Appellate Division Cases
(Criminal)
PARTIES
Muhammad Ismail…………… Appellant.
-Vs-
Md. Rafiqul Islam and others…………. Respondents
JUSTICES
Md. Ruhul Amin CJ
M. M. Ruhul Amin J
Md. Jovnul Abedin J
Judgment Dated: 7th March 2007.
The Penal Code and under Section 302, 201, 109, Section 302, 201
The Code of Criminal Procedure, Section 202
Shamim Vs. The State and another, 17 DLR(SC) (1965) 626
Mihir Kumar Poddar Vs. Zhunu Rani Saha, 37DLR(1985)227
Section 561A of the Code of Criminal Procedure for quashment of the proceedings
of the said sessions case on the ground that since the judicial inquiry in the case was held without examining the complainant under section 200 of the Code of Criminal Procedure the continuation of the proceedings was therefore an abuse of the process of the court. …………………….(4)
Whether the cognizance taken in this case by the learned Chief Metropolitan Magistrate by the order dated 6.12.1995 and there upon issuing of process against the accused and thereafter sending of the case to the Metropolitan Sessions Judge, Chittagong for trial without examining the complainant under section 200 of the Code of Criminal Procedure by himself is an illegality in the fact and circumstances of the case. In other words, in the fact and circumstances of the present case, whether the impugned order of the learned Judges of the High Court Division in sending the case back to the Chief Metropolitan Magistrate for taking necessary actions after complying with the requirement of section 200 of the Code of Criminal Procedure apparently suspending the proceedings of the said Sessions case is tenable in law. …………………(8)
A Magistrate or for that matter the Chief Metropolitan Magistrate is not bound to take cognizance of an offence straight away on a petition of complaint filed before him by a complainant. It can very well send the petition of complaint to the police for investigation and if the allegations were found to be true to start a case by lodging FIR against the accused……………………… (10)
One of the main objects of section 200, Code of Criminal Procedure was to protect
the public against false, frivolous or vexatious complaints filed against them in Criminal Courts and the Magistrates must not lightly accept written complaints and proceed to issue processes until they had thoroughly sifted the allegations made against the accused and were satisfied that a prima facie case had been made out against those who were accused of criminal offences”. …………………(13)
The legal position as could be deduced from the aforesaid judicial pronouncements
is that it is not always necessary for the cognizance Magistrate to examine the complainant under section 200 of the Code of Criminal Procedure. The cognizance Magistrate is also competent to take cognizance in a case on the basis of a judicial inquiry provided the omission to examine the complainant under section. 200 by the cognizance Magistrate did not cause any prejudice or failure of justice…………(18)
Md. Nurul Islam Bhuiyan, Advocate-on Record ……………For the appellant
Aftab Hossain, Advocate-on-Record, not represented…………. For the Respondents
Criminal Appeal No. 11 of 2001
(From the judgment and order dated 19.4.2000 passed by the High Court Division in Criminal Miscellaneous Case No.732of2000.)
JUDGMENT
Md. Joynul Abedin J: This appeal by leave arises out of the judgment and order dated 19.4.2000 passed by a Division Bench of the High Court Division in Criminal Miscellaneous Case No. 732 of 2000 filed for quashing the proceedings in S.T. Case No.381 of 1999 now pending before the learned Additional Metropolitan Sessions Judge, Chittagong arising out of C.R. Case No.3774 of 1995 initiated by the Chief Metropolitan
Magistrate, Chittagong.
2. The fact of the case briefly stated is that the appellant’s daughter, Lutfunnessa, was
allegedly murdered by her husband, accused Md. Sarwar Alam Chowdhury and two others in the house of the husband in his village home on the night following 24.11.1994 and the interested parties circulated the news that Lutfunnessa had committed suicide. The police thereupon recorded an unnatural death case (U.D. Case) at the instance of the accused persons on 25.11.1994. The appellant, father of the victim Lutfunnessa, tried to lodged FIR but the police refused to accept the same on the plea that they had already
recorded an U.D. Case. Then the appellant filed a complaint case before the learned Chief Metropolitan Magistrate, Chittagong on 30.11.1994 who then sent the same to the Chandgaon Police Station police for investigation and to treat the same as first information report if the allegations were found true. But since the police after a long delay submitted a report stating that there was no truth in the allegations the appellant filed a Naraji Petition on 8.7.1995. The learned Chief Metropolitan Magistrate by his order dated 13.9.1995 sent the Naraji petition to Mr. M. U. Khandaker, Metropolitan
Magistrate, for taking action under section 200 of the Code of Criminal Procedure and for holding judicial inquiry under section 202 of the Code of Criminal Procedure and for report. The said order dated 13.9.1995 reads as under:”Seen the Naraji against Police investigation report. Heard Ld. Adv. for Complainant. This is sent to Mr. M. U.
