CRIMINAL PROCEDURE CODE, 1898 [Section 1 – 164]

Section 1(2) & 339C—
Applicability of the Code to proceedings before Special Tribunals The Act provides that the provisions of the Code shall apply to a case under the Act if they are not inconsistent with its own provisions. Section 339C of the Code being not inconsistent with any provisions of the Act shall apply to the proceedings before Special Tribunals constituted under the Act Section 39 is intended for expeditious trail, the special statute is intended for “more seedy trial”. If the provision for speedy trial is not applied to trial under the Act, it will bring a situation not intended by the law makers.
Kamruzzaman Vs State 42 DLR (AD) 219.Section 1(2) & 417(1)—
Appeal filed under section 417(2) CrPC against the judgment and order of acquittal passed —by Special Tribunal is not maintainable—an appeal against a judgment of Special Tribunal will have to be filed under section30 (1).of the Special Powers Act—The Code of Criminal Procedure shall not affect any special forum of procedure prescribed by any law.
State Vs Wanur Rahman 40 DLR 346.

Section 4(h)—
Definition of expression “Complaint”— whether a Special Judge can be said to have  taken cognizance on a complaint after it is taken cognizance of and then sent to him by the Magistrate. The expression “complaint” has been defined in section 4(h) of the code of Criminal procedure. It is defined there to mean an allegation made in writing or verbally to a Magistrate. Therefore, a complaint made orally or in writing to a Magistrate would be a complaint and when the Magistrate would be sending that complaint to the Special Judge along with the deposition of the witnesses, and his comments for the disposition of the witnesses and his comments for the Special Judge to take cognizance and if that cognizance is taken again it could not be said that the Special Judge had not taken Cognizance on a complaint.
Matiur Rahman Vs State 4O DLR 385.

Sections 5(2) and 167(5)—
The powers conferred under the general provisions of the Code are subject to any special provisions enacted under the Special Powers Act. The special Powers Act having made provisions with regard to the offence in question must be deemed to supersede the provisions of the Code.
Taslima Begum Vs. State 42 DLR 136.

Section 9(3), Proviso—
Interpretation ‘statute—A proviso is subservient to the main provision—It is not an enacting clause independent of the main enactment.
Our view is that a proviso cannot possibly deal with—an entirely different topic or subject and it is subservient to the main provision. A proviso must be considered in relation to the principal matter to which it stands as a proviso; To treat the proviso as If it were an independent enacting clause instead of being dependent on the main enactment is to sin against the fundamental rule of construction, as observed by Moulton, U in RV Dibdin, (1910) (Prob. Dn) 57. The same view has been expressed in Corpus Juris Secondum, Vol. 2 (pp. 887—88).
Nurul Huda Vs. Baharuddin 41 DLR 395.

Sections 9(3), Proviso, and 28—
Canon of construction of proviso—Jurisdiction occurring in sub-section (3) of section 9 is limited to trial jurisdiction if read with section 28.
Applying the aforequoted well known canon of construction of provisos, we may now say that Assistaht Sessions Judges who shall be deemed to have been appointed as Additional Sessions Judges will carry their appointment for the exact purpose set out in the main sub—section, namely, to exercise jurisdiction in one or more Such Courts”, that is, in the courts of session. Read with section 28, contained in the same Part II, the “jurisdiction” referred to in sub-section (3) of section 9 is limited to the trial Jurisdiction. Hence the Assistant Session Judges deemed to be appointed as Additional Sessions Judges under the proviso to sub-section (3) shall exercise only trail jurisdiction as Additional sessions Judges and nothing else. Part II of the code does not control or government part VII of the Code “titled Of Appeal, Reference and revision.”
Nurul Huda Vs. Baharuddin 41 DLR 395.

Section 9(3), Proviso and 31(4) —
Distinction between Court of Sessions and Sessions Judge—Court of Sessions is a Court and the Sessions Judge is an office.
Nurul Huda Vs. Baharuddin 41 DLR 395.

Sections 9(3), Proviso and ‘31(4)—
Assistant Sessions Judge deemed to have been appointed as Additional Sessions Judge does not acquire the status of an Additional Sessions Judge.
Nurul Huda s. Baharuddin 41 DLR 395.

