Criminal
Procedure Code [V of 1898]
Section 561A— Though the inherent power of the High Court Division is
undefined and unlimited but this inherent jurisdiction should not be generally
and indiscriminately invoked particularly when some other remedy is available.
The jurisdiction is not alternative or an additional one but it is a
jurisdiction preserved in the interest of justice to redress grievances for
which no other procedure is available nor has been provided in the Code itself. Engineer Afsaruddin Ahmed vs State 46 DLR
496.
Section 561A— Inherent jurisdiction of court—Whether such jurisdiction is
applicable in cases from which appeals are barred by limitation—Section 561A
CrPC cannot be conceived to give the High Court Division jurisdiction to
retrieve the cases from the moratorium after they have been barred by
limitation. Then, in the memo of the appeal taken or in the submission no
ground has been taken that the Tribunal had no jurisdiction to try the case or
that it arrived at absurd or preposterous conclusion from the evidence on
record.
The section 561A of the Code of Criminal Procedure has not
given any new jurisdiction to the High Court to override other laws. It is easy
to see that this Court cannot have any inherent jurisdiction to strike down the
law of limitation. The law of limitation is so inexorable that a person loses
his good title on account of law of limitation. It may be desirable that
something is done for the redress of the accused who lost their right of appeal
and has very good case in their defence, but it is for the legislature to do. Mr Mohammad Ali vs State 46 DLR 175.
Section 561A— There is nothing in law precluding a criminal case on
account of a civil suit pending against the petitioners on the same facts. The
criminal case stands for the offence, while the civil suit is for realisation
of money, both can stand together. Khondaker
Mahatabuddin Ahmed and others vs State 49 DLR (AD) 132.
Section 561A— The complainant has the option to activate prosecution of
the petitioners under the Immigration Act, 1982 as well, but if the allegations
contain ingredients under the Penal Code, the complainant’s case before the
Magistrate cannot be stiffed by quashing.
Noor Jahan Begum and another vs State, being represented by the Deputy
Commissioner and another 49 DLR (AD) 106.
Section 561A— The Drug Control Ordinance is an additional forum for trying
drug offences. Taking of cognizance and framing of charge by the Tribunal under
the Special Powers Act in respect of offences relating to possession of
spurious medicine, are not illegal and the prosecuting thereof are liable to be
quashed.
Ordinance No.VIII of 1982 has been promulgated not with a
view to excluding all other trials on the same offence but as an additional
forum for trying drug offences. If the same offence can be tried by a Special Tribunal
under the Special Powers Act it cannot be said that the accused-petitioner has
an exclusive right to be tried by a Drug Court only. As on the petitioner’s own
showing he has been charged only under section 25C(d) of the Special Powers Act
by the Senior Special Tribunal, we do not find any illegality in the
proceedings. S Ashraf Ali @ Asraf Ali vs
State 49 DLR (AD) 107.
Section 561A— It cannot be said that the Court was wrong in holding and
acting on the premises that the dispute between the parties arising out of a
joint stock should be settled in the civil Court and the criminal proceeding be
quashed. Ansarul Haque vs Abdur Rahim and
4 others 49 DLR (AD) 145.
Section 561A— The Sessions Jud having passed an order under section 439A
CrPC setting aside finding of Magistrate under section 145 CrPc all remedies
for the first party be exhausted, the party is competent invoke section 561A
[1984 BLD( 165 ref] Soleman (Md) vs Ahba Khalifa and others 46 DLR 298.
Section 561A—
Quashing of a proceeding can be made even at the initial stage of a case, and
when facts and circumstances demand, even at the stage when cognizance is taken
by the Magistrate in a case under the Penal Code. Mubashwir Ali and others vs State 46 DLR 535.
Section 561A— The exercise of power under this section is not totally
barred against an order passed by the Sessions Judge under section 439A CrPC.
It is to be seen whether the petitioner invokes this court’s revisional
jurisdiction under the garb of an application under section 561A CrPC. If the
condition of this section is fulfilled the High Court Division may exercise its
power there under. Fatema Begum @ Urmila
Rani vs Gageswar Nath and State 46 DLR 651.
