Order of remand—Its validity— The word ‘forward’ used in section 167 CrPC means ‘act of sending’. Unless the accused is sent to the Magistrate and the Magistrate passing the order of remand without the accused being forwarded to him, the legal requirement is not complied with for the Magistrate to assume jurisdiction to pass the order of remand. The accused must be brought before the Magistrate prior to passing of an order of remand, no matter whether the accused is in police lockup or judicial custody.
Aftabur Rahman Vs. State 45 DLR 593.
Sections 167 & 173—
Charge—sheet submitted not upon the revival of the case under section 167 but following the further investigation under section 173 we are satisfied that the recording investigation under section 173 CrPC—The power to make further investigation is available to the real character of the confession to the police if there has been no order under 167 CrPC stopping the proceeding and releasing the accused after the expiry of the period of investigation under the said section.
Shah Alam Chowdhury Vs. State 42 DLR (AD) 10.
Sections 167, 173, 190 and 561A—
Proceeding before a Court starts when the competent Court takes cognizance of an offence on Police report or on a complaint or upon his own knowledge. No proceeding can be said to be pending before the Magistrate in this case as the Police after recording the FIR has not submitted any charge—sheet. Rule for quashing the proceedings is liable to be discharged.
Mokbul Hossain Vs. State 40 DLR 326.
Section 167(5)—
The accused petitioner did not stand released under section 167(5) on stopping further investigation on the ground of expiry of the limitation’ of specified or extended period of investigation—Charge— sheet validly submitted in accordance with law.
Shah Alam Chowdhury Vs. State 42 DLR 49.
Sections 167(5), 190(1) & 561A—
Quashing of proceeding under Special Powers Act—In matters of cognizance of offence triable exclusively by the Special Tribunal under the Special Powers Act initial cognizance of offence by a Magistrate in the manner provided in ‘the Code of Criminal Procedure has no application.
In an application for quashment of proceeding on the ground of expiry of period of limitation for investigation, the provisions of section 167(5) of the Code applies only to cases in which the Magistrate can take initial cognizance and does not apply to cases exclusively triable by the Tribunal. On this ground the application for quashing is summarily rejected.
Mahbubur Rahman Vs. State 42 DLR 375.
Section 167(6)—
Sessions Judge’s power to direct further investigation—The power given to the Sessions Judge under section 167 CrPC is retrospective in nature. He can extend the period of investigation for an indefinite period or direct further investigation from time to time as occasion requires. The legislature has not put any limitation on this power.
Anwar Hossain Maji Vs. State 42 DLR 410.
Section 167(7)—
Transitory Provisions, purpose of—Investigation pending immediately before commencement of the Ordinance—Magistrate did not accept the final report and directed further investigation –police on further investigation submitted charge—sheet far beyond the “specified period” of 60 days as stated in sec. 167(5) and also of 9O days as stated in section 35(d) of the Transitory Provision——Charge—sheet was submitted one year after the Magistrate’s order for further investigation—Accused respondents, whether entitled to be released—Provision in section 35(d) of the Ordinance is not mandatory am intended to save an investigation which had started at the time when there was no time limit for its conclusion—Investigation on which the police submitted charge—sheet, not governed by section 167, and the charge—sheet not hit by section 167(7)—Consequently the charge sheet stands.
Kazi Abdul Jalil Vs. Jashem Munsi 43 DLR (AD) 116.
Section 167(7A), Proviso and 173(3B) –
Revival of the investigation of a Sessions triable case beyond the period of six months of the discharge of the accused petitioner on submission of final report.
The Police validly and legally further investigated into the case under the provision of sub-section (3B) of section 173 CrPC with the usual leave of the Chief Matropolitan Magistrate, Dhaka from 14.7.88 as the order dated 6.9.87 duly passed by the Chief Metropolitan Magistrate under section 167(7A) CrPC reviving the case for investigation by the Police continued to be fully operative under the law and the Police, therefore, validly submitted charge—sheet No. 196 dated 25.8.88 in accordance with law and the learned Sessions Judge, Dhaka has also validly taken cognizance of this offence against the accused persons.
Shah Alam Chowdhury Vs. State 42 DLR 49.
Section 167(7),(7A)—
Revival of a case after order of stopping investigation and release of the accused whether valid: Nowhere in the two sub—sections or the proviso it has been indicated that for revival of investigation stopped by the Chief Metropolitan Magistrate the revival within 6 months could not be made by him. In the present case the Chief Metropolitan Magistrate exercised his power to stop the proceeding under sub-section (7) but be exercised a different power that was provided by sub-section (7A) for revival of the proceeding. It cannot therefore be said that he exhausted his jurisdiction after the exercise of power to stop proceedings and became functus officio.
Md. Arab Ali Vs. State 42 DLR 524.
Section 167(7A)—
Whether Additional District Magistrate is not included within the term “District Magistrate” as contended by the petitioners’ Advocate.
Faziul Hoque Vs. State 41 DLR 477
Section 167 (7A)—
Ministry of Establishcation bearing No. MF/ JA111/VEST/84—377 dated Dhaka 17.10.84 vested all powers of District Magistrate in Additional District Magistrates.
Faziul Hoque Vs. State 41 DLR 477.
Sections 167(7A) & 339C—
On a plain reading of the provision of section 339C, the District Magistrate’s authority and jurisdiction arises to revive the case under section 167(7A) on and from the date on which the order of stopping investigation and release of the accused persons is actually passed and not from the date when such order of stopping proceeding and release of the accused should have been passed or deemed to have been passed.
