Section 342—Appellant’s attention having been not drawn to the confessional statement, the confessional statement cannot be used against him.
While examining this appellant under section 342 of the Code the trial Court has also not drawn the attention of appellant to the confessional statement made by him. In such circumstances also the confessional statement cannot be used against the appellant. The trial court also should not state anything regarding any incriminating evidence against the appellant under section 342 CrPC. Angur vs State 41 DLR 66.
Section 342—There being nothing on record to show that the main aspects of the confessional statement of the accused was brought to his notice he was certainly prejudiced and, as such, the statement could not be used against him. Kabir vs State 45 DLR 755.
Section 342—The accused appellant was asked questions during statement under section 342 CrPC with the preconceived notion that he was already found guilty under sections 395/397 of the Penal Code. This type of questions being against all norms of procedure of criminal jurisprudence are highly prejudicial to the accused. Abu Taleb vs State 41 DLR 239.
Section 342—No question relating to bloodstained cloth or injury in the hand was put to the condemned-prisoner. This circumstance has no basis to base conviction.
It is surprising that though some of the PWs alleged to have seen the said blood-stained shirt, no attempt was made even by the police to seize the same and also to examine the said blood by any chemical examiner. Further, in the examination under section 342 CrPC no question relating to such blood-stained cloth or injury in the hand was put to the condemned-prisoner. So, this circumstance has no basis and the same has not been established at all by any reliable evidence. State vs Badsha Mollah 41 DLR 11.
Section 342—Provisions of section 342 having not been followed strictly, Exhibit 5, the confessional statement, was wrongly relied upon.
Since the officer who conducted the test identification parade was not examined by the prosecution, the test identification report is not admissible in evidence.
So far as accused appellant Amir Hossain is concerned since his confessional statement has not been mentioned in his examination under section 342 of the Code of Criminal Procedure he cannot be convicted relying upon his confessional statement.
Since the prosecution can neither rely upon his confessional statement nor take advantage of the evidence of identifying witnesses there is no other legal evidence against accused Amir Hossajn to sustain his conviction under sections 395/397 of the Penal Code. Amir Hossain vs State 41 DLR 32.
Section 342—A statement of the accused under section 342 CrPC is meant for giving him an opportunity to explain the circumstances appearing against him in the evidence adduced by the prosecution—This is entirely for the benefit of the accused and the accused only—This statement cannot be used by the Court against him, nor is the prosecution permitted to use it to fill up any gap left in the prosecution evidence. Relied on (1923) ILR Lah 50. Shah Alam vs State 42 DLR (AD) 31.
Section 342—One of important items for linking up the accused with the crime, namely the sandal, was not at all put to the accused as a circumstance appearing in the case against him while he was examined under section 342 CrPC. Mizazul Islam vs State 41 DLR (AD) 157.
Section 342—The trial Court failed to take into consideration along with evidence on record the accused’s written reply giving vivid description of the highhandedness of BDR personnel in support of their defence that they were implicated in the case at the instance of their rival businessmen. Subodh Ranjan vs State 45 DLR 521.
Section 342—Presence at the place and time of murder—reasonable doubt as to guilt—In his examination under section 342 CrPC, though all the evidence against him were brought to his notice to prove the charge of murder, accused Kashem did not explain away his presence with co-accused Abbas at the place and time of the murder to raise doubt in the mind of the Court about his guilt, not to speak of raising any reasonable doubt. Abul Kashem vs State 42 DLR 378.
Section 342—Allegation of torture made in statement recorded under section 342 CrPC—No reliance can be placed on the belated allegation of torture by police in obtaining confession in the absence of materials on record to substantiate the same. Hazrat Ali & Abdur Rahman vs State 42 DLR 177.
Section 342—Conviction of co-accused who has not confessed—Circumstances show the accused Shahjahan Manik had intimacy with accused Rina and this put them on visiting terms and the visits had strengthened his intimacy with Rina. Their guilty conscience is also evident from the false plea in their statements made under section 342 CrPC that they did not know each other. Shahjahan Manik vs State 42 DLR 465.
Section 342—The provision of this section is meant for giving the accused an opportunity to explain the circumstances appearing against him. There is no merit in the contention that the appellate Court acted illegally in relying on his statement under section 342. Abdul Karim vs Shamsul Alam 45 DLR 578.
Section 342—Omission to examine the accused under this section is not curable under section 537. After the prosecution closes its evidence the court shall examine the accused and ask them whether they will adduce any evidence in defence. Omission to do so vitiates the conviction if such omission has prejudiced the accused in their defence. The conviction is set aside and it is directed that the accused be examined under section 342 CrPC by the trial Court and thereupon the case be disposed of according to law. A Gafur vs Jogesh Chandra Roy 43 DLR (AD) 62.
Section 342—Non-mentioning of memo of TI parade, the basis of conviction of the accused appellant in his examination under section 342 CrPC, has definitely prejudiced him inasmuch as, in absence of the same he could not explain the matter showing his innocence. Mizanur Rahman vs State 49 DLR 83.
Section 342—The only evidence of involvement of the accused appellants comes from their confessional statements, but during their examinaion under section 342 CrPC the confessional statements were not put up before them and they were denied the opportunities of offering any explanation on the same. This has prejudiced the appellants in their defence. Abul Kashem vs State 49 DLR 573.
Section 342—Nothing was put before the accused about the alleged confession while examining them under section 342 CrPC and for this non-compliance of the mandatory provision, the accused persons have been seriously prejudiced. Abul Hossain vs State 46 DLR 77.
Sections 342 & 537—When confessional statement is found to be true and voluntary and it gets corroboration from some other evidence, the appellant had not been prejudiced for non- mentioning of his confession in his examination under section 342 CrPC. This irregularity or omission is curable under section 537 CPC in the facts of the case and the same has not vitiated the trial. Abul Khayer vs State 46 DLR 212.
Section 342—Non-mentioning of memo of TI parade, the basis of conviction of the accused appellant in his examination under section 342 CrPC, has definitely prejudiced him inasmuch as, in absence of the same he could not explain the matter showing his innocence thereto. Mizanur Rahman vs State 49 DLR 83.
Section 342—The only evidence of involvement of the accused appellants comes from their confessional statements, but during their examination under section 342 CrPC the confessional statements were not put up before them and they were denied the opportunities of offering any explanation on the same. This has prejudiced the appellants in their defence. Abul Kashem vs State 49 DLR 573.
Section 342—The trial Court is under an obligation to properly comply with the requirement of law so as to avoid any possible prejudice to the accused on this Count. Nurul Alam Chowdhury vs State 125.
Section 342—The provision of section 342 CrPC has been codified providing opportunity to the accused to make out his case of innocence. As he was denied the right to present his case for no fault of his own, the accused was seriously prejudiced in his trial. The order of his conviction is quashed. Shahidul vs State 51 DLR 222.
Section 342—Incriminating circumstances appearing in the evidence of PW 1 complainant having not been pointed out to the accused he is likely to be gravely prejudiced in his defence. Nibash Chandra vs Dipali Rani 52 DLR 87.
Section 342—This provision of law is intended for the benefit of the accused. The trial Court is under an obligation to properly comply with the requirement of law so as to avoid any possible prejudice to the accused on this count. Nurul Islam Chowdhury vs State 52 DLR 397.
Section 342—The accused-appellant took some alibi in retraction petition but when he did not adduce any evidence in support of his alibi he did not discharge his burden to prove the alibi. 43 DLR (AD) 63, Nannu Gazi vs Awlad Hossain ref. Shahjahan vs State 53 DLR 268.
Section 342—Incriminating evidence or circumstances sought to be proved by the prosecution must be put to the accused during examination under section 342 CrPC otherwise it would cause miscarriage of justice. State vs Monu Miah 54 DLR (AD) 60.
Section 342—Since the petitioner has admitted his guilt no examination under section 342 of the Code of Criminal Procedure is required while convicting and sentencing the accused on the basis of the same. Jashimuddin vs State 56 DLR (AD) 223.
Section 342—The dying declaration, if be treated as true, cannot form the basis of conviction, as it was not referred to the accused while examined under section 342 of the Code. Noor Hossain vs State 55 DLR 557.
Section 342—The examination of the accused under section 342 of the Code is not a mere formality it is the fundamental principle of law that the attention of the accused must be drawn to the evidence on record in a precise manner—Any dying declaration and confessional statement of any accused person must be stated to the accused to enable them to resist the case of prosecution. State vs Kabel Molla 55 DLR 108.
Section 342—Trial will not be vitiated if there is no question of prejudice due to any flaw in the examination under section 342 CrPC. Zakir Hossain vs State 55 DLR 137.
Section 342—Non-consideration of written statement and documents and papers in support of written statement by trial Judge and his absolute silence on those caused a prejudice of a grave nature to the convict. Kazi Mahbubuddin Ahmed alias Mahbub vs State, represented by the DC, Dhaka 57 DLR 513.
Section 342—Section 342 of the Code being a mandatory provision of procedural law the departure from the principles of the section causes grave prejudice to the accused. In this case the accused having not been given any opportunity to explain the circumstances, the order of their conviction is liable to be set aside. Mohiruddin Mondal vs State 57 DLR 779.
Section 342—৩৪২ ধারার বিধান হচ্ছে সাক্ষীদের আসামীর বিরুদ্ধে যে তথ্য প্রকাশ পায় তা বিচারক দ্বারা আসামীর দৃষ্টিগোচরে এনে তাকে তা ব্যাখ্যা করার সুযোগ দেয়ার জন্য তাকে প্রয়োজনীয় প্রশ্ন করা । আসামী দোষী কি নির্দোষী তা জিজ্ঞাসা করা উক্ত বিধানের উদ্দেশে নয় । Abdul Razzak Talukder vs State, represented by the Deputy Commissioner Barisal 51 DLR 83.
Section 342—যেহেতু আসামী পক্ষে বিজ্ঞ এডভোকেট ৩৪২ ধারায় আসামীকে একটি পূর্ণভাবে প্রশ্ন করা সম্পর্কে কোন প্রশ্ন উত্থাপন করেননি সে জন্নে আমরা ৩৪২ ধারায় আসামীকে প্রশ্ন করা ত্রুটিপূর্ণও বলে সে সম্পর্কে কোন সিদ্ধান্ত দেয়ার প্রয়োজনীয়তা দেখি না । তা ছাড়া আসামী ঘটনা সম্পূর্ণ অস্বীকার করে ছাফাই সাক্ষী দেয়ায় তদ্রুপ ত্রুটিপূর্ণ প্রশ্নের দ্বারা আসামী বিচারে ক্ষতিগ্রস্থ হয়েছে বলেও আমরা মনে করি না । Abdul Razzak Talukder vs State, represented by the Deputy Commissioner, Barisal 51 DLR 83.
Section 342—The accused retracted his confession during his examination under section 342 CrPC—Such belated retraction of confession always creates doubt about its genuineness. State vs Mokammel Hyeath Khan 58 DLR 373.
Section 342—The essence of section 342 CrPC is to enable the accused to comprehend the allegations and evidences levelled against him for the purpose of affording him a good defence by bringing and pointing at only the incriminating materials that exist against him. He cannot be vexed with long series of questions. Ibrahim vs State 58 DLR 598.