Section 561A— When exercising jurisdiction under this section, the High
Court Division will not embark upon an enquiry whether the evidence in question
is reliable or not which is a function of the trial Court. Quashment of
criminal proceeding before commencement of trial may amount to stifling the
prosecution. Abu Bakar and others vs
State, 46 DLR 684.
Sections 561A, 438 &
439A— Reference—Since the petitioner could
not make out a case of quashing of the proceedings and since no such power is
vested in the Sessions Judge the impugned order refusing to make a reference to
the High Court Division suffers from no illegality. Farhad Hossain vs Mainuddin Hossain Chowdhury 46 DLR 127.
Section 561A—In view of the complainant’s case that he delivered goods
in good faith on the accused’s inducement of part-payment and promise to pay
the balance price within 3 days but subsequently betrayed, it cannot be said
there is no prima facie case against him—the High Court Division rightly
refused to quash the proceeding. Arifur
Rahman alias Bablu vs Shantosh Kumar Sadhu and another 46 DLR (AD) 180.
Section 561A— The inherent jurisdiction of the High Court Division would
be available even to a party who had lost in revision before the Sessions
Judge.
In this connection this Court, however, referred to the
limited scope of section 561A and observed that this inherent power is neither
an additional power nor an alternative power of the Court, that this power is
to be exercised very sparingly keeping itself within the bounds of this
provision and that a revision petition cannot be brought in the camouflage of a
petition under section 561A. Sher Ali
(Md) and others vs State and another 46 DLR (AD) 67.
Section 561A- The inherent power under section 561A can be invoked at any
state of the proceeding, even after conclusion of trial, if it is necessary to
prevent the abuse of the process of the Court or otherwise to secure the ends
of justice.
Appellant was convicted solely on the statement of a
co-accused who, however, did not implicate himself in the crime but shifted the
blame upon others including the appellant. This Court found that there was no
“confession” at all as its maker did not implicate himself in the
crime and further that this statement was not corroborated by any other
evidence and consequently the conviction was based on ‘no evidence’ which could
be quashed by the High Court Division in exercise of its inherent power under
section 561 A. Sher Ali (Md) and others
vs State and another 46 DLR (AD) 67.
Section 561A- The inherent power may be invoked independent of powers
conferred by any other provisions of the Code. This power is neither appellate
power, nor revisional power, nor power of review and it is to be invoked for
the limited purposes.
This power may be exercised to quash a proceeding or even a
conviction on conclusion of a trial if the Court concerned got no jurisdiction
to hold the said trial or the facts alleged against the accused do not
constitute any criminal offence, or the conviction has been based on ‘no
evidence’ or otherwise to secure ends of justice. Sher Ali (Md) and others vs State and another 46 DLR (AD) 67.
Section 561A- The decision of the judges that the application under
section 561A is liable to be rejected for lack of jurisdiction is totally
erroneous and it is held that the High Court Division has jurisdiction to
entertain such an application but whether interference will be made in a
particular case is altogether a different matter.
The general principle is that the power being extraordinary
its exercise also will be rarity. The “total bar” in section 439(4)
of the Code, as spoken of by the learned Judges, is only against further
revision—that is, revision under section 439(1) of the Code and not against the
Court’s inherent jurisdiction which is altogether different from any other
jurisdiction under the Code. The High Court Division, on the one hand, wilfully
disregarded this Court’s decisions, and, on the other hand, flouted Article 111
of the Constitution. This cannot be countenanced and must ; be disapproved
strongly. Sher Ali (Md) and others vs
State and another 46 DLR (AD) 67.
Section 561A- A litigant should not be allowed to move this court under
the section 561A of the Code when other remedy is available to him under the
Code.
Section 561A of the Code is to be taken resort to only to
prevent abuse of the process of court or to secure the ends of justice and not
to allow abusing the process of the Court to stop trial of the cases for about
a decade and then to get acquittal in the trial Court afterwards for want of
evidence occasioned by lapse of long time.
Maksudur Rahman Hilaly and others vs State 47 DLR 314.