Hamizuddin Vs. State 40 DLR 287.
Sections 169, 202(1),(2B)—
Interpretation of statute—Whether order of discharge of the accused by the Magistrate on receipt of final report (true) is in a way like releasing the accused by the Investigating Officer under section 169 CrPC on the ground of deficiency of evidence.
Shah Alam Chowdhwy Vs. State 42 DLR 49.
Section 173—
Section 27 of the Special Powers Act is a departure from the provision of section 173 of the Code of Criminal Procedure—Special Tribunal alone is empowered to take cognizance of the offence on the report of a Police Officer of the rank of Sub—Inspector and hold trial on the same— Sections 26 and 7 of the Special Powers Act provided for special machinery for investigation and trial by special tribunal.
Taslima Begum Vs State 42 DLR 136
Sections 176 and 197—
Meaning of taking cognizance of offence—Stage of determination of guilt when reaches under section 176 CrPC—difference between “prosecuted” without prior sanction under section 6(5) and “taking cognizance” without prior approval.
Mr. Matiur Rahman Vs. State 40 DLR 385.
Sections 177 and 179—
Criminal trial—Interpretation of the provisions of section 179 of the Code of Criminal Procedure— Territorial jurisdiction of the Criminal Court— Offence of forgery took place in Noakhali but trial being held in Comilla—In view of the provision of section 179 CrPC the court of competent Magistrate of Noakhali district where false documents were made and the court of Addl. District Magistrate, Comilla where consequences ensued had both jurisdiction to try the offence of forgery complained of.
Sree Jagenath Chandra Bakshi Vs. State 42 DLR 238.
Section 179—
Applicability of section 179 CrPC to the offences defined in section 463 Penal Code—provisions of Section 463 PC analysed. Two essential ingredients of section 463 PC pointed out—both the competent Criminal Courts at Noakhali and Comilla have jurisdiction to try the offence.
Sree Jagenath Chandra Balcshi Vs. State 42 DLR 238.
Sections 190, 195 and 196-198—
Provisions in section 195 like the provisions in sections 196—198 CrPC are exceptions to the general and ordinary powers of a criminal Court to lake cognizance of an offence under section 190 of the said Code. A private party may be the real victim of the commission of an offence, but he is debarred from making a complaint directly to the Court.
Abdul Hai Khan & others Vs State 40 DLR (AD) 226
Section 190 (1)—
Refusal to take cognizance against some of the accused persons amounts to dismissal of the complaint as against them and application filed before the learned District Judge by the complainant is maintainable.
Magistrate’s power of taking cognizance under section 190(1) in all cases, including those exclusively triable by a Court Sessions, has remained unaffected I repeal of the provision for committing accused to the Court of Sessions.
Syed Ahmed Vs. Habjbur Rahman 42 DLR 240.
Section 190(1) (b)—
The court can, in a given case, regard the police report as a report under section 190(1)(b) CrPC and take cognizance on that Police Report. (Relied on 10 DLR Dhaka 152.
Aroj Ali Sarder Vs. State 41 DLR 306.
Section 190(1)(c)—
Direction to t Upazila Magistrate to take cognizance. Sessions Judge left nothing for the learned — do except taking cognizance.
Quamruzzaman alias Lal Vs. State 40 DLR 509.
Section 19O(1)(c)—
Sessions judge acted illegally in directing the Upazila “Magistrate to take cognizance of the offence.
Quamruzzaman alias Lal Vs. State 40 DLR 509.
Section 19O(1)(c)—
Cognizance of offence by Magistrate—the Magistrate power under section 190(1 )(c) C. — cognizance of any offence even knowledge or suspicion that been committed and to pass, in the present case, the impugned order sending the case for judicial enquiry after rejecting the police report and then taking cognizance after receipt of the enquiry report.
Abdur Rashid Vs. State 43 DLR 279.
Section 193—
Section 193 provides that except as otherwise expressly provided no Court of Sessions shall take cognizance of any offence as a court of original jurisdiction unless the accused has been sent to it by a competent Magistrate.
Bangladesh Vs. Yakub Sardar & others 40 DLR (AD) 246.
Sections 193(1), 204, 439 and 439A—
Case sent to the Sessions Court by Upazila Magistrate—Sessions Judge recorded some evidence—Prosecutor made an application for sending record to UpazIla Court for taking cognizance against some persons allegedly implicated in the offence, by the witnesses in Sessions Court—Sessions Judge made an order accordingly—Magistrate complied with the order of the Sessions Judge.
Held—Order of Sessions Judge is illegal and consequently cognizance taken off by the Magistrate thereon is illegal—The Court of Sessions or the High Court Division has no jurisdiction to interfere with the discretion of the Magistrate in the matter of taking cognizance of any offence irrespective of the fact whether the offence is triable by a Court of Sessions or not.
Abdul Matin Vs. State 42 DLR 286.
Sections 195 and 198—
There is no bar for an individual to making a complaint in respect of alleged defamatory statement made in a judicial proceeding—Section 198 CrPC enables an individual to file such complaint.
AY Mashiuzzaman Vs. Shah Alam & others 41 DLR 180.
Sections 195 & 476—
Section 476 is not independent of section 195 of the Code— Section 476 does not abridge or extend the scope of section 195(b) or (c).
Abdul Hai Khan Vs. State 40 DLR (AD) 226.
