Mahmudur Rahman Nazlu Vs The State and another (M. Enayetur Rahim, J.)

HIGH COURT DIVISION

(CRIMINAL MISCELLANEOUS JURISDICTION)

Mr. M. Enayetur Rahim J Mr. Sheikh Md. Zakir Hossain J

Judgment

22nd January, 2012

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 Mahmudur Rahman Nazlu  . . . Petitioner

VS

The State and another

…Opposite Party

Code of Criminal Procedure (V of 1898)

Section 561A

It is a settled proposition of law that when the taking of evidence has already been closed and date was fixed for argument at this stage interference in the proceeding of a Case in exercising the power under Section 561A of the Code of Criminal Procedure is impermissible.

… (10)

Code of Criminal Procedure (V of 1898)

Sections 7 (4) and 17 A

Negotiable Instruments Act (XXVI of 1881)

Sections 138 and 141 (c).

In section 141(c) of the Negotiable Instruments Act, 1881 it clearly provides that the case under Section 138 of the said Act, must be tried by the Court of Session. The Sessions Judge, Additional Sessions Judge and Joint Sessions Judge are all the judges of a sessions division and in view of the provision of Section 7(4) of the Code of Criminal Procedure a Metropolitan Area is deemed to be a sessions division for the purpose of the Code. As such the submissions of the learned Advocate cannot be accepted that the Joint Sessions Judge being an inferior Court of the Sessions Judge has no jurisdiction to try the case. Section 17A of the Code of Criminal Procedure clearly has empowered a Sessions Judge to distribute the business among such Joint Sessions Judge subordinate to him from time to time making rules or give Special order consistent with the Code.                                   …. (13 and 14)

Code of Criminal Procedure (V of 1898)

Section 408

Section 408 of the Code of Criminal Procedure already provides appeal to the Sessions Judge convicted on a trial held by a Joint Sessions Judge, when in any case a Joint Sessions Judge passes any sentence of imprisonment for a term below five years. Thus, the submission of the learned Advocate for the accused petitioner that the Court of Sessions being the trial Court can not be the Appellate Court is absolutely misconceived and ridiculous. If the trial is held before the Joint Sessions Judge and the accused is convicted then obviously, the appeal has to be preferred in the Court of Sessions Judge, in view of the provision of Section 408 of the Code of Criminal Procedure. May be, this provision of law is not good and inconsistence with the spirit of fair justice or rule of prudence; but, unless law is strike down or amended there is no scope to interfere with the proceeding or to quash the same on the ground that the existing law is bad one or inconsistence with it’s object.                                     … (15, 16 and 17)

Code of Criminal Procedure (V of 1898)

Section 561A

An application for restoration of the Miscella-neous Case filed under section 561A Cr.P.C. which was rejected as none was turned up to press the application but the High Court Division was not inclined to allow the accused petitioner to drive to a fruitless litigation.                    …(1 & 19)

Sonatoon Nessa -Vs- Haipattullah Sarker, 41 DLR (AD); Abdul Kashem and others Vs. The State, 43 DLR (AD) 1991.

Mr. Abu Hena Razzaki, Advocate

—For the Petitioner

Mr. Gazi Md. Mamunur Rashid, A.A.G

— For the State.

Judgment

M. Enayetur Rahim, J.

This is an application for restoration of the above mentioned Miscellaneous Case under Section 561A of the Code of Criminal Procedure which was rejected by this Bench as none was turned up on repeated call to press the application on 11.12.2011.

  1. 2.             The accused petitioner filed an application under Section 561A of the Code of Criminal Proce-dure to quash the proceeding of Metro Sessions Case No. 7270 of 2009 under Section 138 of the Negotiable Instruments Act, 1881 pending in the Court of Joint Metropolitan Session Judge, 5th Court,Dhaka. The accused petitioner filed the said applica-tion in another Bench and after hearing the same, was fixed on 12.07.2011 for order; in the meantime the constitution of that Bench had changed and the record of the Case was sent to the concerned section of this court and the application has been numbered as Criminal Miscellaneous Case No.18937 of 2001, though no Rule was issued. Eventually, the matter was sent to this Bench by the Hon’ble Chief Justice and ultimately the application was rejected for default on 11.12.2011.
  2. 3.             Mr. Abu Hena Razzaki, the learned Advocate for the petitioner placing the application for restoration, submits that, the application under Section 561A of the Code of Criminal Procedure was initially filed in another Bench and that was heard by that Bench on 21.06.2011 and fixed 12.07.2011 for order. But in the meantime the constitution of that Bench has been changed and no order was passed on 12.07.2011. On 03.01.2012 the learned Advocate of the petitioner when sent hisClark to the record section to see the position of the application then he came to learn that on 11.12.2011 the application was rejected for default. Because of such order of default a gap has been created between the relation of the client and the lawyer and if the case is not restored to its original filed and number the petitioner will be prejudiced seriously.
  3. 4.             In the Case of Sonatoon Nessa -Vs- Haipattullah Sarker, reported in 41 DLR(AD),  Page-105 our Appellate Division discouraged the restoration of a case when no useful purpose will be served in allowing the such restoration and a litigant instead being benefited in any manner will be driven to a fruitless litigation if restoration is allowed.
  4. 5.             Let us now decide the fate of the present application for restoration keeping the above proposition of law in our mind.
  5. 6.             We have gone through the application for restoration and as well as the application under Section 561A of the Code of Criminal Procedure.
  6. 7.             In course of the submission the learned Advocate for the petitioner admitted that the petitioner filed the application under Section 561A of the Code of Criminal Procedure before this Court after completion of the examination of the witnesses and 18.04.2011 was fixed for argument. It shows that the petitioner has not come before this Court with clean hand.
  7. 8.              In the application for restoration no explanation has been furnished by the petitioner or his learned Advocate what step was taken from 12.07.2011 to 03.01.2012.
  8. 9.             In the order dated 11.12.2011, rejecting the application for default, it has been   categorically mentioned that on 08.12.2011 the case appeared in the daily cause list with the name of the learned Advocate for the petitioner, but no one appeared to press the application when it was taken up for hearing and on that particular day the Court Suo-moto adjourned the hearing and on the following day when the matter was again taken up for hearing no one turned up to press the application and ultimately the application was rejected for default. With regard to the above observation of the Court the learned Advocate of the petitioner in his application for restoration has not furnished any explanation for his fault.
  9. 10.          It is a settled proposition of law that when the taking of evidence has already been closed and date was fixed for argument at this stage interference in the proceeding of a Case in exercising the power under Section 561A of the Code of Criminal Procedure is not permissible.
  10. 11.          The learned Advocate for the petitioner tried to impress us agitating the ground that in view of the provision of Section 141(C) of the Negotiable Instruments Act,1881 it is mandatory that the trial of the case, must be tried by the Court of Sessions not inferior to that of a Sessions Court and the Joint Sessions Judge being a subordinate to the Court of Sessions Judge has no jurisdiction to try the Case and as such the trial of the instant case by the Metropolitan Joint Sessions Judge 5th Court, Dhaka is nothing but an abuse of the process of the Court which is liable to be quashed. It was also the submission of the learned Advocate that if the instant Case is tried by Metropolitan Joint Sessions Judge and if any of the litigant of the case needs to move in the form of appeal against the said Judgment then he has to move before the Sessions Judge, which is a trial Court according to section 141(c) of the Negotiable Instruments Act and thus, trial Court itself can not be the appellate Court. Section 9 of the Code of Criminal  Procedure runs as follows:

            Court of Session.- (1) The Government shall establish a Court of Sessions for every sessions division and appoint a Judge of such Court; and the Court of sessions for a Metropolitan Area shall be called the metropolitan Court of Session.

(2) The Government may, by general or special Order in the official Gazette, direct at what place or places the Court of Sessions shall hold its sitting; but, until such order is made, the Courts of Sessions shall hold their sittings as thereof.

(3) The government may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise Jurisdiction in one or more such Courts.

[(3A) The members of the Bangladesh Judicial Service shall be appointed as Sessions Judge, Additional Sessions Judge and Joint Sessions Judge in accordance with the rules framed by the president under the provision to Article 133 of the Constitution to exercise Jurisdiction in one or more of such areas.]

  1. 12.          Above provision of law clearly speaks that Government may also appoint Additional Sessions Judge and Assistant Sessions Judge (now Joint Sessions Judge) to exercise Jurisdiction in one or more such Courts.
  2. 13.          We have gone through the relevant provision of law i.e. Section 141(C) of the Negotiable Instruments Act, Sections 7 and 9 of the Code of Criminal Procedure. In section 141(c) of the Negotiable Instruments Act, 1881 it clearly provides that the case under Section 138 of the said Act, must be tried by the Court of Sessions. The Sessions Judge, Additional Sessions Judge and Joint Sessions Judge are all the judges of a sessions division and in view of the provision of Section 7(4) of the Code of Criminal Procedure a Metropolitan Area is deemed to be a sessions division for the purpose of the code. As such, we are unable to accept the submissions of the learned Advocate that the Joint Sessions Judge being an inferior Court of the Sessions Judge has no jurisdiction to try the case.
  3. 14.          Section 17A of the Code of Criminal Procedure clearly has empowered a Sessions Judge to distribute the business among such Joint Sessions Judge subordinate to him from time to time making rules or give Special order consistent with the Code.
  4. 15.          Further, Section 408 of the Code of Criminal Procedure already provides appeal to the Sessions Judge convicted on a trial held by a Joint Sessions Judge, when in any case a Joint Sessions Judge passes any sentence of imprisonment for a term below five years. Thus, the submission of the learned Advocate for the accused petitioner that the Court of Sessions being the trial Court can not be the Appellate Court is absolutely misconceived and ridiculous.
  5. 16.          It is true that for committing offence under Section 138 of the Negotiable Instruments Act, 1881 highest sentence is for a term of one year or with fine or with both. If the trial is held before the Joint Sessions Judge and the accused is convicted then obviously, the appeal has to be preferred in the Court of Sessions Judge, in view of the provision of Section 408 of the Code of Criminal Procedure.
  6. 17.          May be, this provision of law is not good and inconsistence with the spirit of fair justice or rule of prudence; but, unless law is strike down or amended we have no authority or scope to interfere with the proceeding or to quash the same on the ground that the existing law is bad one or inconsistence with it’s object, in exercising the power under Section 561A of the Code of Criminal Procedure.
  7. 18.          The Case of Abdul Kashem and others Vs. The State, reported in 43 DLR(AD) 1991 as cited by the learned Advocate for the petitioner is not applicable in this Case. In that Case the appellate, revisional, reference and review power of the learned Additional Sessions Judge and Assistant Sessions Judge has been decided.

            Having, discussed as above we are not inclined to allow the accused petitioner to drive to a fruitless litigation restoring the instant case to its file and number.

Accordingly, the application is rejected.

Communicate the order at once.

Ed.

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