Sections 9(3), 29C and 31(4)—
Consequence of change brought in sections 29C and 31(4) of the Code of Criminal Procedure—An Assistant Sessions Judge deemed to be an Additional Sessions Judge shall not be deemed to be an Additional Judge for all purposes under the Code, namely, for hearing appeals, revisions, references and reviews if they are made over and transferred to him by Sessions Judge.
Nurul Huda Vs. Baharuddin 41 DLR 395.

Sections 9(3), 29C, 31(4), 409—
An Assistant Sessions Judge deemed to be appointed as Additional Sessions Judge has the limited power of passing higher sentences except a Death Sentence in those sessions cases which are now triable by him by deeming and treating him to be an Additional Sessions Judge, consequent upon the changes brought. He shall not be deemed to be an Additional Sessions Judge for all the purposes under the Code, e.g. for hearing appeals, revisions, reference and reviews if they are made over or transferred to him by the. Sessions Judge. Under section 409 the Sessions Judge can transfer the hearing of an appeal only to an Additional Sessions Judge and not to an Assistant Sessions Judge deemed to have been appointed as an Additional Sessions Judge. The dismissal in the instant appeal by the Assistant Sessions Judge and refusal of interference by the High Court Division in revision are therefore illegal. The appeal against conviction is therefore allowed and it is directed that the Sessions Judge may himself dispose of the appeal or transfer it to an Additional Sessions Judge for disposal.
Abul Kashem Vs. State 43 DLR (AD) 77.

Sections 18 and 167(7)—
The Additional District Magistrate, Mymensingh had the jurisdiction to pass order for revival of the investigation within six months of the release of the accused.
Faziul Hoque Vs. State 41 DLR 477.

Sections 28 an29(2)—
An offence under section 382 of the Penal Code (XLV of 1860) is triable by Court of Sessions as per Column Eight of the Schedule.
Karim Dad Vs. Abul Hossain 40 DLR 441.

Section 29—
Labour Court and a Magistrate, 1st Class, having jurisdiction in the relevant matter, shall have concurrent jurisdiction to try an offence punishable under the Industrial Relations Ordinance. Under section 64 of the Ordinance a Magistrate, 1st Class; has also been invested with power to try any offence under this Ordinance. The decision reported in 1985 BLD (AD) 278 is not applicable in the facts of the present case.
Kamaluddin Chowdhury Vs. Mashiudowllah 43 DLR 137.

Section 31—
Question of sentence to be imposed on the accused after conviction. Although it is a matter of discretion of the trial Court interference by the appellate Court will be justified when trial Court fails to impose proper sentence.
Santosh Mia Vs. State 42 DLR 171.

Section 31—
Sentence increased from 2 years to 5 years because of the appellant’s being a member of the law enforcing agency and the heinousness of the crime.
Santosh Mia Vs. State 42 DLR 171.

Sections 74 & 114(e)—
Objection as to admissibility of evidence is to taken at the first instance. In the instant case no such objection was —raised against the Commissioner’s report in question which can also be relied upon as the same is an official document and was prepared in due course.
Abdul Quader Chowdhury Vs. Sayedul Hoque 43 DLR 568.

Sections 87, 88 and 339B—
For compelling an absconder accused to be brought to trial coercive power under sections 87 and 88 could be used—Section 339B added to the code to provide for trial in absentia. This trial in absentia, needs to be held only when all attempts had failed to bring the offender to trial and not just as a matter of course of only, on police showing them in the chalan to be absconders.
Lal Mia Vs. State 42 DLR 15.

Sections 87,339B and 537—
The expression “in at least one newspaper” occurring in section 339B CrPC is mandatory and, in this view of the matter, the learned Sessions Judge ought to have condoned the delay and should not have dismissed the appeal summarily without deciding the same on merit. The order passed by the learned Sessions Judge on 19.11.1986 dismissing the appeal summarily on the ground of limitation is set aside.
Moktar Ahmed Vs. Haji Farid Alam 42 DLR 162.

Section 94—
A Court or an officer-in-charge of a police station may issue summons or a written order to the person in whose possession or power such document or thing is believed to be there, for investigation, requiring him to attend and produce it at the time or place stated in the summons or order.
Abdus Satter Bhuiyan Vs. Deputy Commissioner, Dhaka 42 DLR 151.

