CODE OF CRIMINAL PROCEDURE, 1898 [Section 465 – 552]

Code of Criminal Procedure [V of 1898]

Section 465—When in a trial before the Court of Sessions it is made to appear to the Court that the accused facing the trial is of unsound mind and consequently incapable of making his defence, the court is required to enquire into the question of insanity, if necessary by taking evidence, to satisfy itself whether he is fit to make his defence. State vs Abdus Samad @ Samad Ali 54 DLR 590.

Section 465-The provisions of the section are mandatory and failure of the Court in this regard rendered the entire subsequent proceedings illegal and is of no legal effect which would vitiate the conviction and sentence. Wally Ahmed alias Babi vs State 58 DLR 433.

Sections 467 and 471—Complaint not having been made by a competent court, the criminal proceeding under sections 467 and 471 of the Penal Code has to be quashed. Sona Mia vs State 42 DLR 8.

Section 471(1)—When the accused comes within the definition of a ‘criminal lunatic’ he is liable to be detained in any asylum. Nikhil Chandra Halder vs State 54 DLR 148.

Section 476—Rule issued by the High Court Division on the appellants and two advocates to show cause why complaint should not be lodged against them under section 476 CrPC was m1e absolute against the appellants who then appealed. High Court Division issued a suo motu Rule in Criminal Revision No. 43 of 1986, upon the appellants and two Advocates to show cause as to why a complaint should not be lodged against them under section 476 of the Code of Criminal Procedure as they appeared to have practised fraud upon the Court by filing a false petition of compromise. The Rule against the appellants was made absolute, but it was discharged against the two Advocates. Hence this appeal. Abdul Gafur vs State 41 DLR (AD) 127.

Section 476-A Tribunal constituted under section 26 of the Special Powers Act is also required to follow the provisions of section 476 of the Code of Criminal Procedure if it likes to proceed against any witness of a case for commission of offence under section 193 of the Penal Code. Idris Miah (Md) vs State 50 DLR 629.

Section 476-A Tribunal constituted under section 26 of the Special Powers Act is also required to follow the provisions of section 476 of the Code of Criminal Procedure if it likes to proceed against any witness of a case for commission of offence under section 193 of the Penal Code. Idris Miah vs State 50 DLR 629.

Section 476-The Court has enough power to lodge complaint without holding any enquiry when from the proved facts he is prima fade satisfied that an offence has been committed before him in a proceeding or in relation thereto even without hearing the party complained against. Naogaon Rice Mills Ltd vs Pubali Bank Ltd 56 DLR 543.

Section 476—It appears that under the provision of section 476 of the Code of Criminal Procedure any court is empowered to send for appropriate steps against a person who is alleged to have created a forged document and submitted the same in a proceeding as an evidence in order to obtain a legal benefit out of the said forged document. But before embarking upon the provision of section 476 of the Code of Criminal Procedure it is the precondition of the provision that the proceeding in which the forged document has been filed must have been ended and any application under section 476, Code of Criminal Procedure filed by any party before that court cannot be considered unless the proceeding in which the said forged document has been filed has ended. Noor Alam Hossain vs State 59 DLR 322.

Section 476—The provision laid down in section 476 of the Code does not make the preliminary inquiry an obligatory one, rather it is left to the court making it discretionary which should be judicially exercised. Abu Yousuf vs State 62 DLR 421.

Sections 480 and 482—The Tribunal shall have the same powers as vested in a Civil Court for the purpose of inquiry and every enquiry as such shall be-deemed to be judicial proceeding within the meaning of sections 193 and 228 of the Penal Code—A Tribunal shall be deemed to be a Civil Court for the purposes of sections 480 and 482 CrPC. Muhammad Raushan Ali vs Bangladesh Bar Council 42 DLR 201.

Section 488—Provision of the Family Courts Ordinance 1985 have not taken away the power of a Magistrate to order for maintenance under section 488 CrPC. The Sessions Judge committed error of law in setting aside the order of maintenance passed by the Magistrate.

It can safely be presumed that our law makers while promulgating Ordinance No. XVIII of 1985 had in view the provisions of the Family Court Act of Pakistan and in spite of that the word ‘suit’ was specifically and unambiguously used in section 5 instead of the word ‘matters’ which has been used in the Pakistan law. The term ‘matters’ has wider meaning than the term ‘suit’ and the former term definitely includes civil suits as well as criminal or quasi-criminal proceedings. And in spite of that, section 20 as quoted above appearing in the Pakistan law made specific provision for vesting the judges of the family Courts which the power under section 488 CrPC. Meher Negar vs Mojibur Rahman 47 DLR 18.

Section 488—Family Courts can entertain, try and dispose of any suit relating to or arising out of maintenance but as section 488 CrPC does not empower the Magistrate to entertain, try and dispose of any suit i.e. any matter of civil nature, power of Magistrate under section 488 CrPC has not been ousted consequent to the establishment of the Family Courts, Rezaul Karim vs Rashida Begum 48 DLR 416.

Section 488—Plaintiffs suit for enhanced maintenance for her daughter under the Ordinance upon fresh cause of action is maintainable notwithstanding the earlier order of the Magistrate in exercise of jurisdiction under section 488 CrPC. Kowsar Chowdhury vs Latifa Sultana 54 DLR175.

Section 488—Order of maintenance of wife and son—the purpose of the Family Courts Ordinance is to provide for speedy disposal of family matters by the same forum. There will be anomaly and multiplicity of proceedings if, in spite of the establishment of Family Courts, the Magistrate continues to entertain cases for maintenance. Provisions made in the Family Courts Ordinance have ousted the jurisdiction of the Magistrates to entertain application for maintenance which is a family court matter. Md Abdul Khaleque vs Selina Begum 42 DLR 450.

Section 491—High Court may pass an order under section 491 CrPC at any time. The phrases “illegally” or “improperly” used in the sub-section (b) of section 491 of the Code mean that when a person is not detained within the provisions of any law, the detention becomes an illegal detention. The scope of section 491 CrPC is wider than the scope of constitutional provision. (Article 102 of the Constitution). Syeda Rezia Begum vs Bangladesh 40 DLR 210.

Section 491—And Constitution of Bangladesh (as amended upto date) Article 102—Court’s duty to hear the matter and pronounce its decision at the earliest without waiting for Advisory Board’s report regarding the legality or otherwise of the detenu’s detention beyond the scope of the Special Powers Act.

In view of the clear provisions of section 491 CrPC (as well as under Article 102 of the Constitution) it is the duty of this Court to hear the matter giving opportunity to both the parties to make their written and oral submissions and pronounce its decision as early as possible without waiting for the Advisory Board to report its opinion to the Government regarding the question whether the detenu is being illegally detained beyond the scope of the Special Powers Act, 1974. Dr Md Habibullah vs Secretary, Ministry of Home Affairs 41 DLR 160.

Section 491—Production of victim girl before the Upazila Court for determination of age and also in the matter of her custody.
In the matter of guardianship and custody of the person of a minor the court may put the minor in the custody of an appropriate person for the minor’s welfare or may keep the minor in neutral custody. Sukhendra Chandra Das vs Secretary Ministry of Home Affairs 42 DLR 79.

Section 491—Habeas Corpus—Extension of detention after expiry of initial period of detention —Order dated 22-5-1989 by the Ministry of Home Affairs was made after the expiry of 30 days from the date of first order of detention by the Additional District Magistrate. The Government have not been authorised to extend the period of detention with retrospective effect. The detenu is therefore detained under an illegal order of detention and is directed to be released forthwith. Momtaz Sultana vs Secretary Ministry of Home Affairs 42 DLR 457.

Section 491—Determination of age of a person in custody for the purpose of her guardianship—Isolated statement of her father in such a case in respect of her age cannot be accepted as true unless it is supported by “corroborative evidence. If a girl is found below 16 and taken away without the consent of the guardian then it will be an offence and the guardian will be entitled to her custody. Even if it is presumed that at time of occurrence of her kidnapping the detenu was minor but now when she is found major the Court has no jurisdiction to, compel her to go with her father. Manindra Kumar Malakar vs Ministry of Home Affairs 43 DLR 71.

Section 491—Directions of the nature of a Habeas Corpus, scope of—The argument that the scope of section 491 CrPC is narrower than that of Article 102 of the Constitution has no force. Its scope is not hedged by constitutional limitation. In constitutional provision it is to be seen whether the detenu is being held without any lawful authority and in a matter under section 491 it is only required to be seen whether the detention order is illegal and/or improper. Pearu Md Ferdous Alam Khan for Serajul Alam Khan (Detenu) vs State 44 DLR 603.

Section 491—The High Court Division can exercise its jurisdiction not only in declaring the detention of the detenu illegal but also declaring the proceedings upon which the detenu was held in detention to be illegal and void. State vs Deputy Commissioner Satkhira. 45 DLR 643.