Khandakar, M. M. for taking action under S/200 Cr.P.C. & for holding J.E. U/S 202 Cr.P.C and for submitting report.”
3. The learned Magistrate, Mr. M. U. Khandaker, thereupon examined the complainant under section 200 of the Code of Criminal Procedure in the same C. R. Case No.3774 of 1995 first and thereafter examined four witnesses in course of the Judicial Enquiry including the complainant, most of whom were eye witnesses to the occurrence and found that it was i a case of murder and a cognizable offence ; was committed by the accused and recommending for issuing necessary process against the accused persons by sending his inquiry report dated 2.12.1995 to the Chief Metropolitan Magistrate. On receipt of the said report along with the case record inclusive of the statements of the !
complainant in the said C.R. Case and depositions of the witnesses recorded during the Judicial Enquiry the learned Chief Metropolitan Magistrate by order dated 6.12.1995 took cognizance of the case under section 302 of the Penal Code and eventually transmitted the case records to ; the Court of the Metropolitan Sessions Judge for disposal.
4. The case was thereafter registered and numbered as S.T. Case No.381 of 1999 by I
the Metropolitan Sessions Judge and was eventually sent to the third Court of the Metropolitan Sessions Judge for disposal. The said court accordingly framed charge
against the accused husband under sections 302 and 201 of the Penal Code and under sections 302, 201 and 109 of the Penal Code against the other accused persons in the case. The said court then started examining the prosecution witnesses. In the meanwhile accused Rafiqul Islam and Mahfuzur Rahman Chowdhury moved the High Court Division in.Criminal Miscellaneous Case No.732 of 2000 under section 561A of the Code of Criminal Procedure for quashment of the proceedings of the said sessions case on the ground that since the judicial inquiry in the case was held without examining
the complainant under section 200 of the Code of Criminal Procedure the continuation
of the proceedings was therefore an abuse of the process of the court.
5. The High Court Division however without issuing any rule by the impugned order dated 19.4.2000 sent the case back to the court of the Chief Metropolitan Magistrate for taking necessary actions after examination of the complainant under section 200 of the Code of Criminal Procedure. In this backdrop, the leave was granted giving rise to the present appeal.
. Mr. Md. Nurul Islam Bhuiyan, the learned Advocate-on-Record for the appellant submits that the impugned judgment has caused irreparable prejudice and miscarriage of justice in sending the case back to the Chief Metropolitan Magistrate to take action in compliance with the requirement of section 200 of the Code of Criminal Procedure and the delay thus caused in disposal of the case in effect amounts to denial of justice to the complainant inasmuch as his daughter was killed in the night following 24.11.1994
by the accused in this case, more so when the learned Magistrate, Mr. M. U. Khandaker examined the complainant in this case on 1.10.1995 on oath as regards the allegations contained in the petition of complaint and thus the requirements of section 200 of the Code of Criminal Procedure were complied with in substance and the accused were not prejudiced; moreover the alleged non-compliance with section 200 of the Code of
Criminal Procedure could at best be regarded as a mere irregularly and not an
illegality which could have been considered to be curable under section 537 of the Code of Criminal Procedure.
7. None however appears for the respondents.
8. The moot point that falls for our consideration is whether the cognizance taken in this case by the learned Chief Metropolitan Magistrate by the order dated 6.12.1995 and there upon issuing of process against the accused and thereafter sending of the case to the Metropolitan Sessions Judge, Chittagong for trial without examining the complainant under section 200 of the Code of Criminal Procedure by himself is an illegality in the
fact and circumstances of the case. In other words, in the fact and circumstances of the present case, whether the impugned order of the learned Judges of the High Court Division in sending the case back to the Chief Metropolitan Magistrate for taking
necessary actions after complying with the requirement of section 200 of the Code of Criminal Procedure apparently suspending the proceedings of the said Sessions case is tenable in law.
