregularity in the trial of such case it is curable under section 537 CrPC and
the Sessions Judge has certainly the powers and jurisdiction to try the case and
to reduce the charge under section 366A of the Penal Code to a charge under
section 363 of the Penal Code but as the prosecution has failed to prove the
case the appellants are acquitted.
Abdul
Mannan and others vs State 2 BLC 1
Sections 28 and 537—
Sessions
Judge is not competent to try the offence under sections 363 of the Penal Code
on the strength of section 28, CrPC because after amendment of column 8 of
Schedule II, CrPC read with section 29(2), CrPC the jurisdiction of Sessions
Judge has been excluded by substitution and the amendment being the last
expression of the will of the Law makers will be given effect to and section
537, CrPC cannot cure the want of jurisdiction and there is no evidence that
the appellants have committed the offence charged. [Per AM Mahmudur Rahman J]
Abdul
Mannan alias A Manna alias Mana & ors vs State 1 BLC 589.
Sections 51 and 103—
While
executing a warrant of arrest the police after securing the arrest the search
was conducted upon the appellant which is permitted by the provision of section
51 CrPC for which the submission that the search and the seizure had not been
conducted in presence of two respectable inhabitants of the locality is not
acceptable.
Sukkur
Ali Kha vs State 3 BLC 206
Sections 61 & 167—
A
combined reading of sections 61 and 167, CrPC shows that 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 shall 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 Magistrate.
Shaharul
Islam alias Green vs State 1 BLC 524
Section 77—
Execution
of warrant of prosecution witnesses—The learned Special Tribunal has to be
satisfied that in spite of execution of warrants of arrest the prosecution
witnesses defaulted in appearing before the Tribunal and mere issuance of
warrants of arrest against the prosecution witnesses is not enough. Conclusion
of the trial and the pronouncement of the judgment without exhausting all steps
required to be taken by the learned Special Tribunal for the examination of the
prosecution witnesses for the purpose of unveiling the truth is not at all
warranted in law.
Manik
(Md) vs Chand Mian Sarder and others 4 BLC 152
Section 80—
Section
4 of the Special Powers Act, 1974 reading with section 80 of the Code of
Criminal Procedure leave no room for doubt that an order of detention passed
under section 3 of the Special Powers Act, 1984 must be served on the detenu.
MA
Hashem vs Government of Bangladesh and ors 1 BLC 5
Sections 87 and 88—
The
provisions of sections 87 and 88 CrPC are mandatory and the summons/process
having been served properly upon the appellant for which the submission on
behalf of the appellant in this respect has got no substance and it cannot be
challenged in this forum.
Samiul
Haider alias Kuib vs State 3 BLC 437
Section 94—
As
there is a specific information in respect of alleged defalcation of Taka 30 crore by several importers in
collusion with Bank officials and also a reference to the fact that the Bank’s
own investigation has revealed that there has been a defalcation, the Sessions
Judge, on an application filed by a Police Officer or an Anti-Corruption
officer, after being satisfied can accord permission for production and seizure
of Bank’s document for the purpose of enquiry into the alleged crime in the
absence of any formal case.
Hamidia
Oil Mills vs District Anti-Corruption Officer, Chittagong and another 2 BLC
(AD) 78
Sections 94 and 160—
An
Officer of the Anti-Corruption Department can exercise power under section 94,
CrPC while making an enquiry on receipt of complaint and that the offences
which are included in the schedule are not confined to public servant which are
liable to be committed by any person and hence an Officer of Bureau of
Anti-Corruption can exercise power under sections 94 and 160 of the Code of
Criminal Procedure against private persons and that the enquiry being of a
preliminary nature the statement or documents produced by the petitioners will
not lead to their conviction and punishment and a person cannot seek the
protection of Article 35(4) of the Constitution when a notice is sent by the
Bureau of Anti-Corruption under sections 94 and 160, CrPC when section 3 of
Anti- Corruption Act has empowered an Officer of Bureau of Anti-Corruption to
serve notice under sections 94 and 160 of the Code of Criminal Procedure only
for the purpose of enquiry to determine the truth of the information received.
Gaisuddin-al
Matnum and 12 others vs DG, Bureau of Anti- Corruption and others 5 BLC 134.