Section 96(1)(3)—
Appeals disposed of on a petition of compromise—High Court Division later vacated the order and restored the two appeals on the allegation of the respondents that the petition of compromise was forged and collusively created.
On a petition of compromise the two appeals were disposed of by the High Court Division on 17th May, 1983 in terms contained in that petition. The respondents filed an application for the restoration of those appeals on the ground that the petition of compromise was created collusively and it was a forged document. The High Court Division vacated the order dated 17th May, 1983 and restored the two appeals to their file and number by an order dated 6th April, 1986. This Court refused on 31st August, 1986 to interfere with that order.
Abdul Gafur Vs. State 41 DLR (AD) 127.

Section 98—
Provision of section 98 is applicable only when the magistrate is satisfied that the place to be searched is used for deposit or sale of stolen property.
Qari Habibullah Belali Vs. Captain Anwarul Azim 40 DLR 295.

Section 99A—
Forfeiture of book— Government is not required to issue notice—The provision may be invoked when the writing and publishing of a book constituted a penal offence. The order of forfeiture is a preventive action requiring no notice to the author or the publisher to give them opportunity of being heard.
Bangladesh Anjuman-e-Ahmadiyya Vs. Bangladesh 45 DLR 185.

Section 103—
Applicability of the provision relating to search—For the purpose of conducting search in order to find out as to whether a person is guilty of an offence under section 46 of the Excise Act the provision of section 103 CrPC has no application.
Dilip Kumar Ghose Vs. State 42 DLR 464.

Section 103—
Procedure of search— Applicability—The fulfillment of the provision under section 103 CrPC is not required, because the pipe gun was not recovered by the police on search but it was produced by the accused himself.
Abdul Hashem Master Vs. State 44 DLR 159.

Section 103—
Search—The provisions for search to be made in presence of witnesses are designed to create a safeguard against possible chicanery and a concoction on the part of the investigating officer and it is obligatory for him to ensure that the search was conducted honestly.
Subodh Ranjan Vs. State 45 DLR 521.

Section 144—
Status quo is not contemplated in a proceeding under section 144 CrPC.
Nazibul Islam and others Vs. Dr. Amanullah 40 DLR 94.

Section 144—
A Magistrate has no jurisdiction under section 144 CrPC to issue notice upon the parties to file written statement before him showing cause by a certain date.
Nazibul Islam Vs. Dr. Amanullah 40 DLR 94.

Sections 144 and 145(4)—
The instant case is not one of conversion from section 144 to 145 CrPC. By the impugned order the application under section 144 CrPC was disposed of and a proceeding was drawn under section 145 CrPC being satisfied as to the apprehension of serious breach of peace.
Nazibul Islam & others Vs. Dr. Amanullah & the State 40 DLR 94.

Section 145—
A proceeding under section 145 CrPC is not a criminal matter.
As to proceedings under section 145 CrPC it is erroneous to designate the complainant as an informant, having regard to the provisions of that section. Once an information is brought to the notice of the Magistrate he has to be satisfied that a dispute as to Immovable property is likely to cause a breach of the peace Further proceedings which he starts are not proceedings in the interest of any private party but in the Interest of public peace (See Babu Vs. Shyam, ILR 1950 All 543). It Is, therefore, highly doubtful if a proceeding under section 145 CrPC can properly be termed as a “criminal matter’.
Jobeda Khatun Vs. Momtaz Begum 45 DLR (AD) 31.

Section 145—
The jurisdiction of the Magistrate under section 145 CrPC is ousted when the civil Court is seized with the subject matter of dispute.
Jobeda Khatun Vs. Momtaz Begum 45 DLR (AD) 31.

Section 145—
Bid money—When It cannot  be forfeited—Receiver appointed by the Magistrate being an agent of the court can attach any condition to the auction held for leasing out the attached property. But In the absence of any such condition attached by him or the Magistrate the part of the bid money deposited cannot be forfeited on the bidder’s failure to deposit the balance money, though the bid can be cancelled and fresh auction held.
Amir Hossain Farhad Vs. Dr. A  Mannan 44 DLR 401.

Section 145—
Under section 145 CrPC the court deals with the limited scope of finding possession.
Haji Golam Hossain Vs. Abdur  Rahman Munshi 40 DLR (AD) 196.

