Appellate Division Cases
(Criminal)
PARTIES
Foyej Ahmed ………………………………………….Petitioner
-vs-
The state ………………………………………………. Respondent
JUDGES
Syed J. R. Mudassir Husain CJ
Mohammad Fazlul Karim J
Md. Tafazzul Islam J
Date of Judgment
15 February 2004
The Code of Criminal Procedure sections 265-1. 265-1(3), 342. 265-1(1), 265H,
If the accused asked for the issue of any process for compelling the attendance of any witness or the production of any document or thing, it shall be granted generally but the same may be refused specifying the reasons that the application was made vexatious or to delay or for defeating the ends of justice (6)
The Court below should allow a reasonable time, i.e, at least a month to produce the said doctor along with the Medical Register of the Dolahazara Hospital and as such wee are of the opinion that the learned Additional Session Judge should serve summon upon the Doctor U.S. Chakma who is presently stationed at Cox’s Bazar to appear before the Court with the Emergency Medical Register of Dohazara Hospital dated 3.4.1988 fixing a date of hearing for that purpose , (7)
ADVOCATES
A .K. M. Zahirul Hague, Advocate, instructed by Syed Mahbubur Rahman, Advocate-on-
Record For the Petitioner. Not represented For the Respondent.
JUDGMENT
1. Mohammad Fazlul Karim J:- This Criminal Petition for Leave to Appeal arises out of judgment and order dated 22.10.2003 passed by the High Court Division in Criminal Revision No. 1185 of 2003 affirming those dated 2.4.2003 of the learned Additional Sessions Judge, Chittagong in S.T. Case No. 19 of 1990 rejecting the prayer of the accused-petitioner to issue summons upon doctor and production of medical register of the Dolahazara Hospital.
2. Upon completion of the deposition of the P.Ws. during the examination of the accused
under section 342 of the Code of Criminal Procedure, the defense came out with a plea that they are innocent and have been falsely implicated in the case and would adduce evidence and accordingly an application was filed for issuance of summon upon the Medical Officer of Dolahazara Hospital to produce the Emergency Medical Register dated 3.4.1988 in order to prove the injury and illness of Sultan Ahmed, full brother of the informant, who was medically examined on that date by attending Doctor U.S. Chakma and duly recorded in the register entry No. 3/ 2004 dated 3.4.1988 of the Emergency Out Door Register of said Hospital. The said application under section 265-1 of the Code of Criminal Procedure was, however, rejected. The Petitioner moved the High Court Division unsuccessfully.
3. Mr. A.K.M. Zahirul Haque, the learned Advocate appearing for the petitioner submitted that the petitioner having taken the defense that they were innocent and falsely
implicated in the case and cross-examined the P.W.I tht Rehana had illicit connection with her brother-in-law Sultan Ahmed over which there was altercation and scuffling between Fazal Ahmed and Sultan Ahmed on 2/3.4.1988 and that they were taken to Dolahazara Hospital in a seriously injured condition which suggestion was, however, denied by the P.W.I but the Doctor U.S. Chakma then attached to Dohazari Hospital treated them admitting their names in the Emergency Medical Register of the said Hospital on 3.4.1988 is very much relevant for the purpose of defence for proving the defence case as to the alleged injury due to the altercation and scuffling between the brothers and under the mandatory provision of section 265-1(3) of the Code of Criminal Procedure the accused petitioner as of right could require the witnesses and evidence examined after their examination under section 342 of the Code of Criminal Procedure inasmuch as there was nothing to show that the said application was vexatious and filed with he intent to delay thereby defeating the ends of justice. 4. It appears taht the I.O. of the case was examined on 28.10.2002 and the accused was examined under section 342 of the Code of Criminal Procedure on 3.3.2003 on which date when the petitioner prayed for summoning Doctor U.S. Chakma, the medical officer, and calling for the Medical Register of the concerned Hospital on 3.2.2003 but the same was rejected by the learned Additional Sessions Judge on 2.4.2003.
5. Section 265-1(1) provides that where the accused is not acquitted under section 265H,
he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. Section 265-1(3) provides that if the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Court shall issue such process unless he considers, for reasons to be record-‘
ed, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.
6. The said provision provides that if the accused asked for the issue of any process for compelling the attendance of any witness or the production of any document or thing, it shall be granted generally but the same may be refused specifying the reasons that the f application was made vexatious or to delay or for defeating the ends of justice.
7. The application under section 265-1(3) of the Code of Criminal Procedure was filed on
3.3.2003 soon after the completion of deposition of the P.Ws. and the accused were examined under section 342 of the Code of Criminal Procedure and in support of their plea of innocence and false implication in the case the Courts below should have allowed
the said application as the same was not vexatious or to cause unnecessary delay or for . defeating the ends of justice in view of the defence plea, instead there is likelihood of the
petitioners being prejudiced for not allowing the said application. The Court below should allow a reasonable time, i.e, at least a month to produce the said doctor along with the Medical Register of the Dolahazara Hospital and as such wee are of the opinion that the learned Additional Session Judge should serve summon upon the Doctor U.S. Chakma who is presently stationed at Cox’s Bazar to appear before the Court with the Emergency Medical Register of Dohazara Hospital dated 3.4.1988 fixing a date of hearing for that purpose.
8. As granting of leave to appeal against the impugned orders would further cause delay in disposal of S.T. Case No. 19 of 1990 for an occurrence and dated 2/3rd day of April, Appellate Division Cases 1988, we are inclined to dispose Qf this appli-(Criminal) ation with the aforesaid direction to the Additional Sessions Judge, First Court, PRESENT Chittagong in Sessions Trial Case No. 19 of 1990 for securing ends of justice. Syed J.R. Zafar Ahmed Mudassir Husain Chowdhury and others.
9. The petition is disposed with above obser vation.
Source: IIIADC (2006) 749