9. Some important facts are now recapitulated by way of reiteration in the interest
of the proper appreciation of the point involved. Following the alleged murder of the daughter of the appellant, Lutfunnessa, on the night following 24.11.1994 in the house of her husband an unnatural death case was recorded by the police on 25.11.1994 at the instance of the accused persons. The appellant thereafter lodged F.I.R. with the local Police Station alleging murder of his daughter by the accused persons. But the police refused to entertain the same on the plea that they had already started the U.D. Case in the matter. This triggered this appellant to file a complaint petition before the Chief Metropolitan Magistrate, Chittagong on 30.11.1994 under sections 302, 201 and 34 of the
Penal Code, who thereupon sent the same to the local Police Station for investigation and thereafter to treat the same as F.I.R., if the allegations were found true. Since the police after much dragging their feet in the matter submitted its report to the Chief Metropolitan Magistrate stating that the allegations contained in the petition of complaint were false the appellant filed a Naraji petition on 8.7.1995. In this background of the case, the Chief Metropolitan Magistrate by his order dated 13.9.1995 sent the Naraji petition to the Metropolitan Magistrate, Mr. M. U. Khandaker, for taking action under section 200 of the Code of Criminal Procedure first and then for holding judicial inquiry under section 202
of the Code of Criminal Procedure and report. The Metropolitan Magistrate, thereupon, first examined the complainant under section 200 and then held the judicial inquiry under section 202 of the Code and in the process examined four witnesses including the complainant on oath and among them three were eye witnesses to the occurrence and thereafter forwarded his inquiry report along with other records of the judicial inquiry to the Chief Metropolitan Magistrate including some photographs collected during the judicial investigation apparently showing that the deceased, Lutfunnessa, committed suicide by hanging inside the bathroom from the rod of the shower by tying her neck with
her own scarf and her legs were kissing the floor of the bath room indicating amply that it could not be the case of suicide by hanging. It was therefore not a case of suicide by hanging but a case of murder. The Chief Metropolitan Magistrate thereupon by his order dated 6.12.1995 took cognizance of the offence under section 302 of the Penal Code against the husband and the other accused persons and issued process.
10. The legal position, as could be ascertained from section 200 read with section 202 of the Code of Criminal Procedure, is that a Magistrate or for that matter the Chief Metropolitan Magistrate is not bound to take cognizance of an offence straight away on a petition of complaint filed before him by a complainant. It can very well send the petition of complaint to the police for investigation and if the allegations were found to be true to start a case by lodging FIR against the accused. This was precisely done in this case. In the instant case, the police after a long lapse of time submitted their report to the Chief
Metropolitan Magistrate stating that there was no truth in the allegations.
11. In this background of the case, the Chief Metropolitan Magistrate obtained a judicial inquiry report from another Metropolitan Magistrate subordinate to him and took cognizance of the offence himself on the basis of the said judicial inquiry report and thereafter sent the case record to the learned Metropolitan Sessions Judge for disposal of the case as the case appeared to him to be a case of murder of the deceased Lutfunnessa, by her husband, Md. Sarwar Alam Chowdhury with the help of other accused.
12. In the case of Badsha Mia and others VS. The State reported in 10 DLR(1958) 412, after having reviewed a number of cases, it was observed that a Magistrate was not bound in law to take cognizance of an offence by examining the complainant on oath so soon as a petition of complaint is filed before him. In view of sections 200 and 202 of the Code of
Criminal Procedure when the Magistrate proposes to take cognizance upon the information supplied by way of complaint he will first examine the complainant on oath to ascertain the veracity of the allegations. An omission to examine the complainant on oath is not in any event an illegality but a mere irregularity which will not vitiate the trial unless substantial prejudice has been caused. Similar view was also taken in a recent case of S.A. Sultan Vs. The State and another, 14 BLD(AD)( 1994)36 holding that “the purpose of examination under section 200 of the Code of Criminal Procedure is to see
whether there is sufficient ground for proceeding and not to see whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can only be determined at the trial and not at the stage of inquiry.”
13. The next case on the point worth referring to is the case of Shamim Vs. The
State and another, 17DLR(SC) (1965) 626. In this case, Mr. Justice S.A. Rahman sitting with Fazle Akbar, J, after examining some old cases at the material time observed that “one of the main objects of section 200, Code of Criminal Procedure was to protect the public against false, frivolous or vexatious complaints filed against them in Criminal Courts and the Magistrates must not lightly accept written complaints and proceed to issue processes until they had thoroughly sifted the allegations made against the accused
and were satisfied that a pnma facie case had been made out against those who were accused of criminal offences”. It was further observed in that case (17 DLR(SC)( 1965)626) that “the language of section 200 of the Code of Criminal Procedure does not lead to the inevitable inferences that the examination of a complainant is a ‘sine qua-non’ of valid proceeding in all circumstances. The defect, namely, failure to examine a complainant under section 200, before issuing process amounts to a mere irregularity and apart from the question of prejudice, would be insufficient to vitiate the proceedings”.
