Appellate Division Cases
(Criminal)
PARTIES
Yusuf A. Hassan ……………………………………………….….Appellant
Vs.
K. M. Rezaul Firdous……………………………………………..Respondent
JUDGES
A. T. M. Afzal C J
Mustafa Kamal J
Latifur Rahman J
Mohammad Ismailuddin Sarker J
Date of Judgment
14th December 1995
The Code of Criminal Procedure 9V of 1898), Section 200, 202, 203, 435, 439A.
The Penal Code (XLV of 1860), Section 500, 501.
That after the dismissal of the petition of complaint under section 203 Cr. P. C the informant respondent’s remedy was to approach the Higher Court under section 436 Cr. P. C for further enquiry into his petition of complaint. Neither the Sessions Judge nor the High Court Division is invested with any power to direct any Magistrate to take cognizance of a case. Their power is strictly limited to directing further enquiry (13)
ADVOCATES
Serajul Huq, Senior Advocate (A. K. M. Nazrul Islam, Advocate with him), instructed by Sharifuddin Chaklader, Advocate-on-Record For the Appellant.Zakir Ahmed, Senior Advocate instructed by Md. Aftab Hossain Advocate-on-Record For the respondent
JUDGMENT
1. Mustafa Kamal J :- This appeal by leave by the accused appellant is from the judgment and order of a Division Bench of the High Court Division dated 18-4-95 in Criminal Miscellaneous Case No . 1118 of 1994 making the Rule absolute.
2. The complainant respondent filed a petition of complaint under sections 499/500/501 of the Penal Code on 16-4-94 before the Chief Metropolitan Magistrate, Dhaka against the appellant, which was registered as Criminal Petition No. 877 of 1994. He stated therein that he was an Assistant General Manager of Bangladesh Shilpa Rin Sngastha. He took voluntary retirement from service. He is now the Proprietor of a Private Firm. The appellant who is now the General Manager of the said Sangstha defamed him by writing letters to the Managing Director and the Chairman of the said Sangstha, to the Office of the Prime Minister and to the Ministry of Finance and also took steps for publishing the contents of the said letters to a newspaper and to a periodical alleging that the respondent
indulged in corruption while serving in the said Sangstha.
3. After examining the respondent on oath under section 200 Cr. P. C. the Chief Metropolitan Magistrate sent the petition of complaint to a Metropolitan Magistrate for judicial enquiry under section 2002 Cr. P. C. The report of the Metropolitan Magistrate was received by him on 7-5-94. It was stated in the enquiry report that it was the duty of the appellant to bring to the notice of the managing Director of the Sangstha any irregularity or illegality that the respondent may have committed during the period of his service in the Sangstha. The appellant has done it have not been disproved in any departmental proceeding or otherwise. It has not been proved that the appellant took steps to publish these allegations in newspapers or periodicals. If he has communicated the allegations to other departments then the matter should be departmentally enquired into. The allegation of defamation is not acceptable.
4. On perusal of the report of the judicial enquiry and on perusal of the records of the case the Chief Metropolitan Magistrate by an order dated 10-5-94 dismissed the petition of complaint under section 203 Cr. P. C.
5. The respondent thereafter filed Criminal Revision no. 222 of 1994 under sections 435 and 439A Cr. P. C. for setting aside the aforesaid impugned order dated 10-5-94. The learned Sessions Judge Dhaka by judgment and order dated 9-7-94 dismissed the revisional case on the finding that the appellant acted in his official capacity and sanction is required under section 197Cr. P. C. to prosecute him. On perusal of the records it appeared to the learned Sessions Judge that there was scope for taking cognizance under the relevant Section if the learned magistrate was satisfied that the ingredients of sections 500/501 of the Penal Code were present, but the learned Magistrate could not take cognizance without obtaining sanction under section 197 Cr.P. C. and as such the dismissal under section 203 Cr. P. C. was maintainable. The complainant respondent may take steps at first for departmental action against the appellant and thereafter may file the criminal case subject to Government sanction for prosecution against the appellant. In its
present form the complainant respondent is not entitled to get the relief prayed for. Hence the revisional application was dismissed.