Sections 94 and 476—
When
the document is still Tying in the custody of the Court in a proceeding of
Civil suit and the claim of the present petitioner is based on the pattanama in
question although it has not been used or given in evidence, the District Judge
cannot exercise its power in according permission to the Anti-Corruption
Inspector to seize the document in question and consequently the enquiry
proceeding started by the District Anti -Corruption Officer is without
jurisdiction which is liable to be quashed.
Monowar
islam alias Monu is State and others 4 BLC 376.
Section 103—
The
seizure list witnesses were declared hostile and the prosecution cross-examined
them but the PWs 1 and 5 have proved that the appellants were apprehended from
the truck at about midnight along with the contraband articles but the defence
failed to challenge such facts and the seized articles were of Indian origin
and as such there is nothing to disbelieve the prosecution case.
Hasanuzzaman
and others vs State 1 BLC 219
Section 103—
The
provision of section 103 of the Code is meant to safeguard against planting of
incriminating material or removal of any such material at the time of seizure.
Although respectable neighbouring witnesses were not called at the time of
recovery and seizure of different articles from the house of the accused and
consequent upon noncompliance of section 103, CrPC, no prejudice has been
caused to the accused as the alleged removal of the knife was impossible
because of the presence of the father and inmate of the house Of the accused.
State
vs Munir and another 1 BLC 345
Section 103—
When
all the PWs are members of the police force and are interested in the result of
the case where corroboration on some facts with one another, if any, cannot be
accepted as independent corroboration as required under law to prove the charge
beyond doubt when no independent impartial disinterested neighbour witnesses as
required under section 103 of the Code of Criminal Procedure could be examined
to prove the recovery and seizure list, the prosecution has miserably failed to
prove beyond all reasonable doubt the recovery and seizure of the seized
articles and hence the appellants are entitled to get acquitted.
Jewel
and another vs State 5 BLC 248
Section 103—
PW
1, the informant is the sole witness not corroborated by any other independent
witness on the point of seizure and recovery of bomb from the convict and such
testimony cannot be relied on in the absence of corroboration by independent
and unimpeachable evidence as the informant is interested in the result of the
case.
Harun
Bepari (Md) vs State 5 BLC 501
Section 103—
As
there is no iota of evidence on record to show that the informant entered into
the place of occurence hut in presence of any respectable local witness and in
view of this fact alone the defence suggestion that the appellant had been
falsely implicated in the case by one Haji Mokbul Hossain cannot be brushed
aside.
Musa
Miah vs State 5 BLC 703
Sections 103 and 537—
Since
the prosecution has failed to show any hostile animus with the prosecution,
mere declaration of some of the seizure list witnesses and first information
report named witnesses hostile in no way cured the defect of the prosecution
case and the prosecution has hopelessly failed to prove the recovery of the
incriminating articles and hence the persistent evidence of the public
witnesses regarding denial of their presence at the alleged recovery in no way
can be cured by the official witnesses (police personnel) who are none but interested
in this case and in the result the order of conviction and sentence is set
aside.
Aslam
Jahangir vs State 5 BLC 514.
Sections 107, 117, 118 and 145—
The
proper course for the Magistrate is to take action under section 145 of the
Code of Criminal Procedure for deciding the factum of possession of the
contending parties in the disputed property. But under special circumstances
the Magistrate is competent to take action under sections 107 and 117 of the
Code where the dispute relates to possession of immovable property if he is
satisfied that there is imminent apprehension of breach of the peace which
demands an emergent action.
Azhar
Rahman and others vs State and another 5 BLC 383
Section 145—
As
the learned Magistrate while passing the order of attachment and appointment of
a receiver did not state that there was apprehension of imminent danger to life
and also existence of serious breach of peace which is a condition precedent to
pass such orders and hence the learned Sessions Judge committed no illegality
in passing the impugned order.
Haripada
Dev vs Chitta Ranjan Dev and 6 ors 5 BLC 403
Sections 145 and 439—
The
fact of dispossession of the first party having admittedly taken place between
6-1-96 and 11-1-96 and the proceeding under section 145(1), CrPC having been
drawn upon 28-10-96, the learned Metropolitan Magistrate acted illegally and
without jurisdiction in not dropping the proceeding and hence all actions
subsequent thereto are illegal and without jurisdiction.
