Appellate Division Cases
(Criminal)
PARTIES
The State …………………………….……….Appellant
-VS-
Nur Husain alias Hiron ………………………Respondent
JUSTICE
Syed J.R. Mudassir Husain CJ
Md. Ruhul Amin J
Md. Tafazzul Islam J
JUDGEMENT DATE: 17th August 2006
The Penal Code, Section 489C, 395 and 397. The Code of Criminal Procedure, Section 561A. The Special Powers Act. 1974, Section 25A
In 15 BLD (HcD) 477 and 9 BLC (HCD) 44 DLR (AD) 95, 49 DLR (AD) 130 and 175,
1983 BLD (AD) 193, 1984 BCR (AD) 532, 1989 BLD (AD) 62, 5 BLC (AD) 74, 7 BLC
(AD) 43 and 10 MLR (AD) 301.
In the FIR there was no allegation that accused had tried in any way to counterfeit
or perform any part of the process of counterfeiting or sell or buy or make or perform any part of the process of making or intended to use the counterfeit currency-notes, and the mere possession of counterfeit currency-notes not being made punishable under Section 25A of the Special Powers Act ……………..(7)
In law in view of the settled principle of law, that summary disposal of a case, be
that in revisional jurisdiction or in other jurisdiction, without hearing the other side
is not legally sustainable and appreciable………………(11)
since the Respondent is in custody for more than 4 years and that in the FIR as well as in the police report for prosecution on offence under Section 25A of the Special
Act having been disclosed the High Court Division committed no error in directing
the Court of Magistrate to enlarge the petitioner on bail, mere possession of the counterfeit currency notes or in other words possession alone in the absence of other
ingredients as in Section 489C of the Penal Code, no offence under said section of the Penal Code can be considered to have been committed……………..(12)
Abdur Razzaque Khan, Additional Attorney General, instructed by A.S.M. Khalequzzaman, Advocate-on-record ………………..For the Appellant
Abdur Rab Chowdhury, Senior Advocate, instructed by Zahirul Islam, Advocate-on-record…………………….. For the Respondent,
JUDGMENT
1. Md. Ruhul Amin J :- This appeal, by leave, is by the State against the judgment and order dated March 6, 2005 of a Division Bench of the High Court Division in Criminal
Miscellaneous Case No. 2196 of 2005 (arising out of Special Tribunal Case No. 25 of 2003, G.R. Case No. 42 of 2001 of the Special Tribunal No. 1 of Laxmipur). The appeal is as regard the order which runs as:” The trial of the petitioner under Section 25A is not legally sustainable in law but if a Rule is issued on this application there will be further delay in the disposal of the case particularly when the petitioner has been languishing in hajot for about 4 years. In that view of the matter, in exercise of inherent power we direct the Special Tribunal No.l Laxmipur to transmit the case record to the learned Magistrate Cognizance Court for taking necessary action in the matter for ends of justice. We direct the learned Magistrate Cognizance Court Laxmipur to peruse the record of the case and the documents submitted therein and on examination of the same if he finds a prima facie case under the provision of the Penal Code to take cognizance of the offence in accordance with law and then to send the case record for trial to the appropriate Court.
Section 489C of the Penal Code is a bailable offence and in that view of the matter. We direct the learned Magistrate to admit the petitioner on bail to his satisfaction.”
2. The Criminal Miscellaneous Case was registered upon an application filed by the
accused under section 561A of the Code of Criminal procedure. The High Court Division
made the order appealed without issuing Rule and also without hearing the State.
3. Facts in the background whereof the aforesaid Special Tribunal Case has been initiated, in short, are that the informant, Inspector CID, City Zone, Dhaka (South) lodged and First Information Report on January 20, 2001 at Laxmipur Police Station, District-Laxmipur, stating amongst others that to apprehend suspected accused of Dhanmondi. P.S. Case No. 44 dated December 19, 1999 under Sections 395 and 397 of the Penal Code he along with the other Police personnel went to Laxmipur District and reaching there requistioned Police Officials and Police personnel from the Laxmipur Police Station and at about 3.30 a.m. of January 20, 2001 went to the house of accused Mohiuddin in village-Ramanandi in No. 16 Lahakandi union Parishad and while searching the house of accused Mohiuddin then a travel beg containing counterfeit cur-rency-notes. Government stamps, revenue stamps and instruments for making counterfeit currency-notes, revenue stamps and government stamps and other materials used for conterfeiting the currency-notes’ and Government stamps were found and thereupon arrested Mohiuddin and his son Nur Husain alias Hiron, that on return to the thana ‘ejahar’ was lodged with the Laxmipur Police Station by the Inspector CID, City Zone, Dhaka (South) and thereupon Laxmipur P.S. Case No. 5 dated January 20, 2001 was registered under Section 25A of the Special Power Act, 1974.