6. The respondent then preferred Criminal Miscellaneous Case No. 1118 of 1994 under section 561A Cr. P. C. praying that the learned Sessions Judge’s order dated 9-7-94 be set aside and a process under sections 500/501 of the Penal Code be issued against the appellant. A Division Bench of the High Court Division by the impugned judgment and order dated 18-495 found that the learned Sessions Judge made a third case holding that sanction under section 197 Cr. P. C. was necessary to prosecute the appellant. The High Court Division held that an act not purporting to be official does not require sanction under section 197 Cr. P. C . It further held that it was clear that the allegations made in the petition of complaint are that the appellant with a view to defaming the respondent sent letters alleging that the respondent indulged in corruption while he was serving in the
said Sangstha and those allegations (in the petition of complaint) cannot be said to be prima facie false. The allegations no doubt constitute the offence of defamation as defined in section 499 of the Penal Code. Under the circumstances, the High Court Division held that the Chief Metropolitan magistrate acted beyond his jurisdiction in dismissing the petition of complaint with out issuing process on the appellant. The High Court Division made the Rule absolute and directed the Chief Metropolitan Magistrate to take cognizance of the offence and to issue process in accordance with section 205 (1) Cr. P. C. and pass any order subsequently at his discretion, if necessary.
7. Leave was granted to consider the appellant’s submission that the High Court Division exceeded its jurisdiction in directing the Chief Metropolitan Magistrate to take cognizance of the offence and to issue process in accordance with section 205(1) Cr. P. C The scope of enquiry of the High Court Division was limited to the question as to whether in the facts and circumstances of the case the Chief Metropolitan Magistrate exercised his powers under section 203 Cr. P. C. properly or not, but the High Court Division prejudiced the appellant and erred in law by holding that the allegations made in the petition of complaint cannot be said to be prima facie false, that the allegations no doubt constitute the offence of defamation as defined in section 499 of the Penal Code and that the Chief Metropolitan Magistrate acted beyond his jurisdiction in dismissing the petition of complaint.
8. Mr. Serajul Huq, learned Advocate for the appellant submits first of all that section 436 Cr. P. C. gives a precise remedy to a complainant whose petition of complaint has been dismissed under section 203 Cr. P. C. Under the said section either the High Court Division or the Sessions Judge may direct the Chief Metropolitan Magistrate to make further enquiry into any complaint which has been dismissed under section 203 Cr. P. C. but in no case the High Court Division or the Sessions Judge can direct the Chief Metropolitan Magistrate to take cognizance of an offence and to issue process under Section 205 (1) Cr. P. C. In support of his submission he has first referred to the case of Abdus Salam Master vs. The State , 35 DLR 140 in which it was observed as follows :
It should be noted that if any one is aggrieved by an order of discharge passed by a magistrate, although he cannot file before the Magistrate a petition for revival of the same case, he can move the superior Court under section 436 Cr. P. C. for further enquiry, but the superior Court cannot direct the Magistrate to take cognizance of a case irrespective of the fact whether it is tribal by a magistrate or exclusively by the Court of Sessions. The Superior Court can merely order further enquiry, but neither the Court of Sessions nor
the High Court Division can direct the taking of cognizance.”
9. The aforesaid cited case in 35 DLR 140 was appealed against in the Appellate Division (Abdus Salam Master vs. The State, 36 DLR (AD) 58 and the decision of the High Court Division reported in 35 DLR 140 was affirmed but the aforesaid observations of the High Court Division was neither dissented from nor commented upon.
10. Mr. Serajul Huq further relies upon the case of Abdur Razzaque vs. The State 35. DLR 103, in which case a final report was submitted by the police in so far as the petitioner Abdur Razzaque was concerned, but the police submitted charge sheet against other accused persons against whom a charge was framed by the Additional Sessions Judge under Sections 302/109 of the Penal Code. As the petitioner Abdur Razzaque was an FIR named accused the informant filed a naraji petition praying for taking cognizance against the petitioner. The naraji petition was rejected by the Sub-Divisional Magistrate and in revision by the learned Sessions Judge. Thereafter the Additional Sessions Judge took cognizance against the petitioner Abdur Razzaque and straight away framed a charge against him. The question was, whether the Additional Sessions Judge could legally and properly take cognizance against the petitioner Abdur Razzaque. It was held that the dismissal of the naraji petition amounted to a dismissal of the complaint under section 203 Cr. P. C. and also discharge of the petitioner. Thereafter it was held :
“The only remedy which the informant had in the facts and circumstances of the Case was to approach the Sessions Judge under section 436 Cr. P. C. for a direction to make further enquiry into the complaint which had been dismissed. It is now settled that a Magistrate discharging an accused on the basis of police report passes a judicial order and in such a case the power under section 436 can be invoked.”
11. The taking of cognizance on the part of the Additional Sessions Judge was held to be without the sanction of any law.