Section 491—Judicial custody—Dispute over custody of alleged victim girl—Why father is refused to have her custody—A girl has been kept now in judicial custody though she is neither an accused or a witness in the relevant case. The custody or detention of a victim girl is different from that of a criminal or a political detenu. Judicial custody has the complexion of the custody of a guardian. This custody is necessary for giving the girl a chance to make up her mind and develop her independent opinion free from external influence. The facts and circumstances of each case will determine as to how and when the inherent discretion of the court for judicial is to be exercised. Dr Kazi Mozammel Haque vs State 45 DLR 197.

Section 491—The girl’s age at the time of occurrence may be relevant for the alleged offence committed but for the purpose of custody the girl’s present age is more pertinent. Nurunnahar Khatun vs State 46 DLR 112.

Section 491— When there has been a judgment and conviction passed by a Court, the High Court cannot interfere under section 491 on the ground of discovery of irregularities.

Section 491 of the Code of Criminal Procedure could come into play only when there was an illegal detention by an Executive Order by private individuals or even by a Court if the Court had no jurisdiction to try the case. A court having jurisdiction to try a case has a jurisdiction also to arrive at its own conclusion however wrong. Bakul Miah vs Government of Bangladesh, represented by the Secretary, Ministry of Home Affairs, Bangladesh Secretariat, Dhaka 46 DLR 530.

Section 491—Judicial custody of victim girl —As soon as the girl attains the age of 18 years from 1-12-1978 she must be released from thea judicial custody on her own bond even if the criminal case in which she is kept in custody remains pending. Hasina Begum vs State 48 DLR 300.

Section 491—When it is found fro4 materials on record that the alleged victim girl is aged above 16 and not an accused in the case, the order of her judicial custody is set aside and the Deputy Commissioner is directed to set her at liberty. Tarapada Sarker vs State 49 DLR 360.

Section 491—In the appeal against the order of bail the matter of custody of the victim girl was not to be decided. The Court should have considered the Miscellaneous Case filed by the appellant under section 491 CrPC on merit. Bashu Dev Chatterjee vs Umme Salma 51 DLR (AD) 238.

Section 491—The Judges were not sitting in appeal or revision as would entitle them to proceed with the matter even in the absence of the parties. The only course open was to dismiss the Miscellaneous Case for default of the petitioner. Bashu Dev Chatterjee vs Umme Salma 51 DLR (AD) 238.

Section 491—Having considered all aspects of the matter it will be in the best interest of the girl if she is released from custody and given to the care of her father. it is also necessary to see that the accused does not feel prejudiced at the trial because of the girl remaining under the care of the informant. The accused will be at liberty to pray before the trial Court for her production in Court if it is found necessary. Bashu Dev Chatterjee vs Umme Salma 51 DLR (AD) 238.

Section 491—Primary evidence being there that the girl is minor and that she is the victim of an offence it is right and proper that the girl should stay with her parents rather than be given to the family of the accused. The girl cannot be allowed to make her own choice because, prima facie, it appears that she is a minor. Jharna Rani Saha vs Khondaker Zayedul Hoque alias Jahangir 52 DLR (AD) 66.

Section 491—When a person was put into judicial custody by an order of a competent court of law unless that order is set aside detention cannot be considered as illegal. Tarun Karmaker vs State 53 DLR 135.

Section 491—In view of the provisions of section 491(1)(b) the present application under section 491 is not maintainable as the detenu was put into custody by an order of the Sessions Judge and as the same order is still in force. Tarun Karmaker vs State and ors 53 DLR 135.

Section 491—There are five clauses under sub-section(1) and there are 3 sub-sections in this section but none empower the Court to determine the question of custody of any minor. Tarun Karmaker vs State 53 DLR 135.

Section 491—When there is only an ad interim bail and that too for a limited period this Court is not inclined to interfere in the matter. Bangladesh vs Md Naziur Rahman 54 DLR (AD) 157.

Section 491—An order of detention passed on fictitious vague and indefinite grounds and founded on colourable satisfaction affecting the right of a citizen, and not in the larger interest of the society and public at large, must be quashed. Aftab Hossain (Md) vs Bangladesh 54 DLR 266.

Section 491—The detenu Rahat having been detained to abstain himself from perpetrating torture/repression in the locality of Kamrangirchar under Nadim Group terrorists, of the detention order is well-grounded in the fact and circumstances of the case. Abul Member and Abul Hassain vs Secretary, Ministry of Home Affairs 54 DLR 392.

Section 491—An application under this section cannot be rejected on the ground that no statement has been made as to the locus standi of the petitioner to challenge the order of detention or as to how the petitioner is aggrieved by the order of detention, if full particulars of the detenu and the detention are there. Zilaluddin (Md) vs Secretary, Ministry of Home Affairs 54 DLR 625.

Section 491—An application under section 491 of the Code of Criminal Procedure is maintainable for custody of a minor to see that the minor is not held illegally and in an improper manner. Abdul Majid Sarker vs State 55 DLR (AD) 1.

Section 491—A preventive detention is the deprivation of the liberty of a citizen, which right should not be taken away in an arbitrary manner. So this Court enjoys power to review the actions of the detaining authority under Articles 102(2)(b)(i) of the Constitution and under section 491 of the Code. Anwar Hossain vs State 55 DLR 643.

Section 491—The right to obtain a direction under section 491 of the Code in the nature of a habeas corpus is a statutory right on the grounds recognised in the section and a part of the statutory right has become a part of the fundamental right guaranteed in Part III of the Constitution. Anwar Hossain vs State 55 DLR 643.

Section 491—Whenever any authority is invested with a legal authority to make an order of detention to the prejudice of another person, such authority has the concomitant duty of acting judicially in making such an order on the basis of decision of consideration of some materials by observing the rule of natural justice. Anwar Hossain vs State 55 DLR 643.

Section 491—Detenu Nazma Akhter now aged 20 having been detained in the safe custody of “Nirapad Abason” since against her will prayer for her release from safe custody is allowed., her detention being improper and illegal. Jatio Mahila Ainjibi Samity vs Bangladesh 59 DLR 447.

Section 491(3)—If after examining the material on the basis of which executive authority detained a person under the provisions of any law this court finds that there is no justification for detention, sub-section (3) of section 491 of the Code will not stand as a bar to declare the detention of the detenu as illegal. Pranajit Barua vs State 50 DLR 399.

Section 492—The terms of appointment of the writ petitioner was solely based on confidence and satisfaction of the Government as to service he was rendering. The moment there is absence of confidence and satisfaction, it was within the domain of the Government to terminate the appointment. Secretary, Ministry of Law, Justice & Parliamentary Affairs vs Md Borhan Uddin 56 DLR (AD) 131.

Section 492—When Government feels necessity of terminating appointment of a Public Prosecutor, questioning legality of termination of such appointment by a person claiming to be the informant of or the witness in the case can hardly; be considered legally well conceived. SM Jillur Rahman vs Bangladesh 56 DLR (AD) 127.

Sections 492 and 493—Interpretation of Statute—Public Prosecutor occupies a solemn and unique position in the Code of Criminal Procedure. Dr SM Abu Taher vs State 42 DLR 138.

Sections 492 and 493—Appointment of Public Prosecutor and authority of the PubIic. Prosecutor to conduct a case before any Court without written authority of the Government. Dr SM Abu Taher vs State 42 DLR 138.

Section 493—Public Prosecutor has authority to file an application for revival of a case, proceeding of which were stopped for failure to conclude trial within the time limit. Taheruddin vs State 47 DLR 255.

Section 493—When imputation is made directly or indirectly for removal of a public prosecutor natural justice requires that he must be given an opportunity to explain. Borhan Uddin (Md), Advocate vs Secretary, Ministry of Law, Justice and Parliamentary Affairs 52 DLR 81.

Section 494—Withdrawal from prosecution of any person (before charge is framed or after charge is framed) before pronouncement of the judgment—effect of—Words “consent of the Court” occurring in section 494 CrPC—Interpretation of—Court is to see whether the public prosecutor who has a duty under section 494 CrPC to file an application for withdrawal from prosecution has in fact placed cogent and relevant materials for consideration of a court of law—The Court granting “consent” must not accord its consent as a matter of course but must apply its mind to the ground taken in the application for withdrawal by the Public Prosecutor. Abdul Hakim Chowdhury vs Ruhul Amin & State 40 DLR 259.

Section 494—Consent being one of a Court of law, the Court must consider the ground for its satisfaction for according consent and also for the higher Court to examine the propriety and legality of the order. Abdul Hakim Chowdhury vs Ruhul Amin & State 40 DLR 259.

Section 494—Trial Court’s passing of the impugned order of withdrawal as a matter of course without any application ofjudicial mind to any material on record. Abdul Hakim Chowdhury vs Ruhul Amin 40 DLR 259.

Section 494—The terms “consent” is a legal term and is of wider import which means “acquiesce in” or “agree to”. Abdul Hakim Chowdhury vs Ruhul Amin 40 DLR 259.

Section 494–In a case of revival under section 339D, the Court is not to determine anything judicially—Court not to search for Government instruction which prompted the Public Prosecutor to file application for revival. Dr SM Abu Taher vs State 42 DLR 138.

Section 494-The learned Assistant Sessions Judge having not granted the consent for withdrawal by the impugned order on consideration of any cogent ground or materials the same is not only illegal but contrary to the well established principles of criminal justice and liable to be quashed. Shamsul Alam vs State 47 DLR 476.

Section 494-The Magistrate accorded permission for withdrawal simply on the ground that the Government had instructed the Deputy Commissioner concerned for taking steps for withdrawal of the case. Such mechanical order of withdrawal is contrary to the provision of section 494 of the Code. The Magistrate is directed to proceed with the case in accordance with law. Altaf Hossain vs Kobed Ali 49 DLR 589.

Section 494-The trial Court having not accorded sanction for withdrawal of the case it cannot be said that the petitioners have acquired a vested right. Further, section 494 of the Code gives the authority only to a public prosecutor to file an application for withdrawal and, as such, the accused have no right to file an application for withdrawal. Apart from this the Tribunal after recording proper reasons have refused to accord consent for withdrawal of the case and, as such, no lawful grievance can be made on the merit as well. Abdul Khaleque vs Md Hanf 49 DLR (AD) 134.

Section 494—The offence under section 376 is not-compoundable and, as such, there is no question of withdrawal. Sorbesh Ali vs Jarina Begum 49 DLR (AD) 143.

Section 494—Withdrawal from the prosecution is subject to consent by the trial Judge and when the accused persons are still absconding the discretion ought not to have been exercised. Sreemall Prativa Rani Dey (Tirtha) vs Dr Mohammad Yousuf Chittagong Medical College 52 DLR (AD) 8.

Section 494-The consent mentioned in section 494 of the Code is not to be given mechanically. The Court is to exercise its function judicially before giving such consent which implies that the Court will have to examine the materials on which the Government decides withdrawal of a case. Sreemati Prativa Rani Dey (tirtha) vs Dr Mohammad Yousuf Chittagong Medical College 52 DLR (AD) 8.

Section 494-The court is required to exercise judicially the function of according consent for withdrawal of any accused from prosecution—The consent should not be given mechanically. Loskor Md Mostan Billah vs State 56 DLR 199.

Section 494-Withdrawal from prosecution —The judgment and order of the Tribunal Judge refusing to give consent to withdraw of the accused from prosecution cannot be found fault with nor there is any error in the judgment of the High Court Division. State vs Md Amir Hamza 57 DLR (AD) 26.

Section 494-Though section 494 confers on the Public Prosecutor a wide power to withdraw from the prosecution, and the Court has j to exercise its power in relation to the facts and circumstances of the case in furtherance of cause of justice rather than as a hindrance to the object of the law. Moezuddin (Md) vs State 59 DLR 222.

Section 494-The Additional Sessions Judge consented to the withdrawal from the prosecution of the accused opposite party No. 1 merely on the ground that the Ministry of Home Affairs decided to withdraw from the prosecution. The order cannot be said to be a legal one and the samei s liable to be interfered with. Moezuddin vs State 59 DLR 222.

Section 494-Judicial exercise of the discretion means consideration of all the facts and circumstances of the case available to the Court and also of the grounds on which the withdrawal is sought. The very word “consent” occurring in section 494 of the Code clearly indicates that it is not to be considered lightly on the application of the Public Prosecutor without a careful and proper scrutiny of the grounds on which the application is based. Shamsun Nahar vs State 60 DLR 1.

Sections 494 & 439—Consent mention in section 494 of the Code is not to be given mechanically. The court is to exercise its function judicially before giving such consent which implies that the court will have to examine the materials on which the Government decides on withdrawal of a case. ‘Consent’, as used in the section, means a consent freely given by a Court. Since the act of giving consent by the Court is a judicial act, the court is entitled to ask the Public Prosecutor the reasons for his withdrawal in order to judicially come to a decision. Badar Biswas vs State 57 DLR 770.

Section 497— Bail—This section enjoins upon the Court to exercise judicial discretion in the matter of granting bail for ascertaining whether the materials placed before the court by the prosecution are of such a tangible nature that if left unrebutted, they may lead to the inference of guilt of the accused. In the present case there is no other materials on record other than the FIR and mere allegations thereof. The court thus committed an error in refusing bail in this case. AKM Mosharraf Hossain vs State 44 DLR (AD) 246.

Section 497—As soon as the accused appears or brought before the Court and prays for bail the Sessions Judge should dispose of his application. If the Sessions Judge fails to dispose of the same there is no scope for allowing the accused to continue on the bail granted by the Magistrate, he is to be sent to jail custody.
We have noticed in many cases that such orders allowing the accused to continue as before were written by the bench clerks and merely intialled by the Sessions Judges and allowing the accused to remain at large for long time delaying commencement of the trials. The sooner these practices of issuing notices and/or allowing the accused to continue as before are discontinued it is better for speedy trial of the Sessions cases. Sessions Judges should stop the practice of putting initials on such important orders written by the bench clerks. Sohail Thakur vs State 51 DLR 199.

Section 497—Additional Sessions Judge is not bound by the bail granted by the Sessions Judge. If he refuses bail to an accused who was earlier granted bail by the Sessions Judge that cannot be construed as cancellation of bail granted by the Sessions Judge. Sohail Thakur vs State 51 DLR 199.

Section 497—”Save in accordance with law” as mentioned in Article 32 not only refers to criminal law but also civil law which provides for arrest and detention, namely, for recovery of decretal dues and public dues. State vs Faisal Alam Ansari 53 DLR (AD) 43.

Section 497—Section 497 of the Code of Criminal Procedure is a procedural law and the accused having alleged to have committed a substantive offence of murder his liberty is curtailed. State vs Faisal Alam Ansari 53 DLR (AD) 43.

Sections 497 & 498—Vires of the law has not been challenged in this case and therefore, we are not called upon to decide the Constitutionality of the law. Every law has a presumption of its Constitutionality. State vs Moyezuddin Sikder 60 DLR (AD) 82.

Sections 497 and 498—Bail—A person is not automatically debarred from getting bail merely because his name was mentioned in the charge-sheet. Liaqat Sharif vs State 40 DLR 506.

Section 498—Order for conditional bail is illegal and not proper. AHM Siddique vs State 45 DLR (AD) 8.

Section 498—Considering the statements under section 161 of the Code of Criminal Procedure wherein no specific overt act involving the appellants with the killing of the victim is found the appellants are granted bail and if the trial starts the Sessions Judge will be free to take them into custody during trial. Abdul Matin vs State 44 DLR (AD) 8.

Section 498— Bail—It is not the prima facie case against the accused but reasonable grounds’ for believing that he has been guilty which prohibits granting of bail. The onus is on the prosecution to disclose those reasonable grounds. Court has to examine the data available in the case to find out whether reasonable grounds exist to connect the accused with the crime alleged. Shaikh Shahidul Islam vs State 44 DLR (AD) 192.

Section 498— Bail—Refusal of bail in a case of murder in which the accused was earlier exempted from trial—In view of Sessions Judge’s findings that non-submission of charge-sheet against the petitioner earlier was without valid reason, that he is a powerful man in the locality and there is a possibility of his influencing the witnesses has substance—there is no compelling reason to enlarge the petitioner on bail. ASM Abdur Rob vs State 44 DLR 205.

Section 498—Sentence for one year—The Court ought to have exercised discretion in granting bail to the appellants in view of the short sentence of imprisonment. Saimuddin vs State 43 DLR (AD) 151.

Section 498—Bail in a case where the sentence is of short duration—In the present case the – sentence is of two years and the disposal of the appeal in question normally takes time. In that circumstances the High Court Division ought to have exercised judicial discretion in the matter of granting bail to the appellants. The judicial discretion having not been properly exercised in the facts of the case the order is set aside and the appeal allowed. Dhanu Mia vs State 43 DLR (AD) 119.

Section 498—High Court Division criminal revision cancelled the appellant’s when there was no new material before it and no allegation of tampering with the evidence. Co-accused against whom cognizance of a murder case has already been taken is already on bail. High Court Division did not exercise its judicial discretion properly in cancelling the appellant’s bail—Appellants to remain on bail already granted by Upazila Magistrate. Bakul Howlader vs State 43 DLR (AD) 14.

Section 498— Bail—Incriminating facts disclosed in the FIR after due inquiry by the inspecting team are reasonable grounds for believing that the petitioner is guilty of criminal breach of trust. The Session Judge has rightly rejected the petition for bail. Mustafizur Rahman vs State 45 DLR 227.

Section 498—Bail—When there is hardly any chance of abscondance of the appellant in the peculiar circumstances, the Court has found that he is entitled to bail—Appeal allowed. We need not consider the appellant’s contentions with regard to the order of conviction. In the peculiar circumstances of the case we think the appeallant is entitled to bail particularly where there is hardly any chance of abscondance. The respondent found it difficult to oppose the appellant’s prayer. SM Shajahan Ali Tara vs State 41 DLR (AD) 112.

Section 498—Anticipatory bail- Circumstances when such bail was granted by the High Court Division. The police went to the residence of the petitioner to arrest him on the basis of a case started upon a newspaper report. He was a candidate for the National Assembly election. His political rivals and enemies were bent upon defeating him by putting him in confinement through the help of the police. In such circumstances, the prayer for anticipatory bail was granted. Zulfiqur Ali Bhutto vs State 43 DLR 312.

Section 498-Bail—there was a free fight between the parties; the accused are in jail for 9 months, the case has not been sent to proper court for trial as yet and both sides have case against each other on the self-same matter—Hence it will not be unreasonable to enlarge the petitioners on bail till the trial starts when the trial Court will see whether they should continue on the same bail. Shahidullah vs State 42 DLR 394.

Section 498-There is no evidentiary value of confessional statement of the co-accused if not corroborated by the evidence. Serious view is also taken for violation of the direction not to arrest or harass the petitioner by a Division Bench of this Court in Writ Petition No. 3073 of 2006 for two months but the petitioner has been arrested before expiry of that period. The opposite party must explain it. Considering the above facts, the petitioner is enlarged on bail. Badrud Doza vs State 58 DLR 529.

Sections 498 and 517—An application for disposal of seized articles can be filed under section 517 of the Code before the proper Court after conclusion of trial. The High Court Division acted illegally and without jurisdiction in releasing the seized goods at the time of issuance of Rule in an application under section 498 of the Code. State vs Abdur Rahim 58 DLR (AD) 65.

Section 498—Successive bail petition, propriety of—The Judges were not right in taking the view that once a petition for bail is rejected no further application can be made and the remedy lies only in an appeal. It is also not right to say than an application for bail could not be filed before the Vacation Judge and that he had no jurisdiction to grant interim bail (when he was himself a party to the rejection of bail for the same accused earlier by the Division Bench). At the most, it may be said that it was indiscreet on the part of the Vacation Judge to grant bail in the facts of the case.
In the application for bail before the Vacation Bench, it was not mentioned that prayers for bail had been refused earlier. For this suppression of fact alone the ad interim bail could have been cancelled. MA Wahab vs State 42 DLR (AD) 223.

Section 498—Bail matter—High Court Division admitted a criminal appeal but rejected the prayer for bail pending disposal of the appeal—Ad interim bail granted by tle Appellate Division at leave stage for two months cannot be allowed to continue indefinitely—ad-interim bail extended for six months more and meanwhile parties are directed to make sincere effoils for disposal of the appeals—on expiry of the extended period, prayer for bail is to be moved before the High Court Division. Azizul Hoq vs State 42 DLR (AD) 284.

Section 498—The law permits granting of bail even in a case where there are such reasonable ground for refusing bail, in the case of any woman or any sick or infirm person.
However, the respondent has not been granted bail upon these considerations but upon the view that there are no reasonable grounds for believing that she has been guilty of the offence alleged. The learned Attorney-General could not refer to any principle which has been allegedly violated by the High Court Division nor to any fact which has either been ignored or wrongly relied upon. State vs Jobaida Rashid 49 DLR (AD) 119.

Section 498-An earlier application for bail having been rejected on merits discarding the ground taken therein similar application subsequently filed without any new ground cannot be considered. Subsequent application must contain the information clearly about the earlier application(s) together with prominent heading such as second application or other application and so on and further that such application must be filed before the Bench which had rejected the earlier prayer(s), if of course that Bench is not in the meantime dissolved. MA Malik vs State 48 DLR 18.

Section 498—The accused-petitioner is enlarged on anticipatory bail as it appears that the informant’s father is an influential man having easy access to the local executive authorities and in the facts of the case the apprehension of harassment cannot be ruled out. MA Malik vs State 48 DLR 18.

Section 498—Anticipatory bail—As the petitioner is not named in the FIR and the police were after him, they are directed not to arrest him, and if arrested, he should be enlarged on bail immediately. He is directed to surrender then to the Magistrate and pray for regular bail. Abdul Wadud vs State 48 DLR 599.

Section 498—Bail in pending trial—The Magistrate ordered for further investigation and the investigation is still pending. It is not certain j when the police will submit report after further investigation and when the case may be sent for trial. Considering the facts and circumstances the petitioner may be enlarged on bail. Shahed Reza Shamim vs State 49 DLR 116.

Section 498-Restrictive order imposed by the District Magistrate upon liberty of movement of the petitioner enlarged by the High Court Division on anticipatory bail is stayed and the Magistrate’s conduct is deprecated. Ahad Miah vs State 49 DLR 200.

Section 498-The petitioner, being a lady in custody for a considerable period of time and there being absence of materials that her husband holding illegal fire-arms in their residence, has absconded, she is enlarged on bail. Jobaida Rashid, wife of Khandaker Abdur Rashid vs State 49 DLR 189.

Section 498-Mere naming the accused in the charge-sheet without any prima facie material and the mere fact that in the occurrence the Head of the State with his family has been murdered and that this is a sensational case cannot be a ground for refusal of bail. Jobaida Rashid, wife of Khandaker Abdur Rashid vs State 49 DLR 229.

Section 498— Ordinarily when the petition is not pressed by the Advocate for the petitioner the same is rejected without expressing opinion. Since a Division Bench has already expressed opinion on the application and the judges differed in their opinion the difference should be resolved. There is no scope for not pressing the petition after it had been pressed and opinion expressed by the Division Bench. Belayet Hossain Sharif vs State 50 DLR 242.

Section 498—Merely because a person is respectable, influential or highly placed in the society by reason of his being rich or educated or politically connected or otherwise holding important post or office he cannot avoid the due course of the law to appear before the courts below and use High Court Division as a substitute of the subordinate courts. Belayet Hossain Sharif vs State 50 DLR 242.

Section 498—Power of granting anticipatory bail is very sparingly used by this Court to save a citizen from unnecessary harassment and humiliation in the hands of police on flimsy ground or with ulterior motive or out of political design. This power cannot be exercised in each and every case as a substitute to the exercise of such power by the court below. A person cannot be enlarged on anticipatory bail how high so ever he may be unless conditions for granting such bail are satisfied. Belayet Hossain Sharif vs State 50 DLR 242.

Section 498-Since the petitioner has meanwhile been enlarged on bail by the trial Court, the merit of the case is not touched while deciding the question of entitlement to anticipatory bail. Belayet Hossain Sharif vs State 50 DLR 242.

Section 498-In view of long detention of the accused petitioner for about two years without knowing when the trial of the case can be concluded and in view of the fact that some of the accused persons standing on the same footing have already been granted bail, the accused- petitioner should be granted bail. MA Sattar vs State 50 DLR 258.

Section 498-Anticipatory Bail—the offence with which the petitioner has been accused of being punishable with death or imprisonment for life anticipatory bail cannot be granted though he is an elected Chairman. Abdur Rahman Molla vs State 50 DLR 401.

Section 498— The petitioners of the respective Rule could not satisfy with cogent reason and materials the cause for not surrendering before the Court below. Orders of ad interim anticipatory bail granted by this Court are recalled and the petitioners are directed to surrender to their respective bail bond. Dr Mominur Rahman alias Zinna vs State 50 DLR 577.

Section 498—Anticipatory bail—The spouses are at loggerheads both having taken recourse to court. There is possibility of the respondent husband being harassed. It is, therefore, difficult to hold that the High Court Division has granted him bail unreasonably or unfairly. State vs MA Malik 47 DLR (AD) 33.

Section 498—Anticipatory bail—by the High Court Division directly is not granted as a matter of course except in exceptional cases such as physical inability to appear before the court of first instance, fear and lack of personal safety, lack of confidence and like circumstances (ref. Sadeq Ali’s case, 18 DLR (SC) 393.

In the instant case we find the proceeding to be at an initial stage. No charge has yet been framed and two of the petitioners are ladies and most of the accused are quite elderly citizens of the country and some of them are suffering from heart trouble. These facts along with the order attending facts and circumstances of his peculiar case, unique in nature in our history, would call for an exercise of the power of this Court granting bail and more so when the matter of bail on merits has been examined by this Court in extension before the lawyers of both sides. Jahanara Imam vs State 46 DLR 315.

Section 498—If the trial is not concluded within a reasonable time, the petitioner can pray for bail in the appropriate court. Emran Hossain vs State 1 DLR (AD) 137.

Section 498—ln an appeal against a short sentence bail should be ordinarily granted in exercise of a proper discretion because usually it takes time to hear the appeal.
The learned Judge would be justified in refusing bail if he could ensure the disposal of the appeal within a reasonable time, i.e., within 3-6 months, otherwise the refusal of bail will be manifestly unjust. It is difficult to appreciate why not even stay of realisation of fine was granted which is usually allowed. It seems that there has not been a sufficient realization of the purpose of appeal, nor of the guidance given by this Division in the cited case. Alaluddin vs State 51 DLR (AD) 162.

Section 498—The basic conception of the word “bail” is release of a person from the custody of police and delivery into the hands of sureties, who undertake to produce him in Court whenever required to do so.
An accused person is said, at common law, to be admitted to bail, when he is released from the, custody of the officers of the Court and is entrusted to the custody of persons known as his sureties who are bound to produce him to answer at a specified time and place, the charge against him and who in default of so doing are liable to forfeit such sum as is specified when bail is granted.

Per Latfur Rahman J (agreeing): By anticipatory bail we mean bail in anticipation of arrest. The distinction is that bail is granted after arrest and anticipatory bail is granted in anticipation of arrest, and therefore, effective at the very moment of arrest. In other words, unlike a post-arrest order of bail, it is a pre-arrest order of release. State vs Abdul Wahab Shah Chowdhury 51 DLR (AD) 242.

Section 498—On principle it is true that in case of concurrent jurisdiction the lower Court  should be moved first but it is not a hidebound rule.

Per Latfur Rahman J (agreeing): Section 498 of the Code speaks of the High Court Division or Court of Sessions and, as such, I hold that an accused person may seek bail in either of the Courts at his option. I do not find any justification in curtailing the power of the superior Court, keeping the same to the Court subordinate to it. State vs Abdul Wahab Shah Chowdhury 51 DLR (AD) 242.

Section 498—If the power under section 498 is held to be subject to section 497 then the High Court Division will be precluded from considering the malafide nature of a proceeding in a particular case merely because there is a prima facie allegation of an offence punishable with death or imprisonment for life.
A prayer for pre-arrest bail should be considered without any feeling of fetter of section 497 at the first instance but the general principle as laid down in that section should always be there at the back of the mind of the Court, particularly the nature of allegation made against the accused in a particular case involving him with the offence. State vs Abdul Wahab Shah Chowdhury 51 DLR (AD) 242.

Section 498—Pre-arrest bail is an exception to the general law and the Court will always bear in mind the caution of SA Rahman J in the case of Muhammad Ayub reported in 19 DLR (SC) 38.
Generally speaking the main circumstances as would entitle an order for extraordinary remedy of pre-arrest bail is the perception of the Court upon the facts and materials disclosed by the petitioner before it that the criminal proceeding which is being or has been launched against him is being or has been taken with an ulterior motive, political or otherwise, for harassing the accused and not for securing justice, in a particular case. State vs Abdul Wahab Shah Chowdhury 51 DLR (AD) 242.

Section 498—Prayer for anticipatory bail may also be considered may occur if it is proved that on account of public commotion or other circumstances it is not possible for the petitioner to appear before the lower Court. State vs Abdul Wahab Shah Chowdhuty 51 DLR (AD) 242.

Section 498—It may even be possible to successfully make a prayer for bail on merit in the facts of a particular case but that alone can never be a ground for granting a prayer for pre-arrest bail.
This prayer, extraordinary as it is, can only be considered, as already stated, when it appears to the Court that the purpose of the alleged proceeding as far as the accused is concerned, is not what it purports to be, but to achieve a collateral purpose by abusing the process of law, such as, harassment, humiliation, etc. of the accused which cannot be permitted. State vs Abdul Wahab Shah Chowdhury 51 DLR (AD) 242.

Section 498—It is the duty of the accused to surrender before the Court in which his case is pending. He cannot continue on anticipatory bail even after submission of the charge-sheet and taking of cognizance of offence by the Court. Probir Kumar Chowdhury vs State 51 DLR 42.

Section 498—It is for the trial Court to piece together all the fragments of the evidence. Reading the statements under sections 164 and 161 CrPC there appears now reasonable grounds that the petitioner may be parties to a criminal conspiracy for killing the 4 leaders in jail. So the prayer for bail is rejected. KM Obaidur Rahman vs State 51 DLR 51.

Section 498—Ordinarily when warrant of arrest is issued against a person or a person is wanted in connection with a non-bailable offence of serious nature he is not entitled to get anticipatory bail. In this view, the ad interim anticipatory bail is recalled and the petitioners are directed to surrender to the Court below. Mir Shahidul Islam vs State 51 DLR 506.

Section 498—When on the face of it prosecution case appears to be absurd and preposterous it would be unjust to refuse bail however serious and grave the allegation may be, because in a free and civil society liberty of a citizen can neither be circumscribed nor made subservient to of capricious enforcers of law, more so, when incarceration without trial stretches over a year and a half, without any date for hearing in sight. Kawsar Alam Khan vs State 52 DLR 298.

Section 498—A Member of Parliament being enlarged on bail cannot avoid appearance before the trial Court simply on the plea that the Parliament is in session. KM Obaidur Rahman vs State 55 DLR (AD) 6.

Section 498—The question of granting or refusing bail depends upon the particular circumstances of each case and the mere fact that an offence is punishable with death or life imprisonment is not by itself sufficient to refuse bail. Captain (Retd) Nurul Huda vs State 55 DLR (AD) 33.

Section 498—The grant of bail is the discretion of the court and the Court could consider the exercise of discretion if it is satisfied in the facts and circumstances of the case that the trial cannot be concluded within the specified time. Captain (Retd) Nurul Huda vs State 55 DLR (AD) 33.

Section 498The petitioner has been made an accused for alleged acts of forgery in creating affidavit and kabinnama and the subject matter of Criminal Proceeding has become, also, a subject matter of a suit in the Second Court of Assistant Judge, Chittagong and the petitioner and informant are a loggerheads. Exceptional and special circumstances appear to have existed for granting anticipatory bail to the petitioner. Patwary Rafiquddin Haider vs State 55 DLR 241.

Section 498Non-compliance of direction of High Court Division by the Court below as to conclusion of trial of the case within 4 months will not create any right to the accused Harun to be entitled to get bail disregarding the allegation of overt act against him. Court of law must act upon materials on record to decide the question of granting or non granting of bail. Harun-or-Rashid vs State 56 DLR 318.

Section 498―The apprehension that there is possibility on the part of the petitioner to interfere with the process of investigation and of tampering with the evidence, has got no basis at all. The attending circumstances shown the petitioner deserve bail. Dr Qazi Faruque Ahmed vs State represented by the Deputy Commissioner 56 DLR 600.

Section 498―The deceased was killed in her husband’s house and naturally he was then her best custodian and he is supposed to know the cause of her death, but the story narrated in the UD Case which was ended in the final report creates presumption about the implication of the husband in the occurrence. Moreover, there is no cause to consider the prayer for his bail in the light of the decision referred which was given in an appeal. Azam Reza vs State 57 DLR 36.

Section 498―As the petitioner has no f to surrender at this stage and police is aftei the accused-petitioner is enlarged on a bail for limited period till submission of police report. Shakawat Hassan vs State 57 DLR 244.

Section 498—When accused, is in custody he is not entitled to anticipatory bail. A Wadud Member vs State 59 DLR 586.

Section 498—Since the accused-petitioners did not appear before the Magistrate nor took any step for recalling the warrant of his arrest, it is apparent that they are fugitives from justice having no protection of law. AKM Iflekhar Ahmed vs State 59 DLR 646.

Section 498—In view of the inordinate delay in holding trial and the law laid down by the Appellate Division in granting bail to an accused of non bailable offence if the trial is not concluded in the specified time the co-accused has been enlarged on bail, this Court is inclined to enlarge the appellant on bail. Abul Kalam vs State 60 DLR 254.

Section 498―From the foregoing discussions and in view of the facts and circumstances of the case, we are led to hold that at this stage, the accused-petitioner cannot make any application for bail, far less anticipatory bail, under section 498 of the Code of Criminal Procedure, 1898. Accordingly, the instant application for anticipatory bail is summarily turned down. Ali Ahsan Mujahid vs State 60 DLR 359.

Section 498—It appears that although charge-sheet has been submitted but charge has not yet been framed and, as such, completion of the trial is not likely to be soon. Furthermore, considering all the above matters we are inclined to grant bail to the accused-appellant. Ziad Ali Gazi vs State 61 DLR 807.

