Md. Rezaul Karim Vs. The State represented by the Deputy Commissioner, Dhaka and others

Appellate Division Cases

(Criminal)

PARTIES

Md. Rezaul Karim………………. Petitioner.

-Vs-

The State represented by the Deputy Commissioner, Dhaka and others………………………. Respondents.

Syed I. R. Mudassir Husain CJ

Mohammad Fazlul Karim J

Amirul Kabir Chowdhury J

Md. Joynul Abedin J

Judgment  Dated: 1st February 2007

The Penal Code, Sections 302/34/109

Bonafide mistake of identity and not deliberately. Further, the charge sheet was not the conclusive evidence for a wrong person to be convicted. If the prosecution seriously took steps to show before the Magistrate or the trial court that Shah Alam Babu was being prosecuted on the basis of mistaken identity conviction of Shah Alam Babu could have been avoided. But unfortunately such steps were not taken…………. (3)

In the facts and circumstances of the case, we are of the view that the High Court Division upon correct assessment of the materials on record and appreciation of law arrived at a correct decision. There is, therefore, no cogent reason to interfere with the same………………………. (6)

Monsurul Hague Chowdhwy, Advocate, instructed by Syed Mahbubur Rahman, Advocate-onRecord …………………………..For the Petitioner

For the Respondents …………………..Not Represented.

Criminal Petition For Leave To Appeal No.430of 2006

(From the judgment and order dated 28.8.2006 and 29.8.2006 passed by the High Court Division in Criminal Appeal No.3128 of 2004.)

JUDGMENT

Md. Joynul Abedin J: This petition for leave to appeal is directed against the judgment and order dated 28.08.2006 and 29.08.2006 passed by a Division Bench of the High Court Division in Suo Moto Rule No.3196 of 2005 issued in Criminal Appeal No.3128 of 2004 against the petitioner, the Investigating Officer in the case, Md. Rezaul Karim, making the Rule absolute directing for taking stem action against him.

2. Short fact leading to the filing of the leave petition is that the informant, Rokeya Begum, lodged an F.I.R on 15.08.1998 with Sutrapur Police Station alleging, inter alia, that on 14.03.1998 when her husband did not come back home she went out in search of him and on the way she found 10 F.I.R. named accused and 4/5 unknown persons talking

with her husband Gazi Liakat and when the informant asked him to come back home accused Khaleque gave order to accused Babul to shoot her husband. Deceased Gazi Liakat tried to flee away to save liis life but they caught him and shot him indiscriminately. On hearing the hue and cry local people came forward and took him to the Dhaka Medical College Hospital where the attending doctor declared him dead.

3. The Sutrapur Thana Police took up investigation of the case and after completion of the investigation submitted charge sheet on 09.09.1999 under sections 302/34/109 of the Penal Code against 14 accused persons. Four (4) Investigation Officers were involved in the present case and they investigated into the case stage by stage because of their transfer from one place to another. The petitioner was the fourth and the last Investigating Officer and he submitted charge sheet on the basis of the materials and particulars collected by himself and his former colleagues and in the end he submitted the charge sheet agamst Sundar Babu alias Shah Alam Babu on bonafide mistake of identity and not deliberately. Further, the charge sheet was not the conclusive evidence for a wrong person to be convicted. If the prosecution seriously took steps to show before the Magistrate or the trial court that Shah Alam Babu was being prosecuted on the basis of mistaken identity conviction of Shah Alam Babu could have been avoided. But unfortunately such steps were not taken. The High Court Division having failed to appreciate this aspect of the case made the said suo moto rule absolute. Hence the present leave petition.

4. Mr. Monsurul Haque Chowdhury, learned Advocate for the petitioner submits that the investigation of the case was conducted by as many as 4(four) Investigating Officers at different stages on account of their transfer and the petitioner being the last Investigating Officer bona-fide submitted the charge-sheet against the accused persons including Sundar Babu alias Shah A lam Babu on the basis of the materials on record bona-fide

and without any malice or motive. He also submits that the Police Report is not onclusive

and sacrosanct to be accepted by the Magistrate but the absolute power is with the Magistrate either to accept the Police Report or to direct for fresh investigation.

5. We have heard the learned Advocate and perused the materials on record. We are not impressed by the submissions of Mr. Monsurul Haque Chowdhury.

6. In the facts and circumstances of the case, we are of the view that the High Court Division upon correct assessment of the materials on record and appreciation of law arrived at a correct decision. There is, therefore, no cogent reason to interfere with the same.

7. Accordingly, the petition is dismissed.

Source : V ADC (2008), 266

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