Mrs. Novara Schute alias Novara alias org. Vs. The State

Appellate Division Cases

(Criminal)

PARTIES

Mrs. Novara Schute alias Novara Yakub alias Novara Huq…. Appellants.

-vs-

The State ………………………………………Respondent.

JUSTICE

Mohmudul Amin Chowdhury J

Moinur Reza Chowdhury  J

Mohammad Gholam Rabbani J

Md. Ruhul Amin J

JUDGMENT DATE : 11 February 2001

The Penal Code (XLV of 1860), Section 448/326/307/34, 561A .

Whether the High Court Division have committed an error of law resulting in miscarriage of justice in not holding that the proceeding so far as the appellant is concerned is frivolous, vexatious, malafide and groundless and therefore ought to have been quashed aiid the proceeding being false, concoctfed, continuation of such proceeding is abuse of the process of the Court and the Appellant standing on the same footing of coaccused Mr. Mashiuzzaman ought to have been released from the charge leveled against her and the proceeding aganst her ought to have been quashed (1)

The allegation against the 2 being the same the appellant stood on equal footing with of that Advocate A.Y. Mashiuzzaman against whom the proceeding has been quashed by the High Court Division. There has been no appeal against that quashment. We find that proceeding having been quashed against the co-accused Advocate A.Y. Mashiuzzaman the proceeding against the appellant ought to have been quashed by the High Court Division (4)

Criminal Appeal No. 36 of 2000

(From the judgment and order dated 24 January passed 2000 Passed by the

High Court Division in Criminal Misc. Case No. 821 of 1994).

Maudud Ahmed, Senior Advocate, instructed by Md. Nawab Ali, Advocate-on-Record For the Appellant

B. Hossain, Advocate-on-Record For the Respondent

JUDGMENT

Mainur Reza Chowdhury J: – This leave by appeal granted in Criminal Petition No. 87 of 2000 arose from the judgment and order dated 24.1.2000 passed by the High Court Division in Criminal Misc. Case No. 821 of 1994. The leave was granted for consideration as to whether the High Court Division have committed an error of law resulting in miscarriage of justice in not holding that the proceeding so far as the appellant is concerned is frivolous, vexatious, malafide and groundless and therefore ought to have been quashed and the proceeding being false, concocted, continuation of such proceeding is abuse of the process of the Court and the Appellant standing on the same footing of co-accused Mr. Mashiuzzaman ought to have been released from the charge leveled against her and the proceeding aganst her ought to have been quashed.

2. One Nazrana Khaled wife of Khaled Hamidul Huq, lodged and ejahar with Tejgaon police station on 27.3.94 alleging, inter alia, that on the date of occurrence her husband went to sleep on the ground floor of their house. While she with her daughters slept on the first floor at about 2 a.m. at the alarm of her husband they came and found her husband standing at the middle of the corridor with blood stained injuries of sharp cutting weapons on his head, right arm, wrist and back. She took her husband to the hospital for treatment. She alleged that her husband had enmity with his sisters for their properties including ownership of the daily “Bangladesh Observer” and she suspected that her sister-in-law appellant Novara and her brother-in-law Advocate A.Y. Mashiuzzaman made a plan to have her husband killed by her servant Shahidul Islam and accordingly the said Shahidul Islam along with others caused grievous blood stained injuries on the person of her husband. The Tejgaon Police treated the ejahar as the First Information Report and registered a case being Tejgaon P.S. Case Case No. 92(3) 94 dated 27.3.94 under section 448/326/307/34 of the Penal Code. In pursuance of the P.S. case No. 92(3) 94 G.R. Case 914 of 1994 was started in the Court of the Chief Metropolitan Magistrate, Dhaka. After investigation police submitted charge sheet against the accused Appellant along with 3 others under section 448/326/307/34/109 of the Penal Code.

3. It appears that the informant implicated both the Appellant and her brother-inlaw Advocate A.Y. Mahsiuzzaman to the effect that they made a plan to have her husband killed by the servant Shahidul Islam on payment of money, but the accused Makbul who made confessional statement before the Magistrate stated nothing against the Appellant and Advocate A.Y. Mashiuzzaman. It is submitted by the learned counsel for the appellant that she mostly lives abroad and came to Bangladesh on a short vacation and she is absolutely innocent and the proceedings against another co-accused, the informant’s brother-in- law Advocate A. Y. Mashiuzzaman, having been quashed by the judgment and order dated 5.11.95 by a Division Bench of the High Court Division the appellant being on the same footing the proceeding against the appellant ought to have been quashed by the High Court Division. It appears that the High Court Division read the FIR and found that because of the pendency of the rule, the proceeding before the trial court could not commence. The High Court Division also found that although there was near relationship between the informant and the accused persons but on careful consideration of the materials on record such as FIR, charge sheet and medical report the High Court Division was convinced that trial should be held against the petitioner and therefore discharged the rule issued for quashment of the proceeding against the appellant under section 561A of the Code of Criminal Procedure.

4. The High Court Division in its judgment has merely referred to the fact that in 1994 one accused A.Y. Mashiuzzaman got the proceeding against him quashed filing a revision under section 561A of the Cr. PC. The High Court Division did not consider that the appellant stood on the same footing as A.Y.Mashiuzzaman and that the respondent also failed to show that the case against the appellant was in any away different from that against Mr. A.Y. Mashiuzzaman made a plan to have her husband killed by her servant Shahidul Islam. The allegation against the 2 being the same the appellant stood on equal footing with of that Advocate A.Y. Mashiuzzaman against whom the proceeding has been quashed by the High Court Division. There has been no appeal against that quashment. We find that proceeding having been quashed against the co-accused Advocate A.Y. Mashiuzzaman the proceeding against the appellant ought to have been quashed by the High Court Division.

5. The appeal is accordingly allowed. The aforesaid order passed by the High Court Division rejecting the prayer for quashing the proceeding against the appellant is hereby set aside. The proceeding against the appellant in G.R. Case No. 914 of 1994 in the Court of Chief Metropolitan Magistrate is quashed.

Ed.

Source : III ADC (2006), 247.

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