Section 498—On reference to the record of Criminal Miscellaneous Case No. 13454 of 2008 we find that ad interim bail was granted to the victim petitioner treating her as accused-petitioner. This may be due to mistaken submission of her learned Advocate or due to inadvertence of the Court. Indeed, the victim was not an accused in the case. Question of her release or custody was not a matter for determination under section 498 of the Code. Not being an accused charged with commission of any offence she had no scope to seek bail under the provision of sections 496, 497 and 498. We have reason to find that application preferred by the victim under section 498 of the Code seeking bail was quite incompetent. It is difficult to maintain the order of ad interim bail in her favour either through inadvertence of the Court or mistaken submission of her Advocate. Aysha Begum vs State 61 DLR 493.

Section 498—Anticipatory bail —Not to harass/arrest. If a fugitive surrenders before the High Court Division and prays for bail, it may either grant bail under section 498 of the Code, on the principle discussed or is obliged to hand him over to the police, to be dealt with in accordance with law. But directing the police not to arrest a fugitive, which the police is duty bound to do under the law, is an order beyond the ambit of the Code of Criminal Procedure or any other law, known to us. This kind of order may impede the investigation and ultimately frustrate the administration of criminal justice. State vs Zakaria Pintu 62 DLR (AD) 420.

Section 498―The Court below has seen the CD and became sure about the transaction. The matter is still under investigation and if the mighty accused is granted bail the investigation of the case will be hampered as he holds very powerful position in the Anti-Corruption Commission. SM Sabbir Hasan vs State 63 DLR 368.

Sections 498 and 499—The Tribunal has no power to impose a condition at all when it grants bail to an accused—Even the Tribunal is not competent to accept any offer of a condition by the accused in grantingbail beyond the pr-ovision of law. Rafiqul Islam vs State 58 DLR 244.

Section 500—When an accused is discharged pursuant to a final report that means that the accused has been discharged from custody under section 500 of the Code and not discharged from the case. Nurul Hoque vs Bazal Ahmed 48 DLR 327.

Section 509A—Post-mortem report although excluded from consideration while dealing with the prosecution ease due to its having been brought on record without compliance of the provision of section 509A, the defence could very well use and refer to any portion of the report for its own purpose and for assisting the Court in reaching its decision. Tariq Habibullah vs State 43 DLR 440.

Section 509A—Post-mortem report—For bringing such report in evidence strict compliance of section 509A of the Code is necessary. The report of the post-mortem examination was neither produced by the doctor who had held the post-mortem examination nor the doctor was examined as a witness in the trial. While producing the report PW 7, an Investigating Officer, had shown no cause explaining the circumstances under which the doctor could not be produced in court. Tariq Habibullah vs State 43 DLR 440.

Section 509A—Post-mortem report—The trial Court committed error of law in considering and relying upon the post-mortem report when it was produced in court without fulfilling the requirements of section 509A. Khelu Mia vs State 43 DLR 573.

Section 509A—Report of post-mortem examination—As the doctor concerned who held the post-mortem examination was not examined although he was available in the country at the relevant time, the report was not legally admitted into evidence and as such the conviction based thereon is illegal. Abdul Quddus vs State 44 DLR 441.

Section 509A—Post-mortem report is an admissible evidence when three requirements laid down in the section are satisfied. Ezahar Sepai vs State 40 DLR 177.

Section 509A—The post-mortem report was not a substantive evidence before insertion of section 509A in the Code of Criminal Procedure by Ordinance No. 24 of 1982. Ezahar Sepai vs State 40 DLR 177.

Section 509A—Non-examination of the doctor was not fatal for the prosecution case. Conviction can be based on the evidence of a solitary witness if the testimony is not tainted with suspicion. Ezahar Sepai vs State 40 DLR 177.

Section 509A—Ext. 13, post-mortem report of the deceased, has been admitted into evidencei in utter violation of the mandatory provisions of section 509A. The doctor who held the post-mortem on each of the dead bodies was not examined during the trial. Md Ali Haider vs State 40 DLR 97.

Section 509A—This section is an exception to the requirement of law that the evidence of the doctor who prepared the post-mortem report is material. Its condition therefore must be strictly fulfilled by the prosecution. The prosecution filed an application for issuing warrant against Dr M Billah Azad for his appearing in Court, and it was allowed by the order dated 29-2-88. It does not appear from the record that after the application filed by Dr M Billah Azad, any summons was issued and served on him or the said warrant of arrest was executed. Nevertheless, the prosecution filed an application on 1-3-88 vaguely stating that his present address was not known, although his address was available in the record. The learned Sessions Judge, it seems, without noticing the conditions of section 509A of the Code of Criminal Procedure accepted the post-mortem report as Ext.10 Learned Sessions Judge illegally admitted into evidence the said post-mortem report without noticing that the prosecution did not care to fulfil the conditions of section 509A Ext. 10 is thus inadmissible in evidence and so there remains no positive proof as to the cause of Amiruddin’s death. State vs Fulu Mohammad 46 DLR 160.

Section 509A—The doctor who examined the victim girl was not available and therefore another doctor PW 9 was examined to prove the handwriting of the examining doctor. His report was admissible in law. Sobesh Ali vs Jarina Begum 49 DLR (AD) 143.

Section 509A—This section is an exception to the requirement of law that the evidence of the doctor who prepared the post-mortem report is material. Its condition therefore must be strictly fulfilled by the prosecution. State vs Fulu Mohammad 46 DLR 160.

Section 509A—The case is the outcome off admitted enmity between the parties—The failure to examine the doctor who held post-mortem examination on the body of the deceased to together with absence of any alamat justify the defence case. Jalal Uddin vs State 56 DLR 69.

Section 509A—The post mortem report admitted into evidence without complying with the requirements of section 509A of the Code must be left out of consideration. There is therefore, no medical evidence as to the cause of death of the deceased. State vs Al Hasib Bin Jamal alias Hasib 59 DLR 653.

Sections 512 & 339B(2)—Since section 339B(2) provides for absentia trial, section 512 has no application in the case of an accused who appeared before the court but thereafter absconded. Baharuddin vs State 47 DLR 61.

Section 516A—Section 516A empowers a criminal Court to pass an order for custody and disposal of property during any enquiry or trial and it does not empower an Investigating Officer to give any property in the custody of any person. Siddique Ahmed Sowdagar vs State 40 DLR 268.

Section 516A—Where the offence is not committed regarding particular property the Court has no authority to pass order directing sale of such property and deposit the sale price in Court’s account. Shahabuddin vs Abdul Gani Bhuiyan 45 DLR 217.

Section 516A—Custody of property pending trial for theft and cheating—Jurisdiction of civil Court over such property—Order passed by the criminal Court giving custody of a vessel, the subject-matter of the criminal case, to the local Upazila Chairman was subject to revision and the application under section 151 CPC made before the civil Court by the complainant as the plaintiff in his suit for injunction is misconceived. Mitali Shipping Lines vs Bhuiyan Navigation Agency 44 DLR 230.

Section 516A—The Court is entitled to release the property in the Jimma of the claimant to save the same from gradual damage being exposed to sun and rain. The petitioner claiming to take the same in his jimma is bound by the bond to produce the same in Court on and when directed by the Court. Shahnewaz Karim vs State 62DLR 67.

Sections 516A & 517—About disposal of property, there is no provision in the Act and therefore the Special Tribunal shall dispose of the property under section 51 6A or 517 of the being empowered to do so by section 29 of the Act which provides that the provisions of the Code of Criminal Procedure, so far only as they are not inconsistent with the provisions of the Act, shall apply to the proceedings of Special Tribunals, and Special Tribunals shall have all the powers conferred by the Code Criminal Procedure on a Court of Sessions exercising original jurisdiction. Mahbub Alam vs Commissioner, Customs, Excise and VAT 62 DLR 395.

Section 517—Disposal of seized goods—It is for the trial Court to consider all the relevant facts and hear all the necessary parties before making an order for disposal of goods under section 517 CrPC, if called upon. Sompong vs State 45 DLR (AD) 110.

Sections 517, 520 and 561A—Stolen necklace—Whether the possession of the same should be restored to the petitioner who was acquitted of charge of retention of stolen property due to incomplete evidence and also upon benefit of doubt—Stolen necklace cannot be restored to the petitioner under such circumstances. Hajera Khatoon vs State 40 DLR 280.

Section 517(1)—The Court has a very wide discretion as to the mode of disposal of the property produced before it or in its custody. Monaranjan Das vs State 40 DLR 485.

Section 522—Power to restore possession of immovable property—Provision of section 522 of the Code cannot be made applicable to the j’ accused persons by filing a separate application to the trial Court after disposal of the appeal and revisional application arising out of the case against him under section 447 Penal Code. Dr Md Abdul Baten vs State 43 DLR 60.

Section 522—Restoration of possession of immovable property—The order of the Court restoring possession must be passed within one month from the date of conviction. The Magistrate having passed the order of restoration beyond 30 days of the order of conviction acted without jurisdiction. The provision of section 522 cannot be availed of if the dispossession is not by means of criminal force or show of force or criminal intimidation. In the instant case the accused petitioner wrongfully entered into the shop at 10-30 PM but at that time the complainant opposi party or his wife, who was the tenant, was not upon the scene. There was neither assault nor any resistance or use of criminal force in the act of dispossession by the accused-petitioner. The Magistrate’s order is bad on this count also. Sheikh MA Jabbar vs AKM Obaidul Huq 43 DLR 233.

