Appellate Division Cases
(Civil)
PARTIES
Mr. Ali Asgar Khan
Registrer supreme Court of Bangladesh & others …………………….Appellants
-vs-
Md. Anwarul Islam
being dead his heirs Most. Afroza Begum & others …………………..Respondents.
JUSTICE
Md. Ruhul Amin. J
M. M. Ruhul Amin. J
Md. Tafazzul Islam. J
JUDGEMENT DATE : 26th July, 2004
The Code of Criminal Procedure, Section 476, 195(l)(c).
The Penal Code, Section 465, 109, 172,188.
High Court Division exceeded its jurisdictionin conducting a preliminary inquiry into thematter by examining witnesses and makingadverse comments and suggestions against the appellants which will seriously affect thecourse of justice if the respondents prefer tolodge a criminal case against the appellantsand the submission that as the proceedings of 1st Miscellaneous Appeal No. 109 of 1996
was stayed by the Appellate Division, the High Court Division ought not to have proceeded with the application under Section 476 of the Code of Criminal Procedure and also the submission that the High Court Division had no jurisdiction to pass an observation holding that the respondents maylodge an F.I.R with Ramna Police Station if so advised against the appellants under Section 465/109 of the Penal Code and thefurther submission that the procedureadopted by the Division Bench of the HighCourt Division involves a question of publicimportance as to administration ofjustice ……………………..(4)
Civil Appeal No. 89 of 1997 (From the Judgment and Order dated 09.01.1997 passed by the High Court division in Civil Miscellaneous Cases No. 18 of 1996).
Abdur Razzaque Khan, Additonal Attomev General (Faisal H. Khan, Additional Attorney
General with him) instructed by B. Hossain Advocate-on-Recore…… For the Appellants
A.B. Taz Mohammad, Advocate instructed by Md. Nawab Ali, Advocate-on-Record…………For respondent Nos. 1 -2
Not represented. ……………..Respondent Nos. 3-4
JUDGMENT
1. M. M. Ruhul Amin, J:- This appeal by leave is directed against the judgment and order dated 09.01.1997passed by a Division Bench of the High Court Division in civil Miscellaneous Case No. 18 of 1996 disposing of the Rule with some directions and observations.
2. Short facts are that respondent Nos.l and 2 who were employees of the Supreme Court of Bangladesh (High Court Division) were dismissed from the services by order dated 25.07.1996 whereupon they instituted Title Suit No. 167 of 1996 in the Ist Court of Subordinate Judge (now Joint District Judge). Dhaka but the plaint of the suit was returned for presentation before the proper court by order dated 03.08.1996 .The respondent Nos. 1 and 2 filed 1st Miscellaneous Appeal No. 109 of 1996 before the High Court Division against the said order of the learned Subordinate Judge (now Joint district Judge) and by judgment and order dated 20.08.1996 the High Court Division allowed the appeal and directed that the suit be withdrawn and transferred to the said Division Bench for disposal and further directed that the records be brought by 24.08.1996 before that Bench by Special messenger and to list the case as a transferred suit in the cause list on 25.08.1996 for order. The said judgment and order has been stayed after this Division on 22.08.1996 granted leave against the said order dated 20.08.1996 in Civil Petition No. 520 of 1996. Thereafter the said respondents filed the instant Miscellaneous Cases under Section 476 of the Code of Criminal Procedure for drawing Criminal Proceedings against the appellants and respondent No.3 on the allegations inter alia that the appellants started Department Case No. 14 of 1996 against the said respondents under the High Court Division Employees (Discipline and Appeal) Rules. 1983, the respondents submitted their replies on 27.07.1996 but immediately after receipt of reply to the notice to show cause the appellants in collusion with each other illegally and arbitrarily dismissed the respondents snowing the date of dismissal to be 25.07.1996 which was actually prepared on 27.07.1996 by interpolating the said date with white fluid in the Dispatch Register Supplied by a Lower Division Assistant of Dispatch Section of the High Court Division and Written by a Lower Division Assistant of Dispatch Section, both of the High Court Division, as per order of the appellants “as contained in the Dispatch Administrative letter issued register opened on 28.08.1995 at page 479 having Memo Nos. 4783 to 4791 (Whatever those unintelligible allegations mean) and thus they have committed the offence of forgery with respect to public documents and in order to suppress the said forgery the appellants and respondent No.3 in collusion with each other opened a new peon book for service of the fraudulently created letter of dismissal by passing the existing running peon book wherein also some cutting of dates appeared. The appellants submitted their counter affidavits and the Division Bench thereupon examined respondent No.l on oath on 27.08.1996 and also examined Mr. A.K. Mohammad Hossain, as P.W.2 on 04.12.1996. The Division Bench also passed an order on 04.12.1996 directing the District Judge, Munshignaj to send the entire records of a Civil suit disposed of by Mr. A.K. Mohammad Hossain as Subordinate Judge, Munshiganj and accordingly records of Artha Rin Suit No. 9 of 1995 disposed of 12.05.1996 was sent to the Division Bench. After making all these exercises and giving broad hints that there were interpolations in the Dispatch Register the High Court Division ultimately held that neither the Dispatch Register nor the Peon Book in question were produced in First Miscellaneous Appeal No. 109 of 1996 disposed of by the said Division Bench of the High Court Division and as such section 195(l)(c) Cr.P.C are not applicable and the proceedings under section 476 of the Cr. PC. is unnecessary.
