Appellate Division Cases
(Criminal)
PARTIES
Tariqul Islam …………………………….Appellant (inboth the appeals)
-vs-
The State………………………………….. Respondent (in both the appeals)
JUSTICE
K. M. Hasan. C. J
Mohammad Fazlul Karim. J
Syed J. R. Mudassir Husain. J
JUDGEMENT DATE : 13th August, 2002
The Code of Criminal Procedure, Section 161,164, 26SC. The Penal Code, Sections 34, 324, 326, 327, 302, 34,109,120B, 326, 302 and 120A. The Explosive Substances (Act 1908), Sections 3,4 and 6 .
The confessional statements have been obtained by torture and duress cannot be
brushed aside. Furthermore, the said witness retracted their statements subsequently at the earliest opportunity inasmuch as the statements are also not uniform in implicating the appellant with the offence but the same were contradictory to each other. We fined substance in the argument of Mr. Khondker Mahbubuddin Ahmed that the statements are neither voluntary nor true and there is no other material independently to implicate the appellant in the case and as such the framing of charge against the appellant cannot be sustained in law……….(3)
Criminal Appeal Nos. 37-38 of 2001 (From the judgment and order dated 14tn
August, 2000 passed by the High Court Division in Criminal Revision No. 791 of 2000
and the judgment and order dated 14tn November, 2000 passed by the High Court division in Criminal Appeal No . 1906 of 2000).
Knondker Mahbubudin Ahmed, Senior Advocate, instructed by Md. Nowab AH,
Advocate-on-Record …………….For the Appellant (in both the Appeals)
Abdur Rouf, Deputy Attorney General, instructed by Mrs. Sufia Khatun, Advocate-on-
Record…………………… For the Respondent (in both the appeals)
Date of Hearing The 1st July, 2002 and 12th August 2003,
JUDGMENT
1. Syed J. R. Mudassir Husain, J :- These 2 (two) appeals by way of leave granted on 19th August, 2001 in Criminal Petition for leave to appeal Nos. 108 of 2001 and 111 of 2001 in Criminal Petition for leave to appeal Nos. 108 of 2001 and 111 of 2001 have been heard together as common question of law and facts are involved and there in the parties are also same and as such this single judgment will Governed them both.
2. The Criminal Appeal No. 37 of 2001 is directed against the judgment and order dated
14th August, 2000 passed by a Division Bench of the High Court Division in Criminal
Revision No. 791 of 2000 summarily rejecting the appellants revisional application filed
against the order dated 19.7.2000 passed by the Additional Sessions Judge, Court No.l Jessore in Sessions Case No . 105 of 2000 which arose out of Jessore kotwali P.S Case No. 20 dated 9 the March, 1999 framing a charge against the appellant under Sections 120B.326.302.34 of Penal ,Code.
3. The Criminal Appeal No. 38 of 2001 is directed against the judgment and order dated
14th November, 2000 passed by a Division Bench of the High Court Division in Criminal
Appeal No. 1906 of 2000 summarily rejecting the appeal filed by the appellant against the order dated 19.7.2000 passed by the Additional Sessions Judge, Court No. 1 Jessore, in Special Tribunal Case No, 41 of 2000 which arose out of Jessore kotwali P.S Case No. 20 dated 9th March, 1999 framing charge against the same appellant under Section 3.4 and 6 of the Explosive Substance Act, 1908.
4. The short facts, leading to the aforesaid appeals, arising out the same facts, are that one
Mohammad Abbul Aziz, the Sub-inspector of police of Kotwali Police Station, Jessore,
Lodged an F.I.R. on 7-3-1999 stating that 2 (two) powerful bombs were blasted at 1.15 A. M. on 7-3-1999 on the two sides of the stage set up in Jessore Town Hall Maidan in connecting with 12tn Udichi Representatives Conference held from 4-3-1999 to -3-1999 in which 6 (six) persons were killed on the spot and 4 (four) other injured persons died later on apart from hundred others being injured that no accused was mentioned in the said F.I.R nor any one was arrested by the police on duty there from the place of occurrence immediately thereafter.
