PENAL CODE, 1860 ( PART 2 )


Penal Code, 1860
[XLV of 1860]
Section 315—
Prosectition for cheating—Plea of civil liability—The sum and substance of the complainant’s case is that the accused realised a total sum of Tk 50,00000 from the complainant on a promise to secure him a highly paid job in Abu Dhabi. The point canvassed on behalf of the accused in support of his application under section 561A CrPC Was that the liability, if any, was of a civil nature for which no prosecution would lie. Since, according to the petition of complaint, The accused totally denied receipt of any sum from the complainant, the question of civil liability does not arise.
Abdur Rahim Vs. Enamul Huq 43 DLR (AD) 173

Section 323—
In a border line case between sections 323 and 325 of the Penal Code, the accused would be entitled to the benefit of doubt and be convicted under section 323 of the Penal Code and not under section 325.
Amar Kumar Nag Vs. State 41 DLR 134.

Section 323—
Conviction of the appellant on the evidence of interested witness. Appellant No: 2 entitled to benefit of doubt.
We, therefore, hold that the prosecution has failed to establish the charge under section 323 of the Penal Code against the appellant No. 2 beyond reasonable doubt and hence he is entitled to benefit of doubt and the impugned order of conviction and sentence under section 323 of the Penal Code against this appellant cannot be sustained in law and the same is liable to be set aside.
Momin Malitha Vs. State 41 DLR 37.

Sections 325 and 326 distinguished—
From a reading of the judgment, in the instant case it appears that the learned court below after examining the testimony of the witnesses came to a finding that the prosecution had been able to prove beyond all reasonable doubts that the accused Amar Kumar Nag alias Ratu Nag caused grievous hurt to the complainant, and as the evidence does not show that it was caused by any instrument of shooting, stabbing or cutting or any instrument used as a weapon of offence, found that the accused could not be said to have caused grievous hurt by any instrument of stabbing, punishable under section 326 of the Penal Code but as he had caused grievous hurt he would be found guilty under section 325 of the Penal Code and hence liable to be convicted not under section 326 but under section 325 of the Penal Code. For a person to be convicted for causing grievous hurt, he must not only have caused the grievous hurt in fact but also intended or knew that his action would be likely to cause grievous hurt, as any other reasonable man would know.
Amar Kumar Nag Vs. State 41 DLR 134.

Sections 325 & 326—
In case of provocation an accused is entitled to leniency in punishment and for the contribution of the complainant in the incident or the accident, a sentence of fine would meet the ends of justice. In the instant case, the entire incident was not only one—sided but in it the complainant had also contributed to a great extent by calling a man a thief in presence of others. In such a case of provocation an accused is entitled to leniency in punishment and for the contribution of the complainant in the incident or the accident, a sentence would meet the ends of justice (Refer PLD 1981 SC 127).
Amar Kumar Nag Vs. State 41 DLR 134.

Sections 326/34 or 149—
Appellant Nos. 2—6 cannot be convicted under section 326 of the Penal Code without framing any charge under section 34 or 149 of the Penal Code and without leading any evidence as to their acting in concert or m pursuance of any common object.
Ibrahim Mollah Vs. State 40 DLR (AD) 216.

Sections 361 and 363—
For the purpose of the custody of the girl age of majority laid down in the Majority Act, 1875 read with the Guardians and Wards Act, 1890 i.e. the age 01 18 years, is the determining factor to decide whether the girl is to be given to the custody of the guardian—Reference to the age of 16 years in case of a female minor in section 361 is for the commission of the offence of kidnapping punishable under section 363 of the Penal Code only.
Medical report is based on superficial observation and too general in nature—The school—leaving certificate has been issued by the headmaster of the school and is positive as to the date of birth of the girl and also as to the source thereof.
Principle of admission by non— traverse— Applicability of—The age of the kidnapper not having been challenged the principle of admission by non—traverse will apply.
Krishna Pada Dutta Vs Bangladesh 42 DLR 297.

Sections 361 & 366A—
Determinatiofl of age of a person in custody for the purpose of her guardianship—Isolated statement of her father in such a case in respect of her age cannot be accepted as true unless it is supported by corroborative evidence. If a girl is found below 16 and taken away without the consent of the guardian then It will be an offence and the guardian will be entitled to her custody Even if it is presumed that at time of occurrence of her kidnapping the detenu was minor but now when she is found major the Court has no jurisdiction to compel her to go with her father.
Manindra Kumar Malakar Vs. Ministry of Home 43 DLR 71.