Section 195(1)(b)—
Proceeding in Court—In view of the decision that a Magistrate acts in his judicial capacity while discharging an accused on the basis of a final report by the Police and the reasoning in the majority judgment in 1979 AIR (SC) 777, the offence under section 211 Penal Code was committed in relation to a proceeding in Court and as such the bar under section 195(1)(b) is attracted.
Serajuddowla Vs. Abdul Kader 45 DLR (AD) 101.
Section 195(1)(b)—
Complaint of Court— Requirement—When the Magistrate considered the prayer of the Investigating Officer that the appellant be prosecuted for making a false charge and the prosecution report upon which cognizance was taken shows that the same was filed as directed by the Magistrate, it is clear that the prosecution of the appellant was sanctioned by the Magistrate himself and as such it could not be said that the cognizance was taken in violation of section 195(1)(b).
Serajuddowla Vs. A. Kader 45 DLR (AD) 101.
Section 195(1)(c)—
The view taken in AIR 1943 Nagpur 327 “all the High Courts are now agreed that once a forged document is brought, then private complaints subsequent to this are barred by section 195 even in respect of anterior forgeries— anterior, that is, to the litigation”—has been consistently followed in 20 DLR Dhaka 66 & other cases.
Abdul Hai Khan & others Vs. State 40 DLR (AD) 226.
Section l95 (1)(c)—
Legislature did not intend any anomalous situation that might arise if the trial of one offence may be made dependent upon a possible complaint by the Court while the other offence is tried upon a private complaint.
Abdul Hai Khan Vs. State 40 DLR (AD) 226.
Section 195(1)(c)—
Jurisdiction of a criminal Court when barred. Which Court is empowered to take cognizance of offences in the section 195(1) (c).
Abdul Hai Khan Vs. State 40 DLR (AD) 226.
Section 195(1)(c)—
No cognizance can be taken against one of the appellants who appears to have forged the document expect on complaint by the Court.
Abdul Hai Khan Vs. State 40 DLR (AD) 226.
Section 195(1)(c) —
Private. complaint, when incompetent—Ingredients of offence such as forging of a document and making use of such documents in Court by a party to the proceeding if found present in a case then the mandatory provision against filing of a private complaint comes into play. The instant proceeding initiated by the complaintant opposite party is a bar under section 195(1) (c) CrPC and the courts concerned only have sole jurisdiction to make a complaint in the interest of justice.
Ajit Kumar Sarkar Vs Radhà Kanta Sarkar 44 DLR 533.
Section 195(1)(c)—
Prosecution for 4 document given in evidence—From a persusal of the provision of law it appears t words “documents produced or — evidence” contemplate the original documents alleged to be forged and not a certified copy of the same. If the document in question is not produced in Court, but a certified copy of same is produced, no complaint from the c is necessary for prosecution of the alleged offenders. In view of the decision in the of Sanmukhsingh and others Vs. King Air 1950 (PC) 31 the absence of complaint can stand as a bar to the trial of the accused petitioner in the present case for forgery relating to the sale deed produced in Court in the earlier SCC suit.
Shambhu Nath Saha and others. Vs. State 43 DLR 660.
Section 195(1)(c)—
Stay of proceeding— In the facts of the case as in point of time civil suit was instituted before the filing of the FIR and the questioned documents in their originals are yet to be produced and examined by the civil Court. The criminal where the documents are claimed as forged may, in the interest of justice, be stayed till the disposal of the civil suit.
Zakir Hossain and others Vs. State 43 DLR (AD) 102.
Section 195(1) (c) and (4)—
Ambit of sub-section (4) of section 195 CrPC—I therefore clear that the offences referred to in cl.(c) when committed in pursuance of a conspiracy or in the course of the transaction, will fall within the ambit of sub-section (4) of section 195 including abetments or attempts independent of the dates of their commissions.
Abdul Hye Khan Vs. State 40 DLR (AD) 226.
Sections 195(1)(c) and 476—
Restricted application of clause (c) to be discarded—I am, therefore, inclined to think that reading ci. (c) with section 476 of the Code, there does not seem to be any compelling reason to restrict the application of the said clause limiting the control of the court only to few offences committed (pendente lite) as would be the practical result of such interpretation. The clause will be applicable even when the offence alleged is committed by the party to proceeding in any Court before becoming such party if it is produced or given in evidence in such proceeding.
Abdul Hye Khan Vs. State 40 DLR (AD) 226.
Sections 195(l)(a),(b),(c) and 476—
There is specified procedure and method for filing complaint by a Court in respect of offences described in clauses (a) and (b) but there is no such specified procedure for offences in clause (c) of section 195 CrPC.
Abdul Hye Khan Vs. State 40 DLR (AD) 226.
Sections 195(1)(c), 476 and 561A—
No court can take cognizance of any offence under section 467 of the Penal Code without a complaint in writing by the Court in which the document was given in evidence or by a court to which the said court is subordinate.
Sona Mia and others Vs. State 42 DLR 8.
Sections 200, 202, 204 and 205C—
Jurisdiction of the Magistrate in cases exclusively triable by a Court of Session. Whether the Sessions Judge has jurisdiction to direct the Magistrate to send the case to him after its dismissal by the Magistrate.
