IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
CRIMINAL APPEAL NO………../______
IN THE MATTER OF:
An application under section 28 of the Nari-O-Shishu Nirjatan Daman Ain, 2000
IN THE MATTER OF:
Son of late Y
At present- House No.16,Topuban Residential Area, Akhalia, Sylhet
1. The State represented by the Deputy
Daughter of A
98, West Brahmondi
Thana and District- Narsingdi
A N D
IN THE MATTER OF:
Order No. 11 dated 19.06.2008 passed by learned judge, Nari-O-Shishu Nirjatan Domon Tribunal, Narsingdi in Nari-O-Shishu Case No. 82/2008 dated 12.02.2008 lodged against the accused-appellant 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), rejecting the discharge petition of the accused-appellant.
Mr. Justice M M Ruhul Amin, the Chief Justice of Bangladesh and his companion justices of the said Hon’ble Court.
The humble petition of the accused-appellant above-named most respectfully –
01. That the accused-appellant 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 not involved in any anti-social or anti-state activities at all.
02. That the complainant-respondent (“the Complainant”) is the ex-wife of the accused-appellant who married each other on 20.04.2003 in accordance with Shari’ah law. On 09.01.2008 the accused-appellant divorced the complainant-respondent as the relationship was not going well.
03. That the accused-appellant, after completion of his education in Bangladesh had gone 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 running his business with reputation in Tokyo for more a decade. In last few years the accused appellant contributed to Bangladesh national economy by sending more than taka 2.0 crore (taka two crore) as remittance from Japan.
04. That in the late afternoon of 15.05.2008, immediately after his arrival in Bangladesh from Japan the accused-appellant 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) (“the Ain”), now pending before the Court of Nari-O-Shishu Nirjatan Domon Special Tribunal, Narsingdi (“the Complaint”) was filed against the accused-appellant as accused No. 1 along with 2 (two) other accused persons.
05. That the complainant-respondent alleged in the Complaint inter alia that the accused-appellant demanded taka 5, 00,000.00 (taka five lac) on the day before the alleged offence took place. On 09.11.2006 the accused-appellant took the complainant-respondent to her father’s house and demanded taka 5,00,000.00 (taka five lac) as dowry in front of her guardians. Upon expressing their inability to pay the accused-appellant battered in the face of the complainant-respondent, other accused hurt in different parts of the body and pulled her by hair.
06. That on 12.02.2008 the subordinate court upon receiving the Complaint ordered the local ward commissioner namely Mr. Azizur Rahman (Akter) to investigate into the matter and to submit the report within 7 (seven) days from the date of the receipt of the notice. On 18.03.08 the local commissioner submitted his report (“the report”) before the Court. On 31.03.2008 upon taking the report of the commissioner into consideration the court took cognizance of the alleged offence against the appellant. Despite having manifold discrepancies in the report the learned court took it into consideration.
07. That on 27.05.2008 a Division Bench of the Hon’ble High Court Division of the Supreme Court of Bangladesh comprising their Lordships Mr. Justice Nozrul Islam Chowdhury and Mr. Justice Md. Ataur Rahman Khan granted anticipatory bail to the Appellant for a period of 2 months in Criminal Miscellaneous Case No. 7738 of 2008.
08. That on 19.06.2008 the appellant submitted a discharge petition before the learned Judge, Nari-O-Shishu Nirjatan Domon Tribunal, Narsingdi, stating that the Complaint was filed to harass and humiliate the accused-appellant which was rejected by the same court.
09. That the Complaint is full of false, vague and frivolous stories made only to harass and humiliate the accused-appellant. 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 appellant but to divorce the complainant-respondent due to her moral turpitude, immoral lifestyle and other reasons stated below. Despite making this submission the learned Tribunal Court failed to appreciate it.