4. On completion of investigation charge-sheet was submitted on April 30, 2003 against
Nur Husain alias Hiron i.e. Respondent No.l herein as well as against Mohiuddin and
another under Section 25A of the Special Powers Act.
5. In due course the case records were sent to the Special Tribunal, Laxmipur and the
Special Tribunal framed charged on April 8, 2004 against 3 accused namely, Nur Husain
alias Hiron who was in custody, Mohiuddin who was on bail and Foisal who was in
abscondance under Section 25 A of the Special Powers Act. Nur Husain alias Hiron and
Mohiuddin pleaded not guilty and claimed to be tried when the charge was read over and
explained to them.
6. Prosecution till the filing of the Criminal Miscellaneous Case by Nur Husain alias
Hiron under Section 561A of the Code of Criminal Procedure examined 10 witnesses.
7. Nur Husain alias Hiron moved the High Court Division by filing an application under
Section 561A of the Code of Criminal Procedure stating, inter alia, that in the FIR there was no allegation that accused had tried in any way to counterfeit or perform any part
of the process of counterfeiting or sell or buy or make or perform any part of the process of making or intended to use the counterfeit cur-rency-notes, and the mere possession of counterfeit currency-notes not being made punishable under Section 25A of the Special Powers Act the continuation of the Special Tribunal Case is a gross abuse of the process of the Court, that as the trial is prolonging because of non-coming of the prosecution witness and consequent thereupon as the petitioner i.e. Nur Husain alias Hiron is languishing in Jail for over a period of 4 years and as such the continuation of the proceeding being abuse of the process of the Court is liable to be quashed, that mere possession of conterfeit currency-notes being not an offence punishable under Section 25A of the Special Powers Act, 1974 in the light of the decisions reported in 15 BLD (HCD) 477 and 9 BLC (HCD) 668, the instant case before the Special Tribunal against the petitioner is liable to be quashed.
8. The High Court Division in the background of the statements made in the application filed under Section 561A of the Code of Criminal Procedure and the grounds taken therein was of the view that there was no allegation in the FIR as to counterfeiting currency notes by the petitioner i.e. the Respondent herein and”consequently no offence has been disclosed in the FIR and in the charge-sheet punishable under Section 25A of the Special Powers Act, but rejected the prayer for quashing the proceeding of the Special Tribunal Case No. 25 of 2003 since there is allegation in the FIR as well as in the charge-sheet of recovery of counterfeit currency-notes from the possession of the accused Nur Husain alias Hiron and thereupon observed an offence punishable under Section 498C of the Penal Code appears to have been committed and then passed the order as quoted hereinbefore and taking exception thereto the State moved this Court by filing Criminal Petition for Leave to Appeal and the leave was granted to consider the following grounds:
“Because the High Court Division have on misconception of law, facts and circumstances
passed the judgment and order dated 06.03.2005 in Criminal Miscellaneous case No. 2196 of 2005 disposing of the petition directing the Special Tribunal to transmit the case
record to the learned Magistrate Cognizance Court to consider charge under Section 489C of the Penal Code and consider bail to the petitioner and as such the order is liable to be set aside. Because the materials on record constitute an offence under Section 25A of the Special Powers Act, 1974 and as such the impugned order to the effect that the case comes under Section 489C of the Penal Code is erroneous. Because the learned Judges of the High Court Division without issuing any rule and hearing the State summarily disposed of the Criminal Miscellaneous Case No. 2196 of 2005 directing transmission of proceedings of Special Tribunal Case No. 25 of 2003 under trial for offence under Section 25A of the Special Powers Act, 1974 to Magistrate Court Laxmipur for cognizance directing the said Court to peruse the record of the case and documents submitted there on “and on examination of the same if he finds a prima-
facie case under the provision of the Penal Code to take cognizance of the offence in according with law and then to send the case record for trial to the appropriate Court” and further the learned Judges of the High Court Division also observed “489C of the Penal Code is a bailable offence and in that view of the matter we direct the learned Magistrate to admit the petitioner on bail to his satisfaction” and such summary disposal with
a direction is and illegality warranting interference for ends of justice”.