Bangladesh Vs. Yakub Sardar and others 40 DLR (AD) 246
Sections 200 & 561A—
The purpose of examination of the complainant under section 200 CrPC is to see whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting conviction can only be determined at the trial and not at the stage of enquiry. Allegations made in the petition of complaint having made out a prima facie case of cheating against the accused—appellant, it is not a fit case to quash the proceeding at the present stage.
SA Sultan Vs. State 44 DLR (AD) 139.
Sections 202(1), (2A)—
Under section 202(1) and proviso to section 202(2A) of the Code of Criminal Procedure in a case exclusively triable by the Court of Sessions, a Magistrate for the purpose of ascertaining the truth or falsehood of the complaint is to consider the evidence in order to find whether prima facie case is made out or not, but he cannot assess the evidence as if in trial.
Syed Ahmed Vs. Habibur Rahman 42 DLR 240.
Section 203—
Complaint filed for prosecution of defamation against a party who made such statement in a judicial proceeding—Complaint dismissed under section 203 of the Code of Criminal Procedure without either admitting the complaint petition or examining the complainant.
AY Mashiuzzaman Vs. Shah Alam & others 41 DLR 180.
Section 203 and 439A—
Whether the Sessions Judge has got power under section 439A, Criminal Procedure Code or any other provision of the Code to direct a Magistrate to send the case to him for trial when the Magistrate dismissed the complaint under section 203 of the Code.
Bangladesh Vs. Yakub Sardar 40 DLR (AD) 246.
Sections 204(3), 435 and 436—
Provisions under which Courts are competent to direct the Magistrate.
The Sessions Judge and, for that purpose, the District Magistrate, Chief Metropolitan Magistrate and the High Court Division, got power under section 435 CrPC to call for the record of any case pending before any Magistrate and direct the Magistrate under section 436 to make further enquiry into any complaint which has been dismissed under section 203 or sub-section (3) of section 204 CrPC.
Bangladesh Vs. Yakub Sardar 40 DLR (AD) 246.
Section 205—
Section 205 CrPC was and is applicable only to cases in which summons has been issued although expressions in Chapter XVII are meant for cases in which summons is issued and warrant is issued.
Hazi Hafeez Vs. Abdul Mabud 41 DLR 321.
Sections 225 & 535—
Defect in charge curable—When the FIR and the evidence have given the exact time of the occurrence, a mis—statement in the charge as to the time of the occurrence cannot mislead the accused in his defence and the trial cannot be said to have been vitiated in view of the provision under sections 225 & 535 CrPC.
Abdul Hashem Master Vs. State 44 DLR 159.
Sections 227, 241A & 242—
The case having been sent to the Special Judge after taking of congnizance by the Senior Special Judge there is no illegality in the adding of a fresh charge by the former.
HM Ershad Vs. State 45 DLR 534.
Section 227(1)—
The Court is competent to add or alter charge if situation arises and the materials placed before it reveals justification.
HM Ershad Vs. State 45 DLR 533.
Section 234—
Misjoinder of charges—One charge both under sections 460 and 302/34 Penal Code framed against all the accused is defective and conviction there under is set aside.
Abdul Quddus Vs. State 44 DLR 441.
Sections 234 and 236—
Applicability of sections 234 & 236—Manner of—Section 234 and section 236 apply to cases where one person may be dealt with at one trial for more than one offence while section 239 applies to the trial of more persons than one jointly. Where two incidents are independent and wholly unconnected with each other, no joint trial is permitted.
Lal Mia Vs. State 40 DLR 377.
Sections 234-236—
Misjoinder of charge —When the accused have been charged under sections 302/34 Penal Code on the allegation that they committed murder in furtherance of common intention, the addition of section 460 Penal Code in the charge is materially defective. The accused having been convicted and sentenced under sections 302/34 their conviction and sentence at the same time under section 460 in the same case is bad in law and should be set aside.
Khelu Mia Vs. State 43 DLR 573.
Sections 235—237 and 403—
When facts of the case are such that it is doubtful which of the several of fences has been committed accused may be charged with having committed all or any of such offences; and after trial for one such offence the accused may be convicted for the other offence even though he was not charged thereof—In the instant case “robbery” and “unauthorised possession of fire arms” are not offences of the same nature contemplated in sections 236 and 237 (I) CrPC, but these are two distinct offences for which a person may be charged for each of them as provided in section 235(1) CrPC.
Arfan Ali Vs. State 42 DLR (AD) 22.
Sections 236 & 237—
When an accused is charged under sections 302 and 134 Penal Code his conviction under section 201 Penal Code is legal.
Kalu and another Vs. State 45 DLR (AD) 161.
Sections 236, 237, 238, 417 and 423—
A finding of acquittal can be converted into one of conviction only in an appeal under section 417 which being in accord with section 423 CrPC is the correct view taken in Bawa Singh’s case.
Mofizuddin Vs. State 40 DLR (AD) 286.
Section 237—
In view of the provisions of section 237 of the Code of Criminal Procedure the conviction of the petitioner under section 381 is maintainable although he was charged under section 408 but not under section 381 of Penal Code.
In view of the provisions of section 237 CrPC and being in respectful agreement with the pronouncements of the learned Judges i am of the view that although in this case the petitioner was charged under section 408 of the Penal Code and not under section 381 of the penal code still his conviction under section 381 of the Penal Code is quite maintainable as the petitioner was fully aware of the nature of accusation against him and had the opportunity to meet the elements of offence punishable under section 381 of the Penal Code and he was not also prejudiced by conviction under section 381 of the Penal Code.