Sections 361, 366 & 366A—
Age of victim in relation to offences under the Penal Code—The minor to be taken out of custody of the lawful guardian as under section 366 must be a minor under 16, and 18 years would be referrable only to section 366A when she would be taken away from place to place by inducement with intent that she may be seduced to illicit intercourse.
Tapash Nandi Vs. State 45 DLR 26.

Section 363—
A father being a natural guardian of the minor child, according to some judicial authorities, cannot be held guilty of kidnapping, for his taking away the child from the custody of the mother without the consent of the mother.
Kazi Mohammad Elias Vs. Ferdous Ara 41 DLR 516.

Sections 364/302—
Offences of murder and kidnapping are co—extensive and there can be no conviction for both the offences. If abduction is followed by murder no charge can be framed under section 364 of the Penal Code and the charge must be one under sections 302/109 or for murder pure and simple.
Soleman Vs. State 42 DLR 118.

Sections 364/302/109/201—
If at the trial the story as given against the alleged offender is omitted from the one given in FIR it has always been viewed with great suspicion.
Md. Ali Haider Vs. State 40 DLR 97.

Sections 364/302/109/201—
FIR enables the Court to see what was the prosecution story was at the initial stage and to check up the subsequent embellishment.
Md. Ali Haider Vs. State 40 DLR 97.

Sections 364/302/109/201—
There is no rule of law that once a witness has been discredited on one point, no credit is to be given to another. If a natural witness is declared hostile, his evidence may be accepted if corroborated. The evidence of boatman PW2 cannot be discarded.
Md. Ali Haider Vs. State 40 DLR 97.

Section 366—
Abduction or kidnapping of a girl below 16 years—Intention necessary to constitute the offence.
Ananda Vs. State 41 DLR 533,

Section 366A—
Justice demands that the appellant be given an opportunity to cross—examine the witnesses as some of them were examined in the absence of the appellant. Admittedly, the case is pending before the Special Tribunal constituted under the aforesaid Special Powers Act as the alleged offence is triable under the Special Powers Act. It is an admitted fact that certain witnesses have been examined in the absence of the appellant when he was absconding. It is further admitted that the prosecution has not yet closed the case and same is fixed for further evidence next week. As the prosecution has not yet closed the case and as some of the witnesses have been examined in the absence of the appellant when he was produced before the Tribunal under arrest subsequently during the midst of trial the tribunal ought to have afforded an opportunity to the appellant to cross—examine the witnesses already examined. Justice demands that such an opportunity ought to have been given to the appellant.
Jamil Siddique Vs. State 41 DLR

Section 366A—
For sustaining a charge of kidnapping a woman for unlawful purposes the alleged victim must be m between 16 and18. If she is above 16 but below 18 and if no force is used to go with the accused it will not be an offence under the Penal Code or the Ordinance for deterrent punishment.
Monindra Kumar Malaker Vs. State 42 DLR 349.

Sections 366/109 read with Cruelty to Women (Deterrent Punishment), Ordinance (60 of 1983) Sections 4(b) (c)/9
There is no overt act proved against accused Ananda in any conspiracy resulting in the abduction of the victim girl by Swapan—Prosecution failed to prove the charge of abetment against Ananda.
Ananda Vs. State 41 DLR 533

Section 377—
Sodomy—Definition of some sort of penetration to be proved to constitute the offence under the section.
Nur Mohammad Vs. State 41 DLR 301.

Section 378—
There cannot be any theft in the eye of law unless the moveable property is moved for being taken out of the possession.
Qari Habibullah Belali Vs. Capt. Anwarul Azim 4O DLR 295.

Sections 378 and 403—
In an offence of theft there must be removal of the property out of the possession of another with intention to take dishonestly—Appellant received Taka 9000/—in good faith from the Bank’s counter instead, of Tk. 1900/—to which he was entitled and he had no knowledge that he was being overpaid—The dishonesty became full blown when the cashier requested him to return the excess amount in the evening at the school but the appellant gave a denial of having received the excess amount at all—The facts of the case do not constitute an offence of theft but they constitute another offence, dishonest misappropriation under section 402 of the Penal Code. The appellant may have received the money in good faith but the decision to appropriate the excess money to his own use makes it culpable—The conclusion is inescapable that he is inside the net.
Kawsarul Alan Vs. State 42 DLR (AD) 23.