9. It may be mentioned the High Court Division passed the order dated March 6,
2005 without issuing any Rule or in other words in a summary manner. It is seen from
the order of the High Court Division that the State was also not heard while the High Court Division making the Order (already quoted above) impugning which the State has filed the appeal.
10. It has been submitted by the learned Additional Attorney General that the High
Court Division was in error in taking the view that the First Information Report and the
police report (charge-sheet) do not disclose and offence punishable under section 25A of
the Special Powers Act, rather disclose an offence under section 489C of the Penal Code
in that the said two reports clearly show that the Respondent was apprehended having been found in possession of counterfeit currency notes and government stamps as well as being in possession of the instruments and the materials for the purpose of making counterfeit currency-notes under section 25A of the Special Powers Act and hence the High Court Division upon misconception of law passed the order for transmitting as to whether any offence under Section 489C of the Penal Code has been committed by the Respondent. It has also been submitted that materials being sufficient on record disclosing offence under Section 25A of the Special Powers Act the High Court Division was in serious error in directing the Special Tribunal to send the case records to the Court of Magistrate for examining the said records for the purpose of ascertaining whether any offence under Section 489C of the Penal Code has been committed.
11. Lastly it has been submitted that the High Court Division having had made the direction to the Special Tribunal to send the case records to the Court of Magistrate in a summary manner as well as without hearing the State, the order so passed by the High Court Division is not sustainable in law in view of the settled principle of law, that summary disposal of a case, be that in revisional jurisdiction or in other jurisdiction, without hearing the other side is not legally sustainable and appreciable.
12. As against ,the aforesaid submissions of the learned Additional Attorney General the
learned Counsel for the Respondent has submitted that searching of the Respondent’s
house at 3.30 a.m. being violating of the fundamental right and that material alleged to
have been collected upon resorting to illegal procedure and thereupon case having been
initiated upon making allegation disclosing no offence under Section 25A of the Special
Powers Act, the High Court Division committed no error in making the order direction the Special Tribunal to transmit the case record to the Court of Magistrate and further directing the Court of Magistrate to examine the case record to see whether any offence under Section 489C of the Penal Code has been committed or the materials on record disclose any offence under Section 489C of the Penal Code. The learned Counsel continued since the Respondent is in custody for more than 4 years and that in the FIR as well as in the police report for prosecution on offence under Section 25A of the Special Act having been disclosed the High Court Division committed no error in directing the Court of Magistrate to enlarge the petitioner on bail. It has also been submitted that in the background of the decisions of the High Court Division in the cases reported in 15 BLD (HCD) 477 and 9 BLC (HCD) 664 and 54 DLR 98 that mere possession of the counterfeit currency notes or in other words possession alone in the absence of other ingredients as in Section 489C of the Penal Code, no offence under said section of the Penal Code can be considered to have been committed, the High Court Division was
not in error in making the direction taking exception whereof appeal has been filed and
that possession of counterfeit currency notes as is not an offence under the Special Power
Act the High Court Division was quite correct in making the direction to send the case record to the Court of Magistrate for examination as to whether any offence under Section 489C of the Penal code is found to have been committed by the Respondent.