Abdul
Kashem vs Slate and others 5 BLC 483
Sections 145 and 146—
The
High Court Division rightly held that the concerned Magistrate previously had
considered two reports submitted by the Police on 15-8-92 and 27-4-93 and rejected
the petitioner’s prayer for attachment of the property and appointment of a
receiver. Since thereafter the petitioner could not show any new material for
apprehension of breach of peace or any emergency which necessitated the passing
of the order of attachment of the property in question and appointment of the
receiver for which there is no illegality in the impugned judgment of the High
Court Division.
Jainab
Begum vs Md Abu Taher and another 2 BLC (AD) 153
Sections 145 and 561A—
When
a Civil Court passed an order regulating possession, Criminal Court had no
jurisdiction to draw up any proceeding in respect of the self-same property nor
was there any scope of appointing receiver regarding the same property after
attaching the same and hence the proceeding was illegal and liable to be
quashed.
Amal
Krishna Mondal vs Kumaresh Chandra Mondal 5 BLC 577
Sections 145 and 561A—
Both
the orders are beyond the scope of section 145 CrPC as there is absence of any
satisfaction that a dispute likely to cause a breach of the peace exists and as
such the entire proceeding of the petition case is quashed.
Taizuddin
Miah and 3 others vs Md Abdul Kader & ajiorher 3 BLC 409
Section 154—
Considering
the distinguishing facts, circumstances and the evidence on record the FIR
filed by the wife the deceased can safely be treated as the real FIR relating
to the murder of her husband.
Jahangir
Howlader & another vs State 3 BLC 164
Section 154—
The
FIR was lodged on 24-1-89 by a man of rival group. The wife of the victim
having failed to file the actual case at that time, she had to file a complaint
case on 1-2-89 with explanation of delay therein which was sent by the Court to
the thana on 3-2-89 but it was registered there on 15-2-89 which was also deposed
by the PWs in Court. Sufficient satisfactory explanation was given for the
delay in filing the case.
Jahangir
Howlader & another vs State 3 BLC 164
Section 154—
It
appears that subsequent deviation from the First Information Report story and
the embellishment of the same by the eye-witnesses namely, PWs 1 to 4 at the
trial makes the credibility of the witnesses doubtful.
State
vs Azharul 3 BLC 382.
Section 154—
Prosecution
story hibernates in the FIR in incubation and the same may be unfolded at the subsequent
time during the trial through the process of evidence. Although FIR can be used
as substantive evidence, the same may be taken recourse to only for the purpose
of comparison with the story subsequently developed during trial in order to
bring out the conflict between the prosecution version. Any departure or
deviation from the main story disclosed at the earliest recorded version may be
looked upon with great suspicion. During the trial the prosecution has made a
departure from the mainstream of the prosecution story as stated in the FIR and
introduced an altogether new story of demanding chanda of Taka 5,000.00. First Information
Report is the foundation of the prosecution case and if the foundation is
removed, the whole prosecution shall fall.
Nuruddin
Ahmed Sajal vs State 1 BLC 33
Section 154—
A
First Information Report cannot be used as substantive evidence but it can only
be used to contradict or corroborate its maker and in some circumstances it can
be looked into to assess the whole prosecution case to find out the
embellishment. Sessions Judge due to lack of basic knowledge absolutely upon
misconception of law used the First Information Report as a piece of
substantive evidence and thereby he has committed serious illegality.
Abdus
Subhan vs State 1 BLC 116
Section 154—
As
there was contradiction between the FIR and the deposition of PW 1 as to the
explanation of unusual delay in lodging the FIR it cannot be accepted and it
also made the prosecution case very shaky, doubtful and fatal as the longer the
period of delay, the greater is the suspicion in the prosecution case.
Munsurul
Hossain vs State 1 BLC 421
Section 154—
The
informant first gave her story to the officer-in-charge of Mirpur Police
Station on the next morning following the occurrence when he came to the place
of occurrence on 10-4-9 1 at 7-05 AM and it was signed by her. Then she made a
complaint to the Magistrate on 14-04-91 yet again she made another application
to the Superintendent of Police. The first ejahar to the officer-in-charge of
the police station must be treated as First Information Report. The prosecution
case accordingly is to be understood from this FIR which was made to the police
at the earliest opportunity.
