IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(CRIMINAL MISCELLANEOUS JURISDICTION)
CRIMINAL MISCELLANEOUS CASE
NO. OF 2008
IN THE MATTER OF:
An application for anticipatory bail under section 498 of the Code of Criminal Procedure.
IN THE MATTER OF:
Son of late Md. Y
At present- House No. 16, Topuban Residential Area, Akhalia, Sylhet
1. The State represented by the Deputy
Daughter of Z
98, West Brahmondi
Thana and District- Narsingdi
A N D
IN THE MATTER OF:
Nari-O-Shishu Case No. 82/2008 dated 12.02.2008 lodged against the accused-petitioner along with 2 (two) other accused under Sections 11(Ga) and 30 of the Nari-O-Shishu Nirjatan Domon Ain, 2000 (as amended in 2003), now pending in the court of Nari-O-Shishu Nirjatan Domon Tribunal, Narsingdi.
Mr. Md. Ruhul Amin, the Chief Justice of Bangladesh and his companion justices of the said Hon’ble Court.
The humble petition of the petitioner above-named most respectfully –
01. That the accused-petitioner is a law-abiding and peace-loving permanent citizen of Bangladesh. He comes from established and respected Muslim family and has impeccable reputation as foreign currency earner in the society. The accused-petitioner is presently residing in Tokyo, Japan. He is never involved in any anti-social or anti-state activities at all.
02. That the complainant-opposite party No.2 is the ex-wife of the accused who married each other on 20.04.2003 in accordance with Shari’ah law. On 09.01.2008 the accused divorced the opposite party No.2 as the relationship was not going well.
03. That the accused-petitioner, after completion of his education in Bangladesh went to Japan in the year 1988 for higher studies. He pursued the language study and successfully completed the Diploma course in Japanese language. Since the completion of language course, he has been involved in car business. In addition to that the accused has started car selling business in his own establishment in partnership with some of the Japanese nationals. He has been his business with reputation in Tokyo for a decade. In last few years the accused petitioner contributed to the country by sending more than taka 2.0 crore (taka two crore) as remittance from Japan.
Copies of the receipts of remittance issued from Japan are annexed herewith and marked as ANNEXURE-“A”
04. That in the late afternoon of 15.05.2008, immediately after his arrival in Bangladesh from Japan the accused petitioner came to know from his relatives that on 12.02.2008 a complaint being the Nari-O-Shishu Case No. 82/2008 dated 12.02.2008 under sections 11(Ga) and 30 of the Nari-O-Shishu Nirjatan Domon Ain, 2000 (as amended in 2003), now pending in the Court of Nari-O-Shishu Nirjatan Domon Special Tribunal, Narsingdi (hereinafter referred to as the Complaint) was filed against the accused-petitioner as accused No. 1 along with 2 (two) other accused.