Section 342—It appears that while examining the accused-appellants under section 342 of the Code of Criminal Procedure the trial Court failed to put the incriminating evidence against the accused-appellants for the purpose of enabling them to explain any circumstance and thereby the accused-appellants have been prejudiced. Shahid Mia vs State 60 DLR 371.
Section 342—It is well settled that at the time of examination of the accused under section 342 of the Code of Criminal Procedure his attention must be drawn to the incriminating evidence or circumstances sought to be proved against him, otherwise he would be prejudiced (vide 54 DLR (AD) 60. A Wahab vs State 60 DLR 34.
Section 342—Written statement submitted by the appellant when he was examined under section 342 of the Code of Criminal Procedure is not evidence within the meaning of section 3 of the Evidence Act. Such statement is to be considered along with the evidence and the circumstances and if the statement gets support from the evidence on record due weight may be given on it. [Vide 42 DLR (AD) 31]. Thus such statement cannot be the sole basis of conviction. Hasan Md vs State 60 DLR 56.
Section 342—It is the fundamental principle of law that the attention of the accused must be drawn to the evidence on record in a precise manner. Kazi Ranimul Islam vs State 62 DLR 6.
Section 342—Sending back the case on remand for fresh trial from the stage of the examination of the accused under section 342 of the Code for the purpose of bring the incriminating evidence including the confessional statement to the attention of the appellant cannot be taken as giving of undue privilege to the prosecution to fill up any lacuna. Rather, remand of the case to the trial Court is for removing a procedural defect only which was caused for non-application of the mind of the trial judge. If such type of procedural defect is not allowed to be cured and the accused is acquitted for such procedural defect that will cause great injustice to the informant side who brought the matter before the Court of law for justice. Sohel Sanaullah @ Sohel Sanaullah vs State 63 DLR (AD) 105.
Sections 342 & 537—Omission of charge as to common intention—Non-mentioning of section 34, Penal Code during his examination under section 342 CrPC has not in any manner prejudiced the accused in their defence. It is a mere irregularity which is curable and there has been no failure of justice for such non-mentioning. Abul Kashem vs State 42 DLR 378.
Sections 342, 164 & 537—Since the attention of the accused was not drawn to his confessional statement when he was examined under section 342, he is obviously prejudiced. Such defect is not curable under section 537 of the Code. Abu Jamal vs State 51 DLR 57.
Section 344—Stay of proceeding—In the facts of the case as in point of time the civil suit was instituted before the filing of the FIR and the questioned documents in their originals are yet to be produced and examined by the civil Court. The criminal proceeding, where the documents are claimed as forged, may, in the interest of justice, be stayed till the disposal of the civil suit. Zakir Hossain vs State 43 DLR (AD) 102.
Section 344-In view of the provisions of section 344 of the Code, it appears necessary that the trial of the CR Case No. 2969 of 2004, now pending in the Court of Metropolitan Magistrate, be postponed for a limited period facilitating the disposal of the OC Suit No. 110 of 2002 for Specific Performance of Contract based on Bainapatra dated 10-4-2001 between the parties. Hanjf vs State 60 DLR 634.
Section 344—Refusal of prayer for ad- interim stay while issuing Rule in criminal revision. When appellant clearly stated before the High Court Division while obtaining the Rule that she gave birth to a child just five months ago and it would be injurious to her health as also to the baby if both were to be placed under any type of custody at that critical stage it was not a judicious and sound exercise of discretion to refuse the said stay. Azima Begum vs Yusuf Khan 43 DLR (AD) 53.
Section 344-Prayer for stay of judgment in criminal case on the ground of pendency of civil suit—Section 344 CrPC authorises the Court to adjourn a trial. That a judgment in a criminal court is pronounced “after the termination of the trial” is provided in section 366 CrPC. Therefore, the prayer for stay of delivery of judgment under section 344 was misconceived. HM Ershad vs State 44 DLR (AD) 145.
Section 344-Power to postpone proceedings—Applicability of such power to postpone judgment in a criminal case pending disposal of a civil suit—The application under section 344 CrPC had been moved at a belated stage after the evidence was closed and the trial came to an end. Only because the judgment remains to be delivered, the application does not appear to be one as contemplated under section 344. In fact the petitioner knew of this and prayed for adjournment of the judgment, not of the trial. The application at this stage does not appear to be maintainable. HM Ershad vs State 44 DLR 116.
Section 344-Stay of criminal proceedings—Remand—A case and counter case over the self-same occurrence are to be tried by the same Court one after another. The judgment in both the cases is to be pronounced on the same date by the same Magistrate so that there is no conflicting decision and the parties are not prejudiced. The impugned judgment and order is set aside and the case remanded back to the Magistrate with direction to try CR Case No. 155 of 1989 and CR case No. 152 of 1989 by the same Magistrate giving opportunity to the parties to adduce their evidence and keeping the evidence already recorded in Cr Case No. 155 of 1989 intact. Sharif vs Md Obaidur Rahman 43 DLR 66.
Section 344-The custody spoken of is jail custody. The Magistrate can remand an accused person to custody for a term not exceeding 15 days at a time provided that sufficient evidence has been collected to raise a suspicion that the accused may have committed an offence. Saifuzzaman vs State 56 DLR 324.
Section 344—Stay of proceeding in criminal matter when not entertainable—The proceeding under section 138 of the Negotiable Instruments Act appears to be quite independent in nature with a very limited scope for adjudication which is not at all related to the issues involved in the Civil Suit. Moreover, at the fag end of trial of the criminal case, such an application praying for stay order was not at all justified and entertainable. Zafar Ahmed vs Mir Iftekharuddin 61 DLR 732.
Section 344—Magistrate can make such order of remand in the absence of the accused if he is seriously ill and cannot be produced in Court. Saifuzzaman vs State 56 DLR 324.
Section 344—The accused had already been taken to police remand twice, yet there is nothing before the court to show the outcome of such remand—The respondents are directed not to go for further remand of the accused and in case of the ongoing remand he should not be subjected to physical torture of any kind. Ministry of Home Affairs 56 DLR 620.
Section 344—It is desirable that for ends of justice as well as to avoid any future complication all the counter-cases be tried by same Judge one after another which may not prejudice the parties. Tareq Shamsul Khan alias Himu vs State 56 DLR 622.
Section 349A—Sessions Judge acted illegally in deciding the case upon the evidence recorded by the Special Martial law Court. This was the precise argument made on behalf of the respondents in the High Court Division which should have been upheld but the High Court Division misdirected itself in relying upon paragraph 4 of the Proclamation of Withdrawal of Martial Law dated 10-11-86. Although the reason was wrong but its conclusion was right that the order of conviction and sentence was illegal and without jurisdiction. Martial Law Court. State vs Golam Mostafa 49 DLR (AD) 32.
Sections 364 & 164—It was injudicious to rely upon confession without calling the Magistrate as a witness. The Court is required to see not only that the forms under sections 164 and 264 CrPC were complied with but the substance underneath the law equally adhered to. Bimal Chandra Das alias Vim vs State 51 DLR 466.
Sections 364 & 164(3)—The provisions under these two sections are mandatory and required to be strictly followed to make the confession voluntary and true and fit for reliance for convicting the accused on his confession. Abul Hossain vs State 46 DLR 77.
Section 367—There has not been any miscarriage of justice caused by non-compliance with the provisions of section 367 CrPC while acquitting the accused persons by the Magistrate though his judgment was not in proper form. Nurul Huda vs Bhashanu Sardar 40 DLR (AD) 256.
Section 367—Judgment—Writing of a proper judgment—If the trial Court’s judgment is such that it cannot be termed as a judgment as per requirement of this section, hence an order of writing a proper judgment may be necessary– When the entire matter is open to the criminal Appellate Court which is required by law to assess the evidence independently and come to its finding, then merely because there has been some omission made by the Trial Court in not considering a piece or pieces of evidence, would hardly offer a valid ground for sending the case on remand for a proper judgment. Md Moslehuddin vs State 42 DLR (AD) 160.
Section 367—Remand—As a general rule an order for retrial would be proper if the trial in the lower Court was vitiated by illegality or irregularity or for other reason. Md Moslehuddin vs Slate 42 DLR (AD) 142.
Section 367—The sentence of only 3 days for the offence punishable under section 475 is shockingly inadequate, as such, the order of enhancement of sentence passed by the appellate Court needs no interference. At the same time, the punishment awarded by the appellate Court but not prescribed by section 471 of the Code is reduced on the ground discussed. Abdul Ahad vs State 58 DLR 311.
Section 367 as amended by the Law Reforms Ordinance (XLIX of 1978), Section 2 and Schedule thereto read with the Penal Code(XLV of 1860), Section 302.
Substitution of sub-section (5) of section 367 CrPC by the Law Reforms Ordinance—Effect of change on sentencing—Previously death sentence was the normal sentence for murder and the court was required to give reasons if the lesser sentence of life imprisonment was given—After the substitution now reasons have to be given in either case—A death sentence is to be justified in as much in the same way as in the case of lesser sentence of life term imprisonment. Abed Ali vs Slate 42 DLR (AD) 171.
Sections 367 & 424—The Additional Sessions Judge sitting on appeal did not apply his mind at all in order to come to an independent decision. He came to the conclusion “found nothing illegal in the impugned order” just after quoting in his judgment some portions of the judgment of the trial Court. In such a position, no Rule need be issued—the case is sent back for delivering a proper judgment. Ekram All Fakir vs Abdus Samad Biswas 47 DLR 53.
Sections 367 and 424—While disposing of a criminal appeal, the appellate Court must consider at least the material evidence of the case and arrive at independent findings on all material points at issue. Mere saying that it concurred with the findings of the trial Court is not sufficient to meet the requirements of law. Yasin Mollah vs State 53 DLR 99.
Sections 367, 439A and 561A—The revisional court is competent to direct the trial Court to write a fresh judgment in a case where the trial court has failed to discuss and assess the evidence and written its judgment without trying to determine the fact in issue. Abul Hossain vs State 56 DLR 12.
Section 367(1)—Mere stating by the Appellate Court that the appeal is dismissed on merit and the order of conviction and sentence is confirmed without considering the evidence on record and the cases of the parties cannot be said to be a judgment on merit. Abul Basher vs State 40 DLR 248.
Section 367(1)—Section 367(1) relates to Criminal Court of original jurisdiction but the same has been made to apply to the Appellate Court except the High Court Division by reasons of section 424 CrPC. Abul Basher vs State 40 DLR 248.
Section 369—Review—Application praying for review of judgment passed in a criminal case is totally contrary to the provisions of section 369. Samad Ahmed vs State 45 DLR 394.
Section 369—Judgment in criminal case after it is signed cannot be altered or reviewed except to correct clerical error. There is no question of correcting clerical error in rehearing the matter by setting aside judgment already pronounced and signed. Serajul Islam vs Faziul Hoque 47 DLR 480.
Section 369—The provision of section 369 of Code of Criminal Procedure clearly bars alteration of a judgment in a Criminal matter where it is already signed excepting to correct clerical error if any. Mostafa Aminur Rashid vs State 51 DLR 543.
