PART : (A)
Good begining is half done . An well introducing may fruitfull to end a significant assignment task that is given to me by my honorable course teacher A.M. .Masum is as following:
“GROSS MISTAKE OR OMISSION IN TAKING EVIDENCE MAY EMPOWER THE APPELLATE COURT TO REMEND A CASE.” Explanation & illustration that I agree or disagree with the statement . First of all on my best consideration I agree with the statement . It is only in some rare cases that taking omission or great mistake in evidence may empower the appellate court & can send the case back on remand for writing a proper judgment . The appellate court should be more conscious about the evidence which has been taken against accused but refused & un believed by the judge court .[ PLJ (Cricy) 491 (AJ & K) SHC ] .Gross mistake or omission can take place in evidence when the evidence inforce to the judgment of cases that is not acceptable or; if all the activities of cases is taken without any evidence; or,if the acceptable evidence is refused by elegally or unlawfully . In above cases the High Court may empower to commut the case. [ AIR 1963 Guzrat 234BD] Before explanation & illustration we have acquire fundamental knowledge about some key points ; i.e. Gross mistake or omission , evidence , power of the appellate court, to remand a case & also the section 423 of Cr.P.C. In the main body in part (B) all points are explained in a significant .way In part (C) a brief conclusion is added & finally with a bibliography it has been completed.
BRIEF EXPLANATION OF FUNDAMENTAL POINIS;
# Gross mistake or omission :
Gross mistake or omission can take place , if A deposes that B told him that he witnessed ascertain fact . If B were the deposing witness there would be only two chances of error or omission in believing the testimony (a) that he may have been mistaken as to what he thought he wit nessed ; or (b) that his narrative may be intentionally false . Hence two fresh chances of error are introduced : viz, that A may have either mistaken the words uttered by B , or may intend to misrepresent them.
# Evidence :
“Evidence is the facts which are legally admissible & the legal means of attempting to prove such facts .”- Nokes.
“The usual means of proving or disproving a fact or matter in issue. ”Halsbury’s law of England.
Evidence may be oral , documentary or real in nature.
Powers of the Appellate Court:
Powers of the appellate court arises , if it considers that there is no sufficient ground for interfering dismiss the appeal or may –
In an appeal from an order of acquittal.
In an appeal from a conviction.
In an appeal for enhancement of sentence.
In an appeal from any other order.
# To Remand a Case:
It is only in a rare case that a remand order such as in the present case is , should be made of the purpose of only writing a proper judgment in accordance with section 367 CrPC. That merely because they have been some omissions or gross mistake made by the trial court in not considering a piece or pieces of evidence will hardly afford a valid ground for sending the case back on remand for writing a proper judgment.
- For Evidence See, writer; MD .ABDUL ALAM ,Barrister – at – law. Chapter of evidence , The law of Evidence, ( Theory & Practice .) An Interpretative , Comparative & critical Analysis of the Evidence Act , 1872 .
- For powers of the appellate court See, Page -735 ,Section – 423 (1) ,Cr.P.C. of ZAHIRUL HIQ, Advocate, Supreme Court of Bangladesh .
- For To Remand A Case See ,Page – 739 ,Cr.P.C of ZAHIRUL HIQ ., Eleventh Edition .[ Ref : 42 DLR 160 (AD), 4 BLD 145 ]
PART ( B ).( b ):
For agreement of the statement I have given more emphasis on the section 423 of Cr.P.C that powers of the appellate court in disposing of appeal.
So on the basis of section 423 of Cr.P.C we can acquire knowledge through the learning:
Section ( 423 ). Powers of Appellate Court in disposing of appeal:(1)
Appellate Court shall then send for the record of the case , if such record is not a ready in court . After perusing such record and hearing the appellate or his advocate , if the appears and the Public Prosecutor , if he appears and in case of an appeal under section 417 , the accused , if he appears , the court may , if it considers that there is no sufficient ground for interesting , dismiss the appeal ,or may-
(a) in an appeal from an order of acquittal reverse such order and direct that further inquiry be made , or that the accused be retried or sent for trial , as the case may be , or find him guilty pass sentence on him according to the law;
(b) in an appeal from a conviction , ( 1 ) reverse the finding and sentence , and acquit or discharge the accused , or order him to be retried by a court of competent jurisdiction subordinate to such Appellate Court or sent for trial , or (2) alter the finding , maintaining the sentence , or with or without altering the finding , reduce the sentence , or , (3) with or without such reduction and with or without altering the , alter the nature of the sentence , but , subjection to provisions of section 106 , sub-section (3) , not so as to enhance the same .