05. That the opposite party No.2 alleged in the Complaint inter alia that the accused-petitioner demanded taka 5, 00,000.00 (taka five lac) on the day before the alleged offence took place. Upon refusal to pay such an amount, on 09.11.2006 the accused-petitioner took the opposite party No.2 to her father’s house and demanded taka 5,00,000.00 (taka five lac) as dowry in front of her guardian. Upon expressing their inability to pay the accused-petitioner battered in the face of the opposite party No.2, other accused hurt in different parts of the body and pulled her by hair. The Complaint is quoted below for ready reference:
®j¡L¡j x e¡l£ J ¢nö ¢ekÑ¡ae cje ¢hno VÊ¡Ch¤Ée¡m, el¢pwc£z
e¡l£ J ¢nö j¡jm¡ ew- 82/08 Cw
Bgl¡S¡ Bš²¡l p¤¢j, ¢fa¡ ®j¡x Ju¡qc Bm£ p¡w- 98 f¢ÕQj hÐ¡r¾c£,
b¡e¡ J ®Sm¡- el¢pwc£z
– he¡j –
1) j¡q¡h¤h Bmj a¡m¤Lc¡l (38), ¢fa¡- q¡S£ ®j¡x p¡jp¤m Bmj a¡m¤Lc¡l,
2) n¡qS¡q¡e Bqjc, ¢fa¡- jªa ®N¡m¡j ¢Lh¢lu¡,
3) S¡q¡e¡l¡ Bš²¡l S¡e¤, ü¡j£- n¡qS¡q¡e Bm£, ÙÛ¡u£ ¢WL¡e¡- mr£f¤l, b¡e¡-
S¡j¡mf¤l, ®Sm¡-p¤e¡jN”z haÑj¡e phÑ p¡w- 16 af¤he Bh¡¢pL Hm¡L¡ BM¡¢mu¡,
1) ®j¡x Ju¡qc Bm£, ¢fa¡- jªa ®j¡x SjŸ¡l Bm£,
2) ®j¡x A¢qc¤‹¡j¡e (¢f¾V¤), ¢fa¡- m¤vgl lqj¡e,
3) ®l¡¢Lu¡ f¡li£e (M¤L£), ü¡j£- m¤vgl lqj¡e,
4) ®j¡x n¡q£e M¡e, ¢fa¡- jªa ¢lu¡E¢Ÿe M¡e,
5) X¡x Hj BMa¡l eq¡m Hj.¢h.Hp., ®j¢XLm A¢gp¡l, el¢pwc£ pcl,
q¡pf¡a¡m, el¢pwc£z Bl¡ p¡r£ BR fÐu¡Se fl ®cJu¡ qChz
OVe¡l a¡¢lM, pju J ÙÛ¡e x
pju Ae¤j¡e pL¡m 10 O¢VL¡ z
ÙÛ¡e x h¡¢ce£l f¢ÕQj hÐr¾c£¢ÙÛa ¢fœ¡muz
d¡l¡ x 2000 pel e¡l£ J ¢nö ¢ek¡Ñae BCel 2003 (pwn¡de£) 11 (N) /30
clM¡Ù¹ h¡¢ce£ fr ¢ehce HC ®k,
h¡¢ce£ HLSe fcÑ¡n£m j¢qm¡ qu hVz fr¡¿¹l Bp¡j£Ne HLcmi¤š²,
fl¢hšm¡i£ ®m¡L qu hVz 1 ew Bp¡j£l p¢qa h¡¢ce£l ¢hNa 20/4/03 Cw a¡¢lM
j¤p¢mj nl¡-nl£ua ®j¡a¡hL ®l¢Sø£Lªa L¡¢he j¤m ¢hh¡q quz ¢hh¡ql fl qCa
1 ew Bp¡j£ AeÉ¡eÉ Bp¡j£Nel pqk¡¢Na¡u h¡¢ce£l ¢eLV k±a¤L h¡hc 5,00,000/-
(fy¡Q mr) V¡L¡ c¡h£ L¢lu¡ B¢paRz h¡¢ce£l Af¡lNa¡ fÐL¡n Ll¡ paÅJ AaÉ¡Q¡l
L¢lu¡ B¢paRz 2 ew Bp¡j£ eecl ü¡j£ Hhw 3 ew Bp¡j£ eec qu hV z
Bp¡j£ Ne OVe¡l f§hÑl ¢ce h¡¢ce£l ¢eLV a¡q¡cl h¡s£a 5,00,000/- (fy¡Q mr)
V¡L¡ ®k±a¤L c¡h£ L¢lm h¡¢ce£ Af¡lNa¡ fÐL¡n Ll¡u fl¢ce Ab¡v 9/11/07 Cw
a¡¢lM pL¡m 10 O¢VL¡u h¡¢ce£L a¡q¡l ¢fœ¡mu ¢eu¡ Bp Hhw A¢ii¡hLl p¡je
5,00,000/- (fy¡Q mr) V¡L¡ ®k±a¤L c¡h£ L¢lm h¡¢ce£ Hhw ¢fa¡ Af¡lNa¡ fÐL¡n
Ll¡u 1 ew Bp¡j£ j¤M j¡b¡u BO¡a Ll Hhw 2 ew Bp¡j£ ¢Lm O¤¢o j¡¢lu¡ nl£ll
¢h¢iæ ÙÛ¡e e£m¡ g¤m¡ kMj Ll J Afl 3 ew Bp¡j£ Q¤m dl V¡e¡ qQs¡ Ll zh¡¢ce£l X¡L ¢QvL¡l p¡r£Ne OVe¡ÙÛm B¢pu¡ ¢S‘¡p¡h¡c L¢lm Bp¡j£Ne fÐL¡n Ll
®k±a¤L ¢hq£e a¡q¡L ¢eh e¡ h¢mu¡ k¡u z h¡¢ce£L a¡q¡l X¡š²¡l L¡R ¢Q¢Lvp¡ Ll¡u z Bp¡j£cl p¡b Bf¡o ¢jj¡wp¡ Hl ®Qø¡ L¢lu¡ ®j¡LŸj¡ c¡ul L¢la ®cl£ qCmz
h¡¢ce£ haÑj¡e 1 p¿¹¡e pq ¢fœ¡mu AhÙÛ¡e L¢laRz Bp¡j£Ne ®L¡e ®My¡S Mhl ¢eaR
e¡z Aœ pwN Hj/¢p fÐc¡e Ll¡ qCmz
AaHh fÐbÑe¡ cu¡ L¢lu¡ Bp¡j£Nel ¢hl¦Ü ®NËga¡l£ fl¡ue¡ S¡l£ Llax
dªa L¢lu¡ B¢eu¡ p¡r£ fÐj¡e¡c£ NËqe p¤¢hQ¡l L¢la B‘¡ quz
