Words and Phrases
Abetment is an offence under the Penal Code and a person may be charged for abetting an offence made punishable by a Special Act even though abetment may not have been mentioned as an offence under the Special Act.
HM Ershad Vs. State 45 DLR (AD) 48.
Adverse presumption—
The Court is justified to draw an adverse presumption against the prosecution for non—examination of competent witnesses without giving any reason.
Shah Alam Vs. State 42 DLR (AD) 31.
Affidavit—
Affidavit is to be sworn by the party against whom allegations of personal nature are made—No permission was obtained from the court for swearing the affidavit by Nityananda Das on behalf of the respondent No.3 and the said affidavit was not verified by the said deponent. Such affidavit on behalf of the respondent is not worth consideration. Since the respondent did not deny the allegatians against him the same remained uncontroverted.
Nurul Huda Miah Vs. Dhaka WASA 44 DLR 527.
Alibi—
Magistrate cannot discharge accused persons on the plea of alibi that they were at different places at the time of commission of offences alleged by the prosecution—Magistrate’s “finding” in this regard is based on no evidence. Mere submission of some papers supporting alibi is neither sufficient nor admissible as the stage of adducing defence evidence was not yet come. Magistrate’s order of discharge was not sustainable s it was based on gross misconception of law.
Nannu Gazi Vs. Awlad Hossain 43 DLR (AD) 63.
“Alter the finding”—
The Appellate Court has jurisdiction under section 423 (l) (b) (2) of the Code of Criminal Procedure to reverse an order of acquittal purporting to “alter the finding” of conviction.
Mofizuddin Vs. State 40 DLR (AD) 286;
Apology—
Apology is an act of contrition. When—a contemner tenders apology as an act of contrition the Court must weigh that apology and if it is found to be a realact of contrition, no action need be taken.
Shamsur Rahman, DIG of Prisons Vs. Tahera Nargis Syed 44 DLR (AD) 237.
Bail—
Court’s attention was drawn to the fact that in the FIR appellant No. 1 was not alleged to have done any overt act nor his name was there in the dying declaration—Trial had not yet begun even though charges had been framed more than a month before.
Copy of the trial Court’s order produced in Court indicating that trial may be delayed further—Appellants allowed to remain on bail.
Ashraf Ali Mondol Vs. State 42 DLR (AD) 8.
Bail—
The case of the petitioner who is a woman deserves special consideration— Merely because charge—sheet has been submitted against her under sections 302/109/120B/34 of the Penal Code, she is not automatically debarred from getting bail.
Majeda Khatun Vs. State 42 DLR 76.
Bail—
Bail is not to be withheld as a punishment [PLD 1972 (SC) 81). There is no legal compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death unless reasonable grounds exist to disclose their complicity.
Liaqat Sharf Vs. State 40 DLR 506.
Bail—
Bail in a pending appeal—In a pending criminal appeal when an appellant files an application for bail, the Court should not ordinarily issue a Rule. The Court may grant or refuse bail or ask the petitioner to come up with a separate petition and may hear the State if necessary before disposing of an application for bail.
Sree Monju Kumar Saha Vs. State 44 DLR (AD) 354.
Bail—
Attaching condition to bail is not permitted by law, it was contended from the Bar.
Iqbal alias Salim Vs. State 40 DLR (AD) 279.
Bail—
Purpose of granting bail may be defeated if payment of the fine is made a condition.
Iqbal alias Salim Vs. State 40 DLR (AD) 279.
Bail—
Appellant’s name not mentioned in the FIR nor any material could be gathered against him by police—Bail was not allowed on this contention by High Court Division but appeal was allowed by Appellate Division.
SK Kumar Vs. State 40 DLR (AD) 290.
Bail—
Appellant’s bail prayer on the ground of being a BA examinee. The appellant then alone prayed for bail by an independent application making out a special case for bail.
Nurul Islam Vs. State 40 DLR (AD) 244.
Bail—
bail in a case where the sentence is of short duration. In the present case the sentence is of two years and the disposal of the appeal in question normally takes time. In that circumstances the High Court Division ought to have exercised judicial discretion in the matter of granting bail to the appellants. The judicial discretion having not been properly exercised in the facts of the case the order is set aside and the appeal allowed.
Dhanu Mia Vs. State 43 DLR (AD) 119.
Bail Matter—
Interim ball granted by the Appellate Division during pendency of a criminal revision case in the High Court Division against trial Court’s order of conviction and sentence of three years RI under sections 325/34, Penal Code—Interim bail not to be allowed to continue for indefinite period when the sentence of imprisonment is hanging—interim bail allowed to continue further on specific terms.
