Criminal Law Amendment Act, 1958

 

 

Section-2

Want of Sanction for prosecution of a public servant.

Sanction for prosecution of a public servant from the appropriate authority is a pre­requisite for trying him by a Special Judge under the provisions of the Criminal Law Amendment Act, 1958. In the absence of such sanction the whole proceeding before the learned Special Judge has been reduced lo an exercise in fertility causing unnecessary harassment to the accuses with the result that there has been no trial in the eye of law.

Md. Iman Ali Mallik Vs. The State 8 BLT (HCD)-125

Section -2(b)

Whether the Managing Director or an Employee  of a Private  Limited Company registered under the Companies Act, 1913 is a public servant within the meaning of Section 2(b) ' Criminal Law Amendment Act, 1958.

In the instant case, M/s. Master Industries was established by its sponsors and it registered under the Companies Act and started functioning. It is no body's case the M/s. Master Industries Ltd. is established by or under any law. By no stretch of imagination it can not be said that Managing Director or an employee of a Private Limited Company registered under Companies Act is a local authority or statutory corporation or a body corporate, therefore  a  Managing  Director  or an employee  of Private  Limited Company registered under the Companies Act, 1913 not be said to be public servant within ling of section 2(b) of the Criminal Amendment Act only because the firm was registered under the Companies Act to start functioning.

Khurshid Alam & Ors.Vs. Azizur Rahman & Ors 13 BLT (AD)-211

Section-6(5)

Public servants shall mean and include only those persons who are public servants at the time of commission of the offence and remain so when cognizance of the offence is taken.

Mohor Ranjan Pal & Ors. Vs. The State 6 BLT (HCD)-18

Section-6(5)

Appellant filed a petition of complaint before the learned Senior Special Judge against the Deputy Commissioner, Super-in-tendent of police, and some other local officials alleging offence's under sections 166/217/114 of the Penal Code and section 5(2) of the Prevention of Corruption Act, 1947- Complainant was examined on oath and the A. S .P. was asked to submit a report upon holding an inquire into the complaint made- the grievance of the appellant is that the learned Special Judge Committed a two fold wrong (1) is not having acted in terms of the proviso to section 6(5) of the Act and (2) having called for a report, of all persons, from the A. S. P. when senior officers above him were complained against- Held: In the Present case it cannot be said that the learned Special Judge has acted with sound discretion in asking the A. S. P. to hold an inquire when admittedly officers much above him have been made accused in the case- The order passed by the learned Senior Special Judge is found to be wholly unsustainable in that he has failed to comply with the proviso to section 6(5) of the Act which, on all accounts, was a first step that was required to be taken by him, on receipt of the complaint.

Mr. Abdur Rahim Vs. The State 4BLT (AD)-187

Section-6(5)

At the time of the alleged occurrence the accused was a public servant and even during the period for investigation of the case he continued to be a public servant and before submission of the charge sheet against him, sanction from the Govt. was sought for by the I. O but meanwhile accused ceased to be a public servant and the 10 therefore without any sanction order from the Govt. submitted the charge sheet-Thus at the time of taking cognizance, the accused was not a public servant and therefore there was not necessary of any sanction from the Government for the prosecution of this accused-appellant- Relied on 27 DLR (AD) 35.

Md. Shaheb Ali Miah Vs. The State 3 BLT (HCD)-11O

Section-6(5)

Learned Special Judge is required to solicit required Government sanction on the basis of the complaint petition before passing any order on the complaint petition.

Tarani Mohan Ghose & Ors. Vs. The State & Ors. 7 BLT (HCD) -16

Section-6(5)

Prior sanction – where the prosecution report does not indicate of obtaining sanction to the prosecution of a public servant cognizance cannot be taken. But the proviso to Section 6(5) has given authority to the Senior Special Judge to send a letter to the appropriate authority for getting sanction and if no response is received within 60 days from the date of receipt of the letter by the Government then it should be deemed to have been duly accorded.

Jalaluddin Choudhury & Ors. Vs. The State & Anr. 9 BLT(AD)-95

Section-9

The Sentence of fine must not be less than the amount misappropriated. In this case the amount misappropriated is Taka 20,000/-but the trial court sentenced the convict petitioner to pay fine of Taka 10,000/- in violation of section 9 of the Criminal Law Amendment Act, 1958.

Abul Hossain Vs. The State 11 BLT (HCD)-494

Criminal Trial

Non-survival of criminal liability after death is true. It would not bind the successors of the deceased. But a criminal dispute as to ownership and possession of a property being of civil nature and as an\ finding in that regard by a court would bind even the heirs, the successors of the deceased ought to be implemented by court as a matter of its legal duty. [Para-8]

Hazi Abdul Ali & Ors Vs. Md. Mesbauddin 3 BLT (HCD) -184

Criminal Trial

Circumstantial evidence when not sufficient for conviction in the instant case evidence motive is necessary to complete the chain circumstantial evidence.

Shahjahan Vs. State 3 BLT (HCD)-187

Criminal Trial

It appears that though final report submitted by the investigation officer the  court took cognizance against the petitioner cannot be said committed any illegality the fact remains non-examination of, informant and the investigating officer the prosecution in the case without explanation whatsoever highly prejudiced the petitioners in their defence as they deprived of their valuable right of examination- Prejudice is raised.

Abdul Hakim & Ors Vs. The State 5 BLT (HCD)-32

Criminal Trial

If it is found that the accused had suffered a substantial part of the sentence imposed upon him or her in the mistrial, the court may not for ends of justice direct a retrial. There may be other extenuating circumstances which may impel a court to take a lenient view in favour of the accused. But 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.

Asiman Begum Vs. The State 6 BLT (AD)-279

Criminal Trial

Doubtful- The evidence of P. Ws. are full of contradictions, inconsistencies and omissions and there is a departure from the fact as stated in written ejahar. Moreover it appears that all the P. Ws. are brothers, sisters and brother in- law. Not a single unrelated disinterested witness has been examined in the case. So non-examination of disinterested and vital witness makes the prosecution case doubtful.