Section 374—Commutation of sentence— extenuating circumstances for commutation — condemned-prisoners are under peril of death sentence for almost 3 years suffering agony and torments and thereby partially purged their guilt. Their life may be spared. Sentence of death commuted to one of imprisonment for life. Abul Kashem vs State 42 DLR 378.
Section 374—Accused Rina is a young woman aged 24 with an infant and she confessed expressing repentance. Both the convicts suffered pangs of death sentence for about 3½ years. There are extenuating circumstances for sparing them from the extreme punishment of death. Shahjahan Manik vs State 42 DLR 465.
Section 374—Commutation—Delay by itself is no extenuating circumstance for commuting the sentence. There must be other circumstances of a compelling nature which together with delay will merit commutation. Abdul Khair vs State 44 DLR (AD) 225.
Section 374—Commutation of sentence—In the instant case there is an immediate voluntary confession. The accused could have taken a plea of innocence but being repentant he made rather an open breast of everything and may be asking for mercy of God. This aspect of his character needs be kept in view and then the delay in hearing this reference had not been done by him but he had suffered the agony all these 6 years. Abdur Rahman Syed vs State 44 DLR 556.
Section 374—A death reference made by the Court of Session may be disposed of even if the condemned accused is absconding. State vs Abdul Khaleque 46 DLR 353.
Section 374—Commutation of death sentence—In consideration of the evidence that the appellant is a young man of 35 and initially he had no premeditation to murder, ends of justice would be met if he is sentenced to imprisonment for life. Accordingly, the sentence of death is commuted to imprisonment for life. Mojibur Rahman Gazi vs State 46 DLR 423.
Section 374—Since the words “as if the sentences were passed by him” appearing in paragraph 3 of the Proclamation relate to execution of sentence of death, they need be given an interpretation favourable to the condemned- prisoners. Pursuant to such interpretation the Sessions Judge is under an obligation to follow the provision of section 374 CrPC and make a reference to the High Court Division for execution of the sentence passed by the Martial Law Court before issuing warrant therefor. Abdul Baset vs Bangladesh 47 DLR 203.
Section 374—There is no bar to hear the death reference against an accused absconding from the inception of the case. State vs Balai Chandra Sarker 47 DLR 467.
Section 374-The extenuating circumstances like lack of premediation, sudden quarrel and in the heat of passion, he inflicted the injuries which nevertheless falls within the purview of section 302 of the Penal Code. In our view accused Abdul Aziz Mina if be sentenced to imprisonment for life ends of justice would be met. In such view of the matter we alter the death penalty to that of imprisonment for life. Abdul Aziz Mina vs State 48 DLR 382.
Section 374—The frenzied form of extreme love drove the accused to commit the crime. His body and soul should not be exterminated. We reduce the sentence of death penalty to that of imprisonment for life. State vs Abul Kalam Azad 48 DLR 103
Section 374-The murder was not committed by a vicious macho male Before causing death of his wife the appellant suffered for some time from a bitter sense of being wronged by his wayward wife In this case ends of justice will sufficiently be met if the sentence of death is commuted to one of life imprisonment. Zahiruddin vs State 47 DLR (AD) 92.
Section 374—The sentence of death being too harsh for a young man and in the facts of the case is reduced to imprisonment for life. State vs Md Shamim alias Shamim Sikder 53 DLR 439.
Section 374-Though leave was obtained on 12-7-93, yet the office of the Attorney-General did not take any step to get the appeal heard and it remained pending for more than eight years. Under the circumstances the quantum of punishment must be minus that eight years. State vs Abdul Barek 54 DLR (AD) 28.
Section 374-When everything has been proved beyond all reasonable doubt mere long delay in the disposal of the case cannot by itself be a ground to commute the sentence. Giasuddin vs State 54 DLR (AD) 146.
Section 374-Merely because certain years have passed in reaching finality to the judgment of the Court of Additional Sessions Judge the same cannot be the ground for commuting the sentence of death where death was caused for no reason. Abdul Bashir alias Bashu vs State 56 DLR (AD) 207.
Section 374-Sentence other than death will be against the mandate of Legislature and also will be not only grave injustice to the victim of crime but also will encourage a criminal. State vs Moslem 55 DLR 116.
Section 374-The two petitioners being members of the Police Establishment, they are meant for maintaining law and order in the country. But the offence they committed is a heinous one and, as such, they were rightly served, sentencing them to death and so no leniency ought to have been shown to them. We are unable to see eye to eye to the order of modification of their sentence. ASI Md Ayub Ali Sardar vs State 58 DLR (AD) 13.
Section 374-The Deputy Attorney-General could not offer any explanation for non-filing of the GD Entry nor could he controvert the argument of the defence lawyer regarding leaving of the police station by the police personnel for arrest of a dacoit without any command certificate and any arms whatsoever. Nor the prosecution could offer any explanation regarding non-examination of the SI, a vital witness in the case. All these facts create a strong doubt about the truth of the prosecution story. State vs Mukul @ Swapan 58 DLR 40.
Section 374—The prosecution has been able to bring home the charge under section 302 of the Penal Code against the accused-person. He deserves extreme punishment in the present case— The trial Court has not committed any mistake in recording conviction and awarding capital sentence. Accordingly, the impugned judgment and order of conviction and sentence does not call for interference. State vs Maku Rabi Das 58 DLR 229.
Section 374—In view of the fact that the condemned-prisoner has been experiencing the agony of death in his death cell for more than 3 years, it is proper to commute his sentence of death to imprisonment for life. State vs Md Ershad Ali Sikder 55 DLR 672.
Section 374—It is, also, not possible to lay down any cut and dried formula in imposing proper sentence but the object of sentencing should be to see that the crime does not go unpunished and the society have the satisfaction that justice has been done. In imposing sentence both mitigating and aggravating circumstances are to be taken into consideration and a corelationship has to be drawn up. State vs Mir Hossain alias Mira 56 DLR 124.
Section 374—Non-appealing accused Nizamuddin, has not filed any appeal and he is still in custody. Justice must not be stopped to the deprivation of anyone and its flow be allowed to continue, so that every-body may share justice equally. In that view of the matter, the entire order of conviction and sentence be set aside and the non-appealing accused is also entitled to get the benefit of the order. Zamir Ali (Md) vs State 59 DLR 433.
Section 374—Accused Fazilutennessa made a confessional statement which was not only true but also voluntary. A person confesses from remorse. Therefore, she could realise what she had done with her husband, Moreover, she has been languishing in the condemned cell since 14- 2-2000—the above fact is a mitigating circumstance and, as such, her death sentence should be commuted to orte for imprisonment for life. State vs Saiful Islam 56 DLR 376.
Section 374-The mere fact that the victim luckily survived for weeks on account of treatment in the hospital is no ground to award lesser sentence. ErshadAli Sikder vs State 57 DLR (AD)75.
Section 374—Imposition of proper and appropriate sentence is amalgam of many factors, such as nature of offence, circumstances mitigating and aggravating. A balance sheet of aggravating and mitigating circumstances has to be drawn up before subjecting a person to a sentence. State vs Anjuara Khatun 57 DLR 277.
Section 374—Punishment— Mitigating circumstance— The case does not show that the accused used any heavy or sharp cutting or lethal weapon or acted with cruelty in committing the murder. There is also nothing on record that the murder was preplanned and cold-blooded. The accused-appellant is sentenced to suffer imprisonment for life for the offence under section 302 of the Penal Code. Rafiqul Islam Mollah vs State 57 DLR 581.
Section 374—Delay in disposal—The appellants never made any endeavour to dispose of the appeals either in the High Court Division or in the Appellate Division. It was the State that frequently prayed for fixation of the death reference in the High Court Division and on its prayer a Bench was constituted for hearing the death reference. After the death reference was disposed of by the High Court Division, the appellants after filing leave petitions did not take any step for hearing of their petitions. It was only on the prayer of the State that the leave petitions were heard and the appeals were also heard. Major Bazlul Huda vs State 62 DLR (AD) 1.
Section 374—The death of the victim was due to asphyxia resulting from exerting pressure on the throat, neck, head and facial region, which was ante-mortem and homicidal in nature and it is ex-facie clear that the petitioner strangled the victim with the intention of causing her death and there is no circumstances that may impel the Court to take a lenient view in commuting the death sentence as there is no mitigating or extenuating circumstances on record for the purpose of commutation of the death sentence, rather all the circumstances are aggravating. Alam Uddin vs State 62 DLR (AD) 281.
Sections 374 & 164—Part of the confessional statement found true may be accepted by the court to convict the accused rejecting the other part which is not true. There is no merit in the contention that when one part of the confessional statement is rejected, other part, even if true, cannot be accepted.
Learned Sessions Judge could reject a part of the confessional statement iF he found the same contrary to other evidence on record. But he could not reject the same on mere surmise and conjecture. A part of the confessional statement favourable to the accused should be given due weight to it unless Court finds the same not true being contrary to other evidence on record. State vs Afazuddin Sikder 50 DLR 121.
Sections 374-376—There was quarrel between the accused and his mother on the day preceding the occurrence as he pressed for sale of a cow and the sale proceeds and the quarrel led to the occurrence of murder—this apart he is a young man of only 20—In such circumstances his death sentence is commuted to that of life imprisonment. State vs Md Jamaluddin 50 DLR 67.
Section 376—Sentence—Commutation of death sentence—Delay of about two years or so in the disposal of the Death Reference Cases and the Jail Appeal in the High Court Division, cannot by itself be a ground for awarding lesser sentence. Abed Ali vs State 42 DLR (AD) 171.
Section 376-There is nothing or record to show that there was (any real) love between the appellant and deceased Dilara. The appellant being not a jilted lover, it is difficult to commute the sentence of death to one of imprisonment for life. Further, soon before the occurrence there was no provocation from the prosecution side and there was no occasion for the appellant to show any emotional imbalance and disequilibrium. On the contrary, the evidence on record shows that the appellant with a premeditated and pre-planned manner entered into the hut of the deceased with a dagger and killed her. The trial Court as also the High Court Division found no mitigating circumstances. Nor did we. Abdul Quddus vs State 43 DLR (AD) 234,
Section 376—Death sentence, commutation of—Death sentence not executed after more than four years from the date of confinnation of the sentence. Appellant suffered a prolonged agony for laches of others. Death sentence commuted to one of life imprisonment. Wajear Rahman Moral vs State 43 DLR (AD) 25.
Section 376—The condemned-prisoners being in the cell for 4 years 7 months in the agony of death sentence hanging over their neck, their death sentence is commuted to life imprisonment. State vs Kamal Ahmed 49 DLR 381.
Section 376—Provocation in the mind of the condemned-prisoner which was a continuous one because of illicit intimacy between the deceased and the wife of the condemned-prisoner led to the killing of the deceased victim. So the sentence of death should be altered into sentence of imprisonment for life. Shahjahan vs State 51 DLR 373.
Section 376—Since this is not the rarest of the rare cases, ends of justice will be met if the sentence of death of accused Kashem is converted into one of imprisonment for life. State vs Anowar Hossain Pinto alias Anowar Hossain 61 DLR (AD) 108.