(bb) in an appeal for enhancement of sentence , (1) reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a Court competent to try the offence , or (2) alter the finding maintaining the sentence , or (3) with or without altering the finding , alter the nature or extent or the nature , and extent or the sentence , so as to enhance , or reduce the same;
(c) in an appeal from any other order , after or reverse such order;
(d) make any amendment or any consequential or incidential or that may just or proper:
Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement:
Provided further that the Appellate Court shall not in flict greater punishment for the offence which in its opinion the accused has committed than might have been inflicted for the offence by the Court passing the order of sentence under appeal.
- For Powers of Appellate Court to Disposing an Appeal , See , Page -735 ,Cr.P.C . Section (423)Writer ,AL-HAJ ZAHIRUL HUQ , Advocate , Supreme Court ,Author of Penal Code ,Evidence Act .Eleventh Edition :2010, Reprint :2011.
- See also page – 438 , LLB.GUIDE. writer –Professor MD. ALTAF HOSSAIN HIRA – PUBLICATIONS ) .
PART ( B ) .( c):
TIME OF APPEAL & TO REMAND A CASE :
# When Judge Court got mistake or omission and unlawfully acquitted the accused without taking evidence of prosecution in cognizable , then the order of acquittal may commute and accused may faulty under section 302 . [ PLD 1967 Peswore 80 (DB) ].
# Order may be given for remand when the judgment does not seems satisfactorily , i.e, that evidence should be acceptable if it refused elegally & that should be refused if it accepted unlawfully , or when the accused is injured for the case , or if the decision of the fact of the case is not given rightly .[1962 Se 249 ].
# When gross mistake or omission or error in evidence take place from then we can remand a case to the appellate court . Therefore it is conditioned that in this case the accused will not be injured or affected .[ PLD 1958 Sc 275 ].
# For an order to remand a case all explanation is not so necessary , because it may inforced to the Judge Court . [ PLD 1962 Sc 249 ].
- For above points See, Cr.P.C Section – 423 (1), writer – GAZI SHAM SUR RAHMAN, M.A –(English) LLB (First Class ) Senior District Judge.
PART ( B ) .( d ) :
SCOPE & APPLICATION:
# 43 DLR 59 (AD) –Abdul Mannan Vs . Akram Ali – Remend – Evidence on record -No remend to trial Court for retrial The appellate Division that the Revisional Applications be disposed of by the High Court Division on merit (at Dhaka ) on the basis of the evidence on record without sending the case on remand to the trial Court .
# 42 DLR ( AD ) -Moslehuddin Vs. The State – It is only in a rare case that a remand order such as in the present case is , should be made for the purpose of only writing a proper judgment in accordance with section 367 Cr. P.C. That merely because there have been some omissions made by the trial Court in not considering a piece or pieces of evidence will hardly afford a valid ground for sending the case back on remand for writing a proper judgment. [ Ref: 42 DLR 160 (AD), 4 BLD 145 ]
# 42 DLR 31 (AD)- Shah Alam Vs. State – Acquittal – Full power to review the evidence upon which the order of acquittal was founded – No limitation should be placed upon the po[ Ref :10 BCR 203 (AD) ].
# 7 BCR 71 ( AD ) Kamar Ali Vs. The State – Principle of trial of counter – cases by the same Court – Whether the same principle is applicable to the Appellate Court . Disposal of appeals by the same Court for better appreciation of evidence preferable.
# 13 BLC 97 (AD) – Khandaker Zillul Bari VS. State – In view of the facts and circumstances of the case the entence of 7 ( Seven years ) rigorous imprisonment awarded by the Appellate Division to the appellants in Criminal Appeal Nos .12 & 13 field by the .Government was an enhancement of sentence and since this sentence was awarded under section 210 of the Penal Code without putting the appellants on notice giving them opportunity to defend themselves against such enhancement of sentence the same is bad in law .The appeals are accordingly allowed and the sentence is reduced from 7 ( Seven ) years to 3 (Three years ) .
# 38 DLR 35 (AD) – Md. Jashimuddin Vs. The State – High Court’s duty to examine the evidence in respect of all accused persons , even though only the question of sentence was passed before it .The High Court , Which was the final Court of facts , again unfortunately did not examine the evidence at all in respect of a large number of the appellants before it purely on the ground that their appeals had been pressed only on the ground of sentence. In a criminal appeal ; whether the appeal is pressed or not , it is the duty on the High Court to examine the evidence on the record .[Ref :7 BCR 68 (AD) , 6 BLD 198 (AD) ].
# 4 BLD 213 ( AD ) – Serajuddoula Vs. The State – Criminal appeal – Its dismissal without writing a full fledged judgment whether justified . There should have been some discussion of the evidence before affirming the conviction of the appellants There is no discussion about the nature of the offence or the part played by individual accused person . The impugned judgment be sustained and it is set aside .