The accused appellant Golam Hossain Pintu was the sitting member of the Union Parishad with the informant Chairman at the relevant time. In that view of the matter also it appears to us that it is an improbable matter that a sitting member will go to commit dacoity in the house of his own Chairman of the same village.

Pear Ali Khan Vs. The State 7 BLT (HCD)-59

Criminal Trial

Doubtful by a perusal of the impugned judgment. It appears that the learned Assistant Sessions Judge has observed that this appellant Pear Ali could not produce any receipt showing his purchasing this camera as found in his possession. But the fact remains that the informant party also could not produce any receipt showing that they have purchased this camera nor did they describe the nature and feature of the camera in the list of stolen articles enclosed with the ejahar. In such a position and in the absence of identifying witness, we find that the Assistant Sessions Judge is not justified in convicting and sentencing the accused appellant Pear Ali only on the ground that he could not show any receipt.

Pear Ali Khan Vs. The State 7 BLT (HCD)-59

Criminal Trial

Evidence about the actual age of the accused petitioner- In the instant case we find that the accused appellant was regular student of class IX at the time of commission of the offence and he is aged about 14 years when the court examined him under Section 342 Cr. P. C. Except those there is no other evidence about the age of the accused appellant- we have reasons to accept the age written by the court as the approximate age of the accused appellant.

Md. Shamim Vs. The State  7 BLT (HCD)-305

Criminal Trial

Want of jurisdiction— trial of non-schedule offence with a schedule offence—the offence of kidnapping or abduction has been made a schedule offence under the Special powers Act. 1974 (Act XIV of 1974) as an offence under Section 4 of the Cruelty to Women (Deterrent Punishment) Ordinance, 1983 (Ordinance, No LX of 1983) and exclusively triable by a special tribunal established under the Act, On the other hand, an offecne under Section 494 of the Penal Code is made triable by a Metropolitan Magistrate or a Magistrate of First class. Trial of such non-schedule offence with a schedule offence of kidnapping or abduction is also not permissible.

Butul Rabidas & Anr. Vs. The State 9 BLT (HCD)-145

Criminal Trial

In the instant case the learned trial court as well as the learned court of appeal below failed to consider the defence case and the evidence and circumstances learning support to it in their true perspectives. It is well settled that if the defence plea appears to be reasonably true, although the accused may not be able to prove it, of reacts upon the entire prosecution case and the accused is entitled to get the benefit of doubt not as a matter of grace but as a matter of right. In this case the defence has succeeded in making the defence plea reasonably possible and the prosecution has failed to prove its case beyond reasonable doubts, the accused petitioners are certainly entitled to acquittal on benefit on doubt.

Ugradev Paik Vs. The State  8 BLT (HCD)-8

Criminal Trial

Conviction under Section-376 of the Penal Code—Circumstantial evidence —Benefit of doubt—It is an accepted maxim of law that man may lie but circumstances do not. This is why in the absence of any direct witness a well-knit chain of circumstances excluding all reasonable hypotheses of the innocence of the accused may alone form the basis of conviction against an accused. In our case under review, the vital circumstances surrounding the story of rape allegedly committed by accused Mansur Ali on victim Sufia Begum before the very eyes of Monowara Begum is by no means a matter which is amenable to reason and prejudice. It is unfortunate that this vital circumstantial evidence escaped the attention of the learned Special Tribunal while convincing the accused appellant on a charge of grave offence involving rape, for the facts and circumstances of the case an the inconsistencies and contradictions in evidence of the P.Ws. regarding condition of victim Sufia Beg immediately after the occurrence made wide room for doubts regarding the guilt the accused appellant. The inordinate del in lodging the FIR has not also b satisfactorily proved by the prosecution which makes the prosecution case worse, am, therefore, inclined to hold that prosecution has not been able to prove charge against the accused appellant beyond reasonable  doubts  and  the accused therefore entitled to the benefit of doubt

Mansur Ali Bepari Vs. The State 8 BLT(HCD)-164

 

Criminal Trial

We are of the view that this is a new fact brought to our notice at the time of hearing of the Rule. The petitioners may make prayer before the Metropolitan Sessions Court for ascertaining which of the statements were written by the I.O. anf which were not and then the court will be in position to find out the identity of the person or persons who wrote some of those statements. Then that court will also be of liberty to decide the legal consequences after ascertaining the fact.

Nurul Islam Monzoor & Ors. Vs. The State 8 BLT (HCD)-1

 

Criminal Trial

There is no dispute that in all 130 metric tons of wheat were allotted in installments for construction and construction of road from Gouranga Bazar Balarhat and there is no dispute about the duty of the project implementation officer P.W. 8 who was in charge of supervision of the said project. We have already found earlier that this P.W. 8 failed to state as to when he visited the project in question nor he has come with any measurement book showing pre-measurement and post-measurement of the project in question. So, anything claimed by the prosecution regarding the completion of the project in question or alleged misappropriation of the wheat in question deserves no consideration without any proof about the pre-measurement and post-measurement of the project in question and since P.W. 8 the Project Implementation Officer who was in charge of the project in question failed to state as to when he visited the project in question and there being no scrap of paper to show the measurement and post-measurement of the project in question we are led to hold that the prosecution has hopelessly failed to prove about the alleged work done by the accused persons in respect of the project in questions. So the allegation of misappropriation of the wheat in question cannot be conceived of.

Lastly, it appears that the accused appellant, for the reason best known to them have deposited the claimed amount and as such there is no scope to hold the accused-appellants guilty for the offence

Md. Abdul Motaleb Mia Vs. The State 8 BLT (HCD)-181

Criminal Trial

In the instant case the appellant-offender, was dozing and yawning in the Court room and the learned Magistrate proceeded under Section-480 of the Code of Criminal procedure and took cognizance against him wider Section-228 of the Penal Code. But he either framed any charge under Section­242 of the Code nor recorded the statement of the offender under Section-234 of the Code, as such, the mandatory provision of Section-481 of the Code were not complied with, it was fatal to the trial and rightly so held by the learned Sessions Judge in allowing the appeal.