5. The cases was investigated by the police for sometime, thereafter the case was transferred to criminal Investigation Department (CID) for investigation and on the same day 32 (thirty-Two) persons named in the column No. 2 of the charge sheet were arrested during the investigation and all for them were discharged as nothing transpired against them during about 130 days from 7-3-1999 (date of occurrence) to 17-7-1999 a total 28 (twenty-eight) persons were examined by the police and their statements were recorded under Section 161 of the code of Criminal Procedure and out of which 9 (nine) person were brought to Dhaka whose statements were recorded under Section 164 of the Code of Criminal Statements were recorded under Section 164 of the code of Criminal Procedure by the Court of Metropolitan Magistrate, Dhaka that 7 (Seven) out 9(nine) statements did not mention the name of the Appellant the 2 (two) others being Sukumar Majumder @ Nilu and Abdul Kader, though named the appellant but did not implicate him in any ways with the occurrence. The 5 (five) arrested accused persons in the case made confessional
statements under Section 164 of the Code of Criminal Procedure.
6. Police submitted charge sheet on 14-121999 against the appellant and 23 (twentythree)
others under Sections 324/326/327/302/34/109 and 120A of the Penal Code and also under Sections 3.4 and 6 of the Explosive Substances Act, 1908 in the aforesaid cases.
7. The appellant having found his name in the newspapers, surrendered before the High
Court Division and was granted anticipatory bail and thereafter he appeared before the trial Court where his bail was confirmed, thereafter he filed an application under Section 265C of the Code of Criminal Procedure before the trial court for discharging him but the said application was rejected by the learned Sessions Judge, court No. 2 Juessore vide Order No. 8 dated 197-2000 and framed charge against the appellant under Sections 120B/326/302 and 34 of the Penal code and against which, the appellant moved the High Court Division in revision being criminal Revision No. 791 of 2000 and the same was summarily rejected on 14-8-2001 and hence the present Criminal Appeal No. 37 of 2001.
8. Under the self same facts as aforesaid, the appellant having surrendered also filed an
application before the Special Tribunal for discharging from framing of Charge against him under Section 3, 4 and 6 of the Explosive Substances Act, 1908 . But the learned Sessions Judge, Court No.2, Jessore and the Special Tribunal upon hearing the appellant rejected the application by his order dated 19-7-2001 and framed charge against the appellant under the aforesaid Section of the Explosive Substances Act and against which, the appellant filed an appeal before the High Court Division being Criminal appeal No. 1906 of 2000 and the same was summarily dismissed on 14-11-2000 by another Division Bench of the High court Division and against which this criminal Appeal No. 38 of 2001 is before us.
9. Mr. Khondker Mahbubuddin Ahmed, the learned Counsel appearing for the appellant in both the appeals, placed before us the impugned judgment of the High Court Division as well as the orders of the learned Sessions judge and the learned Special Tribunal and thereafter contended that during 130 days from 7-3-1999 (date of occurrence) to 17-7-1999 a total of 28 (twenty eight) persons were examined by the police and their statements were recorded under Section 161 of the code of Criminal Procedure
that out said 28 (twenty eight) persons 9 (nine) were brought to Dhaka and their statements were recorded under Section 164 of the Cr. P. C by the Metropolitan Magistrate, Dhaka . Pointing out the aforesaid statements, Mr. Mahbubuddin Ahmed Contended that it is apparent that statments, of 7 (seven) persons out 9 (nine) did not mention the name of the appellant that the 2 (two) others namely, the statement of Sukumar Majumder @ Milu and Abdul Kader .though named the appellant but did not implicate him with the occurrence in any manner.
10. Learned Counsel further submitted that 5(five) arested accused persons also made confessional statements under Section 164 Cr. P. C. and then pointed out that the accused No. 1 Md. Rabiul Islam Moran, who was on remand for 8 (eight) days from 2.10.1999 to 11-10-1999 was taken straight from police custody to the Court of Metroplitan Magistrate, Dhaka on 11-101999 for making confessional statement, similarly
the accused No. 2 Md. Ahsan Kabir Hasan was on remand for 5 (five) days from 24-101999 to 28-10-1999 brought from police custody to the Metropolitan Magistrate, Dhaka, the accused No. 3 Sirajul Islam, being on remand for 14 (fourteen )days from 26-09-1999 to 8-101999 was taken straight from police custody to the Court of Metroplitan Magistrate, Dhaka on 8-9-1999. The said accused was arrested on 268-1999 in connection with Motijheel PS Case No. 62(9)99 the accused No. 4 Mohiuddin Almagir, was on remand for 10 days from 3-41999 to 12-4-1999 and he was taken straight
from police custody to the Court of Metropolitan Magistrate, Dhaka and the accused No. 5 Md. Nurun Nabi, was on remand for 7 seven) days from 26-9-1999 to 3-10-1999
and he was taken straight from police custody to the Court of Metropolitan Magistrate, Dhaka on 3-10-1999 who was arrested on 26-8-1999 in connection with Jessore Kotwali police Station Case No, 44 (5) 99. All of them thereafter made confessional statements under Section 164 of the Code of Criminal Procedure. Learned Counsel further pointed out that out of the aforesaid 5 (five) accused persons, who allegedly made confessional statements, the 3 (three) accused persons, namely, Md. Rabiul Islam Moran, Md. Sirajul Islam and Mohiuddin Aiamgir did not state anything about the appellant in their statements however, the accused Ahsan Kabir Shasan merely stated that he went to the residence of the appellant but he did not say anything to implicate the appellant in any
way.
