Zafar Ahmed Chowdhury Vs. Md. Ismail and another

Appellate Division Cases

(Criminal)

PARTIES

Zafar Ahmed Chowdhury and others………………………………Petitioners

-vs-

Md. Ismail and another……………………………………………. Respondents

JUDGES

Syed J.R.Mudassir Hussain C.J

Mohammad Fazlul Karim J

M.A. Aziz J.

Amirul Kabir Chowdhury J.

Date of Judgment

14 August, 2004,

The Code of Criminal Procedure (V of 1898), Section 241 A, 561 A.

The Penal Code (XLV of 1860), Section 420.

We are of the view that as a result of addition of complainant Md. Ismail as party in the Criminal Miscellaneous Case No. 13540 of 2003 as opposite party No. 2 there is no likelihood of accused petitioners being prejudiced as the said Miscellaneous Case pending before the High Court Division will be decided on merit in accordance with law (7)

ADVOCATES

Abu Salek, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record For the Petitioner. Not represented For the Respondent.

JUDGMENT

1. Syed J. R. Mudassir Husain C J:- This Criminal Petition for leave to appeal is directed

against the judgment and order dated 06.07.2004 passed by the High Court Division adding the respondent No. 1 Md. Ismail in Criminal Miscellaneous Case No. 13540 of 2003 along with the State.

2. The facts, in brief, are that the leave petitioners filed the aforesaid Criminal Miscellaneous case in the High Court Division under Section 561A of the Code of Criminal Procedure against Order No. 11 dated 17.11.2003 passed by the Additional Metropolitan Sessions Judge, 5th Court, Chittagong in Criminal Revision No. 106 of 2*003 arising out of proceeding of C.R. Case No. 2777 of 2002 and Petition Case No. 70 of 2002.

3. The facts of the aforesaid Petition Case No. 70 of 2002 are that on 20.2.2002 one Md. Ismail lodged a complaint in the Court of Chief Metropolitan Magistrate, Chittagong. alleging interalia. that the accused petitioners have been carrying Transport Business for a long period and the complaint expressed his desire to become a partner of the said Transport Business under name and style of Z.N. Enterprise. Accordingly, partnership agreement was made by him with the petitioners, wherein terms and conditions of partnership deed were duty incorporated and in that agreement shares and responsibilities of the parties have been elaborately mentioned and it was provided in the agreement that the partners would share profit and loss of the business as per provisions of the agreement. Jt has also been stated in the agreement that in case of dispute and difference the matter would be settled by Arbitration consisting of two representatives of each party and in case of failure to settle the matter by arbitration aggrieved party would take necessary legal steps in appropriate Court. It has been stated in the complaint that as per agreement the complaint paid Tk. 14.00,000/- (Fourteen lacs) only as his share capital in the business. The agreement was executed on 13.1.1996. But the accused petitioners did not produce any account of business and on demand by the complainant accused- petitioner refused to submit the accounts.

4. The learned Chief Metropolitan Magistrate sent the case to the Officer-in-charge of Kotwali Police Station to inquire into thematter and after inquiry, if it is found proper, to treat the complainant as First Information Report. The Police Officer after inquiry, submitted on 22.04.2002 a report, stating, that he examined all papers and documents and witnesses and it has been stated in the report that as the matter appears to be a civil case, he advised the parties to go to civil Court. The learned Chief Metropolitan Magistrate. Chittagong after receiving the said report passed an order to keep the same in the record and on 07.05.2002 on Special Petition the case as sent for judicial inquiry to Mr. Athahar Ali a Magistrate and on the report of the said learned Magistrate, the Chief Metropolitan Magistrate issued summons against the accused petitioners under Section 420 of the Penal Code and the case was sent Mr. Monowarul Islam Metropolitan Magistrate for trial, who fixed 12.05.2003 for framing charge and on that date the petitioner submitted an application under Section 241A of the Code of Criminal Procedure for discharging the accused petitioners and the learned Magistrate after hearing both the parties and perusing documents including the partnership agreement discharged the accused petitioners from the charge under Section 241A of the Code of Criminal Procedure. The complainant on 28.05.2003 filed Criminal Revision No. 106 of 2003 in the Court of Metropolitan Sessions Judge. Chittagong against the order of discharge date i 2.05.2002 passed by Mr. Md. Monowarul Islam, learned Metropolitan Magistrate. Chittagong and the learned Sessions Judge on 9.7.2003 transferred the case to the Court of Additional Sessions Judge, 5th Court. Chittagong. The learned Sessions Judge, 5th Court, Chittagong without considering the facts and circumstance of the case and without relevant papers including the partnership agreement on misconception of law and facts illegally allowed the revisional application and directed the learned trial Magistrate for re-hearing of the case for framing charge against the petitioner by order dated 17.11.2003.

5. Against the aforesaid order, the accused petitioners moved the High Court Division under Section 561A of the Code of Criminal Procedure and thereupon obtained Rule and stay in Criminal Revision No. 106 of 2003 passed by the Additional Sessions Judge, 5th Court, Chittagong. During the pendency of the above Rule. The complainant Md. Ismail filed an application for his being added as party in the aforesaid Criminal Miscellaneous Case No. 13540 of 2003 and upon hearing both the parties the learned Judges of the High Court Division allowed the complaints prayer for his being added as respondent opposite party No. 2 in the aforesaid proceeding for quashing by judgment and order dated 06.07.2004. Against which the accused petitioners have filed this leave petition.

6. Mr. Abu Salek, the learned Senior Advocate, appearing for the accused-petitioners, firstly contended that there is a provision for addition of party in the Code of Civil Procedure abut in the Code of Criminal Procedure there is no provision of addition of party and as such the learned Judges of the High ‘Court Division committed an error of law in passing the impugned order by adding the complainant as opposite party No. 2 in the aforesaid pending Criminal Miscellaneous Case Under Section 561A of the Code of Criminal Procedure and as such the impugned order as passed by the High Court Division is liable to be set aside. It is further contended that there is no scope for passing an order for addition of party by the complainant to secure the ends of justice in a criminal proceeding and as such the findings and decisions of the High Court Division to the effect that to secure the ends of justice, the applicant complainant should be made party in the Miscellaneous Case No. 13540 of 2003 filed under Section 561A of the Code of Criminal Procedure and thereby allowing the complainant as party in the proceeding is illegal and without jurisdiction.

7. We have perused the impugned judgment and order dated 06.07.2004 and considered the submissions of the learned Counsel. In view of the facts and circumstances of the case, we are of the view that as a result of addition of complainant Md. Ismail as party in the Criminal Miscellaneous Case No. 13540 of 2003 as opposite party No. 2 there is no likelihood of Accused petitioners being prejudiced as the said Miscellaneous Case pending before the High Court Division will be decided on merit in accordance with law. In such view of the matter, we find no merit in this petition. The petitioner however may make a prayer before the High Court Division for expeditious disposal of the aforesaid Miscellaneous Case, which may be considered by that Court. With the above observation, this petition is dismissed.

Source: III ADC (2006) 751

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