State
vs Md Amir Hossain and others 4 BLC 296
Section 154—
When
the vital piece of information regarding the condemned prisoner was seen
standing and then carrying the victim girl on his shoulder on the bank of the
river was not mentioned in the First Information Report lodged by PW 113 days
after the incident which belies the evidence of PW 3 regarding happening of
such incident and hence the evidence of PWs 1, 3, 4, 5, 8, 9 and 15 cannot be
relied on and hence the prosecution has failed to prove the charge against the
condemned prisoner beyond reasonable doubt and as such he is entitled to get
benefit of doubt and is acquitted.
State
vs Syed Habibur Rahman @ Rocket 4 BLC 545
Section 154—
Before
lodging the First Information Report the informant talked to PW 8 who also
accompanied the informant to the police station but the condemned prisoner
having not been named in the First Information Report the deposition of PW 8 in
Court stating the condemned prisoner as assailant of Kashem when in the First
Information Report he was only suspected which is a departure from the First
Information Report story and as it is embellishment cannot be accepted in this
case for awarding death sentence when the evidence on record both oral and
documentary create doubt about the prosecution case and hence the condemned
prisoner is entitled to get benefit of doubt and accordingly he was acquitted.
State
vs Hasen Ali 4 BLC 582.
Section 154—
Although
PW 8 claims to be an eye-witness of the occurrence and corroborated PWs 1, 2
and 4 but she was not FIR named witness. Had she been at all present at the
time of occurrence and sustained injuries, she would have been named in the FIR
by the informant which made her unreliable witness and her evidence is
discarded.
Babul
Mia and 2 others vs State 5 BLC 197
Section 154—
It
is contended on behalf of the condemned prisoners that the presence of the
accused in Mirpur Police Station on 10-2-94 at 9-05 in the morning when the PW
1 went there for lodging the first information report sufficiently indicates
that the police already rounded up the appellants at the instance of some
vested quarter and implicated the appellants in the case falsely and the first
information report is nothing but a concocted one. It is held that the first
information report is no first information report at all in the eye of law but
a concocted one implicating the appellants falsely.
State
vs Sarowaruddin 5 BLC 451.
Section 154—
As
the informant was sick at the relevant time and there was no other male member
in his family and the informant made search for the deceased persons at the
house of condemned prisoner and since the elder brother, the condemned prisoner
called away his younger sister and nephew, the deceased persons, the informant
had no reason to be worried and in such circumstances the delay of 12 days in
lodging the First Information Report is quite reasonable and satisfactorily
explained which cannot be a ground for disbelieving the prosecution story.
State
vs Jashimuddin @ Jaju Mia 5 BLC 210
Section 154—
As
the place of occurrence is three kilometres off from the police station and
that the informant and his party went to the place of occurrence in a jeep, the
delay of 16 hours in lodging the first information report after the alleged
recovery of incriminating articles is no doubt inordinate and in the absence of
any explanation for such inordinate delay the first information report cannot
be accepted as genuine.
Aslam
Jahangir vs State 5 BLC 514
Sections 154 and 161—
It
is contended on behalf of the condemned prisoner that the First Information
Report cannot be ‘termed as FIR as it was not the earliest version of the
prosecution case as the police started investigation before lodging First
Information Report. If such contention is accepted then the First Information
Report will be treated as statement under section 161, CrPC when there is no
contradiction or omission or embellishment in the deposition of PW 1, there is
no reason to disbelieve the Ext. 1, the First Information Report.
State
vs Romana Begum @ Nomi 5 BLC 33
Sections 154 and 161—
When
the First Information Report says that accused Ramzan Nessa brought a dao from
the dwelling hut and gave it to the condemned prisoner but the informant as PW
1 says in Court that the dao was brought by the condemned prisoner Firoj
himself and the PWs 3, 7 and 9 although deposed in Court that Ramzan Nessa
supplied the dao to Firoj but they did not state the same to Investigating
Officer while they were [[examined under section 161, CrPC and in such circumstances
their evidence on this point was discarded.
State
vs Firoj Miah and another 5 BLC 1.
Sections 154 and 161—
It
is now well settled that vital omissions in the First Information Report and in
the statements to the TO make their substantive evidence unreliable and the
accused appellants are entitled to get the benefit of the same.
State
vs Azharul Islam 3 BLC 382
Sections 154, 161 and 439—
Although
on consideration of evidence of the witnesses it is possible to arrive at a
conclusion different from the one arrived at by the trial Court but the grounds
assigned by the trial Court cannot be termed as manifestly wrong or perverse
and not supportable at all in the prevailing system of administration of
criminal justice in our Courts in which a slight deviation from earlier version
of the time, place and manner of occurrence given in the First Information
Report and statement recorded under section 161, CrPC and in the evidence
before the Court gives rise to reasonable doubt about the correctness of the
prosecution case in the present system benefit of which goes in favour of the
accused.
Ali
Akbar vs State and ors 3 BLC 465
Sections 154 and 200—
A
person is accused of an offence only when an FIR is lodged with the police
station or a petition of complaint is made before the Court.
Mustafizur
Rahman and 3 others vs DG, Anti- Corruption & ors 2 BLC 605
Section 156—
As
the unauthorised firearms and ammunition have been allegedly recovered on
12-10-1996 after search from the petitioner who was not arrested then and there
and that after enquiry the informant had to lodge the FIR after 20 days, the
case as made out by the prosecution and the conduct of the prosecuting agencies
indicate that they are lingering with the investigation for nothing.
Jobaida
Rashid, wfe of Khondaker Abdur Rashid vs State 2 BLC 135
Sections 156(3), 173(3B) and 436—
The
magistrate or the concerned Judge may direct for further investigation on the
application of the informant or the complainant as envisaged under section
156(3) or under section 436 of the Code after considering police report to
avoid inflicting of unnecessary harassment on the innocent persons and also to
help the prosecution to book the real culprits and uphold the cause of justice
otherwise it is very often seen that after a prolonged trial, the offenders are
acquitted because of insufficiency of evidence or on the ground of benefit of
doubt.
State
vs Md Joynal Abedin and others 5 BLC 672
Section 161—
Sessions
Judge fell in error of law in relying on the statements of the witnesses under
section 161 CrPC as evidence in some form or other to prove and support the
prosecution case and thereby has caused a serious miscarriage of justice.
Abdus
Subhan vs State 1 BLC 116
Section 161—
The
first Investigation Officer and the second Investigation Officer examined some
witnesses on different dates for which it cannot be said that the PWs were
examined long after the occurrence.
Mostafa
(Md) vs State 1 BLC 82.
Sections 161 & 162—
Although
PW 2 stated in his evidence that the petitioner had assured his deceased father
that there was no risk in going out with them but this witness had omitted to
state such fact to the investigating officer in his statement under section 161
CrPC which is a material omission amounting to contradiction under section 162,
CrPC.
Fazlul
Haq Sikder vs State 1 BLC 173
Section 161—
The
occurrence took place on 9-4-91. When the PW 4 said that he had made statement
to Criminal Investigation Department and nobody else but the Criminal
Investigation Department, Investigating Officer PW 18 said that he had examined
PW 4 Eklas on 10-6-9 1 when he told the names of the accused to him but he (PW
4) did not state to the first Investigating Officer the names of the accused on
12-5-91 and hence the statement given to the first Investigating Officer cannot
be disbelieved. PW 13 said in cross-examination that he had made no statement
to daroga. He deposed in the Court for the first time long after 6 years and as
such he is a chance witness and his evidence cannot be believed.
State
vs Md Amir Hossain and others 4 BLC 296.
Section 161—
In
the absence of ascertaining the date as to when the investigating officer
recorded the statement of the solitary ocular child witness it should,
therefore, be construed that such statement was not recorded immediately after
the occurrence and as such there was possibility of coaching him by his
relations in whose care and custody he was left. Moreso, the trial Court did
not make any endeavour to test this child witness as to his intelligence and
capacity to understand questions and give rational answers thereto by recording
a short proceeding by putting some ordinary and simple questions. Since there
was enough scope of this child witness of being tutored by his cousins and
other relations, who deposed against his mother, it is unsafe to rely on and
act upon his evidence.
State
vs Ali Hossain and others 4 BLC 43.