Section 376—In view of the omissions and laches on the part of the State defence lawyer, the submission of the learned Advocate on point of sentence deserves consideration. State vs Md Khosbar Ali 52 DLR 633.
Section 376—The convict is a young man of 24 years and there is nothing on record that he is a habitual dacoit—He has been suffering the agony of death sentence for the last 3 years— Therefore, ends of justice would be met if the sentence is reduced and commuted to one of imprisonment for life. State vs Rafiqul Islam 55 DLR 61.
Section 376—Commutation of death sentence—Mere delay is not a legal ground for commutation of a sentence. (Per Md Tafazzul Islam J). Major Bazlul Huda vs State 62 DLR (AD) 1.
Section 376—Commutation of death sentence —There is no merit in the contention that uncontrolled and unguided discretion of the Judges to impose capital punishment or imprisonment for life is hit by Article 14 of the Constitution. If the Law has given to the Judge a wide discretion in the matter of sentence to be exercised by him after balancing all the aggravating and mitigating circumstances of the crime it will be impossible to say that there would be at all any discrimination since facts and circumstances one case can hardly be the same as the facts and circumstances of another. Major Baziul Huda vs State 62 DLR (AD) 1.
Section 376-According to our provision the Court has been left’ with the discretion on the facts of the given case whether or not a set sentence of death should be awarded, and in case of awarding a sentence of death the Court is required to assign reason. The Court is of course keeping in mind while awarding the extreme sentence whether there is mitigating circumstances to exercise such discretion. The mitigating circumstances in the exercise of Courts discretion as analysed in Jogmohan’s case (AIR 1971 SC 500) are undoubtedly relevant circumstance and might be given weight in the determination of sentence. (Per SK Sinha J).Major Baziul Huda vs State 62 DLR (AD) 1.
Section 376—Although there is no evidence against all the accused persons of directly participating in the carnage but it should be borne in mind that for the killing of the sitting President, all the accused persons with a view to attainment of the object played different roles. Without jointly operating in concert the criminal object could not have been executed. It was not possible to bring about the result of the criminal object without support of all. In view of the matter, all the conspirators who actually participated and acted the crime do not deserve any leniency in the matter of sentence. (Per 5K Sinha J) Major Bazlul Huda vs State 62 DLR (AD) 1.
Section 376—Communtation of death sentence—The accused is not a hardened criminal. The death of the deceased was caused by him in sequel of bitter matrimonial relationship. The caused the haematoma with any hard substance on the occipital region of the head of the deceased which resulted her instantaneous death. The accused has three minor children and an invalid first wife. Justice will be met if the sentence of death awarded to the accused is commuted to imprisonment for life. State vs Azam Reza 62 DLR 399.
Section 376(a)—The fact that the condemned-prisoner committed the murder under influence of some provocation should not be ignored while considering the question of sentence. State vs Hamida Khatun 50 DLR 517.
Section 376(a)—Since Hamida did not play the principal role in murdering her husband and there is no evidence to show that she along with Abu Taher planned in advance to kill her husband in furtherance of common intention, ends of justice would be met if the sentence of death is reduced to one of imprisonment for life. State vs Hamida Khatun 50 DLR 517.
Sections 378 & 429—Hearing of the case by a Third Judge—The language used in sections 378 and 429 of the Code is almost identical. It is said that in hearing a reference or an appeal if the Judges are equally divided in opinion thereon, the case with their opinions shall be laid before a third Judge for hearing, and the third Judge after hearing ‘as he thinks fit’ would deliver his opinion, and the judgment and order would follow such opinion. The expressions “as he thinks fit” used in both the sections are significant. It is the third Judge to decide on what points or in respect of whom he shall hear arguments. This postulates that the third Judge is completely free in resolving the difference as he thinks fit. If he does not think to hear the arguments in respect of any accused of whom the Judges are not divided in their opinions, he may decline to do so. The use of the words “equally divided” in both the sections means the Judges differ in their opinions, in respect of complicity of an accused or on the charge framed against him or them or on any particular point it can be inferred that they are equally divided but in a case where the Judges concur each other in respect of a particular accused and in respect of the offence charged, it can not be said that Judges are equally divided in respect of the accused charged with. Major Bazlul Huda vs State 62 DLR (AD) 1.
Section 386—Fine imposed upon an accused in a criminal proceeding is of the nature of a financial punishment as distinguished from physical punishment and it must be paid by him under all normal circumstances. Ali Hossain vs State 52 DLR 282.
Section 386-Fine is a charge upon the assets of the convict as a public dues and it continues to be so even after his death and it is recoverable from his successor-in-interest under the provisions of section 386 of the Code. Ali Hossain vs State 52 DLR 282.
Section 386-Fine imposed by the Criminal Court upon an accused is of the nature of a financial punishment as distinguished from physical punishment and it must be realised from him under all normal circumstances. The accused has no option in the matter. Rowshan Ali vs State 52 DLR 510.
Section 392—Changing of sections without putting the same before him prevented the appellant from cross-examining the witnesses and giving any counter-defence. Such sort of changes without giving the accused any opportunity for expressing his views is against natural justice and contrary to the established principles of justice delivery system. Abdul Kader vs State 60 DLR 457.
Section 401—Empowers the Government to remit and suspend a sentence passed by a Court but for such remission and suspension of sentence the order of conviction is not reversed. It remains in force, but the convict due to an order of rem ission and suspension passed under section 401 CrPC is not to serve out the period of sentence so suspended and is not to pay the fine so remitted. Nasiruddin Miah vs State 40 DLR 244.
Sections 401 and 423—In ease of an appeal from an order of acquittal, the Court may refuse the prayer of withdrawal of the appeal as it may find on hearing the appeal on merit that the order appealed is illegal and calls for an order of conviction. Nasiruddin Miah vs State 40 DLR 244.
Section 403—Double Jeopardy—The accused is going to be prosecuted in respect of an offence which did not occur during the earlier transaction nor the present case arose out of the same fact and for the present offence he was not tried previously. In such a position the doctrine of autrefois acquit and autrefois convict or of the Code as to double jeopardy is not applicable in the present case. HM Ershad vs State 45 DLR 534.
Section 403—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.
Section 403(1)—The whole basis of section 403(1) of the Code as well as Article 35(2) is that the first trial should have been before a Court competent to hear and determine the case and to record a verdict of conviction or acquittal—if the court is not so competent, the whole trial is null and void and it cannot be said that there was any conviction or acquittal in force such a trial does not bar a subsequent trial of the accused. Muhammadullah vs Sessions Judge 52 DLR 374.
Section 403(2)—Trial of an accused for one distinct offence will not stand in the way of his subsequent trial for the other distinct offence as specifically provided by sub-section (2) of section 403.
The former trial for unauthorised possession of the firearms will not be a bar to the subsequent trial for the offence of robbery, even if the same firearms have been used while committing the robbery. The trial of the petitioners in this case is perfectly lawful. Arfan Ali vs State 42 DLR (AD) 22.
Sections 404, 410, 417, 418, 422 & 423— The Code drew no distinction between an appeal against an acquittal and an appeal against a conviction, as regards the powers of the High Court. Dilruba Aktar vs AHM Mohsin 55 DLR 568.
Section 408—Appeal will lie to the Court of Sessions if the Assistant Sessions Judge deemed to be an Additional Sessions Judge passes a sentence of imprisonment for a term of five years or less. Section 408 has full force and application. Nurul Huda vs Baharuddin 41 DLR 395.
Sections 408, 417A & 423—Except under the provisions of section 41 7A of the Code there is no other provision for filing appeal for enhancement of sentence. In an appeal from a conviction, sentence may be reduced by an appellate Court but sentence can be enhanced only in an appeal for enhancement of sentence and that can be done after giving the accused an opportunity of showing cause against enhancement. Moktar Ali Bepari vs State 51 DLR 439.
Section 409—An Assistant Sessions iu1e 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, eg for hearing appeals, revisions, references 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. Abdul Kashem vs State 43 DLR (AD) 77.
Sections 409, 410, 435, 436, 438 and 439A—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. Section 410 has also full force and any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge may appeal to the High Court Division. This section has no reference to an Assistant Sessions Judge deemed to have been appointed as an Additional Sessions Judge. The same applies to sections 435, 436, 438 and 439A. Nurul Huda vs Baharuddin 41 DLR 395.
Section 410—Non-appealing—accused— Benefit of acquittal—In the face of clear illegality committed by the learned Additional Sessions Judge in convicting all the 3 accused of the offence under section 396 of the Penal Code, if we do not record an order of acquittal in favour of accused Fazlul Huq, the non-appealing accused, it means that we are allowing an illegal order to perpetuate. In that view of the matter, we hold the entire order of conviction and sentence be set aside and the absenting accused Faziul Huq is also entitled to get the benefit of this order. Arzan Iman Ali vs State 48 DLR 287.
Section 410—The High Court Division sitting in appeal was bound to give due weight to the opinion of the trial Court with regard to the credibility and demeanour of the witnesses. State vs Abdus Sattar 43 DLR (AD) 44.
Sections 410—423 read with—Employment of Labour (Standing Orders) Act (VIII of 1965)— Section 26.
Order of sentence passed by the Labour Court under the provisions of Employment of Labour (Standing Orders) Act is not appealable to the appellate authority under the Code of Criminal Procedure as there is no provision for such appeal under the Employment of Labour (Standing Orders) Act. Jagodish Chandra Dutta vs MH Azad 41DLR 257.
Section 410—Accused Ali Mia, though did not prefer any appeal against his conviction and sentence, there is no reason to keep him is custody on the basis of illegal evidence. Shah Alam and others vs State 52 DLR 567.
Section 410—The date of conviction and sentence pronounced by the trial Court should not be taken to be the starting point for the disqualification against the convict sitting Member on account of such conviction in a criminal case involving moral turpitude. HM Ershad vs Abdul Muqtadir Chowdhury 53 DLR 569.
Section 410-It is surprising to find the peculiar way of disposal of criminal appeal by the High Court Division that shirked responsibility misdirecting themselves and shouldered the same on Allah. This sort of disposal of criminal appeal is unknown to our criminal jurisprudence, this unwarranted method of administration of justice is disapproved. State vs Kh Zillul Bari 57 DLR (AD) 129.
Section 412—The right of appeal of a convicted accused is taken away if the court accepted the plea of guilty and convicted him on such plea. Ayar @ Ayaruddin vs State 56 DLR 494.
Section 417—Review of evidence—The reason given by the Judges of the High Court Division to disregard the evidence of PWs 2, 3 & 4 relying only upon the evidence of PW 7 is rather artificial. In an appeal by the State against acquittal it is quite open to the Court to review the evidence in order to see whether finding on which acquittal is based is perverse being in wanton disregard of good and unblemished evidence given by other witnesses. State vs Ashraf Ali 43 DLR (AD) 83.
Section 417—As a matter of practice the High Court Division normally grants bail to the persons who are acquitted after a full-fledged trial when the State prefers an appeal against the order of acquittal. Abdul Hafez Howlader alias Habibur Rahman vs State 51 DLR (AD) 67.