Section 379—
Commission of theft is an individual act and there must be clear evidence in respect of each individual accused. For the same reason the court is also required to consider the evidence against all the accused separately and record its findings.
Abdul Mannan Vs. State 44 DLR (AD) 60.

Section 379—
The disputed hut was in the jimma of the complainant. The petitioners forcibly removed the same and took it away in spite of the complainant’s protest. Such taking of property from the possession of the jimmadar constitutes offence under section 279 Penal Code.
Idris Vs. State 43 DLR 245.

Section 379—
Where the subject matter of theft belongs to the citizen or any other organisation or institution theft ipso facto of such property does not become prejudicial to the economic and financial interest of the State. In the instant case as the motors in question belonged to the project for irrigation of land of different individuals there is no scope to hold that the theft of the motors was prejudicial to the financial and economic interest of the State.
Anisuzzaman Vs. State 43 DLR 35.

Section 379—
The contention that there was bonafide dispute with regard to the plot on which the hut was situated has no substance in this case, the consideration in the present case is whether there was any bonafide claim with regard to the hut which was the subject matter of theft.
Kazi Motiur Rahman Vs. Din Islam 43 DLR 128.

Section 381 read with Code of Criminal Procedure [V of 18981 section 237—
In view of the provisions of section 237 of the Code of Criminal Procedure the conviction of the petitioner under section 381 is maintainable although he was charged under section 408 but not under section 381 of Penal Code.
In view of the provisions of section 237 CrPC and being in respectful agreement with the pronouncements of the learned Judges, I am of the view that although in this case the petitioner was charged under section 408 of the Penal Code and not under section 381 of the Penal Code still his conviction under section 381 of the Penal Code is qu4e maintainable as the petitioner was fully aware of the nature of accusation against him and had the opportunity to meet the element of offence punishable under section 381 of the Penal Code and he was not also prejudiced by conviction under section 381 of the Penal Code.
Mahbubul Alam Vs. State 41 DLR 7.

Section 395—
For the purpose of conviction under section 395 there is sufficient evidence against the appellants as they were variously identified as more than 1 PW.
Ratan Kha Vs. State 40 DLR 186.

Section 395—
Non—examination of the investigating officer who apprehended the dacoits with ornaments casts serious doubt on the prosecution story in view of the evidence on record and attending circumstances.
Abdul Gafur alias Batta Miah Vs. State 40 DLR 474.

Sections 395 and 397—
Charge under section 395 PC but conviction under section 397 PC. The accused appellant having been not placed on trial under section 397 PC his conviction under section 397 not sustainable in law.
Abu Taleb Vs. State 41 DLR 239.

Sections 395 and 397—
Accused Ali Howladar’s conviction under section 395/397 Penal Code cannot be sustained in law as the officer who conducted TI Parade was not examined.
Amir Hossain Vs. State 41 DLR 32.

Sections 395 and 397—
So far as accused Ali Howlader is concerned the learned Sessions Judge has relied upon the evidence of the identifying witnesses to convict him; and since for non examination of the officer who conducted the TI parade the evidence of the identifying witnesses in the Test Identification parade cannot be relied upon his conviction under sections 395/397 of the Penal Code cannot also be sustained in law.
Amir Hossain Vs. State 41 DLR 32.

Sections 395 and 397—
The Special Tribunal constituted under the provisions of the Special Powers Act (XIV of 1974) has no jurisdiction to take cognizance of the non—scheduled offences under sections 395 and 397 Penal Code as they were ommitted from the schedule of the SP Act, 1974 by amending Ordinance X of 1977.
Khalilur Rahman Vs. State 41 DLR 385.

Sections 395 and 397, 325/34 and 304/34 —
Lumping together of several distinct charges in one trial is not permissible. Joint trial of separate and distinct offences not in course of same transaction is not permissible.
Lal Mia Vs. State 40 DLR 377.

Sections 395 and 397, 325/34 and 304/34—
Joint trial of separate and distinct offences not in course of same transaction is not permissible.
Lal Mia Vs. State 40 DLR 377

Section 397—
Dacoity with attempt to cause grievous hurt—the absence of any grievous hurt to any person or use of any deadly weapon, conviction for such an offence cannot be sustained.
Kashem Molla Vs. 42 DLR 453.

Section 405—
Illustration is a key to understand and interpret the section. The illustrations given under the section do not include a transaction of loan arid violation of the condition of loan agreement. No authority was cited that an alleged violation of a loan agreement constitutes an offence of criminal breach of trust.
Shamsul Alam Vs. AFR Hasan 40 DLR 46.