Mahbubul Alam Vs. State 41 DLR 7.
Sections 237 and 238—
Appellate Court can alter the conviction for other offence for which no charge was made.
Jahangir Hossain Vs. State 40 DLR 545.
Section 238—
An offence to be a minor offence to a major one must be a cognate offence to the major one, having the main ingredients in common.
State Vs. Sree Ranjit Kumar Pramanik 45 DLR 660.
Section 239—
Misjoinder of charges— Validity of trial—In a case where it is found that the trial is vitiated by misjoinder, then in the eye of law there has been no valid trail and therefore an accused cannot be acquitted after setting aside conviction.
State Vs Constable Lal Mia 44 DLR (AD) 277.
Section 239—
Joinder of charges— Sameness of transaction—Circumstances which must bear on the determination whether certain acts or events constitute a single transaction in each individual case are proximity of time, proximity of place, continuity of action and community of purpose or design. Which factor or factors shall be given relative importance depends on the facts of each case.
State Vs Constable Lal Mia 44 the DLR (AD) 277
Sections 239 & 537—
Sameness of transaction—Defect—if there is good evidence that the transaction was one and the same, then mere absence of certain links in the accusation will not make the trial illegal. If at all it is a defect which is curable under section 537 CrPC.
State Vs. Constable Lal Mia 44 DLR (AD) 277.
Section 241, 241A—
Forgery—fabrication of bank record taking recourse to forgery and using the same as genuine by deceitful means for taking pecuniary advantage for themselves and for others—Prima fade case made out against the accused—Order of discharge of the accused (Shafiqul Islam) shows total non— application of judicial mind of the Special Judge to the materials on record. Provision of section 24lA is to be strictly followed. An order of discharge can be made only when no case is made out against the accused.
State Vs. Shafiqul Islam 40 DLR 310.
Section 241A—
Magistrate cannot discharge accused persons on the plea of alibi that they were at different places at the time of commission of offences alleged by the prosecution—Magistrate’s “finding” in this regard is based on no evidence. Mere submission of some papers supporting alibi is neither sufficient nor admissible as the stage of adducing defence evidence was not yet come. Magistrate’s order of discharge was not sustainable as it was based on gross misconception of law.
Nannu Gazi Vs. Awlad Hossain. 43 DLR (AD) 63.
Section 241A—
This provision casts a duty on the Judge to discharge the accused when there is no ground for proceeding with the case and his orden.must record reasons therefor.
HM Ershad Vs. State 45 DLR 533.
Section 242—
Consideration of the statements made under section 161 CrPC while framing of charge or otherwise is a necessary part of the Court’s duty.
HM Ershad Vs. State 45 DLR 533.
Section 242—
Consideration of statements made under section 161 CrPC whi framing of charge or otherwise is a necessary part of the Court’s duty. Saber Ahmed Vs Manzur Mia and others, 35 DLR 213 and State Vs Md.Safikul Islam 40 DLR 310 relied.
HM Ershad Vs. State 45 DLR 533.
Sections 241A & 242—
The trying Magistrate is required to exercise his own independent judgment and to see whether there is a prima facie case to proceed with the trail. The report of the judicial Magistrate cannot be binding on the trying Magistrate.
Abul Ahsan Joardar Vs. Kazi Misbahul Alam 45 DLR 606.
Sections 241A & 242—
The trail court has a wide power to frame charges and this cannot be interfered with by the revisional Court by way of giving direction for framing a charge.
Shariful Islam Vs. Billal Hossain and the State 45 DLR 722.
Sections 241A & 242—
The Court has jurisdiction to pass an order of discharge if it was satisfied that the charge was groundless for which it was to give reasons but framed charge it was to give reasons but if it framed charge it was not required of the court to record reasons.
HM Ershad Vs. State DLR 533.
Sections 243 and 537—
Violation of mandatory requirements of section 243 in recording the individual statements of the accuseds either in their language or in words .as nearly as expressed by them Is not curable by section 537. Conviction and sentence are not sustainable in law accordingly.
Ali Newaj Bhuiyan Vs. State 40 DLR 398.
Section 247—
Interpretation of Statute— Words “summons” and “Warrant”—Meaning of—Whether they convey different meanings though they are different modes of process to compel appearance—Whether there is scope to include “warrant”—Court cannot put a word in legislation which is not there.
Hazi Hafez Vs. Abdul Mobud 41 DLR 321.
Section 247—
Section 247 CrPC shall apply to a case in which summons has been issued on complaint and shall not apply to a Case in which warrant has been issued though on complaint .
Hazi Hafez Vs Abdul Mobud 41 DLR 321.
Section 247, Proviso—
Complainant petitioner a Deputy Attorney—General of Bangladesh Government, busy with official matters could not present himself in the Court of magistrate and pray for adjournment. His witnesses were examined and cross—examined but no adjournment was given though the petitioner was entitled to such privilege. His petition was not rejected but simply stated therein “not admitted”;
Held—T he Magistrate’s order is not sustainable in law.
Sultan Ahmed Vs. Golam Mostofa 4I DLR 2I9.
Section 247—
Appraisal of evidence—Complainant petitioner’s evidence was discredited because, in the opinion of the Magistrate, he had not filed any GD entry about the incident alleged by him.
Held—This is not necessary at all in law.
Sultan Ahmed Vs. Golam Mostofa 41 DLR 219.
Section 247—
Learned Magistrate did not base his finding on proper appreciation of evidence on record and was rather biased against the petitioner for reasons not known.
