Appellate Division Cases
(Criminal)
PARTIES
Runu Akhter …………………………………………..Petitioner
. -vs-
Md. Barkat (Boston) alias Md. Kamal ……………….. Respondent
JUDGES
Syed J. R. Mudassir Husain C.J.
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J.
Date of Judgment
22nd August 2004
The Penal Code (XLV of 1860), Section 302/34.
There is allegation against the accused respondent who is the principal accused and against others of firing gun shots and thereby murdering the deceased husband of the informant who was a popular Ward Commissioner and thus there is allegation of involvement of the accused respondent in the commission of the said sensational murder of late Ward Commissioner Shaukat AH and as the case is still being investigated with allegation of threat and tempering with the evidence/witnesses his bail should be cancelled and the ought to remain in custody for securing the ends of justice (4)
ADVOCATES
Shaukat Ali Khan, Senior Advocate, (Rehan Husain, Advocate with him), instructed by Nurul Islam Bhuiyan, Advocate-on -Record For the Petitioner. M. A Malek, Senior, Advocate, (S. M. Munir, Advocate with him), instructed by Mahbubur Rahman, Advocate-on-Record For the Respondent.
ORDER
1. Mohammad Fazlul Karim J:- The informant seeks leave to appeal against the judgment and order dated 24.7.2004 passed by the High Court Division discharging the rule in Criminal Miscellaneous Case No. 4662 of 2003 affirming those dated 8.2.2003 of the Metropolitan Additional Sessions Judge, First Court, Dhaka in Metropolitan Criminal Revision No. 15 of 2002 arising out of Mirpur P.S. Case No. 76(8) 2001 under Section 302/34 of the Penal Code allowing revision and reversing those dated 5.1.2002 of Chief Metropolitan Magistrate, Dhaka canceling the bail of the accused respondent.
2. The petitioner lodged an F.I.R. stating, inter alia, that informant’s late husband was the Ward Commissioner for Ward No. 12 under Dhaka City Corporation. On 25.8. 2001 at about 9 a. m. the informant’s husbands along with 3 other persons from his village were going to the BNP office at Banani in a yellow taxi. As they were going out of the garage informant’s deceased husband received a call from his village on his mobile and passed it on to one of the co-villagers kanchon. While the said Kanchon was on the phone accused Md. Barkat @ Boston, Mohsin, Haiz, Shahi Alam, Md. Hossain and Md. Siddique sprayed bullets and attacked them. Informant’s deceased husband was shot in the head, waist and legs. The driver Munir Hossain in attempt to save him stepped on the accelerator of the car but he was also shot. The car could not go very far. After the accused left the place of occurrence, informant’s brother-inlaw (Bhashur) Liaquat Ali, Md. Babul Akhter and the owner of the neighboring studio one Asad took the deceased in a scooter to Surhrawardi Hospital for treatment and then he was taken to Dhaka Medical College Hospital where attending doctor declared him dead. The injured driver was being treated at Dhaka Medical College Hospital. A number of neighboring persons witnessed the occurrence. There had been a dispute regarding business between the deceased and the accused Boston. In fact informant’s decades husband had to told her that he might be murdered as a result of business dispute and he also said this to Md. Jalal Uddin. Hence the case being Mirpur P.S. Case No. 76 (8) 2001 was initiated.