Section 405—
The word “trust” and “entrustment” interpreted. In a transaction of 1oaathe loan giver does not retain any control over the loan amount and it becomes the personal money of the loanee and as such he cannot be conceived of committing any breach of trust. If there is any violation of the terms of agreement under the contract, that will be “decided in the civil Court and no criminal action would lie.
Shamsul Alam Vs. AFR Hasan 40 DLR 46.

Section 405—
Facts alleged constitute an offence of criminal breach of trust or any offence triable in criminal court.
ShamsuI Alam Vs. AFR Hasan 40 DLR 46.

Section 405—
Charge under section 405— What the prosecution must prove to establish the said charge—Mere entrustment of or dominion over the property will not prove the charge but the prosecution must also prove its misappropriation by accused or its conversion to the use of the accused.
Mohammad Musa Vs. Kabir Ahmed 41 DLR 4.

Section 405—
A Transaction of Loan of money under an agreement does— not operate as an entrustment occurring in section 405 Penal Code.
Shamsul Alam Vs. AFR Hasan 40 DLR 46.

Section 405—
Violation of contract will hold good for an offence of criminal breach of trust if the condition as to entrustment within the meaning of section 405 is satisfied.
Shamsul Alam Vs. AFR Hasan 40 DLR 46.

Section 405—
Interpretation of entrustment under section 405 PC—it connotes that accused holds the property in a fiduciary capacity, the property remaining in the possession or control of the accused as a bailee.
Shamsul Alam Vs. AFR Hasan 40 DLR 46.

Section 405—
Under the concept of entrustment the person who transfers possession of the property to second party still remains the legal owner of the property and the person so put in possession only obtains a special interest by way of a claim for money advanced for the safe keeping of the thing.
Shamsul Alam Vs. AFR Hasan 40 DLR 46.

Sections 405 and 406—
The only relevant question for consideration is whether the facts alleged disclose an offence of criminal breach of trust.
Shamsul Alam Vs. AFR Hasan 40 DLR 46.

Sections 405 and 409—
Meaning of entrustment—Entrustment connotes that the accused held the property in fiduciary capacity—CI sheets of Tahsil Office which were blown off by storm were collected and kept in the Tahsil Office—whether the Tahsildar—in—charge was entrusted with CI sheets.
Akmal Hossain Vs. State 40 DLR 483.

Section 406—
Money lent by the complainant to the accused—petitioner induced by representation to repay and there is absence of any entrustment. Allegations constitute no offence of criminal breach of trust and the charge thereof is quashed.
Shafiuddin Khan Vs. State 45 DLR 102.

Section 406—
Paddy purchased by PW 1 was handed over to the appellant—Appellant refused to deliver the sale proceeds and denied the entire transaction—The case is one .of entrustment fully proved by the prosecution— No interference.
Mohammad Musa Vs. Kabir Ahmed 41 DLR (AD) 151.

Section 406—
A criminal Court while awarding punishment under section 406 of the Penal Code has got no authority to pass an order directing the accused to pay the sale proceeds of a property over which he had dominion to the complainant.
Mohammad Musa Vs. Kabir Ahmed 41 DLR 4.

Section 406—
Court below in passing the order of making repayment of sale proceeds acted ex mero motu and transgressed their jurisdiction.
Mohammad Musa Vs. Kabir Ahmed 41 DLR 4.

Sections 406 & 420—
Quashing of proceedings for alleged breach of trust and cheating: Money claims not the outcome of a particular transaction but arose after year—end accounting following regular business between the parties. If on settlement of accounts at the end of a period some money falls due to one party from the other party and the other party fails to pay the dues, such liability cannot be termed criminal liability. Allegation that dues were allowed to accrue dishonestly, neither attract an offence under section 420 nor under section 406 or under any other section. The whole allegation in complaint petition, even if true, cannot from basis of any criminal proceeding. The proceedings are quashed.
Syed Ali Mir. Vs. Syed Omar Ali 42 DLR (AD) 240.

Sections 406& 420—
Question of offence of breach of trust and cheating—Business transactions were going on between the complainant and the accused for a long time relating to supply of fish and the latter made payments in parts. A balance amount claimed by the complainant was not agreed on and the accused refused to pay it. This refusal to pay the balance does not constitute any criminal offence under sections 406/420 Penal Code.
Islam Ali Mia Vs. Amal Chandra Mondol 45 DLR (AD) 27.