Nizamuddin Vs. State 42 DLR (AD) 183.
Bail Matter—
Ad interim bail granted by the Appellate Division during the pendency of a criminal appeal in the High Court Division against an order of conviction and sentence of five year’s RI with fine under section 304 Penal Code—Ad—interim bail cannot be allowed to continue simply because an appeal against conviction is pending in the High Court Division—Interim bail to continue further on specific terms only.
Abdul Hakim Howlader Vs. State 42 DLR (AD) 178.
Banker—
The word “Banker” in section 409 Penal Code has not been used in the technical sense of the Banking Companies Act—it signifies any person who discharges any of the functions of the customary business’ of banking and would also include a firm or company that carries on such business.
Mustafizur Rahman Vs. State 45 DLR 227.
Benefit of Appeal—
When the Court sets aside the entire prosecution case on the benefit of doubt against appellants the non appealing accused is also entitled to the benefit of doubt.
Ator Ali Vs. State 44 DLR 478.
Bias—
Bias patent on the part of the Magistrate—High Court Division under Criminal Revisional Jurisdiction has found it appropriate to interfere with the impugned order of discharge under section 119 CrPC—The opposite parties were ordered to be bound down to keep peace without sending the case back on remand.
Sultan Ahmed Vs Golam Mostafa 41 DLR 219.
Bias—
The question of admissibility or non—admissibility of evidence should be left to be agitated when the case is argued. Merely because a Court acted illegally in allowing some evidence to go into the record or disallowing some evidence as irrelevant or took a wrong view of the law in passing an order would not by itself be a ground for bias, In the present case the order refusing to grant adjournment having been passed by the Special Tribunal not in violation of any mandatory provisions of law but in exercise of his discretionary power, could not itself give rise to a ground for transfer as no prejudice could be shown to have been caused to the accused.
Hussain Mohammad Ershad Vs. State 43 DLR 347.
Circumstantial Evidence—
In a case based on circumstantial evidence before hypothesis of guilt is 4rawn up on circumstances, the legal requirement is to prove the circumstances themselves like any other fact beyond reasonable doubt.
State Vs. Arman Ali 42 DLR (AD) 50.
Circumstantial Evidence—
Confession leading to the recovery of dead bodies receives ample corroboration from independent circumstantial evidence such as the presence of a nylon rope on the necks of the dead bodies as confessed—Participation in the commission of murder established.
Hazrat Ali & Abdur Rahman Vs. State 42 DLR 177.
Civil Action—
Acquittal in a criminal case does not stand in the way to seek remedy by civil action.
Abu Bakar Siddique Vs. Kafiluddin 44 DLR (AD) 314.
Contempt matter—
A contempt matter is in the nature of a criminal proceeding—The person proceeded against stands in the position of an accused. The allegation of contempt must be proved by the prosecution and in the case of any doubt its benefit shall go to the contemner. If no evidence is led the allegation must fail except in a case of contempt proceeding where the offence is committed in the very presence of the Judge.
Fazlur Rahman Molla Vs. Bangladesh 44 DLR (AD) 194.
Contempt of Court—
Court’s order dated 5.4.89 received on 6.4.89 during lock—up hours—There is nothing in Jail Code preventing a release of the detenu on Friday 7.4.89—The contemners overstepped the boundaries of the Ministry of Home Affairs Memo date 7.2.87 as they have no business of waiting for a further telephone call on Saturday after they informed the Ministry of the impending release of the detenus. Comtemners disobeyed the order of the Court instead of acting in aid of the Court in releasing the detenus—Contemners are guilty of contempt of Court and accordingly convicted.
AK Banik & Khokan Kumar Saha Vs. M Karim Jailor, Dhaka 42 DLR 122.
Corroboration—
In a case where bitter enmity is admitted between the parties it is required as a rule of prudence that there should be some such corroboration of the evidence of the interested witness as may inspire confidence in the mind of the court.
Abdul Mannan and others Vs. State 44 DLR (AD) 60.
Counter case—
counter case, what it is—the case which arose out of the same occurrence or when the time, place and manner of occurrence are the same and similar and the witnesses of one case are the accused in another case and vice versa it could be said that one case is the counter case of another.