Md. Moshiur Rahman Vs. The State 8 BLT (HCD)-209

Criminal Trial

In the instant case, the facts as emerge from the order sheet, show that the offender though an accused, dozed of in his chair and also yawned from time to time but when charged with the offence of contempt promptly begged to be excused. The facts do not show that he was at all warned of his conduct and that in defiance of such warning he continued to doze and yawn recklessly and willfully with intent to shoe disrespect and also to interrupt the proceedings of the Court. In the facts and circumstances of the present case, when the offender begged to be excused the matter ought to have been dropped.

Md. Moshiur Rahman Vs. The State 8 BLT (HCD)-209

Criminal Trial

In a criminal trial, the prosecution has to prove its case beyond reasonable doubt, on the basis of evidence. No doubt the victim if available generally is also a witness, but the case can still proceed even in the absence of the victim himself on the basis of evidence of other witnesses. As such, the judgment and order passed by the learned Sessions Judge in criminal revision is also illegal.

Mohammad Nazrul Islam Chowdhury & Ors. Vs. Abul Bashar Chowdhury & Ors. 8 BLT (HCD)-220

Criminal Trial

To prove the plea of alibi—We hold the view that the burden of proving a plea of alibi or any other plea specifically set up by accused who is the husband of the deceased or the wife or the in-laws of the deceased is on him of absolving him of criminal liability. This burden is a bit lighter than that of the prosecution, because the court is to consider his plea only after the prosecution leads evidence in support of the charge, and not before. When the prosecution failed to prove that the husband was in the house, when his wife was murdered, he cannot be saddled any onus to prove his innocence.

Yunus & Ors. Vs. The State 8 BLT (HCD)-245

Criminal Trial

Remand of Criminal case—An order of remand can be made only when the court finds it imperative in the interest of justice or from preventing an injustice.

Md. Sirajuddin Sheik vs. The State 8 BLT (HCD)-228

Criminal Trial

Abettor—Magistrate of the 1st clases at Gazipur at the relevant time, who attested the apparently false certified copy of the judgment of T.S. No/. 72 of 1988 without verifying the original thereof and thereby facilitated the commission of the offences. He ought to have been made an accused in the case as an abettor.

Md. Sirajuddin Sheik vs. The State 8 BLT (HCD)-22

Criminal Trial

The learned Advocate appearing on behalf of the petitioner tried to impress that as there was delay in the examination of the viscera by the chemical examiner his report can not be relied upon. But in support of his submission he failed to place any decision on this count. Further it appears that the chemical examiner deposed that poison was detected in the viscera. But during cross-examination it has not been suggested that due to late examination there may be defect on the result of such examination. When the chemical examiner was not confronted on the quality of viscera we find nothing to doubt or disbelieve the report

Md. Afzal Hossain Mondal Vs. The State 9 BLT (AD)-25

Criminal Trial

It is well settled that if a non-schedule offence is included in the trial of a schedule offence the trial does not necessarily become void or without jurisdiction entirely. But question may be raised as to whether the accused was prejudiced by such joinder and in a particular case there may be necessity to set aside such a trial and direct fresh trial.

Aminul Islam @ Ranga & Ors. Vs. The State 8 BLT (AD)-129

Criminal Trial

Relating to the identification—a T. I. parade to be dependable must satisfy certain conditions. In the first place, the accused should be unknown to the identifying witness by name, secondly he must not having had any opportunity to see the accused after the occurrence in connection with which he is put up for identification and thirdly the identifying witness makes no mistake, except to a most negligible character, in matter of identification. If the accused w known to the witness by name from before of occurrence he would disclose the name the accused immediately after occurrence and at any rate to Investigating Officer and in that case question of his figuring as a witness in a T.I. parade will not arise. His identification the known accused in a test identification parade will thus become meaningless and similarly if the witness has had an opportunity to see the accused after the commission of the crime in relation to which the latter is put up for identification there will be no difficulty on the part of the witness to pick up the suspect from among any number of persons. If a witness makes a mistake in identifying a person placed in the T.I. parade, there is no guarantee that a similar mistake will not be committed by him with regard to other suspects. It may not be out of place to mention here that the delay which matters in a T.I. parade is the delay from the date of occurrence and not from the date of arrest of the accused as human memory fades with lapse of time and when the T.I. parade is held after long delay horn the time of commission of crime, the chances to mistake increases.

Mirja Abdul Hakim & Ors. Vs. The State 8 BLT (AD)-160

Criminal Trial

Evidence- Appreciation of-Interested evidence by itself cannot be a ground to discard the evidence if one is found to be a truthful witness and telling the truth.

The State Vs. Ful Mia 7 BLT (AD) -337

Criminal Trial

Evidence- Appreciation of- Non-seizure of the lantern- It is in evidence that there was a lantern in the shop of P. W. 2 Akkel Ali and there were also other shops in the vicinity of the place being a market place and the time being soon after dusk it is expected in natural circumstances that there would be light in and around the shop to carry on business transactions. Apart from this, all the eye witnesses stated that both the informant party and the accused came from the same village. Behula and the eye witnesses were also from the same village. All these eye witnesses stated that they knew Ful Mia from before. That apart, it is in the evidence of the eye witness that accused Ful Mia was also taking at the relevant time with them. So there can be no difficulty in recognizing the accused who was known from before. The learned Single Judge disbelieved the story of recognition primarily because the investigating officer did not seize the lantern from the shop of P. W. 2 Akkel Ali. It is very surprising that non- seizure of the lantern can be a material consideration for holding that the eye witnesses could not recognize the accused at the time of occurrence. The learned Single Judge was absolutely wrong in holding that recognition was highly doubtful by discarding the positive evidence of the eye witnesses and also the natural circumstances of the time and place of occurrence.

The State Vs. Ful Mia 7 BLT (AD)-337

 

Criminal Trial

When the Securities and Exchange Commission was making a complaint of fraudulent acts against certain companies and their directors on the basis of an inquiry under taken 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 Holding Ltd. & Ors Securities Exchange Commission & Anr 6 BLT (AD)-265

 

Criminal Trial

If a statute deals merely with the procedure in an action and does not affect the right of the parties, it will be applied to all action pending as well as future.