06. That the Complaint is full of false, vague and frivolous stories made only to harass and humiliate the accused petitioner. This is indeed a strange repercussion of the break up of their relationship through divorce. In fact there was no other alternative for the accused petitioner but to divorce the opposite party No.2 due to her immoral lifestyle and other reasons stated below.
07. That on 20.04.2003 the accused petitioner married the opposite party No.2 observing the principles of Islamic Shari’ah. Since the very first week of the wedlock, the accused-petitioner has found her morally weak, rude in behaviour and imbalanced in lifestyle. He tried his best to rebuild her character in very many ways but failed at the end. The accused petitioner took the opposite party No.2 twice to Japan so that she could correct herself. Apart from this the accused petitioner visited Bangladesh about 16 times in last 4 years to prevent her from mixing with her so-called boy friends. During one visit in Japan, the opposite party No.2 attempted to kill the accused by sharp kitchen knife immediately after the accused petitioner disagreed to purchase all luxury items she chose from the shopping centre for her parents. This event made the accused-petitioner realized that the opposite party No.2 could not be his life time partner rather she would be a danger.
08. That on 08.11.2007, 24 hours before the date of the alleged occurrence, the opposite party No.2 threatened the accused-petitioner to the effect that she would not keep marital relationship with him if his parents and other relatives lived at his Sylhet residence. She kept saying that she would not stay with the relatives of the accused petitioner. On 09.11.2007 and the following day i.e. on 10.11.2007 the accused-petitioner was at his Sylhet residence. On 11.11.2007 the accused-petitioner took the opposite party No.2 to her father’s residence and permitted to stay there. Therefore the allegation made in the Complaint that ‘Bp¡j£ Ne OVe¡l f§hÑl ¢ce h¡¢ce£l ¢eLV a¡q¡cl h¡s£a 5,00,000/- (fy¡Q mr) V¡L¡ ®k±a¤L c¡h£ L¢lm h¡¢ce£ Af¡lNa¡ fÐL¡n Ll¡u fl¢ce Ab¡v 9/11/07 Cw a¡¢lM pL¡m 10 O¢VL¡u h¡¢ce£L a¡q¡l ¢fœ¡mu ¢eu¡ Bp….’ is false and fabricated, made out only to mislead the court.
09. That on 12.11.2007 the accused petitioner left Bangladesh for Japan. It was discovered later on that the opposite party No.2 took away with her all the valuable belongings, expensive jewelries, digital camera and USD $ 25,000.00 (twenty five thousand US dollars) in cash without the knowledge and permission of the accused petitioner and/or other relatives. The accused-petitioner’s brother-in-law, Mr. Shahjahan Ahmed filed a General Diary in the Kotwali Thana, Sylhet vide GD No. 1438 dated 19.11.2007 following the incident.
A copy of the G.D dated 19.11.2007 is annexed herewith and marked as ANNEXURE “B”.