Sultan Ahmed Vs. Golam Mosrafa 41 DLR 219.
Section 247—
Applicability of section 247 CrPC—Case to be originated from a petition of complaint and summons to be issued following the complaint—But warrant was issued in the present complaint case and the necessary condition such as issuance of summons for the application of the section is absent—After amendment there is no distinction between summons case and warrant case at the trial stage.
Haji Hafez Md. Shamsul islam Vs. Abdul Mabud 41 DLR 321.
Section 247—
Acquittal—Accused present but complainant absent in Court— Complainant filed an application for adjournment through his advocate—No order was passed by the Magistrate on the adjournment application—He acquitted the accused.of all charges—The order of acquittal was not In keeping with law.
Mohammad Musa Khan Vs. Farookh Hossain 42 DLR 257.
Sections 249, 339c(4) and 403—
Fresh proceeding on self same facts against the same accused persons after a proceeding is stopped and the accused is released—When a proceeding is stopped without a judgment either of acquittal or of conviction and the accused is released, it does not operate either as acquittal or discharge—the same proceeding is not revivable unless there is legislative intent to that effect. Section 339C(4) was inserted providing for revival within 90 days those proceedings of which trial was stopped—In the present case, more than 90 days having elapsed before the Ordinance came into force and revival of the proceeding being out of question, there was no legal bar against fresh prosecution on same allegations. Taking cognizance for the second time must however depend on facts and related considerations of each case—Fresh cognizance should not be taken where there is default in taking revival proceeding without sufficient cause.
Niamat Ali Sheikh Vs. Begum Enayetur Noor 42 DLR (AD) 250.
Section 250—
The Assistant Sessions Judge acted beyond jurisdiction in making the impugned order under section 250 CrPC as the offence under section 382 Penal Code is triable by Court of Sessions, and not by a Magistrate.
The offence under section 382 of the Penal— Code being triable by a Court of Sessions and not by a Magistrate the Assistant Sessions Judge acted beyond his jurisdiction in Making the impugned order inasmuch as provisions of section 250 of the Code of criminal Procedure do not relate to an offence which Is not triable by the Magistrate.
Karimdad Vs. Abdul Hossain 40 DLR 441.
Section 250—
Section 250 CrPC empowers only a Magistrate to Invoke the said provisions while trying a case by him he finds that the accusations are false and either frivolous or vexatious and the same does not empower Asstt. Sessions Judge.
Karimdad Vs. AbuI Hossain 40 DLR 441.
Section 265G—
The mere fact that witnesses examined were not mentioned in the FIR is no ground for disbelieving them.
Siraj Mal & ors. Vs. State 45 DLR 688.
Sections 265G and 374—
Submission of sentence for confirmation—the orderof conviction under section 302 Penal Code by the session on the basis of part of the evidence recorded by an Assistant Sc Judge, who is not competent to l under that sections is illegal. The death reference is rejected and the case is sent back for re-trial of the condemned prison in accordance with law and in the light of observations made.
State Vs. Imdad Bepari 42 DLR 428.
Section 288 [omitted by Ordinance XLIX of 1978’]—
Two ways of making the previous recognition of the accused admissible in evidence. Rules stated in 1925 AIR (ALL) 223 have been relied on by the State (Respondent) One way, being by putting in his statement before the committing Magistrate section 288 CrPC and “The other method is to elicit from the witness at the trial a statement that he identified certain persons at the jail and that the persons whom he there identified were persons whom he had seen taking part in dacoity.
Ratan Kha Vs. State 40 DLR 186
—Principle of identification of an accused by witness in dock when there was a previous TI parade—Circumstances when a witness Cannot possibly identify the accused in dock stated. Ratio decidendi in 1925 AIR (All) 223 approved. We are in respectful agreement with the ratio decidendi reported in 1925 AIR (All) 223. It is well—settled that the evidence that a witness gives in the witness box is the substantive evidence and it is always desirable that the witness should be able to identify the accused persons in dock when there was a previous TI Parade, but owing to lapse of time and other compelling reasons it may not possible for the witness to identify the accused persons in dock.
Ratan Khan Vs. State 40 DLR 186
—Failure of witnesses to identify accused sons who are strangers to the witnesses— if made without naming them—Court’s duty to sift evidence in that circumstance—Any statement, express or implied, made by a witness identifying the accuseds but without naming them, it qualifies as substantive evidence—Test of.
Ratan Kha Vs. State 4O DLR 186.
—Improbable suggestion categorically denied by PWs. That the appellants were taken either to the house of the informant or to the police barrack first and were shown to the PWs 1—3 before the TI parade has no leg to stand upon.
Ratan Kha Vs. State 40 DLR 186.
Sections— 337, 335 and 339(1)—
Certificate Prosecutor necessary for the prosecution of a person who has earlier accepted pardon. This section of the Code provides that a person who earlier accepted the pardon may be the offence in respect of which the pardon was tendered, if the Public Prosecutor certifies that in his opinion the person has either wilfully concealed anything essential or had given false evidence and has not complied with the condition on which the tender was made. This implies that the whole basis for the prosecution of a person to whom pardon has been tendered under section 337 or 338 of the Code for the offence in respect of which the pardon was tendered is a certificate by the Public Prosecutor that in his opinion the person who has accepted the pardon has either wilfully concealed anything essential or had given false evidences and has not complied with the condition on which the tender was made.
