Md. Aftab Uddin Vs. The State and another (Md. Rezaul Hasan, J.)

HIGH COURT DIVISION

(Criminal Miscellaneous Jurisdiction)

Ms. Salma Masud Chowdhury, J.

And

Mr.Md. Rezaul Hasan, J.

Judgment

07.07.2011

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 Md. Aftab Uddin

…Petitioner.

Vs.

The State and another.

…Opposite Parties.

Code of Criminal Procedure (V of 1898)

Sections 4 (i) (h), 198 and 199

In view of provision of section 4 (i) (h) 198, 199 of the Code, the Magistrate has not taken cognizance of the offence upon a complaint, the impugned proceedings is quashed. Similarly, the impugned order of Magistrate taking cognizance violating the provision of sections 198 and 199 of the Code is also not sustainable in law as a result of which the proceeding is quashed.

The Magistrate, in this case, has not taken cognizance under section 495/497/109 of the Penal Code upon a complaint as defined in a clause (h) of subsection (1) of section 4 of the Code. On the other hand, provisions of the sections 198 and 199 of the Code, both beginning with the words, “No court shall take cognizance of an offence,” except upon a complaint, the ouster of the jurisdiction of the Magistrate to take cognizance of any offence mentioned in section 495 or 198 or 199 of the Code “except upon a complaint” is clear and unambiguous. Hence, we find no difficulty in holding that the cognizance of offence under section 495/497/109 of the Penal Code taken by an order dated 16.09.2001 in Sutrapur Police Station Non-FIR Case No. 295 dated 12.09.2001 is without jurisdiction and the impugned proceeding commenced thereby as well as continuation thereof amount to abuse of the process of the said court, hence liable to be quashed.

Similarly, the impugned order dated 20.11.2001 passed by the Metropolitan Additional Sessions Judge, 1st Court, Dhaka affirming and upholding the order dated 16.09.2001 passed by Magistrate, taking cognizance in violation of sections 198 and 199 of the Code,  is wholly misconceived and passed upon clear disregard of the provisions of section 198 and 199 of the Code.

Moharashtra State Board vs PB Seth, AIR 1984 sc 1543=(1984)4 Sec 27; 1987 BLD (AD) 101 ref.

Mr. Md. Mamun Aleem, Adv.

— For the petitioner. 

None appear.

— For the State.

Judgment

Md. Rezaul Hasan, J.

This rule under section 561A of the Code of Criminal Procedure, 1898 (the Code) has been issued at the instance of the accused No. 3-petitioner calling upon the opposite parties to show cause as to why the impugned judgment and order dated 20.11.2001 passed by the learned Metropolitan Additional Sessions Judge, 1st Court, Dhaka in Metropolitan Criminal Revision No. 484 of 2001 upholding the judgment and order dated 16.09.2001 passed by the learned Chief Metropolitan Magistrate, Dhaka in Sutrapur Police Station Non F.I.R. Prosecution No. 295 dated 12.09.2001 under sections 495/497/109 of the Penal Code arising out of Sutrapur Police Station GD Entry No. 1254 dated 24.12.2000, should not be quashed and/or such other or further order or orders passed as to this Court may seem fit and proper.

  1. 2.          The facts leading to filing of this application under 561A of the (the Code) briefly are that, one Ekramul Kabri filed a GD Entry at Sutrapur Police Station, being Sutrapur Police Station GD Entry No. 1254 dated 24.12.2000 and the police, upon investigation held with reference to the said GD, filed a non FIR prosecution against the accused petitioner and 2 others, recorded as Sutrapur Police Station Non FIR prosecution No. 295 dated 12.09.2001 under sections 495/497/109 of the Penal Code, alleging inter alia that, one Rokeya Begum, accused No.2, is the wife of Ekramul Kabir, the informant; that the accused No.2 without the consent of the informant got herself married with one Mr. Zakir Hossain, the accused No.1 and is living with him; that the accused No.3 has actively aided in these activities, that the accused No.2 even after her marriage cohabited with said Ekramul Kabir in his hotel suit on 16.09.2000.
  2. 3.          On receipt of the said Non F.I.R. prosecution, the Chief Metropolitan Magistrate, Dhaka took cognizance against the accused persons under section 495/497/109 of the Penal Code and issued warrant of arrest by an order dated 16.09.2000 of the said court.
  3. 4.          The accused-petitioners voluntarily surrendered before the said court and was enlarged on bail by an order dated 20.09.2001.
  4. 5.          Being aggrieved by the aforesaid order dated 16.09.2001, taking cognizance by the Chief Metropolitan Magistrate upon the said Non F.I.R. prosecution, the accused-petitioner filed a Criminal Revision No. 484 of 2001 before the learned Metropolitan Sessions Judge, Dhaka, under sections 435 and 439A of the Code of Criminal Procedure, 1898, which was later on transferred to the court of learned Metropolitan Additional Sessions Judge, 1st Court, Dhaka for hearing. After hearing the aforesaid revisional application, the Metropolitan Sessions Judge, 1st Court, Dhaka, by an order dated 20.11.2001, rejected the said revisional petition and affirmed the order dated 16.09.2001 passed by the Chief Metropolitan Magistrate.
  5. 6.          Being aggrieved by the said order dated 20.11.2001, passed by Mr. M. Hasan Imam, Metropolitan Sessions Judge, 1st Court, Dhaka, the accused-petitioner moved the present petition under 561A of the Code, as a motion, and obtained the instant rule.
  6. 7.          The learned Advocate Mr. Md. Mamun Aleem, appearing for the accused-petitioner, mainly contends that the Chief Metropolitan Magistrate has erred in law in taking cognizance under section 495/497/109 of the Penal Code against the accused-persons upon a prosecution filed by the police instead of a complaint filed before the Metropolitan Magistrate, as required under the provisions of sections 198 and 199 of the Code. He further submits that, since no complaint was filed as required under section 198 and 199 of the Code so the Magistrate had no jurisdiction cogniza-nce in respect of offences under section 495/497/109 of the Penal Code. Hence, the proceedings pending before the learned Magistrate as well as the impugned order affirming the order of taking cognizance are both without jurisdictions and are liable to be quashed in as much as the same amounts to abuse of the process of the Court. In support of his contention, the learned Advocate has referred before us a case between the State Vs. Ainuzzaman, reported in 1997 BLD (AD) 100.
  7. 8.          None appears to oppose the rule at the time when the rule was taken for hearing.
  8. 9.          The points for determination in this case is whether taking of cognizance except upon a complaint in respect of offences under section 495/497/109 of the Penal Code, as required under section 198 and 199 of the Code is without jurisdiction and whether the impugned proceedings as well as the impugned order amounts to abuse of the process of the courts below.
  9. 10.      Heard the learned advocate, perused the application filed under 561A alongwith the annexures submitted therewith.
  10. 11.      It appears that the opposite party No.2 lodged the GD Entry with Sutrapur Police Station, being No. 1254 dated 24.12.2000 whereupon the police investigated into the matter and filed a non F.I.R prosecution against this accused petitioner and two others, being non F.I.R. prosecution No. 295 dated 12.09.2001 under section 495/497/109 of the Penal Code, where upon the Chief Metropolitan Magistrate, Dhaka, took cognizance and issued warrant of arrest by an order dated 16.09.2000. After obtaining bail from the Magistrate Court the present accused petitioner filed Criminal Revision No. 484 of 2001 under section 435 of the Code, which was heard by the learned Metropolitan Additional Sessions Judge, 1st Court, Dhaka and by an order dated 20.11.2001 he has rejected the revisional application and affirmed the order dated 16.09.2001 of taking cognizance by the Magistrate.
  11. 12.      We have perused the provisions of section 198 and 199 of the Cr. P. C. of the Code. Upon a mere perusal of section 198 we find that, this section starts with the words, “No court shall take cognizance of an offence” falling under section 493 to 496 of the Penal Code “except upon a complaint……………” Similarly, section 199 of the Code also starts with the phrase that, “No Court shall take cognizance of an offence under section 497 or section 498 of the Penal Code except upon complaint……” But, so far as the impugned proceeding is concerned we find that the Magistrate has taken cognizance by an order dated 16.09.2001, based on a non F.I.R. prosecution No. 295 dated 12.09.2001 under section 495/497/109 against the accused-petitioner including the petitioner before us. Apparently, in the case impugned before us, the cognizance has not been taken by the Magistrate upon a ‘complaint’ as required under the provision of sections 498 and 499 of the Code.
  12. 13.      Looking at clause (h) of subsection (1) of section 4 of the Code, we find that the word ‘complaint’ has been defined as follows-

        (h) “Complaint”. Complaint means allegation made orally or in writings to a Magistrate with a view to taking action under this Code, that some person whether known or unknown, has committed on offence, but it does not include the report of a police officer. (emphasis supplied)

  1. 14.      As apparent from the record before us, the Magistrate, in this case, has not taken cognizance under section 495/497/109 of the Penal Code upon a complaint as defined in a clause (h) of subsection (1) of section 4 of the Code. On the other hand, provisions of the sections 198 and 199 of the Code, both beginning with the words, “No court shall take cognizance of an offence,” except upon a complaint, the ouster of the jurisdiction of the Magistrate to take cognizance of any offence mentioned in section 495 or 198 or 199 of the Code “except upon a complaint” is clear and unambiguous. Hence, we find no difficulty in holding that the cognizance of offence under section 495/497/109 of the Penal Code taken by an order dated 16.09.2001 in Sutrapur Police Station Non-FIR Case No. 295 dated 12.09.2001 is without jurisdiction and the impugned proceding commenced thereby as well as continuation thereof amount to abuse of the process of the said court, hence liable to be quashed.
  2. 15.      Similarly, the impugned order dated 20.11.2001 passed by the Metropolitan Additional Sessions Judge, 1st Court, Dhaka affirming and upholding the order dated 16.09.2001 passed by Magistrate, taking cognizance in violation of sections 198 and 199 of the Code,  is wholly misconceived and passed upon clear disregard of the provisions of section 198 and 199 of the Code. Besides, as a revisional court, he has also failed to frame the proper issue in this case and he has also failed to apply his mind to the issues of law raised before him. He ought to have noticed that section 198 and 199 of the Code of Criminal Procedure has provided specific provision regarding filing of complaint in respect of offence under section 495/497 of the Code. The canon of interpretation is that, where under a specific section or a rule a particular subject has received special treatment such special provision will exclude the applicability of any general provision which might otherwise cover the said topic. This view has been taken in the case of Moharashstra State Board Vs. P.B. Seth reported in AIR 1984, SC 1543 = (1984) 4 SCC 27. But the learned Metropolitan Additional Sessions Judge, 1st Court, Dhaka, has utterly failed to appreciate that specific provisions having been made under sections 198 and 199 of the Code for filing complaint in respect of the offences mentioned therein, provision of section 190 of the Code should be read subject to the provision made in sections 198 and 199 of the Code. He has also failed to notice the definition of “complaint” as given under section 4 (1) (h) of the Code and as such came to an erroneous conclusion in affirming the impugned order of cognizance taken by the Magistrate and thereby perverted the course of justice. Besides, his observation made to the effect that “a G.D entry filed by the informant that is the husband of the accused Rokeya Begum”, thereby indicating that the informant is the actual husband of Rokeya Begum, before any evidence were led to establish that the informant is the actual husband, is unwarranted.” It shows his lack of knowledge about the practice and procedure guiding a court. Hence, we are of the view that the impugned order dated 20.11.2001 has been passed by the learned Metropolitan Additional Sessions Judge, 1st Court, Dhaka in clear disregard of law and the same is also liable to be quashed.
  3. 16.      In a similar case, reported in 1987 BLD (AD) 101, the provisions of section 199 of the Code has been elaborately discussed. In that case, the apex court held that, the bar against taking cognizance of such offence otherwise than upon a complaint is total and complete. The apex court further declared in that case that, the police report which is submitted on the F.I.R. of the informant was not a complaint within the meaning of the term used in section 199 of the Code and upheld the judgment of this High Court Division setting aside the conviction and sentence and acquitting the respondent, the reason being that the cognizance being taken by the learned Metropolitan Magistrate upon police report was illegal, which vitiated the whole prosecution.
  4. 17.      Accordingly we find merit in this rule and we are of the view that the impugned order dated 20.11.2001, passed in Criminal Revision No. 484 of 2001 by the learned Additional Sessions Judge, 1st Court, Dhaka and the impugned proceedings being Sutrapur Police Station Non FIR prosecution No. 295 dated 12.09.2001 arising out of Sutrapur Police Station GD Entry No. 1254 dated 24.12.2000 both are without jurisdiction and liable to be quashed.
  5. 18.      Before parting of, we however would recommend the Ministry of Law to review the provisions of section 199 of the Code of Criminal Procedure, 1898, that was enacted long before adopting the Constitution of the Peoples Republic of Bangladesh, guarantee-eing some fundamental rights to each citizen of the country. Whereas, the provisions made in section 199 of the Code of Criminal Procedure, not only tend to reduce a woman to the status of a chattel in the hands of her husband or other person, but renders an unequal treatment to a woman, who is the actual aggrieved person or victim of an offence committed under sections 497 and 498 of the Penal Code, by taking away her individual right to prosecute the offender. Besides, if the provision of section 199 is allowed to be continued, then husband of a woman can compel her to yield to any sexual harassment to attain his personal gain etc. Hence, the provisions of section 198 and 199 of the Code not only degraded the dignity of a woman, but the same are offending against the fundamental rights of a woman to be treated equally as well as to seek protection of law. Hence, these two sections may either be deleted from the Code or be modified in a way to ensure that the victim or aggrieved women herself can launch a prosecution against a person liable to be prosecuted for committing offence under section 497 and 498 of the Penal Code. Besides, provisions of these section should not be in conflict with the provisions of Nari-O-Shishu Nirjatan Daman Ain 2000 (Act No. VIII of 2000.)     
  6. 19.      In the result the Rule is made absolute. The impugned judgment and order dated 20.11.2001 passed by the learned Metropolitan Additional Sessions Judge, 1st Court, Dhaka in Metropolitan Criminal Revision No. 484 of 2001 upholding the order dated 16.09.2001 passed by the Chief Metropolitan Magistrate, Dhaka and the proceedings initiated upon Sutrapur Police Station Non F.I.R. Prosecution No. 295 dated 12.09.2001 under sections 495/497/109 of the Penal Code arising out of Sutrapur Police Station GD Entry No. 1254 dated 24.12.2000, pending before the Chief Metropolitan Magistrate, Dhaka,  are hereby quashed.
  7. 20.      The order of stay granted earlier by this court shall stand vacated.
  8. 21.      All accuseds on bail are released from their respective bail bond.
  9. 22.      Let copies of this judgment be sent to the Ministry of Law, Justice and Parliamentary Affairs, Bangladesh Secretariat and another copy to the Law Commission, Old High Court Bhaban.

      Communicate the order at once to the court concerned for information and compliance.

        Ed.

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