14. In the case of Md. Zillur Rahim Vs. Nazmul Karim Sufi and others reported in 28 DLR(HCD)1 the complainant first lodged the FIR and the police submitted a final report followed by a Naraji petition by a complainant. In that case judicial inquiry was held treating the Naraji petition as the petition of complaint and cognizance was taken on consideration of the judicial inquiry report. It was held in that case; “if in course of enquiry by a Magistrate the complainant himself deposes on oath and cognizance is taken
thereafter, such cognizance is not affected by mere omission to examine him as the complainant under section 200 of the Code of Criminal Procedure”.
15. But subsequently it was observed in the case of Mihir Lai Saha Poddar @ Mihir Kumar Poddar Vs. Zhunu Rani Saha, 37 DLR( 1985)227 that the “examination of the complainant on oath, when taking cognizance of an offence under section 200 of the Code of Criminal Procedure is mandatory. Failure to do so renders the proceeding liable to be quashed”. In the case of Anath Mondal Vs. Bankim Chandra Chakravarti reported in 9 DLR 362, a Division Bench of the Dhaka High Court observed that “if the
objection is taken at an earlier stage of the proceeding, then steps must be taken to set
right the defect and to proceed with the case after the examination of the complainant”.
16. Almost same view was taken in the case of Siddique Ahmed and others Vs. The State, 37 DLR 223, where it was held that “after the decision of the Privy Council in the case of Abdur Rahman, 31 C.W.N. 271, section 537 of the Code of Criminal Procedure may now be taken to cover an error, omission or irregularity in the widest sense of those terms provided there has been no failure of justice. It was further held that the imperative statutory rule of procedure has been broken is not enough to vitiate the trial or proceeding
provided there is no failure of justice”.
17. In a latest case on the point reported in 4 BLT(AD)(1996)257, Md. Alim Vs. Noor Mohammad Bepari and another, it was held that when cognizance was taken on the basis of the judicial inquiry, examination of a complainant in such case under section 200 of the Code of Criminal Procedure was not necessary. On this ground prayer for quashing of the proceeding was refused although cognizance was taken against the accused petitioner in cognizable offence like offence under section 302 of the Penal Code after holding
judicial inquiry on the basis of a Naraji petition filed by the respondent.
18. The legal position as could be deduced from the aforesaid judicial pronouncements is that it is not always necessary for the cognizance Magistrate to examine the complainant under section 200 of the Code of Criminal Procedure. The cognizance Magistrate is also competent to take cognizance in a case on the basis of a judicial inquiry provided the omission to examine the compainant under section. 200 by the cognizance Magistrate did not cause any prejudice or failure of justice.
19. In the light of the foregoing discussions we are of the view that the impugned
judgment and order dated 19.4.2000 of the High Court Division sending the case back to the Chief Metropolitan Magistrate, Chittagong for compliance of the requirements of section 200 of the Code of Criminal Procedure thereby suspending the proceeding in S.T. Case No.381 of 1999 now pending before the learned Additional Metropolitan Sessions
Judge, Chittagong is not sustainable in law inasmuch as the complainant was examined
on oath in the said C.R. Case by the Metropolitan Magistrate first and then again he (complainant) was examined by him during the Judicial Enquiry as one of the 4(four) witnesses. The Chief Metropolitan Magistrate thereafter received the said judicial inquiry report and being satisfied on the basis of the said report of the Judicial Enquiry took cognizance in the matter, issued the process and transmitted the case record to the
Metropolitan Sessions Judge for disposal. Against this backdrop, the impugned judgment and order dated 19.4.2000 passed in the Criminal Miscellaneous Case No.732 of 2000 deserves interference and is liable to be set aside.
20. The learned Additional Metropolitan Sessions Judge, Chittagong is therefore directed to proceed with the said S.T. Case No.381 of 1999 from the stage at which it was stayed by the High Court Division.
21. The appeal is therefore allowed.
Source : V ADC (2008),525