10. That on 01.04.2008 the brother-in-law of the accused-petitioner namely Shahjahan Ahmed filed a First Information Report (FIR) being No. Kotwali Model Thana Police Station Case No. 04 (4) 2008 implicating the opposite party No.2 under section 420/406/506 of the Penal Code for taking away the valuables in breach of trust.
11. That it is not true that ‘¢hh¡ql fl qCa1 ew Bp¡j£ AeÉ¡eÉ Bp¡j£Nel pqk¡¢Na¡u h¡¢ce£l ¢eLV k±a¤L h¡hc 5,00,000/-(fy¡Q mr) V¡L¡ c¡h£ L¢lu¡ B¢paRz’ In fact it is the accused-petitioner who, upon being repeatedly abused by the opposite party No.2 , on 9th January 2008 finally decided not to carry out the marital relationship with her. The accused-petitioner, on the same day divorced her due to aforesaid moral turpitude and continuous irritating activities that caused both mental and psychiatric problems in the accused-petitioner. The accused petitioner was bound to make such a drastic decision as there was no other alternative. But the opposite party No.2 was not happy with that decision at all. The ultimate consequence of her discontent is the Nari-O-Shishu Case No. 82/2008 dated 12.02.2008 under sections 11(Ga) and 30 of the Nari-O-Shishu Nirjatan Domon Ain, 2000 (as amended in 2003) implicating the accused petitioner.
A copy of the Divorce-notice is annexed herewith and marked as ANNEXURE “C”
12. That it is humbly submitted that the allegation as brought against the accused-petitioner is false, frivolous, concocted and fabricated and as such no offence under Sections 11(Ga) and 30 of the Nari-O-Shishu Nirjatan Domon Ain, 2000 (as amended in 2003) has been committed by the petitioner.
13. That it is false and baseless that ‘Bp¡j£ Ne OVe¡l f§hÑl ¢ce h¡¢ce£l ¢eLV a¡q¡cl h¡s£a 5,00,000/- (fy¡Q mr)V¡L¡ ®k±a¤L c¡h£ L¢lm h¡¢ce£ Af¡lNa¡ fÐL¡n Ll¡u fl¢ce Ab¡v 9/11/07 C a¡¢lM pL¡m 10 O¢VL¡u h¡¢ce£L a¡q¡l ¢fœ¡mu ¢eu¡ Bp Hhw A¢ii¡hLl p¡je 5,00,000/- (fy¡Q mr) V¡L¡ ®k±a¤L c¡h£ L¢lm ….’ . It is submitted that the accused-petitioner has remitted about taka 2.00 crore (taka two crore) to Bangladesh in last few years. Therefore, the allegation that the accused-petitioner claimed taka 5,00,000.00 (taka five lac) as dowry from opposite party No.2 and her parents is unreasonable, unbelievable, false, concocted, vexatious which caused serious doubt in the averments of the opposite party No.2 in the Complaint.
14. That it is submitted that the opposite party No.2 filed the instant case long after 3 months of the date of the alleged offence which shows that the story of the opposite party No.2 is a per-planned one which does not carry any weight because of being doubtful.
15. That it is submitted that the opposite party No.2 took treatment for her alleged injury 2 (two) days after the alleged assault took place which creates serious suspicion about the allegation of the assault and the entire story.
Copy of the doctor’s medical certificate is annexed herewith and marked as ANNEXURE: “D”
16. That it is submitted that upon receiving the divorce notice dated 09.01.2008 from the accused-petitioner, the opposite party No.2 became vindictive and filed this case to harass and disrepute the accused-petitioner’s reputation purposely. The accused-petitioner is ready and willing to surrender before the subordinate court, but he has definite anticipation that the police will arrest him, he is highly likely to be an object of serious humiliation and harassment by the police.
17. That it is humbly submitted that the petitioner learnt from a reliable source that he will be humiliated by the people of his ex-wife, opposite party No.2. The accused-petitioner will not get bail if he surrenders before the court below, as such, the accused-petitioner directly surrenders before this Honourable Court with an application for anticipatory bail.
18. That it is submitted that the petitioner has been falsely implicated in the case by the interested group with a sole purpose of harassing him and maligning his good reputation.