Kali Pada Datta Vs. Subal Chandra Dev & Anr  6 BLT (AD)-244

 

Criminal Trial

Appellants were convicted on the basis of the confessional statements of their two co-accused and even the original copies of the confessional statements were not placed on record before the trial court- conviction and sentence is set aside.

Abul Kashem & Ors Vs. The State 6 BLT (HCD)-174

 

Criminal Trial

Learned Magistrate Who held T .1 .Parade was not examined in this case. T. I. Parade proceeding held by a Magistrate- is not admissible in evidence under section 80 of the Evidence Act and that it can not be presumed to be genuine and must be proved to be so by evidence.

Abdul Mannan Vs. The State 4 BLT (HCD)-1

 

Criminal Trial

Benefit of Doubt

In the present case none of the alleged fictitious loanees examined in the case specifically stated before the Court that the signature or L. T .1. appearing in the loan bond in his name is not his signature or L. T. I. Under such circumstances, mere casual denial by a witness that he did not take any loan by executing the loan bond is not sufficient to hold that he did not actually take any loan executing the loan bond in the face of the clear assertion by the defence that the loanees are real persons who actually received the loans on executing loan bonds. In the circumstances, what is apparent in the face of the record has to be take as real unless the contrary is proved by convincing evidence. Thus it is difficult n conclude with any amount of certainty that the loanees of the disputed loan bonds ana fictitious persons.

Md. Gholam Rabbani Vs. The State 7 BLT (HCD)-3

 

Criminal Trial

Benefit of Doubt

If in a particular case it appears from the evidence and the attending circumstances of the case that the defence put forward by the accused may be reasonably true, even thought in reality it may not be true, it reacts upon the entire prosecution case, the accused become entitled to benefit of doubt not as a matter grace but as a matter of right.

Md. Gholam Rabbani Vs. The State 7 BLT (HCD)-3

 

Criminal Trial

Benefit of Doubt

Conviction under sections 468/1091 Nuruddin Ahmed who was the Record keeper of the office of the Sub-Registrar Bogra. From a scrutiny of the evidence record, I do not find any overt act that ma| be attributed to him for facilitating the creation or the disputed deed of gift of Ex(j 4. No doubt, he was the Record Keeper but from this it does not necessarily follow tha; others had no access to the records at any point of time. Moreover, it is never known as to when and under what circumstances the disputed deed of gift was created and entered into volume No. 11 of the yea 1932. In the absence of any definite proof, it is highly unsafe to saddle him with criminal liability, either direct or abatement for the commission of the allege offences- entitled to get the benefit of doubt.

Md. Nuruddin Ahmed &Ors. Vs. The State 6 BLT(HCD)-127

Criminal Trial

Benefit of Doubt

In case where bitter enmity is admitted between the parties, it is required as a rule of prudence that there should be some such corroboration of the evidence of the interested witness as may inspire confidence in the mind of the Court.

In this Case there is no corroboration of the prosecution witnesses by the evidence of independent witnesses. The appellant should be given benefit of doubt.

Amir Hossain Phali Vs. The State 5 BLT (HCD)-89

 

Criminal Trial

Benefit of Doubt – Eye witness

In the instant case P.Ws.4 and 5 though deposed that they saw the occurrence and tell it to P.Ws. 1, 6 and 7 about drawing and throttling and killing of the victim Yunus by the accuseds but they omitted to state this vital parts of the occurrence to the I.O. Similarly P.Ws.6 and 7 who heard the occurrence from P.W.5 are not examined by the I.O and P.Ws. 4 and 5 did not state to the I.O. that they told the occurrence to P.Ws. 1, 6 and 7. Similarly P.Ws.6 and 7 though were at P.O house at the time of Investigation but I.O did not examined them without any reason. All this fact and circumstances creates doubt about the (prosecution case that the P.Ws. 4 and 5 are It all saw the occurrence and told it to P.Ws.l,6 and 7. In view of the above discussion and on careful consideration of position of eye witnesses it is very difficult to reply upon their evidence. In the face of omission on vital points and without giving sufficient reason and discarding those omissions and contradictions, relying upon investigation of the case and on some assumption, came to an erroneous finding against the accused persons.

On a careful consideration of the evidence on record particularly eye witnesses, we find and held that the prosecution have failed to prove the case beyond all reasonable doubt and that the appellants are entitled to get the benefit of doubt.

Alam Howlader Vs. The State 6 BLT (HCD)-230

Criminal Trial

Benefit of Doubt – Extra Judicial Confession

In the instant case it appears that P.W. 1 the informant of this case who happens to be a police personnel claimed that accused-appellant Asiruddin made extra-judicial confession regarding murder of the deceased about 20 years ago and also about recovery of certain pieces of bone by digging earth from the western side of the house of Nural Islam and all private P. Ws. found to have corroborated the same like a parrot. So, it appears that it has been well proved that accused-appellant Asiruddin made extra­judicial confession before a police personnel (P. W. 1) which was heard by private witnesses and others. In view of such facts and circumstances we are constrained to hold that the alleged extra-judicial confession made by accused-appellant Asiruddin followed by recovery of some pieces of bones by digging of earth by him (accused Asiruddin) is of no avail to the prosecution in as much the alleged extra­judicial confession cannot be treated as legal evidence in this case.

Asiruddin @ Asir Dakat & Ors. Vs. The State 13 BLT (HCD)-389

 

Criminal Trial

Benefit of Doubt Present F. I. R. which was lodged on 10.11.2000, since P. W. 1 the informant, victim herself admitted on dock that she went to police station on 6.11.2000 and reported the occurrence which was reduced to writing, but the same has not been brought on record inasmuch as the reporting which was made on 6.11.2000 prior to the present F. I.R. is the F. I. R. of this case and the present one should not be treated as F. I. R. inasmuch as the same may be treated as statement under Section 161 of the Code of Criminal Procedure. In absence of the F. I. R./G. D. entry or the statement about the occurrence so made by the informant-victim earlier on point of time (on 6.11.2000) at the local police station we are of opinion that the present F. I. R. has been made in order to strengthen the prosecution case by suppressing earlier facts which may have not committed in the present manner as alleged.

Suren Bairagi Vs. The State 13 BLT (HCD) 483

Criminal Trial

Benefit of Doubt

In the instant case that the Doctor conducting autopsy on the dead body of deceased Bahauddin Sheikh is an Medical Expert and Police Officer who performed Inquest on the dead body of deceased is not an expert in Medical Jurisprudence and Inquest Report cannot be pitted against Medical evidence. It is well to remember that in a conflict between Medical evidence and Inquest performed by Police Officer in respect of injuries found on the dead body of a deceased, medical evidence shall prevail and the benefit of discrepancy between medical evidence and Inquest Report to be given to the appellant-accused.

Sharafat Mondal & Ors. Vs. The State & 14 BLT (HCD)

Criminal Trial

Benefit of Doubt

Dagger about 18"in length as disclosed First Information Report and 13" in as came out during investigation culminated to laying of charge sheet also, 13 in length noted in Seizure incriminating   weapon   of o: Incriminating dagger was alleged to been seized on 03.8.1997. In information Report the incriminating was said to have been snatched a\ P.W.7 from the alleged assailant con Abul kalam. It is the lip evidence of that he handed over the dagger which snatched away from convict Abul Kalam to P.W. 10. P.W. 10 blurted out in his evidence that he found the seized dagger at the of occurrence and Vishan (P.W.7) toe dagger from him and handed over the s to Dharoga Shaheb (P.W. 12) It emerged from the evidence of P.W. 12 Investigation officer that he after securing the arrested accused Ali Akbar on 4.8.1997 by way petition sought an order of remand for days for accused Ali Akbar and in petition there had been statement that by which injury was inflicted informant and son of informant was could not be recovered. Seizure demonstrates that seizure was effected 15 A.M. on 3.8.1997. By the evidence of  PW 12 (investigating officer) the seizure incriminating dagger on 3.8.1997 stands bulldozed. Patent doubt has been, imprinted whether the incriminating d which was the weapon of offence us causing the homicidal death of deceased Masudul Islam and, also, generating injuries upon informant PW 1 and his son PW 7 was actually seized and marked as Material Exhibit-1. Boon of this patent doubt must be extended to the convict-appellants.

Aminul Islam & Ors Vs. The State 14 BLT (HCD) 420

Criminal Trial

Benefit of Doubt

The occurrence from evening to midnight and continued upto following day, in the meantime the informant sent two letters to e Sub-Inspector of Police without mentioning any name of the accused. Subsequently disclosing the names of the accused create doubt upon the prosecution story.

Abdur Rouf Morol & Ors Vs. The State 7 BLT (HCD) -310

 

Criminal Trial

Benefit of Doubt

It appears from the confessional statement mat there is a reference of one Haider son of Jonab Ali but the present accused appellant at serial No. 2 is the son of Johur Ali and not Jonab Ali. So there is a great doubt as to whether the accused Haider Ali son of Johur Ali is the same person as referred to on Ext. 7 who took part in the occurrence and benefit of this defect would go to the accused.

Md. AkborAli & Ors Vs. The State 7 BLT (HCD)-317

 

Criminal Trial

In respect of joint possession

The apprehension of the accused-petitioners along with Mokim Gazi took Wace at dead of night. They were arrested pot from the road but in the company of accused Mokim Gazi. Although no arms were recovered from their possession it is apparent  that  they  were  with accused Mokim Gazi when revolver shots and cocktails were thrown at the police party. The accused petitioners therefore cannot claim exemption from the ambit of possession of arms and ammunition. There may not be separate arms and ammunition in the possession of the two accused-petitioners but when all of them were jointly together and the police party was receiving revolver shots and cocktails it cannot be said that the revolver and the cartridges recovered from Mokim Gazi were only in his exclusive possession. The law will ascribe joint possession in such circumstances.

Lutfar Rahman & Anr. Vs. The State 6 BLT (AD)-278

Criminal Trial In Respect Of Quashing

The alleged offence was committed on 5.6.96 and the High Court Division quashed the proceeding by its order dated 12 December, 1996.There has been no investigation in the matter since that order of the High Court Division i.e., for about one and a half years. In the meantime, the victim girl has been living with the accused respondent No. 2 and it has been stated in his concise statement that the girl has given birth to a son on 17.3.97 and they have been maintaining conjugal life peaceful. We do not know what would have been the fate of the case if the investigation of the case was not quashed by the High Court Division nor do we know what will be the outcome of the case if ivestigation is permitted to be started as of now. These considerations, however, do not weigh with us in deprecating the illegal and improper manner in which the proceeding has been quashed by the High Court Division. Law will take its own course.

Md. Jabed Ali Vs. The State & Ors. 6 BLT (AD) -248

 

Criminal Trial

Retrial after a long lapse of about 14 years

The accused petitioners were acquitted of the charge under section 302/34 of the Penal Code in Sessions case by the Sessions judge. The informant respondent preferred Criminal Revision against the said judgment of acquittal and a Division Bench of the High Court Division set aside the judgment of acquittal and sent back the case for retrial- Held: Since the High Court Division was of the opinion that the accused- petitioners were wrongly acquitted of a capital charge it was within its jurisdiction to order a retrial and we do not think that in the facts and circumstances of the case the order of retrial was a travesty of criminal justice although 14 years have gone by since the occurrence took place.

Yakub Khan & Ors Vs. the State & Anr. 6 BLT(AD)-282

 

Criminal Justice

Independent Corroboration

In the context of prevailing circumstances obtaining in the society neighbours can hardly expected to depose against powerful accused persons for fear of inviting their wrath and repugnance. In the face of the realities, the concept of "independent corroboration" must be given a liberal construction and restricted meaning and it should not always be rigidly sought for when some evidence worthy of credence is on record.

Al-Haj Nurul Alam Chowdhury & Anr. Vs. The State 7 BLT (HCD)-50

 

Restoration and re-hearing of the Criminal appeal

The High Court Division was perfectly correct in holding that after disposal of the appeal on merit there is no scope for restoration and rehearing of the appeal under law when the lawyer of the accused-petitioners did not appear before the High Court Division at the time of hearing of the appeal.

Jainal Abedin & Ors. Vs. The State 8 BLT (AD)-128.

Criminal Law Amendment Act, 1958

 

Criminal Law
Amendment Act [XL of 1958]

 

Section 2(b)—Corporations other than the statutory Corporations are those
associations or bodies constituted of private individuals incorporated or
registered under provisions of the Companies Act or any other law.

Body
corporate includes both statutory Corporation and other corporation or company
private or public. But in the above provision of section 2(b) of the Criminal
Law Amendment Act “Body Corporate” has been used to mean corporation
other than “Statutory Corporation”. So Master Industries Limited is a
body corporate as mentioned in the aforesaid provision of section 2(b) of the
Criminal Law Amendment Act 1958. Therefore, we are of the view that the
petitioner as Managing Director of Master Industries Limited is a “public
servant“. Khorshed Alam vs Azizur Rahman
and another 48 DLR 36.

 

Section 4(1)—There are authorities which have found it improper for an enquiry
to be held against a person by a person belonging to the same department.

In the
present case it cannot be said that the Special Judge has acted with sound
discretion in asking the ASP to hold an enquiry when admittedly officers much
above him have been made accused in the case. The Additional Attorney-General
submitted that since the Deputy Commissioner and Superintendent of

Police were
already transferred there was no reason to apprehend that the ASP would not be
able to hold an influence-free enquiry. It is difficult to accept the
submission of the learned Additional Attorney-General, for, it is not necessary
to be personally present to influence an enquiry. Abdur Rahim @ (Md) Abdur Rahim vs State 49 DLR (AD) 51.

 

Sections 4(1) and 6(5)—Clear intention of the law is that sanction
will be required not for taking cognizance but for starting prosecution of the
accused. Abdur Gafur vs State 48 DLR 90.

 

Sections 5(1) and 6(5)—The case being exclusively triable by the
Special Judge, any evidence taken by the Metropolitan Magistrate has no value
in the eye of law. Such evidence should, therefore, be disregarded. Mohor Ranjan Pal and others vs State 50 DLR 163

 

Section 5(6)—The CID committed no error of law in holding further investigation
as per provision of section 173(3B) of the CrPC. Had further investigation been
done after the case record was transmitted to the Senior Special Judge after
taking cognizance of the offence or passing any order whatsoever then
permission of the Special Judge would have been necessary. The police had the
power to hold further investigation as per provision of section 173 (3B) of the
Code as the provision of this section is in no way derogatory to the provision
of sub-section 5(6) of the Criminal Law Amendment Act, 1958. Abdus Samad Khan and 3 others vs State 50
DLR 143.

 

Section 6(5)—The imperative language of the provision, “the Special Judge
shall, immediately on receipt of the complaint”, leaves no manner of doubt
that before any step is taken the Special Judge has to address the Government
in case of sanction not being accompanied with a petition of complaint.

It is true
that in a case under the Act a Special Judge may, where he deems if necessary,
order an investigation by any officer in whose jurisdiction the offence was
wholly or partly committed. This step also, however, cannot be taken without
complying being that the Government may not give any sanction to prosecute at
all. Abdur Rahim @ (Md) Abdur Rahim vs
State 49 DLR (AD) 51.

 

Section 6(5)—Special Judge is required to solicit required Government sanction
on the basis of the complaint petition before passing any order on the
complaint petition.

Order dated
17-2-92 and all the subsequent orders passed by the learned Senior Special Judge
and Sessions Judge Cox’s Bazar, in Special Case No. l of 1992 are quashed.
Learned Special Judge may solicit Government sanction as required under
sub-section 5 of section 6 of the Criminal Law Amendment Act, if he is
satisfied with the allegations made in the complaint petition. Tarani Mohan Gosh and 2 others vs State and
another 50 DLR 575.

 

Section 6(5)—Public Servant— Sanction for Prosecution— Every public servant who
committed an offence under the Criminal Law Amendment Act enjoys a protection
by way of sanction for prosecution. Since the Government in this case withheld
sanction the Senior Special Judge rightly passed order refusing to take
cognizance against the accused. Fakir
(Md) Tariqul Islam vs State and others 49 DLR 419.

Section 6(5)—No sanction for prosecution would be necessary when the accused
ceased to be a public servant. Saheb Ali
Miah vs State 46 DLR 238.

 

Section 6(5)—If sanction as required under section 6(5) Criminal Law Amendment
Act 1958 is not accorded by the government or is deemed not to have been so
accorded as per proviso to sub-section 5 of section 6 of the Criminal Law
Amendment Act 1958, the court shall have no jurisdiction to hold a trial
against a public servant. Niranjan Deb vs
State 47 DLR 458.

 

Section 6(5)—In the present case petitioner No. l has not been accused of any
offence committed in course of discharge of his duties as Government pleader
but in respect of an offence in a different capacity as managing trustee of a
public trust. So there is no question of obtaining sanction in respect of such
an offence. Santosh Bhusan Das and others
vs State 47 DLR 519.

 

Section 6(5)—The question whether the public servant concerned should be
prosecuted or not is entirely within the jurisdiction of the appropriate
Government. The Special Judge has no say in the matter. It is not for him to
decide whether a prima facie case has been made out against the public servant
or not.

For the
present we find no contrary opinion to the requirement of complying with the
proviso to section 6(5) if any petition of complaint is not accompanied by
sanction as required. The imperative language of the proviso, “the Special
Judge shall, immediately on receipt of the complaint” leaves no manner of
doubt that before any step is taken the Special Judge has to address the
Government in case of sanction not being accompanied with a petition of
complaint. Abdur Rahim @ Md Abdur Rahim
vs State 48 DLR (AD) 167.

 

Section 6(5)—It is not necessary to personally represent to influence an
enquiry by a subordinate Junior Officer. There are authorities which have found
it improper to hold an enquiry against a person by a person belonging to the
same department (29 CrLJ 1928, 1958). Abdur
Rahim @ Md Abdur Rahim vs State 48 DLR (AD) 167.

 

Section 9—In imposing fine of Taka 300.00 the Trying Court violated the
mandatory provision of section 9 of the Criminal Law Amendment Act, 1958 by
imposing a token fine which is much less than the amount misappropriated. Nizamuddin Dhali (Md) vs State 48 DLR 507.