Section 145—
A Magistrate making an inquiry under section 145 CrPC  is to decide the  fact of ‘actual possession’ without reference to the merits or the claims of any of the parties of a right to possess the subject of dispute.
Aminul Islam Vs. Mujibar Rahman 44 DLR (AD) 56.

Section 145—
Jurisdiction of Magistrate acting under sub-section (1) does not and unless the proceeding is either cancelled under sub-section (5) or is finally disposed of under sub-section (6)-Exercise of power under sub-section (5) not dependent upon the result of inquiry under sub-section (4).
The jurisdiction once validly acquired by the Magistrate acting under sub-section (1) of section 145 of the Code of Criminal Procedure does not cease until and unless the said proceeding drawn under sub-section (1) is cancelled under sub-section (5) or the subject—matter of the proceeding is finally disposed of under sub-section (6) declaring a party to be entitled to possession thereof. At any stage of the proceeding the Magistrate may come to the conclusion that there is no longer any case for continuing the inquiry.
The exercise of power under sub-section (5) is not dependent upon the result of inquiry under sub-section (4).
Moslemuddin Dhali Vs. Helaluddin DhaIi 41 DLR 120.

Section 145—
Right to show that no dispute exists or existed—in moving for cancellation for preliminary order a party has Liberty to produce evidence—What is evidence depends upon the facts and circumstances of each case—Single piece of paper may prove to the satisfaction of the magistrate that a dispute exists or existed or that there Is no apprehension of breach of peace.
Moslemuddin Dhali Vs. Helaluddin DhaIi 41 DLR 120.

Sections 145 & 146—
Dispute as to possession of land—Attachment to continue until civil Court’s decision on title—the parties are litigating their title, as also possession in a Title Suit. It is for them to raise the entire question therein. All comments, observations and findings of the Magistrate in the proceedings under section 145 CrPC and of the High Court Division while disposing of the application under section 561A CrPC with regard to the title and possession of the disputed property (the subject matter of the proceeding under section 145 CrPC) will be ignored by the civil Court while deciding the title suit. It will be lit and proper, in the facts and circumstances of the case, to keep the Magistrate’s order directing the receiver to hand over possession of the case land to the 1st party of section 145 proceeding in abeyance for the present and it is so ordered. It is further ordered that pending disposal of the title suit the disputed land will remain under attachment and the 1st party is to hand over possession thereof to the receiver. On receipt of judgment in the title suit, the Magistrate shall dispose of the proceeding before him in conformity with the decision of the civil Court.
Samirun Nessa Vs. Kamaluddin 43 DLR (AD) 175.

Sections 145 and 146(1)—
the purpose of the proceeding under section 145 CrPC is to find the possession of the property.
Haji Golam Hossain Vs. Abdur Rahman Munshi 40 DLR (AD) 196.

Section 145(1)—
Grounds of satisfaction not stated in the preliminary order—Additional Sessions Judge could inquire whether there were materials on record for such satisfaction and come to a conclusion that the same was not based on materials.
Moslemuddin Dhali Vs. Helaluddin Dhali 41 DLR 120.

Section 145(1)(5)—
Subjective satisfaction in passing order under sub-section (1) but not so when moved under sub-section 5. When a Magistrate passes a preliminary order under sub-section (1), he has to exercise a subjective satisfaction with regard to the apprehension of breach of peace. But when he decides to cancel or not to cancel the preliminary order on being moved under sub-section (5), his satisfaction is no longer subjective. Decision under sub-section (5) is subject to scrutiny on a wider ground than in an order under sub-section (1). This subsequent decision under subsection (5) is subject to scrutiny by the revisional Court on a wider ground than the Magistrate’s order passed under sub-section (1). Order under sub-section (5) based on objective satisfaction—open to wider challenge on revision. But an order passed under sub-section (5) is based on objective satisfaction and it is open to wider challenge before the revisional Court.
Moslemuddin Dhali Vs. Helaluddin Dhali 41 DLR 120.

Section 145(4)—
Power in section (4) of section 145 CrPC is an extraordinary power to be exercised in a case of emergency and should not be resorted to as a matter of routine
—No apprehension of breach of peace and parties being in joint possession, the order is to be vacated.
Gura Miah Vs. Fazar Ali 42 DLR 70.