19. That it is submitted that the petitioner is permanent citizen and law-abiding national of Bangladesh. Since he is respectful to Bangladeshi laws he appears before the Honourable Court, otherwise. There in no intention of absconding if the accused petitioner is granted bail by this Hon’ble court. The accused petitioner could have gone back to Japan immediately after hearing about this case against him. Therefore, there is no reasonable ground
of apprehension of absconsion, tempering with the evidence or misuse of the bail if the petitioner is enlarged on anticipatory bail.
20. That it is submitted that for the reasons stated herein above this Hon’ble Court in exercise of its power under section 498 of the Code of Criminal Procedure may kindly grant anticipatory bail. This is a proper case where such discretion may kindly be exercised by this Hon’ble Court.
21. That in the above premises, the petitioners having no other alternative, begs to file this application for bail under section 498 of the Code of Criminal Procedure before the Hon’ble High Court Division on the following amongst other-
I. For that the accused petitioner is quite innocent and is falsely implicated in this case by his ex-wife for harassment.
II. For that the opposite party No.2 took the treatment for her alleged injury two days after the alleged attack on her which caused serious doubt about the complainant’s story. As such the accused should be granted bail.
III. For that upon receiving the divorce notice dated 09.01.2008 from the accused-petitioner, the opposite party No.2 became vindictive and filed this case on 12.02.2008 to harass and disrepute the accused-petitioner’s reputation purposely. Therefore he should be granted bail.
IV. For that where the accused-petitioner sent taka 2.00 crore (taka two crore) in Bangladesh by remittance from Japan in last few years time, bringing the allegation of demanding taka 5.00 lac by the accused-petitioner from the opposite party No.2 as dowry is only to harass and disrepute the petitioner’s reputation purposely.
V. For that the opposite party No.2 filed the instant case against the accused-petitioner after 3 months of the alleged offence which caused serious doubt in the complainant’s story. Therefore the accused petitioner should be granted anticipatory bail for the ends of justice.
VI. For that the accused-petitioner though is ready and willing to surrender before the concerned learned Court below, but he is not in a position to do so and apprehends that he will be arrested by the police and will be subjected to humiliation and harassment by the police.
VII. For that the accused-petitioner also apprehends that the petitioner will not get justice if he surrenders in the court below, as such the accused-petitioner directly surrenders before this Honourable Court with an application for anticipatory bail.
VIII. For that the petitioner is permanent citizen in Bangladesh and he is in a high position in our country and so there is no chance or apprehension of absconsion, tempering with the evidence or misuse of the bail if the petitioner is enlarged on anticipatory bail.
IX. For that in view of the above facts, circumstances, and provisions of law and for ends of justice your Lordships may kindly be pleased to grant the petitioner anticipatory bail.
Wherefore, it is humbly prayed that your Lordships would graciously be pleased:
to issue Rule calling upon the opposite- parties to show cause as to why the accused-petitioner shall not be enlarged on anticipatory bail in Nari-O-Shishu Case No. 82/2008 dated 12.02.2008 lodged against the accused-petitioner along with 2 (two) other accused under
sections 11(Ga) and 30 of the Nari-O-Shishu Nirjatan Domon Ain, 2000 (as amended in 2003), now pending in the Court of Nari-O-Shishu Nirjatan Domon Tribunal, Narsingdi and after hearing the parties and on perusal of the cause shown, if any, make the Rule absolute;
Pending hearing of the Rule, grant anticipatory bail to the accused-petitioner.
And for this act of kindness, the petitioner, as in duty bound, shall ever pray.
I, Md. M, son of late Dr. N aged about 27 years, of 67 Naya Paltan, Dhaka, by faith Muslim, by profession service, by faith Muslim, by nationality Bangladeshi, do hereby solemnly affirm and say as follows:
01. That I am the Tadbirkar of the accused-petitioner in this case and as such I am fully acquainted with the facts and circumstances of the case and competent to swear this affidavit.
02. That the statements made above are true to my knowledge and belief and the rests are submissions before this Hon’ble Court.
|Prepared in my office:|
|AdvocateMd. Arife Billah
M S No………..
|Solemnly affirmed before me on this the 22nd day of May, 2008 at ____ a.m.||The deponent is known to me and identified by me.|
|AdvocateMd. Arife Billah|
COMMISSIONER OF AFFIDAVITS
SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION