Appellate Division Cases
Md. Gholam Mostafa alias Gholam Mostafa and others ………………Petitioner
Syed J. R. Mudassir Husain CJ
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J
Date of Judgment
29th February 2004
The Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, (XVIII of 1995), Sections 9 (Kha) and 14.
The Code of Criminal Procedure (V of 1898), Section 161.
Case ended in Final Report submitted by the police finding the case arising out of mistake of fact and stating, inter alia, that no one kidnapped the girl whose statement under section 161 of the Code of Criminal Procedure also bears testimony to the fact that this is not a case of kidnapping or of any other offence charged and as such the impugned judgment and order is bad in law and is liable to be set aside (6)
Kazi Shahadat Hossain, Senior Advocate, instructed by Md. Nowab Ali, Advocate-on-Record For the Petitioner.Mvi Md. Wahidullah, Advocate-on-Record For the Respondent
1.Amirul Kabir Chowdhury J :- The delay of twenty four days is condoned. The petitioners seek leave to appeal against the judgment and order dated 18.6.2003 passed by a Division Bench of the High Court Division in Criminal Appeal No. 5449 of 2001 dismissing the appeal and affirming the order dated 20.8.2001 passed by the learned Nari-o-Shishu Nirjaton Daman bishesh Adalat No. 3 at Naogaon framing charges against the accused petitioners under sections 9 (Kha) and 14 of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995, hereinafter referred to as the Act in Nari-O-Shishu Nirjaton Case No. 160 of 1999.
2. The facts leading to the leave petition are that one Akhter Newaz lodged an F.I. R. with Nagogaon Police Station on 20.4.1999 alleging inter alia, that her daughter Tamanna Taskin Nishi went to her college as usual on 17.4.1999 and did not return in time and that the informant made inquiries wherefrom he came to learn that his daughter would be available in the house of the petitioner No.l Md. Golam Mostafa and that on going to the residence of aforesaid Md. Golam Mostafa the informant was told that Raihan Titu son of the petitioner No.l and his friend Sohel brought the aforesaid Tamanna Taskin Nishi for marriage with Titu and that she would be returned before evening. But ultimately she was not returned and then the informant lodged the aforesaid First Information Report.
3. The local police registered the case, started investigation, examined witnesses including the aforesaid victim girl Tamanna Taskin Nishi and recorded their statements under section 161 of the Code of Criminal Procedure and on 17.8.1999 submitted Final Report against the accused petitioners. On receiving the police report the Tribunal, however, took cognizance and after hearing the parties framed charge under Sections 9 (Kha)/J4 of the Act against the accused petitioners on 20.8.2001 to which the petitioners pleaded not guilty and clamed to be tried.
4. Feeling aggrieved against the aforesaid order of the Tribunal Framing charge against them the petitioners moved the High Court Division in Criminal Appeal No. 5449 of 2001 under section 24 of the aforesaid Act. A Division Bench of the High Court Division after hearing the parties by impugned judgment and order dated 18.6.2003 dismissed the appeal affirming the order dated 20.8.2001 passed by the Tribunal.
5. Mr. Kazi Shahadat Hossain, learned Senior Advocate, appearing on behalf of the petitioners placed the materials on record including the statements of the witnesses and in partiular drew our attention to the statement made by the aforesaid victim Tamanna Tashin Nishi herself recorded under section 161 of the Code of Criminal Procedure. Referring to the aforesaid statement of the alleged victim here self the learned Advocate submits that she stated on the date of occurrence she went to visit the house of one of her relatives and asked one of her acquainted persons to inform it to her parents and that no one kidnapped her. The statements of other witnesses including her mother also, according to the learned Advocate, echoed the aforesaid statement of the victim and therefore, the police after holding thorough investigation submitted final report against the petitioners and that in such view of the matter the learned courts below acted illegally in not considering the point of law that this case does not come within the purview of the Ain as the ingredients of sections 9(kha) and or 14 of the said Act are missing the case.
6. He further submits that the High Court Division erred in law in not considering a most salient point of law that this case ended in Final Report submitted by the police finding the case arising out of mistake of fact and stating, inter alia, that no one kidnapped the girl whose statement under section 161 of the Code of Criminal Procedure also bears testimony to the fact that this is not a case of kidnapping or of any other offence charged and as such the impugned judgment and order is bad in law and is liable to be set aside.
7. Leave is granted to consider the above submissions as it merit consideration. Preparation of paper book is dispensed with as prayed for. Let the order of stay granted earlier be extended for further 6(six) months from date.
Source: III ADC (2006) 573