# 34 DLR 16 – Nabir Md. Vs. The State – Section 423 (1) (b) of the Cr.P.C provides that in an appeal from a conviction the appellate court “may alter the finding” .The word ‘finding’ means the result of a judicial examination specially into some matter of fact . Thus the expression ‘may alter the finding’ clearly empowers the appellate court to consider the entire evidence against the accused appellant both as regards fact fact and law and so substitute its finding.
# 28 DLR 170 (SC) – Tozammel Hossain Chowdhury Vs. The State – Section 423 (1) (b) postulates the presence of sentence against an accused and in that sense it empowers the appellate court to reverse the finding of guilt and sentence and then to pass any appropriate order Appellate Court can alter the finding if it maintains the sentence or reduce it. Section 423 (1) (b) is confined to appeals against conviction and sentence. If a person is acquitted of one charged and convicted on another charge , the appellate court is not competent to reverse acquittal order when considering his appeal against conviction on another court . Sessions court is not competent to alter an acquittal order “After the finding” cannot mean reversing the finding of acquittal as in that case it would make section 423 (1) (b) redundant. Appeal against acquittal is provided in section 417 [ Ref : 1 BSCD 113 ].
# 21 DLR 41 ( SC ) – Shamser Vs. The State – Enhancement of sentence by High Court while appeal against original conviction was pending before the sessions . Judge does not prejudice accused.
# 5 DLR 185 ( FC ) – Khairdl Khan Vs. The Crown – When the trial judge is blased the whole proceedings are vitiated and the affirmness of his judgment by the appellate court does not cure the defect .When retrial is directed the essential duty on the court is disposing of the case on retrial . When the judge on retrial fails to investigate the case in proper perspective the judgment stand vitiated.
# 50 DLR 559 – Mizanur Rahman Vs. Surma Khatun – When sentence of fine is imposed in addition to sentence of imprisonment this will amount to enhancement of sentence. The appellate court may enhance the sentence but such enhancement cannot be made unless the accused is given an opportunity of showing cause against such enhancement .
# 52 DLR 54 ( AD ) – Abdul Khaleque Master and others Vs. State – There has not been an elaborate discussion of the evidence of on record . It is needless to say that a duty is cast upon the lower appellate court to write out a proper judgment on facts while disposing of an appeal .
# 7 BLT 133 (A D) – Asiman Begum Vs. The State – If it is found that the accused had suffered a substantial part of the sentence imposed upon him or her in the mis -trial , the court may not for ends of justice direct a retrial .
# 7 BLT 133 (1 ) – Asiman Begum Vs. the State – When it is found after a full trial that there was a mis –trial of trial without jurisdiction , the court of appeal before directing a fresh trial by an appropriate court should also see whether such direction should at all be given in the facts and circumstances of a particular case .
It is found that there was no legal evidence to support the conviction than in that case it would be wholly wron to direct a retrial because it would then be an unless exercise. Further the prosecution should not be given a chance to fill up its lacuna by bringing new evidence which it did not or could not produce in the first trial .
# 54 DLR 221 ( HC ) – Mafizul Islam Vs. State (Criminal) – Since the prosecution has totally to prove its case against any of the accused persons, non appealing co accused is also acquitted of the charge under section 382 of Penal Code.
# 54 BLC 122 ( AD ) – Bhulu Rani Saha & anr Vs. Pran Ballav podder & another – The High Court Division held rightly that the trial Magistrate had conveniently failed to consider the opinion of both the handwriting expert and the fingerprint expert to facilitate a judgment of acquittal and while setting aside the order of acquittal of the trial court it has sent back the case on remand to the trial court for a fresh decision and allowed both the complainant and the accused to examine further witness
- For Scope and Application of above cases See, Page – (738-748 ) English version & Page – (555-563) Bengali version of Cr.P.C, (Law & Practice of Criminal Procedure ) ,Writer – AL_HAJ ZAHIRUL HUQ, Advocate , Supreme Court ,Author of Penal Code , Evidence Act .Eleventh Edition – 2010, Reprint – 2011.Bengali version ,Third Edition – 2006.
- Also See, WWW. Cr.P.C.com (Section – 423).
PART ( C ) :
At last but not the least we can say that law is nothing but just common sense . The statement that is given to me is a positive statement that is specially found in the field of law , Cr.P.C.-Sec. ( 423 ). So in fine we can conclude that ,gross mistake or omission in taking evidence obviously may empower the appellate court to remand a case & also can send the case to back for proper judgment . From the above explanation & illustration it is fully clear that the consideration on the basis of the statement has taken in a right way . In the main body of the assignment I have explained and illustrated my basic concept & tried to maintain hard and first rules to prepare this assignment in a significant and a proper way .
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