 

Criminal Law Amendment Act, 1958

Criminal Law Amendment Act, 1958

 

Section 6A

Emergency Powers Rules, 2007

Rule 19Ka – Time limit under both the
provisions is held directory, and not mandatory.

As there is no
consequence provided, in the event of the failure to conclude trial within the
time specified the apex court held the provisions of 339C of the Code of
Criminal Procedure, 1898, section 6A of Criminal Law Amendment Act, 1958 and
rule 19Ka of the Emergency Power Rules, 2007 as directory
and not mandatory. However the apex further
advised to take disciplinary action against the judge concerned for his willful negligence in not
complying with the provisions of the law in appropriate cases.

A.H.M. Mustafa Kamal @ Lotus Kamal Vs.
Government of Bangladesh 14 MLR (2009) (AD) 45.

 

Criminal Law Amendment Act, 1958

Section 6(5) Sanction as sought for by the Special judge
of the Government for persecution of the accused to be accorded within 60 days
on the expiry of which it shall be presumed that sanction has been duly accorded.
Subsequent refusal to accord sanction after 60 days is of no consequence
.

The Appellate Division held the
position of law under section 6(5) of the Criminal Law Amendment Act, 1958 is
clear and as such set aside the impugned judgment and order of the High Court Division and directed the Special
Judge, Sunamganj to proceed with the Special case in accordance with law.

Malek Hussain Pir Vs. Begum Nurjahan
Khanam and others 15 MLR (2010) (AD) 109.

Criminal
Law Amendment Act, 1958

Section 9 Provides for confiscation of property to the
extent connected with the offence
When
the charges under section 5(2) of the Prevention of Corruption Act, 1947 read
with section 109 of the Penal Code, 1860 are established section 9 of the
Criminal Law (Amendment) Act, 1958 imposes a duty upon the trial judge hath he
imposes a sentence of imprisonment or not, he shall impose a sentence of fine
and pass an order confiscating the property of the accused connected with the
offence. The apex court held that the confiscated property cannot be restored
to the offender.

M.A. Sattar and others Vs. The State
14 MLR (2009) (AD) 168.

 

CRIMINAL LAW AMENDMENT ACT, 1958

 

CRIMINAL
LAW AMENDMENT ACT, 1958 (XL OF 1958)

Section—2(b)

“Public Servant”, “Statutory
Corporation” or “Body Corporate”

In section
2(b) of the Act the term ‘body corporate’ has been used to mean corporations other
than ‘statutory corporations.’ So MIs. Master Industries Limited, a limited
company registered under the Companies Act, 1913 is a ‘body corporate’. The
Managing Director of the said Company is, therefore, a ‘public servant’ within
the meaning of section 2(b) ‘of the Criminal Law Amendment Act, 1958 as the
Director of a ‘body corporate’.

Khorshed Alam Vs. Azizur
Rahman and another, 15BLD(HCD)639


Sections—4(1) and 6(5)

Jurisdiction of the Special
Judge and cognizance of cases by him

Writing for sanction by the
Special Judge

Section 4(1)
of the Criminal Law Amendment Act, 1958 provides that a Special Judge may take
cognizance of an offence committed within his jurisdiction and triable under
the said Act either upon receiving a petition of complaint or a police report.
Section 4 does not provide for obtaining any sanction before taking cognizance.

Sub-section
(5) of section 6 of the said Act provides that previous sanction of the
Government shall be required for the prosecution of a public servant for an
offence triable under this Act. Thus it is clear that sanction is necessary not
for taking cognizance but for starting the prosecution of the accused.

Abdur Gafur Vs. The
State, 15BLD(HCD)604

Ref: 35 DLR (AD)
324—Cited


Section—6(5)

Whether sanction is
necessary for prosecution of a public servant?

Sanction is
necessary for prosecution of a public servant. The sanction is a mandatory provision
and a prosecution not sanctioned by the sanctioning authority of an accused,
who is a public servant, is untenable in law.

Serajul Hoque Vs. The
State, 13BLD (HCD)344

Ref: 197
1P.Cr.L.J(Vol.2)Page 1173—Cited


Section—6(5)

Public
Servants shall mean and include only those persons who serve as public servants
at the time of commission of the offence and remain so when cognizance is taken.
Since the petitioners were not public servants at the time of commission of the
alleged offence, sanction of the Government for prosecuting them is not
required.

Mohor Ranjan Pal and others
Vs. The State, 18BLD (HCD)86

Ref: 49 DLR(AD)(1997)51;
19DLR (SC) 33; 17 DLR(SC)26; 29DLR(1977)219—Cited


Section—6(5)

Proviso

The proviso
to section 6(5) of the Criminal Law Amendment Act, 1958 makes it imperative
that the Special Judge shall, immediately on receipt of the complaint, address
the Government in case of sanction not being accompanied with the petition of
complaint before any step is taken by him in respect of the complaint. Although
in an appropriate case a Special Judge may order an investigation by any Police
Officer in whose jurisdiction the offence was wholly or partly committed but
even this step cannot be taken without first complying with the proviso to
section 6(5) of the Act. In the present case the learned Special Judge cannot
be said to have acted with sound discretion in asking the A.S.P. to hold an
enquiry into the matter when admittedly officers much above him have been made
accused in the case.

Mr. Abdur Rahim alias Md.
Abdur Rahim Vs. The State, 16 BLD(AD)215

Ref: 35 DLR(AD) (1983)
324; PLD 1962 (WP) Karachi 738; PLR (1964) 14 (Dacca) Dacca Series 557; 35 DLR
(1983)249; 9 DLR (Dacca) 109; 10 DLR(Dhaka)32 1; (1954)7 F. C. Reports, 90 and
(1945) F.C. Reports 93; 10 DLR(Dac)370; 29Cr.L.J. 1928,958—Cited.


Section—6(5)

Sanction for prosecution of
a public servant

Section 6(5)
of the Act requires that for trying a public servant for an offence under this
Act previous sanction of the Government is necessary. No public servant can
thus be tried without obtaining previous sanction for prosecution from the
appropriate authority if he continues to be a public servant at the time of
taking cognizance.