11. Mr. Khondker also pointed out that accused Md. Nurun Nabi’s statement although
appears to have implicated the appellant but his statement being self exculpatory and having not stated as to how he was involved in the occurrence and it is argued that his statement cannot be used evidence against the appellant as not being corroborated by any other independent evidence.
12. Next argument of Mr. Khondker Mahbubuddin Ahmed is that the 3 (three)
accused persons, who made confessional statements have retracted their statements as having been taken under pressure and not voluntary Mr. Khondker Mahbubuddin Ahmed under the aforesaid facts and circumstances emphatically argued that the findings of the High Court division in Criminal appeal No. 37 of 2001 to the effect, “Besides the statements made under Section 161 of the Code by 5(five) accused persons the F.I.R and charge sheet, there is no other material produced before us including the statements of witnesses recorded under Section 161 or 164 of the Code which were presumably
before the trial Court being the documents sent with the record on perusal of which the said court passed the impugned order. In the absence of statement of witnesses recorded under Sections 164 and 161 of the Code which mean and include the documents sent with the records, as mentioned in Section 265C of the Code, it is not possible for us to scrutinizes whether in those statements the appellant has been in fact implicated in the alleged occurrence.”
13. Having reared to above submissions made by the learned Counsel, we fined enough
force in his above argument and we are of the view that the confessional statements of co
accused having been obtained in Dhaka being in police custody on remand for several days cannot be regarded as voluntary even if those are true for argument sake. So the argument of the learned Counsel that the confessional statements have been obtained by torture and duress cannot be brushed aside. Furthermore, the said witness retracted their statements subsequently at the earliest opportunity inasmuch as the statements are also not uniform in implicating the appellant with the offence but the same were contradictory to each other. We fined substance in the argument of Mr. Khondker Mahbubuddin
Ashmed that the statements are neither voluntary nor true and there is no other material independently to implicate the appellant in the case and as such the framing of charge against the appellant cannot be sustained in law.
14. The learned Counsel has next contended that the provisions of Section 265B and
265C of the code of Criminal Procedure have been introduced after omitting chapter XVIII of the Code of Criminal Procedure, the application for discharge under Section 265C is not to accept merely as post office as a heavy responsibility and duty have been cast upon the Court under Section 265C and Section 265D of the Code if Criminal Procedure in order to examine the ingredients of the alleged offence while taking
cognizance of a case and in framing charges against the appellant so that nobody can lodge vexatious and malicious prosecution. In such view of the matter it is argued that the High Court division committed error of law in not holding that in the facts and circumstances of the case there was no sufficient materials before the Court below (trial Court) to frame charge as aforesaid.
15. Mr. Abdur Rouf, the learned Deputy Attorney General appearing for the State
respondent has, however, tried to support the impugned judgment of the High Court Division but on being confronted by us, he finds difficulty to repel the above contentions raised by the learned counsel for the appellant.
16. We have read the impugned judgments of the High Court division. , The orders of the
learned Sessions Judge and the Special Tribunal and considered the submissions made by the learned counsel for the appellant. Be that as it may, form the facts and circumstances of the case and the materials collected and placed before the trial court at the time of hearing having not disclosed the alleged offences against the appellant we holed that there was no prima facie case to frame charge under the aforesaid sections of the Penal Code as well as of the Explosive Substance Act.
17. In view of the Above, we are of the view that framing of changes as aforesaid
against the appellant are not sustainable in law as there is no sufficient grounds for proceedings against the accused appellant and the High Court Division having not considered the facts and circumstances of the case and the provisions of Section 265C and Section 265D of the Code of Criminal Procedure Committed error of law in not discharging the appellant from the accusations leveled against him consequently we set aside the impugned judgments of the High Court division and hold that the charges as
framed are groundless and cannot be legally sustained. For the above reasons, we fined substances in both the appeals and accordingly both the appeals are allowed.
Ed
Source: I ADC (2004), 351