Section 161—
PW 1
has deposed in Court that the accused persons after entering the house demanded
money from his bhabi who gave Taka 7,000.00 to them and after his brother was
taken away by the accused persons she raised hue and cry and on hearing the
same the witnesses came, and that the PW 2 has deposed in Court that on the
night of occurrence he saw that 8 to 10 persons were coming and on his query
and focussing the torch light he had been threatened by those persons, and that
the PW 5 has said in court as an eye-witness that her husband was taken away in
her presence and the accused persons after entering the house demanded money
from her and on her denial she was told that they had money from the sale
proceeds of cattle and on her showing the money the accused persons had taken
away the same, and That the PW 3 has stated in court that on hearing hue and
cry he went to the house accompanied by others and searched the victim who was
found in the paddy field and when he was coming back from the field he met with
the informant and all these vital facts were not stated to the Investigating
Officer and in view of such omissions the evidence of the above witnesses
cannot be accepted as all these omissions amount to contradiction.
Babu
Mollah and ors vs State 4 BLC 559.
Section 161—
The
occurrence took place on 14-6-94 but the PW 2 was examined by the Investigating
Officer on 23-7-94 where there was a delay of 39 days in examining him by the
Investigating Officer, his evidence creates suspicion as to its acceptability.
Babu
Mollah and ors vs State 4 BLC 559
Section 161—
It
is now well settled that if important witnesses are examined by the
investigating officer long after the occurrence that diminishes the credibility
of the evidence adduced by those witnesses at the trial. From that point of
view the evidence of PWs 2 to 4 lost their credibility as the investigating
officer started investigation of the case on 11- 9-91 but their statements were
recorded under section 161, CrPC on 1-12-91.
State
vs Azharul Islam 3 BLC 382
Section 161—
The
question of examining the PWs for the second time by the second investigating
officer after 5/6 months in spite of the fact of their statements being already
in the record prepared by the first investigating officer does not normally
arise. In view of the peculiar circumstances created by the accused person the
minor omission cannot be taken to have any effect to the actual fact of the
case.
Jahangir
Howlader & another vs State 3 BLC 164
Section 161—
The
statements of PWs 2 and 7 were recorded under section 161 of the Code by the
Investigating Officer after 2/3 months of the occurrence which cannot be taken
into consideration.
Sanu
Mia and ors vs State 3 BLC 441
Section 161—
Non-examination
of the vital witnesses like PWs 2-3 within reasonable time and after a long
lapse of 4 months the investigating officer examined them which cast a serious
doubt as to their testimony for which their evidences should be discarded.
Jewel
vs State 3 BLC 258
Section 161—
Among
the three important witnesses one only saw the petitioner sitting in the front
line by the side of her husband, the other saw her very active and receiving
guests and the third one stated that the. petitioner was introduced to him and
it was said that she was the actual planner of the occurrence for which the
explanation as given by the petitioner cannot be brushed aside lightly in the
situation that was prevailing on 15-8-1975. Her jubilation might be the result
of moral support in the activities of her husband but for that it cannot be
said that she was in the conspiracy of murder. The Appellate Division in the
bail case of the petitioner has observed that ‘even the alleged confession
belies the alleged statement. Without saying anything more the materials on
record so far, in our opinion, are plainly insufficient to think that there are
reasonable grounds for believing that the respondent has been guilty of the
alleged offence of criminal conspiracy”.
Jobaida
Rashid vs State, represented by the Deputy Cornrnissioner Dhaka 2 BLC 356
Sections 161 and 162—
Taking
advantage of the first proviso to sub-section (1) of section 162, CrPC,
offenders get acquittal by contradicting a prosecution witness by referring to
his statement recorded by the investigating officer under section 161 of the
Code as the inconsistent statements cannot be relied upon.
Ali
Akbar vs State and others 3 BLC 465
Sections 161 and 162—
Although
the PWs 4 and 5 deposed that they had seen the occurrence and told it to the
PWs 1, 6 and 7 about the drowning, throttling and killing of the victim Younus
by the accused persons but they omitted to state this vital part of the
occurrence to the Investigating Officer. Similarly, PWs 6 and 7 who heard the
occurrence from PW 5 were not examined by the Investigating Officer which
creates doubt about the prosecution case.
Alam
Howlader and others vs State, represented by the Deputy Commissioner 3 BLC 488
Sections 161, 190(I)(b) and 561A—
As
the learned Magistrate can take cognizance against the petitioner disregarding
the police report before discharge of the petitioner there is no necessity of
further enquiry on the basis of naraji.