Section 145(5)—
Magistrate came to the conclusion that there is apprehension of breach of peace on the basis of a certain material—In revisional jurisdiction a different view may be taken.
The Chief Metropolitan Magistrate by his order dated 12.4.87 came to the conclusion that the posting of ansars is a further material for coming to a conclusion that there is apprehension of breach of peace. Sitting in the revisional jurisdiction from an order under sub-section (5) the learned Additional Sessions Judge was perfectly entitled to take a different view.
Moslemuddin Dhali Vs. Helaluddin Dhati 41 DLR 120.

Section 154—
FIR—Delay—The Court has always viewed First Information Report with grave suspicion when there had been unexplained delay in lodging it. It can be presumed that the delay was used for manipulation of the prosecution story.
Abdul Latif Vs. State 44 DLR 492.

Section 154—
FIR does not contain detailed facts of the prosecution case. Its main purpose is to give information of a cognizable offence to the public and set the law in action.
Ataur Rahman Vs. State 43 DLR 87.

Section 154—
FIR—Effect of departure from FIR story—where the prosecution has a definite case, it must prove the whole of it; partial departure from the prosecution case affects credibility of the witnesses and complete departure makes their testimony to be entirely discarded.
Gapal Rajgor Vs. State 42 DLR 446.

Section 154—
A FIR may be lodged by any person for, it is meant just to set the machinery of law in action.
Shah Alam Vs. State 42 DLR (AD) 31.

Section 154—
where FIR does not contain an important statement deposed to by the witnesses, it is clear that there has been subsequent embellishment of the prosecution case which makes it untrustworthy.
Nazrul Islam Vs. State 45 DLR 142.

Section 154—
FIR can be used only to corroborate or contradict the maker thereof. There is neither any law nor any principle on the ‘basis of which the testimony of another witness can be ignored or rejected, because the informant had made an omission to mention about the fact which the witness stated in his deposition.
State Vs. Abdus Sattar 43 DLR (AD) 44.

Sections 154 & 162—
the document exhibited as FIR in the case should not be treated as an FIR for the reason that an information as to the murder was lodged earlier and there was a GD Entry thereon, but the same had not been produced.
Akhtar Hossain Vs. State 44 DLR 83.

Section 155—
A police officer is not to investigate into a non—cognizable case under section 155 CrPC without the order of a Magistrate of the first or second class. Under the law when the police has a report of a non—cognizable offence he is bound to refer the informant to the Magistrate for initiating the process of investigation.
Aroj Ali Sarder Vs. State 41 DLR 306.

Section 157—
First Information Report— FIR cannot be substituted for evidence given on oath and when there is no other evidence the facts mentioned in the information could not be relied upon as proof of the offence alleged.
Babul Vs. State 42 DLR (AD) 186.

Section 161—
The right of cross—examination on the basis of witnesses’ previous statements under section 161 CrPC having not been available, prejudice to the defence could not be ruled out. The right given to the accused of getting copies of the statements under section 161 CrPC is a valuable right. End of justice requires setting aside the conviction.
State Vs. Zahir and ors. 45 DLR (AD) 163

Section 161—
The examination of prosecution witnesses under section 161 CrPC after a considerable lapse of time casts serious doubt on the prosecution story.
Moin Ullah Vs. State 40 DLR 443.

Section 161—
The investigation officer having not been cross—examined on the question of delay in recording the statement under section 161 CrPC, there is no substance in the contention that the delay should have been taken as a factor to question the veracity of the witnesses concerned.
Shadat Ali Vs. State 44 DLR 217.

Section 162—
Statements made to the Police in course of investigation of an offence started on the basis of FIR are admissible in evidence. Ext. I not being statements made in course of investigation to the Police comes within the above provision of law.
Nurul Islam Vs. State 40 DLR 122.

Section 164—
A retracted confession cannot be used to base a conviction for murder unless corroborated by credible independent evidence.
State Vs. Manik Bala 41 DLR 435.

Section 164—
Statement recorded under section 164 CrPC cannot be used as substantive evidence against the accused person except for contradicting or corroborating its maker.
State Vs. Manik Bata 41 DLR 435.