On a careful scrutiny of both the cases and the charge sheet and other materials on record we find it difficult to say at the moment that the two cases are distinctly separated and one is not at all connected with the other so far the time of occurrence, place of occurrence, and the accused and witnesses are concerned. Since it is found that over the occurrence there are two conflicting versions of the respective parties the learned Sessions Judge seemed to have committed no illegality or even irregularity in holding that one case is the counter case of another and in that view of the matter passing the order for withdrawal of the case from the Metropolitan Magistrate to his own court for the purpose of sending it to the court for holding simultaneous trial.
Lufar Rahman Vs. Mosammat Aleya Begum 45 DLR 57.
Court’s Observations—
State seeking extinction of observations made in the judgment of the High Court Division as they are totally irrelevant and unnecessary for disposal of the appeal before the Court and they are derogatory to the entire criminal legal system of the country. On perusal of the judgment, particularly the impugned observations, it is found that they are irrelevant and totally unnecessary for the purpose of disposal of the appeal. The offending observations are treated as expugned.
State Vs. Abdul Mannan 44 DLR (AD) 173.
Criminal Matter—
Criminal proceeding— Pendency of civil case—It was not a good ground to refuse retrial of a criminal case due to pendency of civil suits. Result of a criminal case does not affect a civil Suit fl which the court is free to come to its own finding independently of the result of a criminal case.
Nagendra Chandra Sarker Vs. Aftabuddin 44 DLR (AD) 355.
Defence case—
When defence case fits in human nature and conduct the same should be considered more probable than the prosecution case.
Ator Ali Vs. State 44 DLR 478.
Delay—
Introducing PWs at a subsequent stage—Inordinate delay in examining important prosecution witnesses casts a serious doubt as to the truth of the prosecution case and in such circumstances their evidence is to be left out of consideration.
Sanwar Hossain Vs. State 45 DLR 489.
“Extenuating circumstance”—
what constitutes “extenuating circumstance” is not capable of any precise formulation which may be judicially determined in the facts of each particular case—grave and sudden provocation has sometimes been considered as an extenuating circumstance.
Abed Ali Vs. State 42 DLR (AD). 171.
Forgery—
The offence of forgery by its very definition consists of an act and its consequence and these together constitute the offence.
Sree Jagenath Chandra Bakshi Vs. State 42 DLR 238.
Fraud—
A wider meaning was given in several Indian and Foreign jurisdictions. Jahangir Hasan Vs. State 40 DLR 545.
“Fugitive from law”—
The appellants submitted themselves to the sentence passed and obtained an interim order of bail in their favour albeit wrongly. In the facts of the case it will be less than charitable to attribute to the appellants that they were “fugitive from law”.
Saidur Rahman Vs. Stare 40 DLR (AD) 281.
Injunction—
Order of—An order of injunction presupposes the possession of the person in whose favour the order has been made and any determination of the question of possession without reference to the order of the Civil Court would be clearly untenable and unacceptable so long the order of the Civil Court is in force. Relied on 1988 BLD (AD) 157=41 DLR (AD) 129.
Chand Mia Vs. The State 42 DLR (AD) 3.
Joinder of offences—
Joinder of scheduled and non—scheduled offences—Whether the trial was vitiated by such joinder—If a non—scheduled offence is included in the trial of a scheduled offence the trial does not necessarily become void or without jurisdiction but a question may be raised as to whether the accused was prejudiced by such joinder and in a particular case there may be necessity to set aside such a trial and direct a trial afresh.
Per Shahabuddin Ahmed CJ (agreeing): Smuggling particularly of gold has been defined in the Special Powers Act and this definition is exactly the same as that of smuggling under section 156(8) of the Customs Act. The offence is one and same. Therefore there is no question of joinder or misjoinder of charges. Though it has been made punishable under both the laws, but to try this offence exclusive jurisdiction has been given only to the Tribunal under the Special Powers Act, and as such, jurisdiction of an ordinary court, such as a Magistrate, to try the offence under ordinary law stands ousted. The respondent was rightly charged by the Tribunal under section 25B of the said Act and after trial he was rightly convicted under section 25B of the Act. The addition of the words “read with section 156(8)” in the charge is superfluous and totally unnecessary. This addition has not affected the Tribunal’s jurisdiction to try the offence.
State Vs. MM Rafiqul Hyder 45 DLR (AD) 13.
Joint action—
Omission may also render an offender liable for punishment—If a man joins with another to assault a person, even though the original intention was merely to inflict relatively harmless injuries, but if he sees his companions in course of the action giving serious beating which is likely to cause his death, but he does not take any step to interfere and the victim dies, such omission may render him liable under section 304.