13. Provision of Section 25A of the Special Powers Act reads as: “25A. PENALTY FOR COUNTERFEITING CURRENCY-NOTES AND GOVERNMENT STAMPS-WHOEVER (a) Counterfeits, or knowingly performs any part of the process of counter-feiting any currency-note of Government stamp; or (b) Sells to, or buys or receives from any person, or otherwise traffics in or use as geunine, any counterfeit currency-note or Government stamp, knowing or having reason to believe the same to be counterfeit; or
(c) Makes, or performs any part of the process of making, or buys or sells or disposes of, or has in his possession, any machinery, instrument or material for the purposes of being
used, or knowing or having reason to believe that it is intended to be used, for ounterfeiting any currency-note or Government stamp, shall be punishable with death, or with [imprisonmet for life], or with rigorous imprisonmet for a term which may extend to
fourteen years, and shall also be liable to fine.
14. Explanation In this section(a) “Counterfeit” has the meaning assigned to it in the Penal Code (XLV of 1860); and (b) “Government stamp” means any stamp issued by the Government for the purpose of revenue.” and the provision of Section 489 of the Penal
Code reads as follows: “489C. Whoever has in his possession any forget or counterfeit currency-note or banknote, knowing or having reason to believe the same to be forged or counterfeit and intending to use the same as genuine or that it may be used as genuine, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
15. It is seen from the FIR and the police report that police apprehended the
Respondent and others with the counterfeit currency-notes. Government stamps and
Revenue stamps as well as with the instrument of counterfeiting currency-notes and
Government stamps and also other materials use for counterfeiting currency-notes and
Government stamps. It is correct that the statements of fact made in the First
Information Report and the police report do not show the ingredients of section 489C of
the Penal Code are there. But the statements of facts made in the First Information Report
and the police report disclose the ingredient of offence as provides in clause(c) of Section
25A of the Special Powers Act. This being the state of the matter we are of the view the High Court Division was in error in holding that the First Information Report and the police report do not disclose any offence under Section 25A of the Special Powers Act and thereupon in making in summary manner the order directing the Tribunal to send the records of the Special Tribunal Case No. 25 of 2003 to the Court of Magistrate and further directing the Court of Magistrate to examine the materials in the record to ascertain whether the materials on record prima facie show any offence said have been committed under Section 489C of the Penal Code by the Respondent and others. The decisions in the reported cases referred to by the learned Counsel of the Respondent were not made in connection with cases under Special Powers Act, 1974, hence the said decisions have no relevancy to the instant case.
16.We appreciate the anxiety of the High Court Division for early disposal of a case
particularly a case like the instant one, and because of the said anxiety the manner in
which the High Court Division has passed the order under appeal cannot be considered
legally well founded and sustainable and such kind of summary order has been disapproved both in civil matters as well as criminal matters. This Court has disapproved disposal of revisionl application or other matters in summary manner as well as without hearing the other side or in other words disposal of the revisional application, both civil and criminal. in a summary manner without issuing the Rule and hearing the other side. In this connection reference may be made to the cases reported in 44 DLR (AD) 95, 49 DLR (AD) 130 and 175, 1983 BLD (AD) 193. 1984 BCR (AD) 532, 1989 BLD (AD) 62, 5 BLC (AD) 74, 7 BLC (AD) 43 and 10 MLR (AD) 301.
17. Since it is seen that there are materials in the record disclosing prima-facie case against the Respondent and others or an offence under section 25A(C) of the Special Powers Act said to have been committed by the Respondent and others, we are of the view High Court Division was in error in making summarily the order appealed. It appears the High Court Division without looking into the materials as are in the First Information Report and the police report for prosecution has held that the materials on record do not disclose any case under Section 25A of the Special Powers Act, since we have already mentioned that the materials on record prima-facie disclose a case under clause (c) of Section 25A of the Special Powers Act.
18. In that view of the matter we find merit in the appeal.
19. Accordingly the same is allowed in part. The order for sending the records of the
Special Tribunal Case No.25 of 2003 to the Court of Magistrate for ascertaining whether
the materials on record disclose an offence under Section 489C of the Penal Code and if
the result of examination is in the affiramative, then to send the record to Court of competent jurisdiction for trial is set and since the Respondent is in jail from January, 2001 and the way the prosecution has conducted the trial being not appreciable we are of the view that the Respondent should be enlarged on bail. The High Court Division in making direction for enlarging the Respondent on bail was not in error.
20. The Special Tribunal is directed to release the Respondent Nur Husain alias Hiron on
bail to its satisfaction.
Ed.
Source: IV ADC (2007), 85