Section 164—
Confessional statement subsequently retracted—To base a conviction for murder upon a retracted confession alone is not safe when the proof of factum of murder is pendent upon that confession.
State Vs. Manik Bala 41 DLR 435.

Section 164—
Confession——Question of credibility when part of the occurrence is omitted or suppressed—it cannot be found nor it could be suggested by either the prosecution or the defence why throttling part of the occurrence was omitted or suppressed. Even if it be taken that accused Rina had deliberately suppressed the throttling part of the occurrence in her judicial confession that cannot mean that the confession was not true.
ShahJaizan Manik Vs. State 42 DLR 465.

Section 164—
Confession—Its nature and credibility—The recording Magistrate having not made any genuine effort to satisfy himself to find out the real character of the confession, it casts a serious doubt on the voluntariness of the confession which is the basic requirement of law.
Akhtar Hossain alias Babul Akhtar alias Akhtar  Ali and another Vs. State 44 DLR 83:

Section 164—
Confessional statement— such statement whether retracted or not, if found to be true and voluntary, can form the basis of conviction of the maker.
Confessional statements, credibility of—The UNO stated that he recorded the statements merely in his own language—there is nothing to show that he gave the accused warnings before recording the same, there is nothing to show the time given for reflection, it was not mentioned whether police were present at the time of recording—The Magistrate also did not inform the accused that they would not be sent to police custody after the making of the statements and the Magistrate’s statement as to the presence of PW 5 at the time of recording of the statements is contradictory to that of the latter—the confessional statements, in such facts and circumstances, are neither voluntary nor true.
Hafizuddin Vs. State 42 DLR 397.

Section 164—
Conviction can be based solely on confession, if found true and voluntary, though retracted subsequently.
Hazrat Ali & Abdur Rahman Vs. State 42 DLR 177.

Section 164—
Confession—Rule of law as opposed to rule of prudence—Whether conviction can be based on confession if voluntary and true. For ascertaining as to whether the confession is voluntary and true or not the Court has to examine the confession itself and consider the same in the light of the materials on record and broad probabilities of the case.
There is no reason to disbelieve the evidence of the learned Magistrate who recorded the confession. No material could be elicited by the defence that the confession was the result of torture and maltreatment and hence it was not voluntary and not true as well.
Hazrat Ali & Abdur Rahinan Vs. State 42 R177.

Section 164—
Retracted confession—A confession can be taken into evidence, though retracted, if found to be true and voluntary. A belated retraction at the end of the trial would be of no value.
State Vs. Nurul Hoque 45 DLR 306

Section I64—
Statement made by the victim of an offence , when it can have evidentiary value—In the absence of examination of the alleged victim, her statements allegedly made to the police or to the magistrate cannot be treated as evidence against the accused. As neither the victim girl nor the magistrate was examined, the statements recorded by the latter is not even a secondary evidence and in that view it is no legal evidence to prove the prosecution case.
Abdul  Kashem Vs. State 43 DLR 420.

Section 164—
Confessional statement—The Magistrate having admitted that after recording the confessional statement, the condemned prisoner was sent back to the police custody, his confessional statement is to be  treated as not voluntarily made.
State Vs. Ali Kibria 43 DLR 512.

Section 164—
The Magistrate while recording the confession did not record any questions and answers. But then he made real Endeavour for coming to the conclusion that the statement was voluntary. The omission to record questions and answers cannot be considered as fatal defects when confession was made duly, though not recorded duly, for want of prescribed form. Facts stated in the confessional statement appear to be consistent with the evidence of PWs. In that view, the confessional statement is true as well.
State Vs. Kalu Bepari 43 DLR 249.

Section 164—
Credibility of confessional statement—No substantial compliance would cure the defect of noncompliance 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 reflection 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.

Section 164—
Confessional statement of appellant Dablu runs counter to the prosecution case. The whole story is inconsistent with the confessional statement of the appellant—PW 2 changed the version in court which differs from the FIR about the number of participants in the murder.
Circumstances of the case—PW 4’s statement differs from the confessional statement of appellant Dablu rendering it contradictory to each Other.
Mizazul Islam Vs. State 41 DLR (AD) 157

Section 164—
The shivering condition in which the accused made confession indicated that he was subjected to threat and torture before he was produced for recording the confession. His Conviction though could be based on the retracted confession. Even if it was uncorroborated, is illegal when it appears to be neither voluntary nor true.
Sanwar Hossain Vs. State 45 DLR 489.