Section 561A–– An appeal filed under section 30 of the Special Powers Act
but not admitted for hearing as it was found barred by limitation can be
allowed to be converted to a miscellaneous case under section 561A of the CrPC
for securing the ends of justice. Sohail
Ahmed Chowdhury vs State 47 DLR 348.
Section 561A–-After conversion of an appeal to an application under
section 561A CrPC the application can be disposed of by the same Bench without
issuing a Rule afresh—technicalities of procedure may be avoided with a view to
securing the ends of justice. Sohail
Ahmed Chowdhury vs State 47 DLR 348.
Section 561A–-This Court has inherent jurisdiction to set aside its own
judgment to secure ends of justice or to prevent abuse of the process of any
Court under section 561A of the Code of Criminal Procedure. Serajul Islam and others vs Fazlul Hoque and
others 47 DLR 480.
Section 561A— This Court in exercise of its extraordinary power of
quashing cannot usurp the jurisdiction of the trial Court to receive and
examine evidence adduced by the accused in his defence to exonerate him from
the charge brought against him. Shyamal
Chandra Das vs State and others 47 DLR 474.
Section 561A— This section corresponds to section 151 of the Code of Civil
Procedure with almost similar principle. Sohail
Ahmed Chowdhury vs State 47 DLR 482.
Section 561A— Inherent jurisdiction —Extent of applicability—Inherent
jurisdiction of the High Court Division which is generally exercised for
preventing the abuse of the process of the court in respect of the pending
proceedings can also be invoked in appropriate cases for securing the ends of
justice in respect of a proceeding which has reached its finality. Sohail Ahmed Chowdhury vs State 47 DLR 482.
Section 561A-— Finding of guilt of accused person cannot be based merely
on high probabilities but should be rested surely and firmly on the evidence
and mere conjecture and hypothesis cannot take the place of proof.
In the present case the non production of seized gold for
which no explanation has been furnished by the prosecution, failure of the
prosecution to test the seized gold by an expert are sufficient to show that
the judgment and order of conviction is based on surmises and not on evidence
and hence liable to be quashed. Sohail
Ahmed Chowdhury vs State 47 DLR 482.
Section 561A— Interference of this Court in exercise of its inherent power
under section 561A of the Code at the initial stage of investigation or before
taking cognizance or framing of charge will be justified only when this Court
finds that the allegations made in the First Information Report or petition of
complaint do not constitute the offence alleged against the accused or that on
the admitted facts no case can stand against the accused. Santosh Bhusan Das and others vs State 47 DLR 519.
Section 561A— That a Minister is personally interested in the case against
the accused, though found to be true, by itself is not sufficient to conclude
that the allegation against the accused is false, the High Court Division
observed rightly that the proceeding cannot be quashed as it remains for the
prosecution to establish the allegation by adducing evidence in trial. Engineer Afsaruddin Ahmed vs State 47 DLR
(AD) 10.
Section 561A— In view of the unusual facts and circumstances of the case
i.e. re-investigation by the Criminal Investigation Department to be a malafide
act to create cleverly a plea of alibi for a particular accused the order of
the High Court Division allowing quashment need not be interfered with. Afia Khatoon vs Mobasswir Ali and others 47
DLR (AD) 62.
Section 561A— In a rule for quashing the proceeding the court cannot enter
into the merits of the allegations.
Khorshed Alam vs Azizur Rahman & another 48 DLR 36
Section 561A— Even if accounts of the company were audited and approved by
the share-holders the same cannot exonerate the persons in charge of the
management of the company from facing trial on the allegation of
misappropriation of the fund. Khorshed
Alam vs Azizur Rahman & another 48 DLR 36
Section 561A— Fresh trial of the petitioner for the negligence of the
presiding officer concerned would be an unnecessary harassment to him and an
abuse of the process of the court.
Question is whether for such negligence of the presiding
officer concerned petitioner should suffer a fresh trial for no fault of his
own and procedural technicalities should be allowed to prevail over the ends of
justice. In this connection we like to mention that no complaint was made by the
Public Prosecutor before the said Tribunal before passing of the said order
that no trial was held culminating in pronouncement of judgment on 25-1-89 in
open court acquitting the accused petitioner. In the above facts and
circumstances we are of the view that the petitioner should not face any fresh
trial for the negligence of the presiding officer. Adhir Kumar Shaha vs State 48 DLR 87
Section 561A— In view of existing legal position owing to the enactment of
sections 265C & 241A CrPC an accused can prefer an application under
section 561A if he became unsuccessful in his application either under section
265C or section 241 A. Otherwise his application under section 561A would be
premature. Liton vs State and others 48
DLR 102
Section 561A— Even when the seized documents placed before the Court were
seized illegally the Court cannot but consider those as relevant to the matter
in issue and no inherent jurisdiction of the Court could be exercised for a
discussion on evidence. Moudud Ahmed vs
State 48 DLR 108
Section 561A— Submission of charge-sheet beyond the specified time of 30
days under the Anti-Terrorism Act is illegal and as such the proceeding cannot
proceed in the Anti-Terrorism Tribunal. Shahidullah
Kazi, Amjad Hossain vs State, Abul Kasem 48 DLR 178
Section 561A— Since the jurisdiction of the criminal Court to draw up
proceedings under section 145 of the Code is ousted as the civil Court is in
seisin of the subject matter of the dispute the entire proceeding in question
appears to be without jurisdiction. Jasimuddin
(Md) and 2 Others vs Md Humayun Kabir 48 DLR 578
Section 561A— Examination of the existing materials on record taking into
account the defences that the petitioner might offer at the trial, whatever be
the merit of such an exercise, is certainly not the method of disposal of an
application under section 561A moved after framing of charge in the case.
After framing a charge, an application under section 561A
CrPC to quash the proceedings is still available to the accused-petitioner on
the ground that the allegation of facts even if true does not support the
accusation or any other offence against him. The charge itself may be impugned
but it is not the function of the trial Court while framing charge or the Court
exercising jurisdiction under section 561A CrPC to examine the admissibility,
relevance, propriety or sufficiency of materials. For, all these questions,
especially in a criminal trial, are mixed questions of fact and law which
cannot be resolved in an abstract manner without the facts surfacing at the
trial. Moudud Ahmed vs State 48 DLR (AD)
42.
Section 561A— A wide conclusion that after framing of charge no
application under sections 561A CrPC lies should be read in the observation of
the High Court Division—”I do not agree with the learned Counsel of the
petitioner that at this stage, after framing of charge, the proceedings cannot
be proceeded with“. Moudud Ahmed vs
State 48 DLR (AD) 42.
Section 561A— There may be cases where allegations in the First
Information Report or the complaint, even if they are taken at their face value
and accepted in their entirety, do not constitute the offence alleged, and in
such cases it would be legitimate for the High Court Division to hold that it
would be manifestly unjust to allow process of the criminal Court to be issued
against an accused person.
The High Court Division may interfere under section 561A
even during Police investigation cognizable offence is disclosed and still more
if no offence of any kind is disclosed because in that case the Police would
have no authority to undertake an investigation. But the usual and well-settled
practice is that a criminal proceeding can only be quashed after cognizance has
been taken and process issued thereupon subject to the fundamental principle that
the power of quashing is and should be very sparingly exercised and only to
prevent the abuse of the process of the Court. Syed Mohammad Hashem vs State 48 DLR (AD) 87.
Section 561A— A Criminal Proceeding cannot be quashed on the basis of
defence materials which are still not part of the materials for prosecution.
The High Court Division deviated from a well-known norm of disposal of an
application for quashing criminal proceeding by taking into account the defence
version of the case. Rehela Khatun vs
Abul Hassan and others 48 DLR (AD) 213.