Sections 417, 418 and 423—Provisions under these sections give to the High Court Division full power to review the evidence upon which the order of acquittal was founded—No limitation should be placed upon that power. Shah Alam vs State 42 DLR (AD) 31.
Sections 417 and 439(4)(5)—Petitioner acquitted of the charge of dacoity by the trial Judge—Government had not preferred any appeal under section 417 CrPC—Section 439 CrPC does not authorise High Court Division to convert a finding of acquittal into one of conviction. Held— the Rule issued suo motu by the High Court Division was without jurisdiction. Jalal Uddin vs Bilkis Rahman & State 42 DLR 107.
Section 417—On an appeal for acquittal the appellate Court is not entitled to interfere with the decision of the trial Court on facts unless it has acted perversely or otherwise improperly. Dilruba Aktar vs AHM Mohsin 55 DLR 568.
Section 417—The Code drew no distinction between an appeal from an acquittal and an appeal from a conviction and no such distinction could be imposed by judicial decision. Dilruba Aktar vs AHM Mohsin 55 DLR 568.
Section 417—Before an order of acquittal is reversed it must be shown that the judgment is not only unreasonable or manifestly wrong but it is also manifestly perverse and unless such a finding can be made on the basis of materials on record the order of acquittal should not be interfered. State vs Wasikur Rahman 58 DLR (AD) 60.
Sections 417 & 423—In an appeal from acquittal, the appellate Court in exercise of its appellate authority is not entitled to interfere with the decisions unless those suffer from manifest illegality, legal infirmity and perversity rendering a positive miscarriage of justice. Dilruba Aktar vs AHM Mohsin 55 DLR 568.
Section 417(1)—Finding of acquittal cannot be said to be perverse if it is not absolutely against the evidence. State vs Shamima Arshad 52 DLR 617.
Section 417(1)(a)—Maintainability of appeal by witness against order of acquittal—The State under section 417(1)(a) of the Code is authorised to present an appeal against an order of acquittal passed by the Court of Sessions. But in the present case, the appeal was not preferred by the State. The appeal was filed before the High Court Division by a witness who is also the petitioner in the present petition for leave to appeal. Hence this leave petition is not maintainable in law. Fazar Ali Manik Chan vs Fazar Ali 43 DLR (AD) 129.
Sections 417(1)(b) & 439A—Where the State has not filed any appeal against the order of acquittal passed by a Magistrate in a police case the informant is competent under section 439A of the Code to prefer revision before the Sessions Judge who can look into the legality or propriety of the order of acquittal. Abu Taher vs Hasina Begum 50 DLR 19.
Section 417(3)—The special limitation provided in sub-section (3) of section 417 CrPC is applicable in a case where a complainant intends to file an appeal before the High Court Division against order of acquittal passed in a case upon a petition of complaint. Dr MA Mazed vs Bangladesh 56 DLR (AD) 198.
Section 417(3)—A case registered upon lodging of an Ejaher and culminating in charge- sheet and thereupon person(s) recommended by the police for prosecution was put on trial and the trial ends in acquittal and thereupon if Government files an appeal the ‘special limitation’ provided by section 417(3) of CrPC shall have no manner of application. Dr MA Mazed vs Bangladesh 56 DLR (AD) 198.
Section 417A—Appeal by informant— Competency—The contention that an appeal at the instance of an informant from an inadequate sentence lies under section 417A has no substance. Abdul Aziz vs State 44 DLR 594.
Section 417A—That all judgment, whether conviction or acquittal are appealable under section 30(1) of the Special Powers Act. Under sub-section (1) of section 27, criminal cases coming within the ambit of the Special Powers Act can only be initiated on a report in writing made by a police officer not below the rank of Sub-Inspector So no private party has any right to initiate such cases. Section 30 seems to cover appeals by a the State. Therefore, this appeal is not maintainable under section 417(1) of CrPC. State vs Wanur Rahman 40 DLR 346.
Section 417A(2)—Section 417A(2) of the Code appeal lies to the appellate Court against the sentence on the ground of inadequacy. The appellate Court was the Court of Sessions but no appeal was filed before the Court of Sessions rather it was filed, long after the limitation, before the High Court Division. The very appeal was incompetent and the High Court Division acted illegally in entertaining the appeal and therefore, the judgment of the High Court Division is liable to be set aside.
In an appeal a sentence may not be enhanced whereas this may be done in revision and secondly that in revision and acquittal shall not be converted into a conviction, whereas this may be done in an appeal against an acquittal. Every other power, whether procedural or final, is equally exercisable in appeal as it may be exercised in revision by the High Court Division. GMM Rahman vs State 62 DLR (AD) 410.
Section 420—The proviso to sub-section (1) of section 421 does not apply to appeals presented under section 420 of the Code. In the case of jail appeals the court can summarily dismiss the appeal on perusal of the papers without calling upon the appellant to appear. Ayar @ Ayaruddin vs State 56 DLR 494.
Section 420—The Inspector-General of Prisons is to circulate and get notified this judgment to every superintendent of jails all over the country within seven days for compliance so that the jail appeals of less privileged prisoners are communicated to the appropriate appellate Courts in the light of directions given. Ayar @ Ayaruddin vs State 56 DLR 44.
Section 420-When a prisoner in jail applies through the Superintendent of Jail for a copy of the judgment in order to prefer an appeal, it is superintendent’s business to procure and forward a copy applied for and to arrange that this is done. Ayar @ Ayaruddin vs State 56 DLR 494.
Section 421—In a case of absentia trial, limitation shall run from the date of knowledge of the judgment and not from the date of judgment. Jamal Ahmed alias Jamal vs State 58 DLR 419.
Section 422—Once the complaint has ended in conviction it was the State that came into picture and the State had to be given notice to sustain the conviction and complainant had no right to be given notice. Kamal Miah vs State 50 DLR 224.
Section 422—A criminal appeal cannot be dismissed on technical grounds once it is admitted for hearing by the court. After admission, a criminal appeal can be disposed of only on merit. Kamal Miah vs State 50 DLR 224.
Section 423—In view of the fact that the two foreigner-appellants have made a clean breast of their offence and never tried to beat the law by any smart manoeuvre and they have begged mercy of the court from the very beginning the sentence of the two foreigner appellants be reduced from life imprisonment to rigorous imprisonment for 7 years. Major (Retd) Ashrafuddin Sekander vs State 50 DLR (AD) 108.
Section 423—When it is found after a full trial that there was a mis-trial or trial without jurisdiction, the Court of appeal before directing a fresh trial by an appropriate Court should also see whether such direction should at all be given in the facts and circumstances of a particular case.
If it is found that there was no legal evidence to support the conviction then in that case it would be wholly wrong to direct a retrial because it would then be an useless exercise. Further, the prosecution should not be given a chance to fill up its lacuna by bringing new evidence which it did not or could not produce in the first trial. Asiman Begum vs State, represented by the Depuly Commissioner 51 DLR (AD) 18.
Section 423—If it is found that the accused had suffered a substantial part of the sentence imposed upon him or her in the mis-trial, the Court may not for ends of justice direct a retrial.
There is no question that the Court has undoubted right to direct a retrial where there has not been a trial in accordance with law. We are of the view that having regard to the facts and circumstances of the case and particularly in view of the fact that in the meantime (during pendency of appeal in this Court) the appellant has continued to suffer imprisonment, it is a fit and proper case in which the High Court Division should consider the case on merit also and then pass whatever order or orders it thinks appropriate in the interest of justice. Asiman Begum vs State, represented by the Deputy Commissioner 51 DLR (AD) 18.
Section 423—Though a lawyer was appointed to defend the absconding accused, the appointment did not serve the purpose—The accused should be given an opportunity to defend himself properly by cross-examining the PWs and for that purpose the case is liable to be sent back to the trial Court. Ismail vs State 51 DLR 497.
Section 423—In view of long detention of the appellants from the date of their arrest the prayer for commutation of sentence in respect of fine may be allowed. Rafiqul Islam @.Rafiq vs State 51 DLR 488.
Section 423—The appellants had to undergo the rituals of a protracted trial and the agonies arising out of the order of conviction and sentence passed and by now much of their sins has been expiated by way of burning of the heart during this long period. Court in therefore, inclined to take a lenient view in awarding sentence to them. Ali Hossain vs State 52 DLR 282.
Section 423—If a person is intended to be tried and punished with enhanced punishment or with punishment of a different kind as being a previous offender, the particulars of the previous conviction should be stated in the charge. The prosecution did not lead any evidence that the appellants were previously convicted persons. In that view, the Assistant Sessions Judge has awarded a harsh sentence to them. Bura Yunus vs State 59 DLR 549.
Section 423—The appellant had already undergone the ordeal of trial and after the conviction during pendency of the appeal before this Court continued to suffer imprisonment which was imposed on him in the mistrial, so in the interest of justice a retrial should not be directed. Goutam Chandra Das alias Goutam Kumar Das vs State 55 DLR 527.
Sections 423 & 424—There has not been an elaborate discussion of the evidence on record. It is needless to say that a duty is cast upon the lower appellate Court to write out a proper judgment on facts while disposing of an appeal. Abdul Khaleque Master vs State 52 DLR (AD) 54.
Section, 423(1)(a)(b)—A finding of acquittal can be converted into one of conviction only under clause (a) of sub-section (1) of section 423 CrPC. The suo motu Rule is without jurisdiction. Jalaluddin vs Bilkis Rahman and State 42 DLR 107.
Section 423(i)(b)—Since the prosecution has totally failed to prove its case against any of the accused persons, non-appealing co-accused is also acquitted of the charge under section 382 Penal Code. Mofizul Islam vs State 54 DLR 221.
Section 423(1)(b)—When sentence of fine is imposed in addition to sentence of imprisonment, this will amount to enhancement of sentence. The appellate Court may enhance the sentence but such enhancement cannot be made unless the accused is given an opportunity of showing cause against such enhancement. Mizanur Rahman vs Surma Khatun 50 DLR 559.
Section 423(1)(b)(2)—Acquittal converted into conviction under section 423 CrPC—No interference in the absence of appeal against acquittal. Mofizuddin vs State 40 DLR (AD) 286.
Section 423(1)(b)(2)—The Appellate Court has jurisdiction under section 423(1)(b)(2) of Code of the Criminal Procedure to reverse an order of acquittal purporting to “alter the finding” of conviction. Mofizuddin vs State 40 DLR (AD) 286.
Sections 424 & 367—The Additional Sessions Judge sitting on appeal did not apply his mind at all in order to come to an independent decision. He came to the conclusion “found nothing illegal in the impugned order” just after quoting in his judgment some portions of the judgment of the trial Court. In such a position, no Rule need be issued—the case is sent back for delivering a proper judgment. Ekram Ali Fakir vs Abdus Samad Biswas 47 DLR 53.
Section 426—Bail after conviction—The accused could obtain bail from the Appellate Court or from the High Court Division and not from the trial Court which became functus officio after the filing and disposal of appeal against conviction. Dulal vs State 43 DLR 321.