Section 164—
When an accused is under threat of being sent back to the police remand he is likely to make confession out of fear. His statement in such a position should not be considered as voluntary.
Nazrul Islam Vs. State 45 DLR 142.

Section 164—
Previous statement, use of—The statement of a witness made u/s 164 CrPC is meant for binding him down to the statement made during investigation. The defence may use it to contradict the witness, whereas the prosecution may use it to corroborate him when he gives evidence in court (per Shahabuddin Ahmed CJ concurred by MH Rahman & ATM Afzal j).
Abu Taher Chowdhury Vs. State 42 DLR (AD) 253.

Section 164—
If a statement recorded under this section is true and voluntary, the same alone is sufficient for convicting the confessing accused. Retraction of confession is immaterial once it is found to be voluntary and true.
Bakul Chandra Sarker Vs. State 45 DLR 260.

Sections 164 & 364—
Presumption as to confession—Even though provision is there for making certain presumption in respect of a confession by an accused person produced before a court taken in accordance with law and purporting to be signed by a Magistrate, having regard to the facts of the case it was injudicious to rely upon such confession without calling the Magistrate as a witness. In respect of a confession the court is required to see not only that the forms under sections 164 and 364 CrPC were complied with but the substance underneath the law was equally adhered to—There must not be any reason for doubt as to the truth of the statements, be it circumstantial or proved otherwise. In this particular case it is difficult to deny accused appellants an opportunity to cross—examine the Magistrate who allegedly recorded their statements.
Babul Vs. State 42 DLR (AD) 186.

Sections 164 and 364—
All the formalities in recording the confessional statement were observed. The magistrate recording the confessional statement was satisfied that the confession was voluntary and free from taint. Facts revealed in confession substantially corroborate the prosecution story.
State Vs. Mizanul Islam 40 DLR 58.

Sections 164 and 364—
No hard and fast rule as to the time to be given to the accused for reflection before confession.
Ratan Khan Vs. State 40 DLR 186.

Sections 164 and 364—
Confession— Statement not recorded in the language of the maker but in the language of the Magistrate— Accused admitted nothing.
State Vs. Abdur Rashid 40 DLR (AD) 106.

Sections 164 & 533—
Confession— Non—compliance with provisions for recording confession, effect of—in a case of non— compliance with the provisions of section 164 CrPC on material points, no question of any substantial compliance would arise.
Certificate given by the Magistrate as to what had happened, how he warned, gave time for reflection, yet how the accused insisted on making the confessional statement ought to be treated as conclusive evidence of facts therein unless shown to be otherwise.
Section 533 CrPC is the curable section but it would not cure a non—compliance if the error had injured the accused in the defence on merits. Thus, when the statements were not even read out to him or could not possibly be read over to him for him to admit or to deny or to examine its correctness or not even shown to him and signed by him, specially when the said are made against his interest and would be used against him it could not be said that the said would be cured under section 533 CrPC.
Abdul Hakim Vs. State 43 DLR 291.

Sections 164 and 537—
The recording Magistrate did not make any genuine effort to find out the real character of the confession.
Omissions in the filling up of many paragraphs cast serious doubt upon the voluntary character of confessional statement.
On a careful perusal of the confessional statement we are satisfied that the recording magistrate did not make any genuine effort to find out the real character of the confession which he recorded. The omissions to fill up the above mentioned paragraphs are not mere omissions curable under section 537 Crpc and the manner in which the confession was recorded casts serious doubt as to the voluntary character of the statement.
Azad Shaikh Vs State 41 DLR 62

Sections 164(3) and 364—
Section 164(3) a mandatory provision of law. The requirement of adherence to the provisions of section 164(3) CrPC is not a mere matter of form but of substance that has to be complied with—Viewed in the light of the principles indicated above we have no hesitation to hold that the recording of the confessional statement Ext. 5(c) was not done in compliance with the requirement of sub-section (3) of section 164 read with section 364 of the Code of Criminal Procedure.
Azad Shaikh Vs. State 41 DLR 62.