3. The High Court Division having come to this conclusion however held that the allegation is most serious in naiure and the Court must see that justice is done. The Division Bench, therefore, held that the respondents may lodge an F.I.R with Ramna Police Station if so advised against the three appellants under Section 465/109 of the Penal Code. The suit records brought by the Division Bench of the High Court Division shall remain with the Court for a period of 7 months and the Registrar of the Supreme Court was directed to stay the departmental proceedings for 7 months.
4. Leave was granted to consider the submission that since the Dispatch Register and the Peon Book, subject matters of alleged forgery, were not produced in First Miscellaneous Appeal No. 109 of 1996 the High Court Division exceeded its jurisdiction in conducting a preliminary inquiry into the matter by examining witnesses and making adverse comments and suggestions against the appellants which will seriously affect the course of justice if the respondents prefer to lodge a criminal case against the appellants and the submission that as the proceedings of 1st Miscellaneous Appeal No. 109 of 1996 was stayed by the Appellate Division, the High Court Division ought not to have proceeded with the application under Section 476 of the Code of Criminal Procedure and also the submission that the High Court Division had no jurisdiction to pass an observation holding that the respondents may lodge an F.I.R with Ramna Police Station if so advised against the appellants under Section 465/109 of the Penal Code and the further submission that the procedure adopted by the Division Bench of the High Court Division involves a question of public importance as to administration of justice.
5. We have heard Mr. Abdur Razzque Khan, the learned Additional Attorney General for the appellants and Mr. A.b. Taz Mohammad, the learned Advocate for the respondent No. 12 and perused the judgment of the High Court Division and other connected papers.
6. The learned Additional Attorney General reiterated the submissions made at the time of obtaining leave to appeal before this Division . He further submitted that for lodging an F.I.R. direction from any Court not to speak of the High Court Division is necessary. The aggrieved party is always at liberty to lodge F.I.R if he so likes under the appropriate sections of the Penal Code, he further submitted that depending on the nature of allegations made by the informant, police after investigation at the time of submitting charge sheet determine the proper sections of the Penal Code under which charge sheet is to be submitted. In the instant case the High Court Division itself gave direction to lodge F.I.R. under Sections 465/109 of the Penal Code and there by committed an error of law. Mr. A.B. Taz Mohammad Could not place any convincing argument in support of the judgment of the High Court Division.
7. Section 476, Cr. PC provides that an enquiry should be made into any offence referred to in Section 195 Cr. PC. sub-Section 1 closes (b) or clause (c) which appears to have been committed in or in relation to a proceeding in that court. Section 195 Cr. Pc. Provides that no Court shall take cognizance of any offence punishable under Section 172-188 of the Penal Code except on the complaint in writing of such Court.
8. Thus it is clear that the provision of Section 195 Cr. P.C is not attracted because alleged offence was not committed by a party in a pending proceedings before a Court and the Peon Book and Dispatch Register were not produced before the High Court Division in First Miscellaneous Appeal No. 109 of 1996. In the instant case the alleged offences if any have been committed outside the court and did not affect any proceeding of the court and the offence if at all committed was committed against the respondents personally.
9. In the circumstances, in our view the application under Section 476 Cr. P.c. was not maintainable before the High Court Division. We also find substance in the submissions of the learned Additional Attorney General that the High Court Division exceeded its jurisdiction in conducting a preliminary inquiry into the matter by examining witnesses and making adverse comments and suggestions against the appellants and in directing the respondent to lodge a criminal case against the appellants. We are also of the view that when the proceedings of First Miscellaneous Appeal No. 109 of 1996 before the High Court Division was stayed by this Division, the High Court Division ought not to have proceeded with the application under Section 476 of the Code of Criminal Procedure and accordingly the whole exercise by the High Court Division in this respect is without jurisdiction and as such void. We also disapprove the procedure adopted by the High Court Division in this matter as it involves a question of police importance as to administration of justice.
10. In view of the discussion made above, we are of the view that the High Court Division committed an error of law occasioning failure of justice in directing the respondents to lodge F.I.R with Ramna police Station against the appellants if so advised under Section 465/109 of the Penal Code and to stay the departmental proceeding bearing file No. lE/4-Kal -25/96 for a period of 7 months from date. The appeal is, accordingly, allowed without any order as to costs.
Ed
Source: I ADC (2004), 539