Nimbar
Ali vs State 3 BLC 301
Section 164—
If
the confessional statement has to be treated as a sole basis of conviction it
must be trustworthy, corroborative and capable of treating as voluntary and
true which is lacking in the present case.
State
vs Sarowaruddin 5 BLC 451
Section 164—
The
confessional statement made by the petitioner is in the nature of narration of
the occurrence which took place at the relevant time. Both the Divisions of the
Supreme Court in the bail matter have come to the finding that some
interpolations have been made such as by converting the word “তখন” into “আমরা” and this Court also finds that the word “করি” has also been changed by over-writing
because in between the letters “ক”
and “র” there are both “ে”and
“ি”
and there is no initial which is apparent that some interpolations have been
done in it fraudulently and with ulterior motive to implicate the petitioner in
the conspiracy of committing murder. Moreso, the columns 3, 4 and 8 of the
prescribed form of confessional statement have not been filled by the recording
Magistrate for which this piece of paper is a highly spurious one having no
credibility and not at all worthy of consideration by any Court.
Jobaida
Rashid vs State, represented by the Deputy Commissione, Dhaka 2 BLC 356
Section 164—
It
is well settled that the statement recorded under section 164 CrPC is not
substantive evidence, but is only corroborative evidence or it can negative the
evidence of the witness as given before the Court. As the prosecution has
failed to adduce any positive evidence against the appellants implicating them
or any or more of them in the commission of the murder in question, they are
entitled to be acquitted.
Ashu
and 3 others vs State 2 BLC 465.
Section 164—
Failure
to comply with the requirement of the column Nos. 6, 8 and 9 of the form of
confessional statement and giving a certificate by the recording Magistrate do
not vitiate a confessional statement recorded under section 164, CrPC because
at best this will mean a violation or non-compliance of some circulars when
necessary questions were put to the confessing accused and he answered in the
affirmative and when the Magistrate found the statement made by the condemned
prisoner was voluntary.
State
vs Bellal Hossain 5 BLC 290.
Section 164—
A
confessional statement is separable. Untrue statement of it can be disbelieved
and the conviction can solely be based on the inculpatory part of the
confessional statement.
State
vs Bellal Hossain 5 BLC 290
Section 164—
The
confessional statement is self inculpatory in nature as the condemned prisoner
confessed that by a batidao she had given several blows on the persons of
Nilufar and Shoma causing severe bleeding injuries as a result of which they
succumbed to their injuries and she narrated in details her actions before and
after the commission of murder and such confessional statement was not
retracted in spite of drawing her attention while examining under section 342,
CrPC. It appears from the confessional statement that she got 2 hours time for
reflection when there is no requirement of law to give specific time for
reflection or to write name of the accused below her LTI when such LTI was
proved by the Magistrate, the confessional statement made by the condemned
prisoner is voluntary and true and conviction can safely be based on such
confessional statement.
State
vs Romana Begum @ Nomi 5 BLC 332.
Section 164—
Before
recording the confessional statements of convict Jamila Khatun and condemned
prisoner Au Hossain by the Magistrate, they were detained by the police for two
days and seven days respectively when it becomes the bounden duty of the
recording Magistrate to try to ascertain whether there was any manner of police
torture and to assure them that they would not be sent back to police custody
whether they made any confession or not which having not been done by the
recording Magistrate the confessional statements cannot be treated as voluntary
and true and it cannot be used against them nor against other co-accused.
State
vs Ali Hossain and others 4 BLC 43
Section 164—
As
there are grave discrepancy and inconsistency between the confessional
statement and the evidence of PWs 4 and 5 resulting thereby the statement
recorded under section 164, CrPC that does not contain correct statement and
such confessional statement cannot be said to be true.
Bilkis
Ara Beguin vs State 4 BLC 386
Section 164—
Retracted
confession— When confessional statement was recorded taking the condemned
prisoner into prolonged police custody such confessional statement was neither
voluntary nor true and the belated retraction of such confession will not
presume her guilt as no legal assistance was available to the condemned
prisoner till the appointment of an Advocate by the State.
Bilkis
Ara Begum vs State 4 BLC 386.