Section 409—
A person receiving property in a fiduciary capacity must deal with the property according to the terms of the agreement or trust.
Haji Md. Mohsin Vs. S 40 DLR 431.

Section 409—
Two distinct parts in offence of criminal breach of trust—one is creation of an obligation in relation to the property over which there is dominion and other is misappropriation or dishonestly dealing with the property by the accused.
Haji Md. Mohsin Vs. State 40 DLR 431.

Section 409—
Cognizance of the offence under section 409 PC taken by the Session Judge as the Senior Special Judge is a mere irregularity in registering the case as a Special Case.
Haji Md. Mohsin Vs. State 40 DLR 431.

Section 409—
In order to prove the offence of Criminal Breach of Trust there must be the allegation of entrustment of property and misappropriation thereof. In the absence either of the two ingredients the offence is not complete.
Mir Amir Ali Vs. State 45 DLR 250.

Section 409—
Allegation was that appellant dishonestly misappropriated 10 bags of powder milk, which was meant for distribution among the poor students—Defence version was that he did not submit any application seeking allotment of relief powder milk nor did he take delivery of them———Question arose as to whether the legality of the conviction on the ground of contradiction and insufficient evidence which necessarily calls for the scrutiny of the evidence is maintainable.
HeId—”We have given our anxious consideration to the facts of the case and discrepancy in evidence as to 8 bags or 10 bags and our conclusion is this conviction cannot be sustained.
Moslemuddin Talukder Vs State 42 DLR (AD) 103.

Section 409—
here is no merit in the submission that the prosecution has to prove its case of misappropriation of entire shortage. The accused is bound to account for every pie entrusted to him.
AMA Wajedul Islam Vs. State 45 DLR 243.

Section 409—
Appellant deposited the amount for which he was charged for misappropriation—Co— accused having been already released on bail the bail of the appellant should not have been refused—Appeal allowed and appellant allowed to remain on ad—interim bail granted by the Appellate Division.
Md. Serajul Hoque Vs. State 42 DLR (AD) 52.

Section 409 read with Prevention of Corruption Act (II of 1947) Section 5(2).
Sentence of imprisonment till rising of the Court—whether it is an imprisonment—An important question arose to be answered in this case. It is whether a sentence of imprisonment till rising of the Court can be said to be a sentence of imprisonment within the meaning of section 409 of the Penal Code as well as under section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947). Detention till rising of the Court is imprisonment. In the light of the aforesaid dictionary meaning and judicial pronouncements I have no hesitation to hold that the detention of the accused—appellant till the rising of the Court is imprisonment within the meaning f Section 09 of the Penal Code and section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947) as his liberty freely to go about his business as at other times was restrained by order of the Court as he was confined in the Court precincts.
Jalaluddin Ahmed Chowdhury Vs. State 41 DLR 87.

Section 412—
Dishonestly receiving property stolen in the commission of a dacoity—To sustain conviction for such an offence the property stolen in the commission of dacoity must be received or retained by persons other than the dacoits.
Kashem Molla Vs. State 42 DLR 453.

Sections 419/467/471/409—
The petitioner by showing false documents induced the purchaser to enter into an agreement to purchase the house on receipt of Taka 12 lath on a plea that he would refund Taka 14 lakh in the event of failure to execute sale document. The contention of the petitioner to the effect that it was a civil dispute and that the Court of Settlement had given a final decision over all the disputes including the question of criminal liability is not sustainable. The criminal proceeding cannot be held to be liable to be quashed.
Aga Kohinoor Alam Vs. State 43 DLR 95.

Section 420—
Appellate Court’s power to award sentence consequential to the affirmance of conviction if the trial Court imposes no sentence upon the accused prescribed under that law.
Jahangir Hossain Vs. State 40 DLR 545.

Section 420—
It is not correct to say that in a case of cheating there Is no necessity to prove initial intention to deceive and that subsequent conduct of the accused is enough to find him guilty.
Abdul Karim Vs. Shamsul Alam 45 DLR 578

Section 420—
Loan taken on representation to pay dishonestly inducing a person to lend the money having no intention to repay will be an offence of cheating.
Shafiuddin Khan Vs. State 45 DLR 102.