Fakir Md. Tariqul islam
Vs The State and others, 17BLD(HCD)155

Ref: 6 DLR 152; 2 BCR
1982 (HCD) 4; 52 C.W.N. 567; A.I.R. 1939 (Sind) 148; 42 DLR (1990) 252-Cited

 

Section—6(5)

According to
section 6(5) of the Act public servants shall mean and include only those
persons who act as public servants at the time of commission of the offence and
remain so when cognizance of the offence is taken.

In the
instant case, since the petitioners were not public servants at the time of the
commission of the alleged offence sanction of the Government for prosecuting
them is not required by law.

Mohor Ranjan Pal and
others Vs. The State, 18BLD(HCD)86

Ref: 49DLR(AD)(1997)51;
19DLR (SC) 33; 1 7DLR(SC)26;29DLR( 1977)2 19—Cited.

 

Criminal Law Amendment Act, 1958


Criminal Law Amendment Act [XL of 1958]



Prima facie case of abetment—

A
prima facie case of abetment of the alleged offences against the petitioner has
been disclosed in the petition of complaint and the provision of Criminal Law
Amendment Act, 1958 has also made abetment of the alleged offences punishable,
and as such the High Court Division rightly refused to quash the proceeding.

Abul
Hossain Abu vs State 1 BLC (AD) 173.


Section 3—

The
Sessions Judges are not ex-officio Special Judges and unless they are appointed
under section 3(1) of the Criminal Law Amendment Act, 1958 by notification made
in the official gazette they cannot try cases as Special Judges but it cannot
be a ground for quashing the proceeding. Since no notification in the official
gazette is forthcoming appointing the Sessions Judge, Thalakati as Special
Judge the case should be sent to the Divisional Special Judge, Khulna for
disposal instead of trying the same by the Sessions Judge, Jhalakati.

Mozahar
Ali Howlader vs Lal Mia Talukder 2 BLC 581.


Section 4—

There
is no bar for investigation for the satisfaction of the court as to whether the
facts disclosed in fact would constitute the offence as alleged in the
application and since cognizance has not yet been taken the application is
premature.

Abdur
Rahim alias M Abdur Rahim vs State 1 BLC 500


Section 5—

As
the Sessions Judge took cognizance of the offence in his capacity as Senior
Special Judge and the case was numbered as a Special Case and then the case was
tried by a Special Tribunal instead of a Special Judge for which the appellant
having not been prejudiced by such trial it cannot be vitiated for want of
competence.

Nizamuddin
Dhali (Md) vs State 1 BLC 312.


Section 5A—

On a
reading of the amended sub-section 5 of section 167 as effected by the Code of
Criminal Procedure (Second Amendment) Act, 1992 it manifests that the time
limit of conclusion of the investigation had been totally deleted and in place
of that provision of releasing the accused person on bail either by the
Magistrate or the Court of Session to the satisfaction of that Court has been
provided. The mandate of completion of the investigation within one hundred and
eighty days as contemplated in section 5A of the Criminal Law Amendment Act,
1958 thus no longer exists. Such procedural change of law will take effect
retrospectively.

Group
Captain (Retd) Shamirn Hossain vs State and another 5 BLC 662.



Section 6(5)—

The
sanction for prosecution of a Class II gazetted Officer is to be obtained from
the Principal Secretary, Prime Minister’s Office but not from the President’s
Secretariat according to the amendment of the Criminal Law Amendment Act, 1958
coming into force on the 3rd November, 1992. Accordingly, the Special Tribunal
was directed to proceed with the trial after obtaining such sanction under section
6(5) of the Act.

M
Ashrafuddin Ahmed vs State 1 BLC 47


Section 6(5)—

Senior
Special Judge wrote to the Government, after appearance of the accused persons,
for according sanction which having not been received within 60 days he
proceeded with the case treating that sanction was deemed to have been granted
under the 2nd proviso to the section 6(5) of the Act No illegality was
committed as the sanction was deemed to have been granted before framing of
charge.

Abdul
Gafur vs State 1 BLC 48


Section 6(5)—

A
petition of complaint was filed before the Senior Special Judge against the
police personnel and some other local officials without any sanction of the
government and upon examining the complainant on oath the ASP was directed to
submit a report after holding an enquiry. The Imperative language of the
proviso, “the Special Judge shall, immediately on receipt of complaint,” leaves
no manner of doubt that before any step is taken the Special Judge has to
address the Government in case of sanction not being accompanied with a
petition of complaint and even the Special Judge cannot pass an order of
investigation by any police officer without complying with the proviso to
section 6(5) of the Act as the Government may not give any sanction to
prosecute at all and it cannot be said that the learned Special Judge has acted
with sound discretion in asking the ASP to hold an enquiry when admittedly
officers much above him have been made accused in this case and the High Court
Division wrongly rejected the revisional petition on the ground of being
premature.

Abdur
Rahim @ Md. Abdur Rahim vs State 1 BLC (AD) 141


Section 8—

More
than two years have elapsed after the learned Special Judge had received the
record for holding trial but the learned Judge did not even frame charge
against the accused persons and kept on dragging the matter for arrival of
sanction order unnecessarily and hence the continuation of the proceeding is
contrary to section 8 of the Act XIII of 1987 and as such, proceeding of the
case was required to be stopped and the accused persons released.

Syed
Fakrul Islam vs State 5 BLC 552


Section 9—

The
trial Court violated the mandatory provision of section 9 of the Act in
imposing a token fine which is much less than the misappropriated amount of
money.

Nizamuddin
Dhali (Md) vs State 1 BLC 312.


Rule 3 of Schedule—

The
sanction for prosecution of a Class II gazetted Officer is to be obtained from
the Principal Secretary, Prime Minister’s Office but not from the President’s
Secretariat according to the amendment of the Criminal Law Amendment Act, 1958
coming into force on the 3rd November, 1992. Accordingly, the Special Tribunal
was directed to proceed with the trial after obtaining such sanction under
section 6(5) of the Act.

M
Ashrafuddin Ahmed vs State 1 BLC 47.