Angur Vs. State 41 DLR 66.
—Prosecution of approver who has not complied with the condition on which pardon was received.
Angur Vs. State 41 DLR 66.
Section 339(1)—
The defects pointed out above are not cured by the provisions of the aid section of the Code. Here in the present case before us the prosecutor who conducted the earlier sessions case in the 4th Court of Assistant Sessions Judge, Mymensingh has not issued any certificate as required under sub-section (1) of section 339 CrPC and there is also no finding that the approver has broken the condition on which the pardon was tendered which is sine qua non for prosecuting an approver. In that view of the matter we are of the view that section 537 has no manner of application in this case.
Angur Vs. State 41 DLR 66.
Section 33 (1)—
No material available to conclude that TI parade was conducted legally. Appellant entitled to benefit of doubt. From the materials on record it is also found that this appellant was produced before the Court on 4.6.78 for the first time and thereafter was produced in Court on various occasions before the holding of the TI Parade on 11.6.79 and definitely therefore, it was possible for the witnesses like PW 3 Joynal see the appellant in Court. In such circumstances of the case the identification by PW3 in the’ TI Parade is found to be quite Unreliable and without any significance.
Furthermore, the Magistrate who conducted the TI Parade has not been examined during the trial. There is no material before the Court to find definitely that the TI parade was conducted legally and after observing legal formalities. In view, of the above it is found that the identification of appellant Angur by PW 3 Joynal is very much unreliable and the appellant is entitled to the benefit of doubt.
Angur Vs. State 41 DLR 66.
Section 339(1)—
Conviction of the appellant who was identified by PW 3 who saw the appellant earlier while deposing as PW 7 in the case is not sustainable.
Angur Vs State 41 DLR 66.
Section 339(l)—
Non compliance of section 339(1) CrPC by the APP.
In the present case before us the Assistant Public Prosecutor who conducted the case before the Assistant Sessions Judge, 4th Court, Mymensingh has not issued any certificate regarding his opinion as contemplated under sub-section (1) of section 339 of the Code of Criminal Procedure.
Angur Vs State 41 DLR 66
The petition for prosecuting the appellant (approver) by the successor APP cannot be termed as a certificate contemplated under section 339(1) of the Code.
The Assistant Public Prosecutor who conducted the case before the Assistant Sessions Judge, 4th Court, Mymensingh filed a petition before the trial Court on 8.1,2.82 praying for the prosecution of the present appellant (Approver) as, according to him, the appellant has not fulfilled the conditions on which pardon was tendered and accepted. The learned: Assistant Sessions Judge on the basis of this petition directed for framing charge against the appellant. This petition, dated 8.12.82 and the petition dated 23.3.85 submitted by successor APP Mr Khan at Kishoreganj cannot be termed as a certificate issued by the Public Prosecutor as contemplated under section 339(1) of the Code.
Angur Vs. State 41 DLR 66.
Section 339(1)—
Condition for tendering pardon—Enmity between the approver and the other two accused—Whether such pardon Is a pardon on condition
Furthermore, from the perusal of the record it is found that as regards the condition for tending pardon it is at best a pardon on the conditiona pprover will speak the truth and in this case he has spoken the truth by saying that he implicated accused Jamir and Sattar as he had litigation and disputes with them and, on the other hand, none of the other witnesses said that accused Jamir and Sattar participated in the dacoity or were present there.
Angur Vs State 41 DLR 66
Sections 339(1) & 537—
Certificate required under section 339(1) CrPC. If not complied with section 537 has no manner of application.
The defects pointed out above are not cured by the provisions of the said section of the Code. Here in the present case before us the prosecutor who conducted the earlier sessions case in the 4th Court of Assistant Sessions Judge, Mymensingh has not issued any certificate as required under sub-section (1) of section 339 CrPC and there is also no finding that the approver has broken the condition on which the pardon was tendered which is sine qua non for prosecuting an approver. In that view of the matter we are of the view that section 537 has no manner of application in this case.
Angur Vs. Sate 41 DLR 66.
Section 339(1)(2)(3)(4)(6)—
Time for disposal of criminal cases—”Working days” mean “working days of a particular Judge or a Magistrate” and not the “working days of a particular Court”.
Aminul Huq Vs. State 40 DLR 144.
Section 339B—
Frequcnt adjournment of criminal trial—Court’s duty in the matter— Disinterested witnesses arc losing interest to appear before the Court to avoid harassment of going to court again and again. It is desirable in the interest of administration of justice that witnesses be summoned on a day when the Court is in a position to examine them. No adjournment at the instance of any party should be allowed causing inconvenience to witnesses. Practice of adjourning criminal trial frequently on the prayer of the defence in spite of appearance of prosecution witnesses on the ground of absence of any accused overlooking provision of section 339B CrPC is contrary to law and should be discontinued.
Mahbubur Rahman Khan Vs. State 45 DLR 117.
Section 339B—
Accused facing trial on capital charge—Entitled to be defended by a lawyer even if the trial is held in absentia— Court’s responsibility to appoint a lawyer to defend—Section 339B CrPC does not come in conflict with the rule of PR Manual—Cardinal principle of criminal administration of justice stated.
State Vs. Jahaur Ali 42 DLR 94.
Section 339B, sub-section (1)—
Failure to publish the order in at least one Bengali daily newspaper is violative of the provision of section 339B CrPC and also of principle of natural justice.