Section 426—Bail—Suspension of sentence pending appeal—Release of appellants on bail— Sentence being in excess of one year Sessions Judge was not competent to grant such bail. Saidur Rahman vs State 40 DLR (AD) 281.
Section 426—Bail—Condition for the bail is quite reasonable and can be complied with by the person seeking bail without any difficulty but payment of fine involving huge amount of money as a condition for bail may not be possible— Impugned order of payment of fine as a condition for the bail is not supportable either in law or on the principle of reasonableness. Iqbal vs State 41 DLR (AD) 111.
Section 426—In cases of short term imprisonment, the judge should better dispose of the appeal very expeditiously failing which he may consider the question of bail (if raised again). Mahbub vs State 46 DLR (AD) 143.
Section 426—Bail in a pending appeal— The matter of granting bail by the High Court Division, during the period of emergency, in a pending appeal filed by the convict who has been convicted and sentenced under the provision of Anti-Corruption Commission Act, 2004 in case of short sentence not exceeding 3 years, when the appeal could not be disposed of within 90 working days for no fault of the appellant and/or in the case of serious illness endangering life to be certified by duly constituted Medical Board, may consider the matter of granting bail in an appropriate case in an appeal. Government of Bangladesh vs Sabera Aman 62 DLR (AD) 246.
Section 426–Bail in a pending appeal—The convict-appellant has been suffering from multifarious illness endangering life “at his advanced age of 58 years and he needs specialized, continuous and supervised treatment in a stress less condition”. Accordingly, on the ground of serious illness endangering life the convict- appellant may enlarged on bail. Iqbal Hasan Mahmood vs State 63 DLR 286.
Sections 426 & 497—Though the appellate Court including this court may enlarge a convict on bail for reasons to be recorded by it such a convict is not entitled to be released on bail if he is sentenced to suffer imprisonment for life.
Appellate Division in some cases opined that a convict may be enlarged on bail if there is no chance of disposal of the appeal within the period of his sentence. A convict who is sentenced to imprisonment for life does not fall within the pronouncement of the Appellate Division. Bail granted to appellant-opposite-party Abdul Momin Sarder on 11-1-96 is cancelled and he is directed to surrender to his bail bond forthwith. State vs Abdul Momin Sardar 50 DLR 588.
Section 428—Additional evidence—Section 428 may be resorted to when such evidence either was not available at the trial or the party concerned was prevented from producing it, either by circumstances beyond its control or by reason of misunderstanding or mistake. Rajab Ali Zulfiqar vs State 45 DLR 705.
Section 428—The purpose of this section is to allow additional evidence at the appellate stage only and not to give an opportunity to the prosecution to fill up the lacuna in its case. Bakul vs State 47 DLR 486.
Sections 428 & 561A—As the present application is an application under section 561A, there is no scope of taking further evidence under section 428 of the Code of Criminal Procedure. Shuinya @ Suruj Ali vs State 53 DLR 527.
Section 431—The power of the Court of law to reconsider fine which the deceased appeallant was entitled and if the right is taken away that will be denial of the principle of natural justice of the heirs and legal representative which their predecessor had. S Taibur Rahman vs State 55 DLR 709.
Sections 432, 424 and 367(1)—It is well- settled principle of law that for disposal of Criminal Appeal presence of an Advocate is not essential and the Appellate Court can dispose of the appeal on mere writing a judgment according to provisions of section 667(1) of CrPC. Abdul Basher vs State 40 DLR 248.
Section 435—A Court is undoubtedly inferior to another Court when an appeal lies from the former to the latter, State vs Auranga @ KM Hemayatuddin 46 DLR 524.
Section 435—Right of heirs of deceased complainant to proceed with the complainant’s case—The complainant in the criminal case under section 447 claimed ownership and possession of the land in question. On his death during the pendency of the revision case arising out of the matter his wife having stepped into his shoes so far as it relates to his properties, she is required to be brought on record to protect her interest in the land. Dr Md Abdul Baten vs State 43 DLR 60.
Sections 435 and 436—Sessions Judge called for records of the case triable under the provisions of the Special Powers Act from the Court of the Magistrate in exercise of his power, under sections 435 and 436 CrPC and took cognizance of the offence after converting himself into a Special Tribunal—This is not contemplated by law. Satya Ranjan Sarda vs State 42 DLR 142.
Sections 435/439—A second revisional application by the self-same party is not barred to challenge an illegal order after dismissal of his earlier revisional application for default and not on merit. Learned Advocate for the petitioners did not argue on the question of merit of the impugned order. So his contention as to limitation in the facts and circumstances of the case does not appeal to us. In the above facts and circumstances were are of the view that revisional application filed beyond the period of limitation though should not be encouraged, cannot debar the Court from setting aside an illegal order of the subordinate Court in the interest of justice. Anower Hossain vs Md Idrish Miah 48 DLR 295
Sections 435 and 439—Interpretation of Statute—The expression “if the accused is in confinement” in section 439 CrPC is used as a condition precedent to bail. Abdus Samad vs State 41 DLR 291.
Sections 435/439—An application under section 439 of the Code of Criminal Procedure by an informant in a Sessions Case against order of discharging an accused is maintainable in spite of the position that the State has not filed such application. Abdur Rahman Kha vs State 56 DLR 213.
Sections 435, 438 and 439A—The legislature has consciously kept section 438 alive although the Sessions Judges have been invested with the powers under section 439A to make final orders enabling the litigants to choose the forum as to whether he would resort to the forum under section 438 or under section 439A with the risk of finality of the order that may be passed. Abdul Ahad@ Md Abdul Ahadvs State 52 DLR 379.
Sections 435 & 439—Revisional Power, scope of—Question whether the law laid own in I section 5(1)(e) of the Act, 1947 and section 4 of the Anti-Corruption Act, 1957 is discriminatory and violative of the provisions of the Constitution is not within the scope of the present Rule to be determined. HM Ershad vs State 45 DLR 533.
Sections 435 and 439—To be released on bail a person must be in custody or in some sort of confinement. Abdus Samad vs State 41 DLR 291.
Sections 435/439 and 561A—The High Court Division exercising power under section 561A of the Code is not supposed to embark upon an inquiry to ascertain sufficiency, reliability and admissibility of evidence—However, if a conviction order is passed absolutely without any legal evidence, it can be looked into in the present forum to secure ends of justice. Rezia Khatun vs State 56 DLR 208.
Sections 435, 439 & 561A—Power under sections 439 and 561A is different in nature— Section 439 read with section 435 refers to inferior Court under High Court Division— Exercise of power under section 561A is not limited to the inferior Court only. Jagodish Chandra Dutta vs MH Azad 41 DLR 257.
Sections 435 & 439A—The law should not be stretched too far so that big companies against whom serious allegation of foul play concerning national economy is being made can themselves overtake the law by ingenious contentions. It is true that in criminal matters the accused should get all protection under the law but it is also important that the law should not be stretched too far so that big companies against whom serious allegation of foul play concerning national economy is being made before the Court by a statutory authority can themselves overtake the law by resourceful enterprise in raising ingenious contentions in order to frustrate the prosecution on the threshold. The Court must strike a balance. We are of the view that the learned Sessions Judge failed to maintain that balance which has been restored by the High Court Division. Shinepukur Holdings Ltd vs Beximco Pharmaceuticals Ltd 50 DLR (AD) 189.
Sections 435, 438 & 439A—The Sessions Judge would have been well-advised to reject the revision petitions upon the view that the objection as to alleged lack of authority should be raised before the Court taking cognizance. Shinepukur Holdings Ltd vs Beximco Pharmaceuticals Ltd 50 DLR (AD) 189.
Sections 435, 438 & 439A—When the SEC was making a complaint of fraudulent acts against certain companies and their directors on the basis of an enquiry undertaken by an expert committee, a Court would be well-advised not to try to be more expert at the complaint stage because otherwise it will be an example of nipping the prosecution in the bud. Shinepukur Holdings Ltd vs Beximco Pharmaceuticals Ltd 50 DLR (AD) 189.
Section 436—Sessions Judge’s power to order enquiry—The Sessions Judge commits no illegality in setting aside the order of discharge of the accused passed by the Magistrate and in directing the latter to send the case record to the Court of the Sessions Judge along with statements recorded by the police. The order is within the scope of section 436 CrPC. But the Sessions Judge’s further order giving direction to send the accused for trial being in excess of his jurisdiction cannot be sustained. The Magistrate is left with his absolute discretion in the matter of taking cognizance of the offence and sending the accused-petitioners to the Court of Sessions for trial after holding further enquiry according to law. Motaleb vs State 43 DLR 519.
Section 436—When the order of discharge has been made without entering into the merit of the case, a fresh complaint or a fresh first information report against the same accused person can be maintainable, when fresh materials come forward which were not available at the time of previous investigation or enquiry. Rasharaj Sarker vs State 52 DLR 598.
Section 436-Sessions Judge’s power to order inquiry—The jurisdiction of the Sessions Judge is wide enough to direct further inquiry by a Magistrate. If the Sessions Judge directs to make further inquiry by the Magistrate by holding a judicial inquiry it is fully within the express power given to the Sessions Judge under section 436 CrPC. Farid Ahmed vs State 44 DLR 30.
Section 436-The Magistrate seemed to have acted within his jurisdiction to decide, on assessment of evidence on record, whether all or some of the accused are to be sent for trial. The order of the Sessions Judge having the effect of directing the Magistrate to tale cognizance octhe 8 accused against whom the latter found no prima facie case is not within the scope of further inquiry contemplated under section 436 CrPC. Mohibar Rahman vs Kuti Miah 44 DLR 112.
Section 436-Sessions Judge re-assessed the evidence recorded by the Magistrate under section 202(2A) of the CrPC and apparently took cognizance of the case himself against the petitioners directing further enquiry into the matter by way of securing their attendance and ordering them to be sent up under section 205 CrPC before his court to stand trial.
Held—Order of the learned Sessions Judge is not contemplated in section 436 of the Code of Criminal Procedure and, as such, he acted illegally in interfering with the order of the learned Magistrate as such. Syed Ahmed vs Habibur Rahman 42 DLR 240.
Section 436-There is also no force in the contention that once the accused has been made party in the revisional application he acquires a right to be heard.
As provision under section 436 only directs notice in a case where a person has been discharged and not in the case of an accused to whom no process has been issued under section 204 and when the complaint has been dismissed without a notice to him. Sirajudullah vs State 48 DLR 76.
Sections 436, 439A and 561A—If any one is aggrieved by an order of discharge passed by a Magistrate, he can move the Superior Court under section 436 of the Code of Criminal Procedure for further enquiry but the Superior Court cannot direct the Magistrate to take cognisance of a case irrespective of the fact whether it is triable by a Magistrate or exclusively by the Court of Sessions. The Superior Coufl can merely order for further enquiry but cannot direct for taking cognisance of the offence. Jalaluddin vs State 60 DLR 581.
Sections 436, 204(3) & 203—The order of dismissal of the complaint passed under sections 203 and 204(3) CrPC does not amount to discharge. So for a further enquiry in such a case no notice to the accused is necessary. The principle, that an order prejudicial to an accused should not be made, without giving him – an opportunity to be heard, has no application where the accused is not discharged. A revisional application before the learned Sessions Judge at the instance of an aggrieved complainant against an order of dismissal of a complaint by the Magistrate can be gone into without notice to the accused. Sirajudullah vs State 48 DLR 76.
