Appellate Division Cases
The State ……………………………………………………..Respondent
Syed J. R. Mudassir Husain C J
Mohammad Fazlul Karim J
Amirul Kabir Chovvdhury J
20th November 2005
The Code of Criminal Procedure (V of 1898), 561A.
The Arms Act, Section 19(a).
The Special Powers Act, (XIV of 1974), Section 26.
Application under section 561A of the Code of Criminal Procedure cannot lie praying to quash the judgment of a criminal trial unless it is shown that there is no legal evidence. In the instant case the learned Advocate-on-Record failed to make out any case before us to hold that the instant case has got no legal evidence (6)
Md. Aft ah Hossain Advocate-on-Record For the Petitioner.Not Represented Respondent
1.Amirul Kabir Chowdhury J:- Convict petitioner Shahabuddin seeks leave to appeal by this petition against the judgment and order dated 28.10.2003 passed by the High Court Division in Criminal Miscellaneous Case No. 12022 of 2003 rejecting the application of the petitioner filed under Section 561 A of the (Code of Criminal Procedure.)
2. The facts, in short are that on 19.03.1998 while Md. Farook Hossain (P.W.2) was passing in front of Feni Government College he heard hue and cry in the college filed and went there and found the accused petitioner Shahabuddin detained by people on the allegation o( dacoits and he then informed local police through telephone and on arrival of the police the accused petitioner was searched from whom a pipe gun-30″ long was recovered and the police made a seizure list and First Information Report was lodged by aforesaid P. W. 2 on the basis of which Feni P.S.Case No. 20 dated 20.03.1998 was started and the case being investigated charge sheet was submitted on 17.07.1998 under Section 19(a) of the Arms Act read with Section 26 of the Special Powers Act, 1974. 3. The case thereafter being sent for trial, charge was framed against the accused petitioner under Section 19(a) of the Arms Act to which he pleaded not guilty and claimed to be tried. Thereafter prosecution produced six witnesses. The accused respondent was present in court till examination of P.Ws. 1, 2 and 3 and being relapsed on bail he absconded thereafter. Be that as it may the learned Special Tribunal After conluing the trial convicted the accused petitioner under section 19(a) of the Arms Act. He sentenced him to suffer rigorous imprisonment for 10 years by judgment and order dated 12.06.2001. The accused petitioner remained in ascendance till 20.01.2003 on which dated he arrested
was produced before the court. Thereafter he preferred an application under Scction561A of the Code of Criminal Procedure praying to quash the proceeding, which was registered as Criminal Miscellaneous Case No. 12022 of 2003 and a Division Bench of High Court Division after hearing the petitioner rejected the petition summarily as already mentioned
above. Hence is this petition.
4. Mr. Md. Aftab Hossain. learned Advocate-on-Record in support of the petition submits, inter alia, that the High Court Division committed error failing to consider that entire case is false and was initiated at the instance of one Joynal Hazari, an enemy of the petitioner and that there was no eye of witness to the alleged occurrence and as such the judgment of the High Court Division has been passed illegally. There being no evidence warranting conviction of the accused petitioner the High Court Division committed error refusing to quash the proceeding and more so rejecting application under Section 561A of the Code summarily.
5. We have considered the submissions and perused the materials on record. It appears that the learned Special Tribunal considered the evidence of witnesses including P.W., 1 Aziz Ullah Mazan P. W 2 Md. Farook Hossain who were also seizure list witnesses and the witnesses produced by the prosecution proved the case beyond doubt. It appears that the High Court Division in consideration of the facts and evidence on record passed the impugned judgment.
6. It may be mentioned that application under section 561A of the Code of Criminal Proedure cannot lie praying to quash the judgment of a criminal trial unless it is shown that there is no legal evidence. In the instant case the learned Advocatc-on-Record failed to make out any case before us to hold that the instant case has got nolegal evidence.
7. In such view of the matter we are of the view that the High Court Division did not commit any illegality in rejecting the application filed under Section 561A of the code of Criminal procedure. There is no substance in this petition and hence it is dismissed.
Source : III ADC (2006), 420.