Moktar Ahmed Vs. Haji Farid Alam 42 DLR 162.
Section 339C—
Provisions of this section is not merely a procedural law. It is a law vesting the accused with a right which could not be taken away by a subsequent amendment of the law.
Abu Sufian and 3 ors. Vs. State 45 DLR 610.
Section 339C—
Section 29 of the Special Powers Act makes the Code of Criminal Procedure applicable to the proceedings of the Special Tribunal—the time—limit imposed by section 339C CrPC will also apply to the proceedings of Special Tribunal.
Chand Miah Vs. State 42 DLR 97.
Section 339C—
‘Working days” for disposal of criminal cases—stopping proceedings for release of the accused—”Working days” of the Court—”Working days” shall be understood to mean the “Working days” during which the learned Judge will hold the charge of the trial Court—A Division Bench of the High Court Division rightly excluded the period of 53 days from the statutory period for the trial as the Additional District Judge held the charge of the District and Sessions Judge for 53 days which were not treated as “Working days” for the trial Court. The application for quashing the proceedings rightly rejected.
Abul Kashem Vs. State 40 DLR (AD) 97.
Section 339C read with Ordinance No. 37 of 1983 (coming into force on 8.8.1983 extending the time—limit up to 30.6.1985 in his case and later on finally up to 30.9.1985)
Charge—sheet was submitted on 16.6.83 before SDM who in due course forwarded the record to the Sessions Judge for trial. The case comes within the ambit of the Lime limit of the Ordinance No. 37 of 1983 which was intended to save such trials. Construction put to the Ordinance by the HC Division is not correct to conclude that this case is “not pending” on the date of commencement of the Ordinance.
State Vs. Madhu Mirdha 40 DLR (AD) 99.
Section 339C—
Concluding a trial beyond time—The Sessions Judge having received the case for disposal on 8.12.84 and delivered his judgment on 29.9.87 long after the expiry of the stipulated time for disposal of the case the trial was without jurisdiction and the conviction illegal in view of the provision of section 339C.
Abdul Quddus Vs. State 44 DLR 441.
Sections 339C(1)(4)(6), 435 and 439—
Section 339C(4) does not provide for abating any case nor does it provide for acquittal of the accused but merely provides for stopping the trial of the case and releasing the accused person—Impugned order by the learned Magistrate suffers from manifest illegality as only 22 days out of 30 extended days have passed—339C (6) provides for counting of working days in determining the time for disposal of cases.
Sultan Ahmed Vs. Gotam Mostafa & others 40 DLR 85.
Section 339C(2)(3)(4)(6)—
Time for completion of trial of Sessions case within the statutory period of 270 days including the extended time—Case pending before the Sessions Judge, Narail since 12.12.1985— After examination of one witness the petitioner filed a petition under section 339C(4) of the Code for release of the accused petitioner on the ground that the specified period of 240 days and extended time of 30 days totaling 270 working days for trial of the accused petitioner had already elapsed—Dictionary meaning of the word is not a safe guide for interpreting an expression in a statute— Calculation sheet showed that more than 361 working days of the court had passed from 12.12.85 to 30.3.87 and the number of 361 days excluded only holidays and Fridays but not the days during which the Sessions Judge could not sit in court when the Court was open—”Working days” shall be interpreted as “working days” of the Judge and not of the Court—Non—working days of a particular Judge for reasons beyond his control should be excluded from the “working days” when counted.
Ekramul Hoq Vs. State 40 DLR 139.
Sections 339C(4) & D—
Revival of a case—By the use of expressions in an unambiguous manner the legislature has left absolutely no doubt that the limitation regarding making an application by the Government to the court for revival of the relevant case shall run from the date on which the court concerned actually stopped the proceedings and not from the date on which the proceedings of the trial of the case should have been stopped.
AHM Kamaluddin Vs. State 43 DLR 294.
Section “339C, sub-section (6)—
Criminal trial—”Working days” to be counted in determining the time for disposal of criminal cases—”Working days” mean the days on which a Judge works as such. So, the days when the learned Sessions Judge was on leave and outside the stations should not be regarded as “Working days” of the learned Sessions Judge. The court is of the opinion that these days should be excluded while computing the time required for disposal of the sessions case. This being the legal position 150 days did not expire in the present case and application for stopping of the proceeding of the session’s case and for release of the accused petitioners has rightly been rejected.
Akbar Ali Vs. State 40 DLR29.
Section 339D—
Revival of a case under section 339D. Under the scheme of the Code itself, the Public Prosecutor is competent to file application for revival of a case on behalf of the Government without any authority or instruction whatsoever.
Dr. SM Abu Taher Vs.State 42 DLR 138.
Section 340—
An Advocate to defend an undefended accused charged with capital offence should be appointed well in time to enable him to study the case and the lawyer should be of sufficient standing and able to render assistance. He should be provided with papers which are ordinarily allowed to the accused.
The deficiencies as on the record are due to the appointment of State lawyer without giving him sufficient time to prepare the case. This has seriously prejudiced the accused persons and their defence was materially affected. The State defence lawyer could not do justice to the case of the absconding accused who have been sentenced to death. The impugned order of the learned Sessions Judge convicting and sentencing condemned prisoner Hanif and convict Waliar to death under sections 302/34 of the Penal Code is set aside and they are directed to be tried of the charge already framed. The case is sent back on remand for fresh trial in the light of the observation made.
State Vs. Hanif Gani 45 DLR 400.