Roquib Mohammad Fakrul Alias Rocky Vs. Md. Abdul Kashem

Appellate Division Cases

(Criminal)

PARTIES

Roquib Mohammad Fakrul Alias Rocky………………Appellant

-vs-

Md. Abdul Kashem and others ………………………Respondents

JUSTICE

Syed J. R. Mudassir Husain, C. J

Mohammad Fazlul Karim. J

M. A. Aziz. J

Amirul Kabir Chowdhury. J

JUDGEMENT DATE: 30th June, 2004

The Code of Criminal Procedure, Section 526. The Penal Code Sections 364, 302, 201,109.

Most of the witnesses hail from Dhaka. The contention that the transfer of the case from Munshiganj to Dhaka will tend to the general convenience of the parties as most of the witnesses hail from Dhaka has substance ………………..(5)

Criminal Appeal No. 68 of 2003 (From the judgment and Order dated 26. 08. 2003 passed by the High Court Division in Criminal Revision No. 657 of 2003 ).

Mainul Hossain, Senior Advocate instructed by Md. Aftab Hossain, Advocate-on-Record…………….. For the Petitioner

T.H. Khan, Senior Advocate, instructed by SyedMahbubur Rahman, Advocate-on-

Record……………….. For Respondent No. 1

Abdur Razaque Khan, Additional Attorney General, instructed by Ataur Rahman Khan,

Advocate-on –Record……………….. For Respondent No.2

Not represented………………. Respondent Nos. 3-5

JUDGMENT

1. Amirul Kabir Chowdhury, J :- This appeal by leave at the instance of the accused

appellant has been preferred against the judgment and order dated 26.08.2003 passed in

Criminal Revision No. 657 of 2003 by a Division Bench of the High Court Division

making the Rule absolute thereby transferring Sessions Case No. 54 of 2003 arising out of Gazaria RS Case No. 10 (8) 1996 Dated 15.08.1996 under Sections 364/302/201/109 of the Penal Code from the Court of Sessions Judge, Munshignj to the Court of Sessions

Judge. Dhaka.

2. The respondent No. 1 lodged an F. I. R on 15.08.1996 with the officer-in-Charge of

Gazaria Police Station stating, inter alia, that on the night following 14.08.1996 the accused petitioner took his son victim Tareq, in his car on the plea of dinner in a Chinese Restaurant but Tareq did not return home on the night and on query it was learnt that the accused along with his son and other friends took their dinner at a restaurant at Banani and thereafter went to Meghna Bridge where the victim put off his clothes and got into the river for swimming and that the accused came to the informant and handed over the clothes to him but the informant suspected that his son Tareq had been killed by the accused and others and on the basis of the aforesaid F.I.R the case was started and charge sheet was submitted against the appellant and others and thus the aforesaid sessions

case was sent for trial before the learned Sessions Judge. Munshignaj. The respondent

No. 1, the informant of the case filed an application before the High Court Division under

Section 526 of the Code of Criminal Procedure for transferring the case from the Court of

Sessions Judge, Munshiganj to the Court of the Sessions Judge, Dhaka or to Metropolitan

Sessions Judge. Dhaka Whereupon Criminal Revision No. 657 of 2003 was started. The

High Court Division after hearing the parties made the Rule absolute, thereby transferring the case to the learned Sessions Judge, Dhaka, Hence is this appeals.

3. In support of the appeal, Mr. Mainul Hosein, learned Senior Advocate submits, inter

alia, that there being no apprehension or doubt expressed about the fairness or impartiality of the trial in the Court of Sessions Judge at Munshiganj and the prosecution or any other party not taking any initiative for transferring the case on any such ground, and that a case has to be tried at its normal venue but in the instant case the place of occurrence being situated within the district of Munshiganj the case is required to be tried in the judgment of Munshiganj and that no cogent ground having been stated to justify the transfer, the impugned order of transfer has caused error of law.

4. Mr. T. H. Khan, learned Senior Advocate, appearing on behalf of the respondent

No. 1-the informant of the case opposes the appeal submitting enter alia, that it was true

that there was no allegation of bias of the learned judge and according to him that is not

the only reason to justify transfer of a criminal Case. He has placed the charge sheet and placing the list of witnesses submits that most of the witnesses are residents of Dhaka and the informant and the accused appellant as well are residents of Dhaka and, therefore, for convenience of the parties including the witnesses bonafide prayer for transfer of the case was made and the High Court Division after considering the facts and circumstances and the law allowed the prayer and as such the appeal is liable to be dismissed.

5. We have considered the submissions made at the Bar and perused the materials on

record. It appears that the accused appellant as well as the informant respondent No.l and most of the witnesses hail from Dhaka. The contention that the transfer of the case from

Munshiganj to Dhaka will tend to the general convenience of the parties as most of the witnesses hail from Dhaka has substance. The submission made on behalf of the appellant that if the case is tried at Dhaka the accused shall be prejudiced due to hostile press appears to us to be without substance.

6. We have perused the impugned judgment and order and in view of the discussions made above we do not find any error of law in the said judgment. For the reasons mentioned above, the appeal appears to be bereft of any sustainable ground.

The appeal is, therefore, dismissed.

Ed

Source: I ADC (2004), 360

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