12. Mr. Zakir Ahmed, learned Advocate for the complainant respondent, does not seriously dispute the contention of Mr. Serajul Huq, but he submits that the appellant has clearly defamed the respondent and the case may be sent back to the Chief Metropolitan Magistrate for taking steps in accordance with law, a submission to which we shall advert later on.
13. In the facts and circumstances of the case we accept the contention of Mr. Serajul Huq that after the dismissal of the petition of complaint under section 203 Cr. P. C the informant respondent’s remedy was to approach the Higher Court under section 436 Cr. P. C for further enquiry into his petition of complaint. Neither the Sessions Judge nor the High Court Division is invested with any power to direct any Magistrate to take cognizance of a case. Their power is strictly limited to directing further enquiry into the petition of complaint. It will be for the Magistrate concerned to take or not to take cognizance after the result of further enquiry. It was been rightly held in the afore-cited case of Abdus Salam Master vs. The State 35, DLR 140 that under section 200 Cr. P. C a magistrate can take cognizance of any offence on complaint whether it is triable by the magistrate or triable exclusively by the Court of Sessions. This view was affirmed on appeal by this court in the case of Abdus Salam Master vs. The State, 36 DLR (Ad)
58, in the following words:” and we find that the Magistrate’s power of taking cognizance
under section 190(1) in all cases, including those exclusive triable by a Court of Sessions has remained unaffected by the repeal” (repeal of Chapter XXI and Chapter XVIII of Cr.
P. C. by the recent Ordinance).”
14. The penultimate order of the High Court Division in directing the Chief Metropolitan Magistrate to take cognizance of the offence and to issue process in accordance with section 205 (1) Cr. P. C. is therefore not sustainable in law.
15. Mr. Serajul Huq next submits that the Chief Metropolitan Magistrate Correctly and properly exercised his powers under section 203 Cr. P. C. and his dismissal of the petition of complaint was passed upon a consideration of the report of the judicial enquiry and the records of the case. The high Court Division exceeded its jurisdiction under section 561A Cr. P. C in finding that the allegations made in the petition of complaint cannot be said to be prima facie false and that the allegations no doubt constitute the offence of defamation as defined in section 499 of the Penal Code.
16. From perusal of the lengthy petition of complaint we find that the basis of the complainant-respondent’s allegations against the appellant is a Memorandum dated 24-6-93 addressed by the appellant as a General manager of the Sangstha to the managing Director of the Sangstha with Copies to the Chairman of the Sangstha, Secretary. Ministry of Finance, Principal Secretary to the Prime Minster, D. G. DFI and D. G. NSI. It appears that the appellant by this Memo, dated 24-6-93 was replying to a Memo, dated 21-3-93 addressedto him by Mr. S. M. Maniam Hossain, another General Manager asking him to explain the administrative lapses with regard to a dismissed employee who had decamped with the Sangstha’s money. The sum and substance of the Memo, dated 24-6-93 is that various other departmental files of irregularities, indiscipline and corruption are
pending against several existing and erstwhile employees of the Sangstha which are gathering dust. The informant-respondent’s name, among others, was mentioned as one of such cases where no actions are being taken although there are allegations of corruption against them. This Memo, appears to be an expression of outburst against the entire management for being selective in the matter of taking steps against delinquent employees. Forwarding of copies of this Memo, to various other Ministries and Departments may entail departmental action against the appellant, but it does not appear, as the report of the judicial enquiry correctly puts it, that there was any attempt to single out anybody for defamation. The High Court Division much too hastily and sweepingly arrived at a wild conclusion and exceeded its jurisdiction under section 561A Cr. PC. in holding that the allegations no doubt constitute the offence of defamation as defined in section 499 of the Penal Code. The Chief Metropolitan Magistrate ‘ and before him the report of the judicial enquiry and the records of the case, not merely the petition of complaint, and it was too late in the day to ask the Chief Metropolitan magistrate to read only the petition of complaint for forming an opinion as to whether a case of defamation was made out or not. The entire exercise by the High Court Division was perfunctory and
devoid of application of mind.
17. In the circumstances the submission of Mr. Zakir Ahmed that the case may be sent back to the Chief Metropolitan Magistrate for taking steps in accordance with law is unwarranted. We find that the Chief Metropolitan Magistrate did not exceed his jurisdiction in dismissing the petition of complaint and that the informant-respondent has not made out any case for further enquiry into the matter.
18. The appeal is therefore allowed. The impugned judgment and order of the High Court Division and those of the learned Sessions Judge are set aside and the order of the Chief Metropolitan Magistrate dated 10-5-94 is affirmed.
Source: III ADC (2006) 338.