3. The respondent Md. Barkat @ Boston surrendered before the learned Chief Metropolitan Magistrate, Dhaka on 14.10.2001 and prayed for bail and he was enlarged on bail on the same date i. e. on 14. 10. 2001. Thereafter the accused respondent Md. Kamal Hossain Barkat @ Boston and others were continuously threatening the informant- petition Runu Akhter, her two young children with dire consequences if they fail to withdraw the case. In the view of this the informant petition filed a general diary with Mirupur police station being G. D. No. 1194 dated 17.10.2001. Thereafter the accused respondent and other co accused were very furious and started to threaten them again. Therefore the informant petitioner filed an application for cancellation of his bail stating all the relevant facts and grounds before the learned Chief Metropolitan Magistrate, Dhaka on 18.10.2001. Upon perusing the above application for cancellation of bail filed by the informant petitioner, the learned Chief Metropolitan Magistrate, Dhaka directed the officer-in-charge of the concerned police station to investigate into the matter and submit a report by order dated 18.10.2001 . In accordance with the said order dated 18.10.2001 the Additional Deputy Commissioner of Police (Detective) Prosecution, Dhaka Metropolitan Police, Dttajw investigated into the case and submitted a report on 24.10.2001 recommending that bail of accused respondent ought to be cancelled in the interest of proper investigation of the case and also for the safety and security of the informant petitioner. The said report further stated that the accused respondent was having regular secret meeting with other co accused planning to find a way out of this case and that they were trying to harass and humiliate the petitioner. They also tried to lodge a false case with Mirpur police station which they failed even to make out. Due to the undue influence of the accused respondent and continued threat some of the eye witnesses had left the area. The accused respondent made an application 1.12.2001 before the learned Chief Metropolitan Magistrate, Dhaka for re investigation into the matter by any law enforcing agency other than the Detective Branch alleging that the informant petitioner has managed to influence the Detective Branch of the police. In the meantime there were two further orders dated 5.11.2001 and 26.11.2001 by the learned Chief Metropolitan Magistrate, Dhaka and in compliance with those orders the Inspector of Police, Detective Branch, Dhaka Metropolitan Police again submitted a report stating that the accused was continuously threatening the informant and other witnesses of the case and that his bail ought to be cancelled for the proper investigation of the case and to protect the informant and others. This report further stated that the accused Kamal Hossain Barkat claimed to be abroad before the Magistrate but actually he was very much present in the country during that period. Upon perusing both the application, both the police reported regarding cancellation of bail and upon hearing both the parties the learned Chief Metropolitan Magistrate, Dhaka was pleased to pass an order on 5. 1. 2002 canceling the bail of accused respondent and directed him to surrender within 7.1.2002. Against the said bail cancellation order the accused respondent preferred a criminal revision on 7.1.2002 under section 435 read with section 439A of the Code of Criminal Procedure before the learned Metropolitan Sessions Judge, Dhaka being Metropolitan Criminal Miscellaneous Case No. 15 of 2002. That while the said revision was ending the operation of the order of the Chief Metropolitan Magistrate, Dhaka dated 5.1.2002 was stayed and time was taken by the accused respondent on several occasions and on the other hand the informant petitioner made a separate application before the said Metropolitan Sessions Judge, Dhaka praying for affirming the bail cancellation order dated 5. 1. 2002. Thereafter 18 dates passed and eventually the Metropolitan Sessions Judge, Dhaka delivered the impugned judgment and order on 8.2.2003 reversing the order dated 5. 1.2002 passed by the Chief Metropolitan Magistrate, Dhaka. Being aggrieved by the said order dated 8.2.2003 the informant petitioner Runu Akhter preferred an application under section 561Aof the Code of in Criminal Procedure before the Hon’ble High Court Division and Rule was issued and stay was granted and the High Court Division, by the same order dated 7.4.2003 directed the accused-respondent Md. Barkat (Boston) to surrender before the Chief Metropolitan Magistrate, Dhaka and to remain in custody till disposal of the Rule. The accused respondent without surrendering and without trying to vacate the order of stay at the High Court Division preferred Criminal Miscellaneous Petition No. 39 of 2003 (giving rise to Criminal ^Petition for Leave to Appeal No. 161 of 2003) and after obtaining the order of stay had been continuing to threaten the informant and her daughters and the witnesses. Thus he has been misusing the privilege of bail since 14.10.2001. After hearing both the parties the Appellate Division verbally directed the accused respondent to surrender before the concerned Court, which he did not do. Thereafter by order dated 19.6.2004 the Appellate Division dismissed the Criminal Petition for Leave to Appeal No. 161 of 2003 and again directed the accused Md. Barkat (Boston) aliasMd. Kamal Hossain was compelled to surrender on 27.6.2004 i. e. over 2 Vi years after his bail was cancelled (5.1.2002) although both the High Court Division and the Appellate Division repeatedly directed him to surrender. Upon hearing both the parties the High Court Division by the impugned judgment and order dated 24.7.2004 has been pleased to discharge the rule and vacated the order of stay granted earlier. It is against this judgment and order that the instant application has been filed. The case is still being investigated by the police, no police report has yet been submitted and the case is pending before the Chief Metropolitan Magistrate, Dhaka.