Section 523(1)—The act of the Investigating Officer to give custody of the property on the basis of the practice in vogue in the Police Department without any support of the statutory provisions of law to that effect in violation of section 523 CrPC is without any lawful authority and is illegal. Siddique Ahmed Sawdagar vs State 40 DLR 268.

Section 526—Transfer of case—Plea of bias—The question of admissibility or non-admissibility of evidence should be left to be agitated when the case is argued. Merely because a Court acted illegally in allowing some evidence to go into the record or disallowing some evidence as irrelevant or took a wrong view of the law in passing an order would not by itself be a ground for bias (Per Anwarul Huq Chowdhury)
Per Habibur Rahman Khan J (agreeing): In the present case the order refusing to grant adjournment having been passed by the Special Tribunal not in violation of any mandatory provisions of law but in exercise of his discretionary power, could not itself give rise to a ground for transfer as no prejudice could be shown to have been caused to the accused Hussain Mohammad Ershad vs State 43 DLR 347.

Section 526—Transfer of a criminal case— Conditions for transfer—The High Court Division may withdraw a case to itself without issuing any notice upon either party when some question of law or unusual difficulty is involved therein. Neither of these situations is present here. There is no justification for the impugned transfer. Sirajul Islam (Md) vs Keramat Ali Bhuiyan 47 DLR (AD) 64.

Section 526―The order of transfer of the case is set aside as the Court below unwillingly transgressed a basic principle of adjudication— ‘hear the other side’—for an opportunity to meet allegations. Khalequzzaman vs Md Illias 48 DLR (AD) 52.

Section 526―The High Court Division can suo motu transfer a sessions case. The informant and his victim brother by preferring the application has merely informed the High Court Division about the state of the circumstances surrounding the sessions case. Jahir Gazi vs Belal Hossain, Advocate 51 DLR (AD) 88.

Section 526―Order of transfer of a case passed ex parte without any notice either to the accused or to the State and without calling for any report from the Court concerned by merely saying that without accepting or rejecting the grounds for the transfer the Court thinks justice will be met if the case is disposed of by the Court of Sessions Judge cannot be legally sustained. Moslem Uddin (Md) vs State 52 DLR (AD) 50.

Section 526―For transfer of a criminal case from one Court to another or from one District to another, there must exist a reasonable apprehension in the mind of the applicant that he will not get a fair and impartial trial in the Court concerned. Allegation of bias in the Court may provide a good ground for transfer, provided there is some factual basis to substantiate it. Shahjahan Faraji vs State 54 DLR 457.

Section 526―The contention that the transfer of the case from Munshiganj to Dhaka for trial will tend to the general convenience of the parties as most of the witnesses hail from Dh has substance. Roquib Mohammad Fakrul alias Rocky vs Md Abdul Kashem 56 DLR (AD) 191.

Section 526—unless the truth or basis of the apprehension is shown the High Court Division cannot accept prayer for transfer. Abdul Halim Ukil vs State 56 DLR 481

Section 526―When any party to any proceeding informs the court that he will move an application for transfer of the case from the Court, presiding officer of the court must then and there stop his pen in order to offer scope to the party to move such petition and wait for instruction. He can, in no way, move forward with the trial of the case. Abdul Halim Ukil vs State 56 DLR 481.

Section 526―Forum for trial of the case should not be decided at the whim of the parties— Grounds alleged by the petitioners being not consonant with section 526 of the Code, the petition for transfer of the case is rejected. Abdul Mataleb Howlader vs State 56 DLR 607.

Section 526―Transfer of case—the complainant, a local leader of the ruling party, is trying to put pressure on the local administration and magistracy —As such, fair and impartial trial may be hampered. The accused being prominent personalities in the field of Journalism, are residing in Dhaka—When their security of life is apprehended if they are to go to Magura frequently in connection with the trial, their inconvenience and apprehension of insecurity of life may be taken into consideration. Mahfuz Anam vs State 58 DLR 60.

Section 526(1)—When the Additional Sessions Judge has already observed that he entertains doubt as to whether the State will succeed in proving the case against the accused, the State has every reason to think there will be no fair trial in his court and the case needs be transferred to some other Court of competent jurisdiction. State vs Auranga @ KM Hemayatuddin 46 DLR 524.

Section 526B—Counter cases, trial of—It is desirable that counter case be tried by the same judge simultaneously—by such trial the court will get opportunity for looking to all the aspects of both the cases which is necessary for arriving at a correct decision and to avoid conflicting findings. Lutfar Rahman vs Aleya Begum 45 DLR 57.

Section 533—Any irregularity in recording the confession is curable under section 533 CrPC. Ratan Kha vs State 40 DLR 186.

Section 533—Credibility of confessional statement—No substantial compliance i cure the defect of non-compliance with the provisions of section 164 CrPC on material points. Confessional statement in a plain paper without the narration of questions and answers would not, by itself, make it inadmissible in evidence. Certificate given by the Magistrate, who had recorded the confessional statement, as to what had happened, how he warned and gave time for refection to the person confessing, how yet he insisted on making confession and his admitting the same to be correct and the Magistrate’s believing the same to be voluntary ought to be treated as conclusive evidence of facts stated therein unless shown to be otherwise. Abdul Hakim vs State 43 DLR 389.

Sections 533 & 164—The recording of the statement on a foolscap paper and mere omission of endorsement cannot be considered as fatal defect. The breach of the provision of law, if any, is a technical one and by that the evidentiary value of the confessional statement cannot be blown away. The defect is very much curable under section 533 of the Code of Criminal Procedure. Syed Ahmed vs Abdul Khaleque 51 DLR 43.

Section 537—When sanction for prosecuting government servant is invalid, the trial Court would not be a court of competent jurisdiction and a defect in the jurisdiction of the court can never be cured under sections 5 & 7 CrPC. Abdul Hakim vs State 45 DLR 352.

Section 537—The remand order amounts to double jeopardy for the petitioners and offers chance to the prosecution to remedy its lacuna. Such a remand ‘should not be made. Fazal vs State 43 DLR 40.

Section 537—Cognizance—Scheduled and non-scheduled offence—When the very taking of cognizance of an offence, the framing of accusation and the trial upon charges of both scheduled and non-scheduled offences together suffered from complete lack of jurisdiction, this could not at all be considered to be a mere defect in the framing of charges which by aid of section 537 of the CrPC can be cured if prejudice is not caused to the accused. A mere defect in framing of charge by the Court having jurisdiction is one thing while framing of charge without having any jurisdiction is a completely different thing. Mozammel Huq vs State 43 DLR 614.

Section 537—Adoption of a procedure prohibited by Code of Criminal Procedure is not curable by section 537 CrPC. Lal Miah vs State 40 DLR 377.

Section 537—Defect in framing of charge when not curable—a mere defect in framing of charge by a court having jurisdiction is one thing while the framing of charge without having any jurisdiction is a completely different thing. The contention that section 537 of the Code could be invoked to cure defect due to lack of jurisdiction cannot be accepted. Joinder of scheduled and nonscheduled offences and the trial of both these offences were illegal. Mozammel Hoq vs State 42 DLR 527.

Section 537—This provision of law will also apply to the Criminal Procedure Code including section 155. The prevailing opinion is that section 537 may be taken to cover the error, omission or irregularity in the widest sense of these terms provided there has been no failure of justice and there is no restriction in the section itself. Golam Moula Master vs State 46 DLR 140.

Section 537—Sentence passed in lump is only an irregularity not affecting the Court’s competence to pass order of conviction and sentence. Haider Ali Khan vs State 47 DLR (AD) 47.

Section 537—A Special Tribunal is not competent to try a case under the Criminal Law Amendment Act, 1958 read with the provision of the Prevention of Corruption Act, 1947. The Assistant Sessions Judge either out of ignorance or due to his callousness signed the judgment as Special Tribunal. But the accused-appellant has not been prejudiced in any manner whatsoever. So on this ground alone there cannot be any question of the trial to be vitiated for want of competence. Nizamuddin Dhali (Md) vs State 48 DLR 507.

Section 537—Defect in framing the charge is curable and that for improper examination of the accused under section 342 the case should be sent back on remand for curing the defect. Nizamuddin Dhali vs State 48 DLR 507.

Section 537—Though the words “finding, sentence” in this section relate to concluded trial or hearing the word “order” does not relate to only concluded trial or hearing but also to order passed in a pending proceeding. Shinepukur Holding Ltd vs Security Exchange Commission 50 DLR 291.

