Md. Abul Fazal and another Vs. The State and another

Appellate Division Cases

(Criminal)

PARTIES

Md. Abul Fazal and another…………….. Petitioners.

-Vs-

The State and another…………………. Respondents.

JUSTICES

Mohammad Fazlul Karim J

Md. Tafazzul Islam J

Md. Joynul Abedin J

Judgment Dated: 5th August 2007

Nari-O-Shishu Nirjatan Daman Tribunal (Amendment) Ain, 2003, Section ll(ga)

The Code of Criminal Procedure for transfer of Nari-O-Shishu Nirjatan Daman, Section 526

The learned Judge made remark “You are already on bail, why you have appeared before expiry of three months, definitely you have bad intention and for that reason you have applied for certified copy which will not be supplied, where is the principal accused?” and that the dwelling house of the father of the complainant is adjacent to the official residence of Mrs. Jannatul Ferdous, the learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal, Mymensingh and the complainant has visiting relation and good terms with the said Judge for which there is apprehension in the mind of the accused petitioners that they will not get fair and impartial trial in the said Tribunal …………….(3)

It appears from the facts and circumstances of the case that the litigant accused petitioners had genuine apprehension that they will not get fair and impartial trial in the said Tribunal. In such situation the High Court Division directed the Nari-O-Shishu Nirjatan Daman Tribunal, Mymensingh to transfer the case to the Nari-O-Shishu Nirjatan Daman Tribunal, Jamalpur and that the petitioner will bear day to day costs of the witnesses ……………………(6)

Accordingly, the leave petition is dismissed ………………..(8)

Md. Momlaz uddin Fakir, Advocate, instructed by Mr. A.K.M Shahidul Huq, Advocate-on-Record…………………..For the Petitioners.

Md. Nawab Ali, Advocate-on-Record.For Respondent No. 2

For Respondent No. ………………….1 None represented.

Criminal Petition for Leave to appeal No. 09 of 2006

(From the judgment and order dated the 23rd March, 2005 passed by the High Court

Division in Criminal Miscellaneous Case No. 7711 of 2004).

JUDGMENT

Mohammad Fazlul Karim J : This Petition for Leave to Appeal is directed against the judgment and order dated 23.03.2005 passed by the High Court Division in Criminal Miscellaneous Case No. 7711 of 2004 directing the accused petitioners to bear day to day cost of witnesses.

2. The complainant filed petition Case No. 31 of 2004 in Nari-O-Shishu Nirjatan Daman Tribunal, Mymensingh alleging, inter alia, that marriage took place between her and accused petitioner No.l by a registered kabinnama dated 17.12.1992 and after marriage the accused petitioner No. 1 used to oppress he for dowry and on 31.01.2004 accused petitioner No.l took her to her father’s house and stayed there and at about 11 P.M. She and her husband went to sleep in separate room and at one stage her husband told her to bring Tk. 1,00.000.00 (one lac) from her father as dowry for Korbani and Eid marketing and on her refusal accused NO. 1 kicked on her lower abdomen causing grievous hurt whereupon she fell down on the ground when accused petitioner No.l sat on her chest and pressed her throat in order to kill her. On the basis of an inquiry report the Tribunal took cognizance against the accused appellant under Section 11 (ga) of Nari-O-Shishu Nirjatan Daman (Amendment) Ain. 2003 and against accused-appellant, Abul Kalam under Section ll(ga)/30 of the aforesaid Ain.

3. The accused-petitioner after obtaining bail from this Court appeared before the Tribunal and then filed Miscellaneous Case No. 7711 of 2004 in the High Court Division against the Respondents under Section 526 of the Code of Criminal Procedure for transfer of Nari-O-Shishu Nirjatan Daman Case No. 430 of 2004 arising out of petition case No. 31 of 2004 under Section 1 l(ga)/30 of Nari-O-Shishu Nirjatan Daman Ain, 2000 pending in the Court of Nari-O-Shishu Nirjatan Daman Tribunal, Mymensingh to any other NariO-Shishu Nirjatan Daman Tribunal of neighbouring District such as Gazipur, Tangail, Netrokona, Kishoregonj, Jamalpur and Sherpur on the ground that accused Petitioner No. 2, Abul Kalam After getting anticipatory bail from the High Court Division appeared before the Nari-O-Shishu Nirjatan Daman Tribunal on 18.08.2004 when the learned Judge made remark “You are already on bail, why you have appeared before expiry of three months, definitely you have bad intention and for that reason you have applied for certified copy which will not be supplied, where is the principal accused?” and that the dwelling house of the father of the complainant is adjacent to the official residence of Mrs. Jannatul Ferdous, the learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal, Mymensingh and the complainant has visiting relation and good terms with the said Judge for which there is apprehension in the mind of the accused petitioners that they will not get fair and impartial trial in the said Tribunal.

4. Mr. Md. Momtaz uddin Fakir,learned Advocate, appearing for the petitioner submitted that the impugned order as to payment of day to day casts to the witnesses is illegal, unreasonable and untenable in the eye of law inasmuch as the impugned direction for payment of cost does not come under the purview of Section 526 of the Code of criminal Procedure inasmuch as the High Court Division while issuing Rule or at any point of time thereafter did not direct the accused petitioners to execute any bond with or without sureties for payment of cost by way of compensation to the person opposing the application as required under Sub-Section (5) of Section 526 of the Code of Criminal Procedure and accordingly the High Court Division erred in directing to bear day to day cost of witnesses in the event of success of the application for transfer.

5. The learned Advocate further submitted that the High Court Division allowed the application for transfer filed by the accused petitioner and thereby made the Rule absolute upon certain unreasonable grounds inasmuch as the impugned direction to bear day to day cost is against the provision of law, illegal and harsh. He further submitted that law does not permit to pass an order for payment of cost upon a party who won the case and, as such, the High Court Division erred in law in passing the impugned order.

6. It appears from the facts and circumstances of the case that the litigant accused petitioners had genuine apprehension that they will not get fair and impartial trial in the said Tribunal. In such situation the High Court Division directed the Nari-O-Shishu Nirjatan Daman Tribunal, Mymensingh to transfer the case to the Nari-O-Shishu Nirjatan Daman Tribunal, Jamalpur and that the petitioner will bear day to day costs of the witnesses.

7. In view of the above, we concur with the judgment and order of the High Court Division and find no substance in the submissions of the learned Advocate for the

petitioner.

8. Accordingly, the leave petition is dismissed.

Source : V ADC (2008),355