4. Mr. Shaukat Ali Khan, the learned Counsel appearing for the petitioner submitted that there is allegation against the accused respondent who is the principal accused and against others of firing gun shots and thereby murdering the deceased husband of the informant who was a popular Ward Commissioner and thus there is allegation of involvement of the accused respondent in the commission of the said sensational murder of late Ward Commissioner Shaukat Ali and as the case is still being investigated with allegation of threat and tempering with the evidence/witnesses his bail should be cancelled and the ought to remain in custody for securing the ends of justice. The learned Counsel further submitted that upon being threatened by the accused respondent the widowed informant petitioner Runu Akhter was compelled to file a general diary with the local police station followed by an application before the Chief Metropolitan Magistrate, Dhaka who in turn directed the investigating officer to investigate and submit a report about the matter. Then the said report was submitted corroborating the informant petitioner’s contentions and revealing the real picture. After considering all these and hearing both the parties the said Court dul and legally cancelled the bail as the accused respondent had lost the right to remain on bail. But the subsequent order reversing the bail cancellation order which has been affirmed by the High Court Division on 24.7.2004 has been illegal and has been passed without considering the materials on record. The learned Counsel further submitted that accused respondent to remain in custody and thereafter inspite of the order of the Appellate Division the accused respondent ignoring
the orders of the Courts abstained from surrendering and only on 27.6.2004 he surrendered but the fact remains that he was afugitive from justice at the relevant time and it is on this ground alone that the rule ought to have been made absolute in the High Court Division. As such the impugned judgment and order dated 24.7.2004 discharging the rule and vacating the order of stay may kindly be set aside for securing the ends of justice.
5. Mr. M. A. Malek, the learned Counsel appearing for the respondent has, however, submitted that the order for investigation though was ordered to be done by officer-in-charge of police station but the same having been done by the investigating officer of the case who is inimical to the accused respondent no reliance could be placed upon the said report inasmuch as the report in violation of the order of the Court being submitted are no legal report to be relied upon in support of the allegations of tempering of the witness threatening the informant. Mr. Malek further submitted that the F.I.R. was lodged on 25.8.2001 and the respondent surrendered on 14.10.2001 and obtained the order of bail and during this period in between 25.8.2001 to 14.10.2001 there was no allegation of threatening nor there was any allegation of influencing but after the order of bail the petitioner by filing G.D. entry submitting that the respondent is threatening the informant which is absolutely vague and malafide. There is no specific allegation nor any allegation of overt act was made out in that G.D. entry and in the application. Further he has submitted that the learned Chief Metropolitan Magistrate though passed an order that the
inquiry should be made by officer-in-charge but the detective branch of the police submitted report and as such it is a clear violation of the Court’s order and only on the basis of the report of Investigating Officer the bail should not be cancelled. The learned Metropolitan Sessions Judge being satisfied that there is no specific allegation against the opposite party and as such the cancellation of the bail by the another Chief Metropolitan Magistrate is totally wrong. The learned Metropolitan Sessions Judge granted bail on consideration of those facts and circumstances of the and reported to the case reported in 7 D.L.R. 637 wherein it has been stated that the bail granted by the Metropolitan Magistrate cannot be cancelled by the sub-Divisional Magistrate as in this particular case the bail has been cancelled by another Chief Metropolitan Magistrate. The submissions of the learned Counsel appearing for the petitioner merit consideration. Leave is granted. The respondent will remain on bail for a period of 3 (three) months from date. The petitioner is directed to prepare paper book out of court in accordance with Rules.
Source: III ADC (2006)668