Section 537—While framing charge against the accused under sections 2 and 4 of the Anti- Terrorism Act, 1992 the missing of words ‘পরিকল্পিতভাবে বা আকস্মিকভাবে’ is a simple omission which is curable under section 537 CrPC. Abdul Kader @ Manju vs Stale 46 DLR 605.

Section 537—The sanction order seems to be too mechanical and is no sanction in the eye of law. Absence of sanction cuts at the very root of the prosecution affecting jurisdiction of the court and this defect is not curable. Syed Mustafizur Rahman vs State 53 DLR 125.

Section 537—Although the charge framed under section 399 of the Code is patently defective, there are sufficient materials on record to justi1,’ the conviction of accused the under section 399, he being a member of the assembly consisting of 8/9 persons. Karam Ali vs State 54 DLR 378.

Section 537—The omission of the expression ‘যৌতুকের জন্য’ which is a vital ingredient of the offence under the aforesaid sub-section (2) being a major omission makes the charge materially defective and the defect is not curable under section 537 of the Code because this omission deprived the accused from taking proper defence and thereby caused prejudice to him. Goutam Chandra Das alias Goutam Kumar Das vs State 55 DLR 527.

Sections 537, 155 & 190—Non cognizable offence—Mere irregularity like investigation by an officer not authorized to investigate a no cognizable offence does not affect the legality of a proceeding of a Court below. Investigation by a police officer in the instant case is an antecedent proceeding. It is neither the foundation stone nor a prerequisite of the proceeding nor a sine qua non of a valid trial in the Court. It is difficult for us to see why such an irregularity, i.e. investigation by an officer not authorised, should affect the proceeding in a Court or prevent the Court from taking cognizance of a noncognizable offence under clause (a) or (b) of section 190(1) of the Code of Criminal Procedure in the absence of a clear enactment, expressed or implied preventing the Court from doing so. Golam Moula Master vs State 46 DLR 140.

Sections 537 & 243—The alleged admission of guilt was not recorded as nearly as possible in the words used by the accused. Section 243 CrPC is mandatory, the violation of which causes prejudice to the accused and is not curable under section 537 CrPC. The order of conviction and sentence as against the appellant on the basis of such so-called admission of guilt cannot therefore be sustained in law and the same should therefore be set aside in the interest of justice and the case should be sent back on remand to the trial Court to hold that trial afresh from the stage of framing the accusation or charge again after hearing the parties and considering the materials on record in accordance with the law in the light of the observations made above. Saheb Ali Miah vs State 46 DLR 238.

Sections 537 & 342—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. Abdul Khayer vs State 46 DLR 212.

Sections 537 & 342—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.

Sections 537, 342 & 164—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 540—Examining prosecution witnesses as Court witnesses—Magistrate has power to summon material witness whose relevance is disclosed in evidence, but he cannot examine them as Court witness—Magistrate’s order has been modified accordingly. Helaluddin vs State 40 DLR 352.

Section 540Scope of section 540 consists of two parts—the first part is discretionary and the second part is obligatory. Md Jalaluddin Ahmed vs State 40 DLR 564.

Section 540—It is obligatory for the Court to allow the examination of witness if he thinks it is essential for the just decision of the case. The accused will not be prejudiced if the witness is examined in the Court. Md Jalaluddin Ahmed vs State 40 DLR 564.

Section 540The ends of justice have been negatived by the trial Court by refusing to recall certain witnesses for cross-examination by the appellant. The trial Court is not meant for only convicting or acquitting the accused persons but their duty is to administer justice. In the present case before us by refusing to recall certain witnesses for cross-examination by the appellant the ends ofjustice have been negatived by the trial Court. In such circumstances for ends of justice we are inclined to set aside the order dated 1-Il- 88 passed by the learned Tribunal and direct him for affording opportunity to the appellant to cross- examine the witnesses already examined by the prosecution. This is very much necessary for ends of justice. Jamil Siddique vs State 41 DLR 30.

Section 540—Court’s power to examine witness not named in the FIR—The scope of the provision in CrPC in this connection appears to be wide. It gives a discretion to the court to examine such witness at any stage. It is imperative for the Court to examine such a witness if his evidence appears to be essential for a just decision. Akhtar Jahan vs State 42 DLR 413.

Section 540—Power to summon material witness—Any party to a proceeding during the trial may point out the desirability of relevant evidence being taken and there is no limitation with regard to the state or the manner in which it is to be used. The only criterion is that the power to examine additional witness is to be used before the pronouncement of judgment and it is to be found necessary by the Court for doing justice. It appears that due to certain circumstances beyond the control of the prosecution the witnesses could not be produced and examined earlier but evidence is vitally important for the just and proper adjudication of the case. The learned Additional Sessions Judge having passed the order for the examination of the additional witness after due consideration of the facts and circumstances of the case invoking the aid of the provision of law being herself convinced that examination of the witness is necessary for proper adjudication of the case we do not find any illegality or impropriety in the order calling for interference in this revisional jurisdiction. Hemayatuddin vs State 46 DLR 1.

Section 540—The section is expressed in the widest possible term— It cannot be said that the intention of the section is to limit its application to Court witnesses only. Hemayatuddin @ Auranga vs State 46 DLR (AD) 186.

Section 540—There is absolutely no material to show that accused Ramizuddin had any knowledge about the proceeding ever since it was started against him, as at all material times he was abroad. In that view the discretion exercised by the Additional Sessions Judge allowing the accuser’s application for cross-examination of PWs affirmed by the High Court Division calls for no interference. Nimar Ali vs Ramizuddin 50 DLR (AD) 162.

Section 540Section 540 of the Code is expressed in the widest possible terms—It cannot be said that the intention of this section is to limit its application to the witnesses only before examination of the accused under section 342 of the Code. Chutta Miah vs State 56 DLR 610.

Section 540It is only for the purpose of just decision of a case that the Court can have resort to section 540. Shahinur Alam @ Shahin vs State 56 DLR 10.

Section 540This section is expressed in the widest possible term and it cannot be said that the intention of this section is to limit its application to the witnesses only before examination of the accused under section 342 of the Code. Kazi Ali Zahir alias Elin vs State 56 DLR 244.

Section 540The Court shall summon and examine witness under this section only if it appears to it essential for a just decision in the case. Tofail Ahmed vs State 56 DLR 250.

Section 540—Question of further investigation of the case for including names of two witnesses as charge-sheet witnesses does not arise, for, the court has power to examine any person as a witness. The name of any person is included as witness in the charge-sheet or not is immaterial. Ayub Ali vs State 57 DLR 230.

Section 540—Court is entitled to call for as many witnesses as required for bringing out the truth. The Sessions Judge is the arbiter and the Judge. He is not party nor an investigator. He is not expected to fill up the gaps left by the prosecution. The overriding consideration for him while exercising power under section 540 CrPC is the interest of justice. Mahatab vs State 63 DLR 223.

Section 540—Since the accused-petitioners prayed for recalling PW 2, PW 3 and PW 4 as they omitted to cross-examine them on some vital points which are essential to find out the truth, the trial Court ought to have allowed the application. Shariful Bhuiyan vs State 63 DLR 524.

Section 540A—Complaint case and police case over the same incident—How their trial will proceed—A fair procedure to be adopted in the disposal of the two cases would be for the Trial Judge to take up the complaint case first for trial. The Trial Judge may call the witnesses mentioned in the police case, if they are not already examined on behalf of the complainant, as court witnesses so that they can be cross-examined by both the parties. If the trial ended in conviction in the Complaint Case the Public Prosecutor would consider whether prosecution of police case should be withdrawn with permission of the court or not. If the police case is taken up first for trial the complainant would be under handicap insofar as to cross-examining the witnesses- for the prosecution. Normally, the Public Prosecutor is to be in charge of the case even if the trial is based on a private complaint. Motleb Mondal vs State 58 DLR 282.

Section 549—Since the appellants were not on active service within the meaning of section 8(1) of the Army Act, 1952 the appellants cannot be tried under the Army Act and, as such, there was no offence of mutiny leading to murder in the facts of the instant case. Even if one were to accept for the sake of argument that offences committed were civil offences within the meaning of section 8(2) read with section 59(2) of the Army Act, there is no legal bar in trying those accused persons in the Sessions Court in compliance with the provisions of section 94 of the Army Act read with section 549 of the CrPC. There is no legal bar for trial of the appellants in the Criminal Court in the relevant case, inasmuch as, the offences committed are in the nature of murder simpler. (Per Md Muzammel Hossain J) Major Bazlul Huda vs State 62 DLR (AD) 1.

Sections 552 & 100—A Magistrate cannot detain a person unless he or she is an accused in a criminal case. The petitioner being above 16 cannot be a minor within the meaning of section 361 Penal Code and as such the Magistrate has no jurisdiction to keep her in custody or to deliver her to the custody of her father. Fatema Begum @ Urmila Rani vs Gageswar Nath and State 46 DLR 561.