Sections 436, 205(1) & 203—Neither the Sessions Judge nor the High Court Division is invested with any power to direct any Magistrate to take cognizance of a case.
Their power is strictly limited to directing a further enquiry into the petition of complaint. It will be for the Magistrate concerned to take or not to take cognizance after the result of further enquiry. After the dismissal of the petition of complaint under section 203 CrPC the informant- respondents remedy was to approach the higher Court under section 436 CrPC for further enquiry into his petition of complaint. The penultimate order of the High Court Division in directing the Chief Metropolitan Magistrate to take cognizance of the offence and to issue process in accordance with section 205(1) CrPC is not sustainable. Yusuf A Hossain vs KM Rezaul Ferdous 48 DLR (AD) 53.
Sections 436, 439 and 439A—Sessions Judge’s power to direct further, enquiry under section 436 CrPC on dismissal of complaint on an erroneous view of law. Bangladesh vs Yakub Sardar 40 DLR (AD) 246.
Sections 437 & 439—Right of heirs of deceased complainant to proceed with the complainant’s case—The complainant in the criminal case under section 447 claimed ownership and possession of the land in question. On his death during the pendency of the revision case arising out of the matter his wife having stepped into his shoes so far as it relates to his properties, she is required to be brought on record to protect her interest in the land. Dr Md Abdul Baten vs State 43 DLR 60.
Sections 436, 439A & 561A—Question raised in this Rule could very well be raised before the Sessions Judge and the Sessions Judge could set aside the order of the Magistrate framing charge against the petitioner if there was mont in the contention raised by the petitioner and after such discharge there was no scope for directing further enquiry under section 436 of the Code. Since this question was not noticed at the time of issuance of the Rule discharge of the same without considering merit of the same may cause undue hardship and unnecessary harassment to the petitioner. So this Court decided merit of the Rule which is otherwise not maintainable. Abdul Hai vs State 50 DLR 551.
Section 438—When the Magistrate has only called for the case diary for his perusal upon allegations made in the naraji petition that the same will show a prima facie case against the accused, the reference prayed for against the step is premature. Nurul Hoque vs Bazal Ahmed 48 DLR 327.
Section 438—Sessions Judges have been given revisional powers to make final orders but simultaneously their powers to make recommendation to the High Court Division for orders under section 438 have also been kept intact. Abdul Ahad vs State 52 DLR 379.
Sections 438 & 439A—Though Sessions Judge has got power to make a reference to the High Court Division, it is not necessary now to make such a reference if the revisional application before him is to set aside any order of the Magistrate as he is competent enough to set aside such order. Farhad Hossain vs Mainuddin Hossain Chowdhury 46 DLR 127.
Sections 438, 439A & 561A—Reference— Since the petitioner could not make out a case of quashing of the proceedings and since no such power is vested in the Sessions Judge the impugned order refusing to make a reference to the High Court Division suffers from no illegality. Farhad Hossain vs Mainuddin Hossain Chowdhury 46 DLR 127.
Section 439—The jurisdiction of a Single Judge to hear a revisional application against an order of acquittal passed in a case involving an offence punishable with sentence of imprisonment exceeding one year is barred. Ahsan Sarfun Nur vs Nurul Islam 42 DLR (AD) 90.
Section 439—Refusal of prayer for ad-interim stay while issuing Rule in criminal revision. When appellant clearly stated before the High Court Division while obtaining the Rule that she gave birth to a child just five months ago and it would be injurious to her health as also to the baby if both were to be placed under any type of custody at that critical stage it was not a judicious and sound exercise of discretion to refuse the said stay. Azima Begum vs Yusuf Khan 43 DLR (AD) 53.
Section 439—Revision against order of acquittal—When the appellate Court and the High Court Division upon evidence and circumstances which is not unreasonable or perverse refused to believe the prosecution case, this court merely because a different view is possible of the evidence does not interfere with an order of acquittal. Abdul Hamid Mollah vs Ali Mollah 44 DLR (AD) 223.
Section 439—Leave order was granted to examine the powers under section 439 CrPC as interpreted by the High Court Division. Kashem Ali vs State 40 DLR (AD) 294.
Section 439—High Court Division made three propositions in defining the area for exercise of its power and authority. Kashem Ali vs State 40 DLR (AD) 294.
Section 439—Administration of Criminal Justice with the change of time and circumstances attending the same—High Court Division to be a little more scrutinising even in a case of acquittal —whether misappreciation of evidence is never a sufficient ground for interfering with an acquittal. Kashem Ali vs State 40 DLR (AD) 294.
Section 439—Direction for filing a separate application for bail while moving a revisional application whether proper—When the appellants were already on bail granted by the lower Appellate Court, the direction that has been given after rejecting the prayer for bail is not proper and is not in keeping with the normal practice and; procedure that is traditionally followed in the High Court Division in revision. In that view o the matter, the appellants will remain on bail already granted, till disposal of the revision case. Baneanzuddin Ahmed vs State 43 DLR (AD) 12
Section 439—Application for condonation delay in filing an appeal under the Special Powers Act is not maintainable. And such an appeal when time-barred cannot be treated as a revisional application under CrPC. Shamsul Haque vs State 43 DLR 247.
Section 439—The remand order amounts to a double jeopardy for the petitioners and offers a chance to the prosecution to remedy its lacuna. Such a remand should not be made. Fazal vs State 43 DLR 40.
Section 439—Application for condonation of delay in filing an appeal under the Special Powers Act is not maintainable. And such an appeal when time-barred cannot be treated as a revisional application under CrPC. Shamsul Haque vs State 43 DLR 247.
Section 439—The remand order amounts to a double jeopardy for the petitioners and offers a chance to the prosecution to remedy its lacuna. Such a remand should not be made. Fazal vs State 43 DLR 40.
Section 439—High Court Division in exercise of its power under section 439 CrPC has no jurisdiction to review any order of the Labour Court passed under section 26 of the Employment of Labour (Standing Orders) Act.
The application on which the instant Rule was issued and was filed under section 439 of the Code of Criminal Procedure. We, therefore, find that this Court has no jurisdiction to review any order of the Labour Court passed under section 26 of the Employment of Labour (Standing Orders) Act, 1965. Jagodish Chandra Dutta vs MH Azad 41 DLR 257.
Section 439—This Court for rectification of injustice may also go into facts, if in the determination of any question of facts, onus is wrongly placed upon any party or an incorrect principle has been applied in determining the question of fact or any material piece of evidence has been ignored or due to misconception of law, a wrong view has been taken by the court below.
This court having paternal and supervisory jurisdiction can certainly, in the interest of justice, scrutinise and go into facts and examine the propriety of the impugned order or finding in question. In this view of ours, we are supported by a number of decisions of this court reported in 35 DLR (AD) 127 (Shafiqur Rahman vs Nurul Islam Chowdhury), 18 DLR (SC) 289 (Feroze Khan vs Captain Ghulam Nabi Khan), 15 DLR (SC) 150 (Muhammad Sami Ullah Khan vs State). Khandakar Md Moniruzzaman vs State 47 DLR 341.
Section 439—The acquittal of co-accused whose case stands on the same footing as that of the appellants’ cannot be a ground for their acquittal when there is sufficient evidence on record justifying their conviction. A suo motu Rule is issued against acquitted accused to show cause why the order of their acquittal shall not be set aside and be not convicted like the appellants as they too appear to be involved in the offences proved against the appellants. Abdul Ali vs State 46 DLR 338.
Section 439—In exercise of revisional jurisdiction High Court Division can in appropriate cases disturb findings of fact. Moslem All Mollah alias Moslem Molla vs State 48 DLR 427
Section 439—নিম্ন আদালত সাক্ষ্য প্রমাণ বিবেচনা করে যে সিদ্ধান্তে উপনীত হয়েছেন তার সাথে দ্বিমত পোষণ করলেই রিভিসন মামলার আসামীদের খালাসের আদেশ বাতিল করে দিয়ে মামলা পুনঃ বিচারে পাঠান সঠিক নয় । শুধুমাত্র নিম্ন আদালতের সিদ্ধান্ত স্পষ্টতঃ ভ্রমাত্বক বা নায়ভ্রস্ট হলে বা নথি অস্পস্ট হলে বা আদালতের এখতিয়ার ত্রুটি পূর্ণ হলেই খালাসের আদেশ বাতিল করে দিয়ে মামলা পুনঃবিচারে পাঠান উচিত । Abdul Aziz vs Sekendar Ali 50 DLR 111.
Section 439—The High Court Division may also suo motu call for the record of the courts subordinate to it and set aside any order passed by such courts in any legal proceeding which has caused miscarriage of justice. Reazuddin Ahmed vs State 49 DLR (AD) 64.
Section 439—It is to be borne in mind that the High Court Division does not function as a court of revision for permitting the guilty person to escape the just reward of their misdoing on the ground of an unsubstantial technicality. Whether or not the High Court Division will exercise its Revisional jurisdiction in a given case must depend upon the facts and circumstances of that case only. Syed Ahmed vs Abdul Khaleque 51 DLR 43.
Section 439—Merely because the court deciding a revision may arrive at a different conclusion would be justifiable in reversing the decision of the trial Court unless it is possible to demonstrate with certainty that none of the grounds upon which trial Court acquitted the accused is at all supportable. Ali Akbar vs State 51 DLR 268.
Section 439—The judgment of the trial Court lacks in certain essential findings in respect of the offence but this by itself cannot be a sufficient ground for acquittal of the accused persons on appeal of in the face of evidence on record proving their guilt. Jahiruddin Ahmed vs Yasinuddin 52 DLR 97.
Section 439—As a rule of practice Court regards 60 days as the period of limitation for filing a criminal revision. In spite of this, nothing prevents the Court from entertaining a revisional application filed beyond 60 days when the applicant can satisfy the Court that he was prevented by any sufficient cause from filing the revision earlier. Khadem Ali vs State 52 DLR 281.
Section 439—A Court may cancel the bail granted either by itself or by a Court subordinate to it when allegations for cancellation are made by giving substantive proof of overt act on the part of the accused against the prosecution witness and not merely on vague, wild and general allegations. Mainuddin Chowdhury & others vs State 53 DLR 416.
Section 439—Any person could bring to the notice of Court an illegality or material irregularity in the conduct of judicial proceedings by invoking revisional powers of the High Court Division under section 439 of the Code. Abdur Rahman Kha vs State 56 DLR 213.
Section 439—In the instant case, there is no cogent reason to send the case back on remand on the flimsy ground that the prosecution has failed to file Kabinnama properly. Hence, retrial be allowed for ends of justice. Ashraful Alam State 57 DLR 718.
Section 439—The revisional court does not interfere with the concurrent findings of fact save in exceptional circumstances as when a question of law of general public importance arises or a decision shocks the conscience of the Court. Montu vs State 57 DLR 504.
Section 439—The revisional court is to look into the question whether there has been gross negligence on the part of the petitioner or inordinate delay in moving the revision application. Khaled Ahmed Chowdhury vs State 57 DLR 694.