Section 164—
Absence
of printed form— Confession is admissible—Mere absence of printed form in
recording the confessional statement made by the accused cannot make it
inadmissible in evidence when in recording such confessional statement on a
plain piece of paper the Magistrate observed all the formalities as required
under section 164(3) of the Code of Criminal Procedure.
Abul
Kalam Mollah vs State 4 BLC 470
Section 164—
As
the confessional statement of condemned prisoner was recorded in accordance
with the provisions of section 164, CrPC and it was signed by the confessing
accused and Magistrate, the Court shall presume under section 80 of the
Evidence Act that the document is genuine and that the statement as to the
circumstances under which it was taken by the Magistrate are true and the
confession was duly taken.
State
vs Munir and another 1 BLC 345
Section 164—
As
the Magistrate recorded the confessional statement after observing all the
formalities as required under section 164, CrPC and there was no requirement
under the law that the Magistrate should give assurance to the accused that he
would not be remanded to police custody after, recording confessional statement
unless the confessing accused complained to the Magistrate about inducement,
etc. by police and the evidence of the PWS that the &ceased noticed marks
of lipstick on the collar of the shirt of her husband and that wife made a row
over it with the husband and as a result husband gave three kicks on the back
of wife and decided to divorce her, and the threat of accused Khuku at the time
of encounter at the garment factory and the extra-judicial confession
corroborate the confessional statement and written statement of the accused
husband for which the confessional statement can be the sole basis for
conviction of husband as the confession was voluntary and true.
State
vs Munir and another 1 BLC 345
Section 164—
Mere
non-recording of the time that when the recording of confessional statement was
started and when concluded will not prove that the confessional statements were
not voluntary. From the evidence of PW 4 it appears in cross- examination that
accused appellant Feroj subsequently retracted the confession by a petition but
now the law is settled that once the confessional statement was found correct
and voluntary, subsequent retraction is no retraction.
Saiful
Islam (Md) alias Saiful & another vs State 1 BLC 519
Section 164-
The
confessing accused was arrested on 4-3-90 at 4-AM and produced before the
Magistrate on 6-3-90 at 10 AM for recording confessional statement which shows
that the accused was kept in custody for 54-1/2 hours after arrest without
remand by a Magistrate and no explanation was given for such custody and as
such the prolonged police custody immediately preceding the making of the
confession is sufficient to treat it as involuntary.
Shaharul
Islam alias Green vs State 1 BLC 524
Section 164—
Both
the appellants were not assured by the recording Magistrate that whether they
made any confessional statements or not
they would not be sent back to the police custody but instead they would be
sent to the judicial custody and ultimately they were sent to the police
custody when the evidence of PWs. 5 and 6 shows that the confessing accused
persons were assaulted by the police which comprehensively prove that the
confessional statements were the outcome of a lingering fear having no
evidentiary value.
Nil
Ratan Biswas and others vs State 3 BLC 35
Sections 164 & 342—
After
the confession the condemned-prisoner was sent to Munshiganj Sub-Jail. The
confession was specifically brought to the notice of the condemned-prisoner
while examining him under section 342 of the Code of Criminal Procedure; but he
did not complain anything regarding the nature of his confession. Both the
trial Court and the High Court Division therefore rightly believed the
confession to be true and voluntary.
Khalil
Mia vs State 4 BLC(AD) 223
Sections 164 and 364—
Non-examination
of the recording Magistrate of the confessional statement prejudiced the
defence denying their right of cross- examining him regarding following
formalities under sections 164 and 364, CrPC.
Sanu
Mia and ors vs State 3 BLC 441
Section 164(3)—
Reasonable
time for reflection was not given and caution should be given to the accused
persons at least twice before recording the confessional statement by the
Magistrate who has not fully complied with the mandatory provisions of section
164(3), CrPC, the confessional statement cannot be deemed to be either
voluntary or true.
State
vs Raja Abdul Majib & ors 1 BLC 144
Section 164(3)—
As
the necessary questions were not put to the confessing accused and neither the
memorandum nor the seal and designation were given by the recording Magistrate
who was cross- examined that the alleged confession was not voluntary and true
and that during his remand the confessing accused was severely tortured by the
police to make the confession which cannot be accepted as voluntary and true as
the confession bears no credibility to base conviction of the accused.
State
vs Md Musa alias Mussaiya alias Shafir Bap 1 BLC 467.