Shaikh Baharul Islam Vs. State 43 DLR 336.
Judicial decorum—
The court does not approve of the manner and language in which judges (of the Division Bench) had expressed themselves against a brother Judge of the same court. The innuendoes against (bail) petitioner are tendentious against a Judge and apt to bring the court itself, to which the judges (of the Division Bench) themselves belong, into disrepute. Extreme disapproval is expressed over the lack of restraint and sobriety which marks the offending paragraph.
MA Wahab Vs. State 42 DLR (AD) 223.
“Licensee’ and “Lessee’—
A Licensee has no right, title or interest in the property save and except the right to use the same on behalf of the real owner, but a lessee has a right in the property and such right is heritable also. A licensee is only a user of the right of the real owner, whereas a lessee acquires a right in rem in the property itself.
Abul Hassnat Vs. Ershad Ali Beg 42 DLR 244.
Malafide—
In order to establish malafide on the part of public functionaries malafide must be conclusively established and cannot be readily inferred.
Several notices under the signature of the Secretary of the Dhaka University Discipline Board were dispatched to the petitioner directly to show cause against the proposed penalty or expulsion from Dhaka University which shows absence of malice on the part of the authority— Plea of malafide raised by the petitioner is not acceptable.
Farzana Haque Vs. University of Dhaka 42 DLR 262.
Malice in law—
Malice in law means wrongful act done intentionally without just cause or excuse and may also mean conscious violation of law to the prejudice of another.
Serajul Islam Vs. DG Food 43 DLR 237.
Oral Evidence—
Oral evidence of PW 4 contradictory to the confessional statement— This discrepancy arising out of the confessional statement and the main prosecution evidence not noticed by High Court Division—This is another infirmity in the conclusion of the HC Division. Since the recovery of the sandal and the dagger have been found not to have been proved beyond all doubt, the prosecution case which rests on only oral evidence cannot be relied on for sustaining the conviction.
Mizazul Islam Vs. State 41 DLR (AD) 157.
Passport—
A passport is a complementary part of its holder. It is needed to make a citizen complete outside his territory. It is not only a pass for any port, but also a part of its holder. Without it the right of locomotion abroad is a negation. A passport as such is more than a property to a citizen because without passport one cannot move an inch whenever he is outside the country. In the absence of the passport a person in an alien territory is a crippled person.
Syed Mokbul Hossain Vs. Bangladesh 44 DLR 39.
Possession—
Established principle as to possession of land delivered by a civil Court— if the possession has been delivered by a civil Court in execution of a decree or regulated by injunction, then it must be presumed that the person to whom possession has been delivered is in possession unless evidence is led to the contrary.
Chand Mia Vs. State 42 DLR (AD) 3.
Principle of admission by non—traverse—
Applicability of—The age of the kidnapper not having been challenged the principle of admission by non—traverse will apply.
Krishna Pada Dutta Vs. Bangladesh 42 DLR 297.
Private defence—
It is not correct that the right of private defence cannot be raised if it was not put forward at the time of cross—examination of witnesses—a certain plea which was not put forward at the time when evidence of cross—examination was recorded does not prevent the Court from accepting it, if the plea received support from the prosecution evidence.
Fulu Mohammad Vs. State 44 DLR 431.
Promissory Estoppel—
Had there been any assurance as claimed that the Government would fulfil the demand of the hunger strikers even then the plea of promissory estoppel could not be invoked because it is a settled principle that where a statute imposes a duty of a positive kind, not avoidable by the performance of any formality, for the doing of the very act which the party suing seeks to do, it is not open to the opposite party to setup an estoppel to prevent it. A promise cannot supersede a statutory duty of a public authority.
ABM Quabil Ahmed Vs. Ministry of Health 44 DLR 385.
Promissory Estoppel—
Applicability of the principle against Government—Whether Government would be bound by the acts of its officers acting beyond the scope of their authority—On facts it has conclusively been proved that the land underneath M/s Drums Metals Limited belongs to the Ministry of Defence. The agreement executed by the Ministry of Industry for sale of the land to the petitioner cannot bind the Government on the doctrine of promissory estoppel, more so, when the petitioner had the knowledge that the land belonged to the Ministry of Defence.
National Engineers Ltd., a Private Limited Company Vs. Director, Military Lands and Cantonment Directorate and others 44 DLR 144.
Quantum of Sentence—
When law does not provide for imposition of minimum sentence of imprisonment and discretion is left with the court, it is for the court to decide the quantum of sentence in consideration of the facts and circumstances of the case and interest of justice.
AMA Wajedul Islam Vs. State 45 DLR 243.
Released—
Released on bail —Discharged— Acquitted—Convicted— Reading the Code as a whole it appears that in relation to an accused petitioner several terminologies have been used in the Code denoting different connotations. Each of these words has separate meanings and each word is attended with different consequences.
Niamat Ali Sheikh Vs. Be gum Enayetur Noor 42 DLR (AD) 250.
Re-trial—
Retrial is to be allowed to give the prosecution reasonable opportunity to prove its case— It is true ordinarily retrial should not be directed as it gives a chance to the prosecution to fill up the lacunae of its case, if any, but in a case where in spite of the best efforts two material witnesses could not be produced, justice demands that reasonable opportunity should be given to the prosecution to prove its case.
Harun Sarker Vs. State 45 DLR 49.
Re-trial—
When retrial cannot be ignored—The alleged offence is a serious one affecting the pecuniary interest of the country. So the accused cannot be allowed to go scot free merely because of a technical mistake. Of course, the sentence suffered by the accused should not be ignored if he be at all found guilty on fresh trial.
Mozammel Huq Vs. State 43 DLR 614.
Re-trial—
General rule—As a general rule an order for retrial would be proper where the trial in the original trial Court has been vitiated by illegality, irregularity or otherwise defective or when original trial has been unsatisfactory for any particular reason, etc.
Md. Moslehuddin Vs. State 42 DLR (AD) 160.
Re-trial—
No retrial of the condemned prisoner could be allowed for abetting the offence especially when his unknown accomplices have been set free by the Sessions Judge.
State Vs. Sree Ranjit Kumar Pramanik 45 DLR 660.
Revenue Court—
Revenue officer dealing in mutation of the name in the record of rights is Revenue Court.
Ajit Kumar Sarkar Vs. Radiia Kanta Sarkar 44 DLR 533.
Rules of Police Regulation Manual—
Accused facing trial on capital charge— Entitled to be defended by a lawyer even if the trial is held in absentia—Court’s responsibility to appoint a lawyer to defend—Section 339B CrPC does not come in conflict with the Rule of PR Manual— Cardinal principle of criminal administration of justice stated.
State Vs. Jahaur Ali 42 DLR 94.
Suicide—
Value of a farewell letter written by the deceased in coming to decision in a criminal trial over a murder charge—The letter of the deceased written before her death indicating that she was going to commit suicide and other attending circumstances when considered in the light of NJ Modi’s comment that the finding of a general farewell letter is strongly presumptive of suicide, the defence version that it was no case of homicide but a case of suicide cannot be brushed aside.
Tariq Habibullah Vs. State 43 DLR 440.
Superior Court Tradition—
Narrating facts of the case—Judges are to digest the materials and summarise them in the judgment. We record our strong disapproval of the manner in which the learned Judges of the High Court Division described the prosecution case in the two complaint cases. They have quoted in full the petitions of complaint in Bengali. The superior Courts of this country have a tradition of narrating facts of the case in their own language, summarising them as concisely as possible. Vernacular materials are translated into the language in which the judgment is written. Same is the case with the narration of FIR, charge—sheet, (where necessary) deposition of witnesses, etc. The learned Judges are required to digest these materials and to summarise or paraphrase relevant and essential portions thereof in as short, succinct, concise and factual manner as possible. Lest it develops into an infectious practice we like to nip this unhealthy trend in the bud.
Abdur Rahim Vs. Enamul Huq 43 DLR (AD) 173.
Trap case—
Because of tough requirement of proof beyond reasonable doubt the laying of trap is the only method for detecting crimes like bribery which are committed in covert manner. Such a method is not prohibited. For laying a trap the investigating officer cannot be said to be thereby instigating commission of the offence. Principles of accomplice evidence cannot be extended to the evidence of trap witness, because the latter cannot be termed as accomplice. As to corroboration of trap witnesses no hard and fast rule can be given. There may be cases where the Court will look for independent corroboration. Equally there may be cases where the Court may accept evidence of trap witnesses.
Shahabullah Vs. State 43 DLR (AD) 1.
Written Constitution—
In a written constitution the Parliament’s right to making legislation is limited by the Constitution. This limited sovereignty of the Parliament in making laws is an essential feature of the working of the Government under a written Constitution.
Abdus Samad Azad Vs. Bangladesh 44 DLR 354.