Sections 436 and 148—
Mere plea of right of private defence cannot be a ground for quashing the criminal proceeding, for such plea is to be established by the accused who takes it. A criminal proceeding is liable to be quashed only if the facts alleged, in the First Information Report or complaint petition, even if admitted, do not constitute any criminal offence or the proceeding is barred by any provision of law.
Where disputed facts are involved, evidence will be necessary to determine the issue. The appellants have produced an order of temporary injunction against the complainant’s party .This must be considered along with other evidence during the trial. Their application for quashing the proceedings is found to have been rightly refused by the High Court Division.
SM Khalilur Rahman Vs. State 42 DLR (AD) 62.

Sections 463 and 464—
The circumstances, provisions of law and evidence on record show that the prosecution has failed to prove by evidence that the accused petitioners had committed the alleged offence:
Forged document—When a document can be called forged—To call it forged a document must be executed with dishonest and fraudulent intention to defraud others—Such a finding is absent in lower Court judgments.
The prosecution could not prove the elements of a forged document in the present case and as such the provisions of section 467 of the Penal Code cannot be invoked against the accused petitioners.
Manu Mia & Sayedur Rahman Vs. State 42 DLR 191.

Sections 463 and 467—
Applicability, of section 179 CrPC to the offences defined section 463 Penal Code—Provisions section 463 PC analysed—Two essential ingredients of section 463 PC pointed out—] both the competent criminal Courts at Noakhali and Comilla have jurisdiction to t the offence.
Sree Jagenath Chandra Bakshi Vs State 42 DLR 238

Sections 463 and 467—
When the bainapatra in question was given in evidence in Court no court can, take cognizance of any offence under section 467 of the Penal Code without a complaint in writing by the court concerned or by a court to which the said court is subordinate.
Sona Miah Vs. Md. Zakaria 41 DLR 433.

Section 467—
Where the intention of the wrongdoer either to obtain wrongful advantage for himself or to cause injury to somebody has not been specifically established conviction under section 467 Penal Code cannot be maintained.
Abdul  Hakim Vs. State 45 DLR 35.

Section 467—
Accuseds claiming title on the basis of registered document which they assert to be genuine—In such a criminal proceeding they will not get reasonable opportunity to prove genuineness of their title deed which they will get in a civil proceeding—Section 467 Penal Code is not attracted to the case.
Monu Mia & Sayedur Rahman Vs. State 42 DLR 191.

Section 467—
Making a false document— The maker must dishonestly execute the document with the intention of causing it to be believed that such document was executed by or by the authority of a person by whom or by whose authority he knows that it was not executed.
Al-haj Md. Serajuddowlah Vs. State 43 DLR (AD) 198.

Section 471—
Mark—sheets of SSC Examination were forged documents rendering the appellant guilty under section 471.
Jahangir Hossain Vs. State 40 DLR 545.

Section 493—
The victim of alleged cohabitation knew that there was no marriage between her and the accused and that the latter only compromised to marry her on some future date—Such allegations made in the FIR did not come within the mischief of section 493 of Penal Code.
Lukus Miah Vs. State 43 DLR 230.

Section 499—
Defamation defined in section 499 Penal Code. In our codified law the expression “defamation” has been defined in section 499 of the Penal Code. The exceptions are ten in number. English law of absolute privilege, whether applicable to the statements made by the parties or by the Advocates in Court proceedings in Bangladesh—Immunity having been not extended to judicial proceeding a respondent allegedly defamed would be competent to file a complaint in Court against the maker of defamatory statement—Court not to rely on Common Law of England.
AY Marshiuzzaman Vs. Shah Alam 41DLR 180.

Section 499—
For the accusation of defamation a separate action would lie and it will be postponed till the judicial proceeding had ended.
AY Mashiuzzaman Vs. Shah Alam 41 DLR 180.

Section 499—
The Court of Metropolitan Magistrate had a duty to initiate a proceeding without directing the complainant to ventilate his grievances before the other Court wherein the defamatory statement has been made.
AY Mashiuzzaman Vs. Shah Alam 41 DLR 180.

Sections 499 & 500—
Imputation made by lawyer when protected—Imputation made by a lawyer in discharge of professional duty on the character of any person in good faith and for the protection of the interest of the person making it or of any other person or for the public good will not constitute offence of defamation. In the instant case, the imputation allegedly made by the petitioner as an advocate under instruction of her client for protection of her interest cannot constitute the offence in view of exception 9 to section 499 Penal Code.
Sigma Huda Vs. Ishfaque Samad 45 DLR 129.

Section 500—
A magistrate is not competent to file a complaint for the prosecution of a witness for making a defamatory statement in a proceeding pending before him.
AY Mashiuzzaman Vs Shah AIam 41 DLR 180.