Section 439—Court can take suo motu cognisance of the matter under section 439, CrPC and set aside the conviction and sentence of other accused persons even though they were tried and convicted and sentenced in absentia and could not prefer any appeal. Abdus Sattar @ A. Sattar @ Sottar vs State 58 DLR 415.
Section 439—In view of the fact that the petitioner was aged only 17 at the time of occurrence and there is no specific act of violence attributed to him, the maximum sentence awardable under the section is felt to be inappropriate and unwarranted. Rafiqul Islam vs State 58 DLR 362.
Sections 439 & 439A—Revisional power of the High Court Division—It is true that the party in a revision case under section 439A is debarred from agitating his point before the High Court Division under section 439 of the Code, but the power has not been restricted by any clause of section 439 or by any law if it is considered necessary to prevent the abuse of the process of the Court. The order of the Sessions Judge being not in accordance with law requires interference and the aid of section 561A of the Code can be appropriately invoked there being no scope for a second revision. Dr Md Abdul Baten vs State 43 DLR 60.
Sections 439 & 435—The Additional Sessions Judge did not point out any illegality or irregularity in recording the evidence of witnesses examined by the prosecution or in the trial Court’s refusal to examine any witness produced. In such circumstances there was no justification for the Judge to make order permitting to examine witnesses at the time of fresh trial on remand that was ordered. Shamsul Haque Bhuiyan vs State 49 DLR 37.
Sections 439 & 561A—Session 561A has been put under Chapter XLVI of the Code as “Miscellaneous;” so an application under this section must be registered as a miscellaneous case and not as a revision case under section 439(1) or under both sections. Sher Ali vs State 46 DLR (AD) 67.
Sections 439, 439A & 561A—Propriety of exercising jurisdiction under section 561A CrPC to quash Magistrate’s order drawing up proceeding under section 145 CrPC—As the High Court Division’s revisional jurisdiction is concurrent with that of the Sessions Judge and although the High Court Division could decline to interfere for not moving the Sessions Judge, the interference that has been made cannot be said to be without jurisdiction. Jurisdiction under section 561A CrPC is not ousted in the presence of the revisional jurisdiction of the Sessions Judge under section 439A of the Code. The only question will be, has any case been made out either under section 439 or 561A of the Code? The answer will vary from case to case. Samirun Nessa vs Kamaluddin 43 DLR (AD) 175.
Sections 439 & 497—Since the petitioner did not get any opportunity to resist the application for cancellation of his bail and to present his case for maintaining the order granting him bail, the impugned order cancelling bail is set aside and the court in seisin of the case is directed to consider the matter afresh. Harun vs State 51 DLR 33.
Sections 439, 497(5) & 498—Section 497(5) gives power to High Court Division to cancel bail to accused admitted on bail. Section 498 of the code does not empower High Court Division or Court of Sessions again to admit an accused on bail after his cancellation of bail. In the event of cancellation of bail by a Court of Session the accused again cannot invoke jurisdiction under section 498 of the Code and the remedy that lay for him is invoking Revisional Power under section 439 of the Code. Mohashin Ali Pramanik vs State 55 DLR 259.
Sections 439 & 498—Whenever a matter is brought to the notice of High Court Division and High Court Division is satisfied that a case is made out for exercising Revisional power suo moto, it can always do so in the interest of justice and can treat an incompetent proceeding to be a proceeding under section 439 of the Code. Mohashin Ali Pramanik vs State 55 DLR 259.
Sections 439(4) and 439A(2)—No Second revision lies in view of the law in Sections 439(4) and 439(A)(2) of the CrPC. The purported distinction sought to be drawn by the learned Judge of the High Court Division was mis-conceived and the obiter was unwarranted. Hazi Golam Hossain vs Abdur Rahman Munshi 40 DLR (AD) 196.
Sections 439(4) & 561A—Under section 561A the exercise of inherent power is not restricted by any clause like section 439—The Court can exercise this power.
So we think it proper to exercise the inherent power under section 561A the exercise of which is not restricted by any clause like section 439. In section 439 of the Code there is a bar, as subsection (4) of the section provides to the effect that in an appealable case the party who has right to appeal cannot invoke section 439. But there is no such restriction in section 561A. Khalilur Rahman vs State 41 DLR 385.
Sections 439(4) & 439A—The idea of the High Court Division that both the courts—one under section 439(4), the other under section 439A—are equal in power and the judgment of one is the judgment of another, appears to be grotesque displaying perversity of thought. Sher Ali (Md) vs State 46 DLR (AD) 67.
Sections 439(4) & 561A—As there is nothing in the impugned order requiring to prevent abuse of the process of the Court or to secure the ends of justice, the revisional application is barred under the amended provision of section 439(4) of the CrPC. Anower Hossain vs Md Idrish Miah 48 DLR 295.
Section 439(4)—Scope of a revision against an order of acquittal is very limited in view of the provision of sub-section (4) of section 439 of the Code and decisions of the higher courts.
If the informant could prefer an appeal on the failure of the state to do so then the result could have been otherwise. Moreover, complainant has been given a limited right of appeal against an order of acquittal under the amended sub-section (2) of section 417 of the Code only on the ground of error of law. In such circumstances informant should also be given right to prefer appeal like the complainant and both of them right of appeal on the grounds of error of fact as well. Ali Akbar State 51 DLR 268.
Sections 439(4), 439A & 561A—No Court can claim inherent jurisdiction to exercise power expressly taken away by legislation.
Where there is an express provision in the Code barring the exercise of a particular jurisdiction (as under section 439) of this Court the jurisdiction may not be exercised under a general provision of the Code as under section 561A of the Code. In this connection reference may be made to the case of Kumar Singh Chhayor vs Emperor reported in AIR 1946 (Privy Council) 169 (172) wherein the Privy Council held that “no court can claim inherent jurisdiction to exercise powers expressly taken away by legislation” The instant application is hit by both sections 439A(2) and 439A of the Code. Abdul Jalil vs State 47 DLR 167.
Sections 439(4), 439A & 561A—The Sessions Judge’s decision is not final in relation to a person who has not filed the revisional application to the Sessions Judge but has been impleaded therein as opposite party. He is free to go to any appropriate forum to challenge the Sessions Judge’s decision. But he cannot go to the High Court Division with another revisional application, as such, an application—better known as second revision—is expressly barred by section 439.
Though the High Court Division cannot entertain any application under section 439(1) from a decision of the Sessions Judge under section 439A, still it can interfere with the Sessions Judge’s order by invoking its inherent for the limited purposes as set out in that, section namely, ‘to give effect to any order under Code, or to prevent abuse of the process of any court or otherwise to secure ends of justice’. Sher Ali vs State 46 DLR (AD) 67.
Sections 439A—Jurisdiction of the Sessions Judge under section 439A is co-extensive with the revisional jurisdiction of this Court in all matters except quashing a proceeding.
After the insertion of section 439A Sessions Judge in exercise of revisional power can set aside any order of the subordinate Criminal Court in addition to directing further enquiry under section 436 of the Code but cannot quash a proceeding. Abdul Hai vs State 50 DLR 551.
Section 439A—Where the State does not file any appeal against the order of acquittal in a police case the informant is competent to prefer revision before the Sessions Judge who can look into the legality or propriety of the order of acquittal. But the Court of revision cannot convert a finding of acquittal into a finding of conviction. Amjad Hossain vs State 49 DLR 64.
Sections 439A & 173—So far as the direction by the Sessions Judge to hold further investigation into the case is concerned, it is quite lawful; but his direction to submit charge-sheet is clearly without jurisdiction.
Per Mustafa Kamal J (agreeing): By making absurd comments, uninformed criticisms and vituperative innuendos on the judgments of the Appellate Division the learned Judges have placed themselves well inside the perimeter of contempt of this court. By openly, blatantly and consciously flouting Article. 111 they have also put themselves within the Ain bit of steps to refer the matter to the Supreme Judicial Council. Yet we decide to follow the course to caution the learned Judges not to repeat the performance in future.
It will be useful for all to remember that as human beings are not infallible, the judgments of the Appellate Division are too not infallible. Yet in all disciplined and constitutional societies and governments, the pronouncements of the highest Court are given a finality and a binding effect for the simple reason that there must be a finality to litigation at some point and that there must be judicial discipline, the lower judicial hierarchy being bound by the decision of the higher judicial hierarchy. To allow or even to tolerate a breach of this time-honoured and constitutionally fixed duty is to invite judicial anarchy and judicial indiscipline. This will create confusion in the administration of is justice and erode people’s confidence in the orderly and disciplined dispensation of justice under the Constitution. We hope that the learned Judges will appreciate the merit of judicial restraint and will desist in future from the temptation of treading on a beaten path.
Per Latfur Rahman J (agreeing): The pronouncement in respect of the power and jurisdiction of the High Court Division with regard to 561A of Code having been clearly stated in several decisions of this Division, it does not lie in the mouth of the High Court Division to take a contrary view of the same. The judgments of this Division as per the mandate of Article 111 of our Constitution is binding on the High Court Division. It is a clear violation of the Constitutional mandate by the learned Judges of the High Court Division. Is it not a violation of the oath of Office of a Judge to protect and preserve the Constitution of Bangladesh? Sher All vs State 46 DLR (AD) 67.
Sections 439 & 439A—A second revision does not lie under section 439 of the Code against the judgment and order of the Sessions Judge passed under section 439A of the Code as the same has been made an absolute bar under sub-section (4) of section 439 of the Code. Mariam Begum vs State 53 DLR 226.
Sections 439A & 561A—lnherent jurisdiction whether available to one losing in revision— The inherent jurisdiction of the High Court Division will be available even to a party who has lost in revision before the Sessions Judge. But it must be clearly borne in mind that the powers under section 561A being extraordinary in nature, should be exercised sparingly and where such exercise is essential and justified by the tests specially laid down in the provision itself. Aminul Islam vs Mujibur Rahman 45 DLR (AD) 9.
Sections 439A & 561A—Sessions Judge acted illegally and without jurisdiction in quashing the proceeding of the case pending in the Court of Sadar Upazila Magistrate in exercise of his power under section 439A of the Code of Criminal Procedure because the power of quashing a proceeding is available only under section 561A CrPC. Zahurullah vs Nurul Islam 48 DLR 386.
Sections 439A & 561A—Revisional jurisdiction of the High Court Division—Revision in a case arising out of section 145 CrPC. A party who has been unsuccessful in revision under section 439A CrPC is not totally debarred from invoking the jurisdiction of the High Court Division under section 561A. The opening words of this latter section—”Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court Division” repels any contention of such debarment. Aminul Islam vs Mujibur Rahman 44 DLR (AD) 56.
Section 440—Under section 440 of the Code a party or his Advocate has no right to be heard by a court exercising revisional power and it is the discretion of the court to hear such a party or his advocate.
If an Advocate fails to appear at the time of hearing of a criminal revision for whatever reason, this court cannot allow him to be heard by reopening the matter setting aside a judgment already pronounced and signed. Serajul Islam vs Faziul Hoque 47 DLR 480.