Section 561A— A careful reading of sections 29, 463 and 464 of the Penal
Code together would clearly show that a false document must have been actually
made and that mere taking of a signature on a blank paper without writing
anything on that paper does not make it a document. Since the complainant
petitioner did not disclose the nature of the document allegedly created the
allegations made do not constitute the offence under section 465 of the Penal
Code and as such the impugned proceeding is liable to be quashed. Syed Khalilulla Salik alias Juned vs Haji
Md Rahmat Ullah 2. State 49 DLR 16
Section 561A— Rejection of writ petitions against criminal proceedings on
grounds of availability of alternative remedy by way of quashing of the
proceeding cannot be a bar against further writ petitions against the same
criminal proceedings when the very legality of institution of the proceedings
have challenged. Shahriar Rashid Khan
Bangladesh 49 DLR 13.
Section 561A— The present case under sections 4(2) and 5(2) of Act II of
1947 initiated by the Bureau of Anti-Corruption involving only private
individuals is not maintainable in law and is therefore liable to be quashed. Golam (Md) Abdul Awal Sarker and others vs
State 49 DLR 95
Section 561A— In the circumstances that the petitioner has all along
flouted summons and warrant and never asked for bail even in the High Court
Division, it is difficult to entertain his application for quashing of
proceeding before he surrenders to the Court.
We have also seen from the affidavit and submission that the
petitioner is an old man and professor of a University suffering from ailments
and is not able to go to Gopalganj. Considering the nature of the case we
direct that the case may be withdrawn from the Magistrate Court Gopalganj to
the Court of Chief Metropolitan Magistrate, Dhaka where the petitioner must
surrender and obtain bail. Dr Ahmed
Sharif vs State and another 49 DLR 100.
Section 561A— Where a prima facie case of criminal offence has been
clearly made out, the High Court Division in a proceeding under section 561A
CrPC has little scope to scrutinise the truth or otherwise of any document or
other evidence, which may be used as a defence in a criminal proceeding. Kamrul Islam (Md) vs Atikuzzaman 49 DLR 258.
Section 561A— Institution of a money suit for recovery of the money will
not stop prosecution for an offence committed in the eye of law. Nurul Islam vs State and another 49 DLR 464.
Section 561A— When in the FIR and before the Court the informant stated
that the petitioner had illicit intercourse with her against her will and the
evidence disclosed a case against, the Court cannot shift the evidence adduced
from the side of the prosecution. Alamgir
Hossain (Md) alias Alamgir vs State 49 DLR 630
Section 561A— The criminal proceeding in the instant case is required to
be quashed to secure the ends of justice so that title may be set at right once
and for all by the civil Court. Sabdul
Ali vs Md Mabed Ali Sarker 50 DLR 146.
Section 561A— The notice for talak was issued on 26-6-95, but the
petitioner took the second wife on 29-5-95, about a month before the service of
the notice, not to speak of expiry of 90 days as provided for under section 7
of Muslim Family Laws Ordinance to make the pronouncement of talak effective.
As such the application for quashment of proceedings for punishment of the
petitioner is summarily rejected. AKM
Rafiqul Alam vs State 50 DLR 265.
Section 561A—The Chief Metropolitan Magistrate has avoided passing of
orders on flimsy grounds and as such the question of approval of the District
Magistrate for such permission does not arise. In such a case, the under-trial
prisoner could invoke the inherent jurisdiction of the court for ends of
justice. The under-trial prisoner in this case is entitled to Class I status in
the jail under the provisions of Paragraph 910 of the Jail Code and the
authority is directed to allow the status due to him. Major (Retd) M Khairuzzaman vs State 50 DLR 283
Section 561A— Taking the allegations and the complaint as they are,
without adding or subtracting anything, if no offence is made out then the High
Court will be justified in quashing the proceedings.
On a reading of the petition of complaint it is difficult to
hold that the allegations and the complaint do not disclose any offence and the
continuance of the proceeding will be a flagrant abuse of the process of the
court and the same is to be buried before trial and the inherent power which
are in the nature of extraordinary power has to be passed in aid. Rustom Ali Matubbar alias Alam vs Mohammad
Salahuddin and another 50 DLR 301
Section 561A— From the petition of complaint we find no allegation of
initial deception on the part of the accused petitioner or entrustment of any
property. Ingredients of the offence of cheating and criminal breach of trust
having not been disclosed in the petition of complaint the same is liable to be
quashed. Abdul Hai vs State 50 DLR 551
Section 561A— Whether in the facts of a particular case a higher section
is attracted can be considered at the time of framing of charge. It is not
necessary to amend the charge-sheet to include a higher offence. Mokaddesh Mondal and others vs State and
others 50 DLR (AD) 186
Section 561A— Nothing was stated in the FIR that the accused denied that
he would not pay the balance amount. No allegation of initial deception has
also been alleged. The High Court Division rightly quashed the proceeding. Rafique (Md) vs Syed Morshed Hossain and
another 50 DLR (AD) 163
Section 561A— Subsequent allegations will not save limitation for
prosecution—The requirement under the law is that the complaint against
non-payment of money has to be filed within one month of the date on which the
cause of action arises—The High Court Division wrongly rejected the application
for quashing. SM Anwar Hossain vs Md
Shafiul Alam (Chand) and another 51 DLR (AD) 218.
Section 561A— A convict may invoke the inherent jurisdiction of the Court
if he can make out a case of coram non judice of the trial Court or that the
facts alleged do not constitute any offence or that the conviction has been
based on no legal evidence or otherwise for securing the ends of justice. Shahidul vs State 51 DLR 222
Section 561A— A person having had prayed for rejection of his petition or
appeal can not be given such latitude as to invoke the aid of section 561A CrPC. Shamsur Rahman alias Shamsu Moral and
another vs State 51 DLR 338
Sections 561A & 145— Though two civil suits, instituted before the drawing up of
the proceeding under section 145 CrPC, are pending, the civil Court has not
passed any order regulating possession of the case land, nor a decree for
possession or permanent injunction has been granted. In this view of the
matter, the jurisdiction of the Magistrate to act under section 145 CrPC is not
ousted. Mozqffar Ahmed vs State and
others 49 DLR 485
Sections 561A & 145— When the Civil Court is already seized with the question
of regulating possession of the land between the same parties, the Magistrate
acted without jurisdiction in initiating the impugned proceeding under section
145 CrPC. Abul Bashar and another vs
Hasanuddin Ahmed and others 51 DLR (AD) 14
Sections 561A & 145— When the Civil Court is already seized with the question of
regulating possession of the land between the same parties the Magistrate acted
without jurisdiction in initiating the proceeding under section 145 CrPC. Abdul Majd Mondal vs State and another 51
DLR 287.
Sections 561A & 195—In a proceeding where a forged document has been used the
Court concerned should make the complaint. The criminal court should not take
cognizance on a private complaint. The want of complaint under section 195 is
incurable and the lack of it vitiates the whole trial. Wahida Khan vs Shakar Banoo Ziwar Sultan and State 48 DLR 286
Sections 561A & 265C—We do not find any reason to quash the instant criminal case
by involving our inherent jurisdiction under section 561A CrPC as the Code
under section 265C provides for an alternative remedy. Salahuddin (Md) and others vs State 51 DLR 299.
Sections 561A, 439A &
439(4)— The Sessions Judge’s decision is not
final in relation to a person who has not filed the revisional application to
the Sessions Judge but has been impleaded therein as opposite party. He is free
to go to any appropriate forum to challenge the Sessions Judge’s decision. But
he cannot go to the High Court Division with another revisional application, as
such an application—better known as second revision—is expressly barred by
section 439.
Though the High Court Division cannot entertain any
application under section 439(1) from a decision of the Sessions Judge under
section 439A, still it can interfere with the Sessions Judge’s order by
invoking its inherent power for the limited purposes as set out in that,
section namely, ‘to give effect to any order under the Code, or to prevent
abuse of the process of any Court or otherwise to secure ends of justice’. Sher Ali (Md) and others vs State and
another 46 DLR (AD) 67.
Sections 561A & 439(4)—As there is nothing in the impugned order requiring to
prevent abuse of the process of the Court or to secure the ends of justice, the
revisional application is barred under the amended provision of section 439(4)
of the CrPC. Anower Hossain and others vs Md Idrish Miah 48 DLR 295.