10. That on 20.04.2003 the accused-appellant married the complainant- respondent observing the principles of Islamic Shari’ah. Since the very first week of the wedlock, the accused-appellant 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-appellant took the complainant-respondent twice to Japan so that she could correct herself. Apart from this the accused-appellant 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 complainant-respondent attempted to kill the accused-appellant by sharp kitchen knife immediately after the accused-appellant disagreed to purchase all luxury items she chose from the shopping centre for her parents. This event made the accused-appellant realized that the complainant-respondent could not be his life time partner rather she would be a danger.
11. That on 08.11.2007, 24 hours before the date of the alleged occurrence, the complainant-respondent threatened the accused-appellant 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-appellant. 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 appellant took the complainant-respondent to her father’s residence and permitted her to stay there. Therefore the allegation made in the Complaint that ‘AvmvgxMY NUbvi c~‡e©i w`b evw`bxi wbKU Zvnv‡`i evox‡Z 5,00,000.00 (cuvP j¶) UvKv †hŠZzK `vex Kwi‡j evw`bx AcviMZv cÖKvk Kivq ci w`b A_©vr 09.11.2007 Bs ZvwiL mKvj 10.00 NwUKvq evw`bx‡K Zvnvi wcÎvj‡q wbqv Av‡m… Õ is false and fabricated, made out only to mislead the court. The learned Tribunal Court failed to take all these into consideration and illegally framed the charge. As such it is not tenable in law.
12. That it was alleged in the complaint that “the accused-appellant demanded the dowry of taka 5,00,000.00 (taka five lac) on the day before of the date of the alleged occurrence at the residence of the accused in Sylhet and being refused by the complainant-respondent, the accused-appellant brought complainant-respondent to her father’s home at Narsingdi and demanded the alleged dowry in front of her parents at 10.00 a.m.” This statement is false, fabricated, concocted and does not contain any ingredient of the alleged offence because of the absurdity. It is submitted that the 1st bus leaves the Sylhet inter city bus terminal at 7.00 am in the morning. The distance between the residence of the accused appellant and the complainant-respondent is 250 kilo meters. Even if the bus runs @ 70 kilo meters/ph it requires 3.50 hours to reach Narsingdi. In that case, approximate arrival time at the complainant-respondent’s residence would be 10.30 a.m. and @ 60 kilo metres/ph speed of the bus, the arrival time would be 11 a.m. Therefore, the statement made in the complaint reveals itself that the accused-appellant took the complainant-respondent on the date of alleged offence and demanded the dowry at 10.00 am is absurd, false, fabricated, made out only to mislead the court. The learned Tribunal Court failed to consider that there is no ingredient of offence punishable under the Ain.
13. That on 12.11.2007 the accused-appellant left Bangladesh for Japan. It was discovered later on that the complainant-respondent 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-appellant’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. The learned Tribunal Court failed to take this fact into consideration and illegally framed the charge.
14. That the learned Tribunal Court was also reluctant in giving thought to the fact that on 01.04.2008 the brother-in-law of the accused-appellant namely Shahjahan Ahmed filed a First Information Report (FIR) being No. Kotwali Model Thana Police Station Case No. 04 (4) 2008 implicating the complainant-respondent under section 420/406/506 of the Penal Code for taking away the valuables in breach of trust.
15. That it is not true that weev`x ci nB‡Z 1 bs AvmvgxM‡bi mn‡hvwMZvq evw`bxi wbKU †hŠZzK eve` 5,00,000.00 (cuvP j¶) UvKv `vex Kwiqv Avwm‡Z‡QÓ. In fact it is the accused-appellant who, upon being repeatedly abused by the complainant- respondent, on 9th January 2008 finally decided not to carry out the marital relationship with her. The accused-appellant, 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-appellant. The accused-appellant was bound to make such a drastic decision as there was no other alternative. But the complainant-respondent 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-appellant. The learned tribunal Court without considering the facts and circumstances framed the charge which does not have any legal basis.
16. That the learned Tribunal Court failed to consider that ‘AvmvgxMY NUbvi c~‡e©i w`b evw`bxi wbKU Zvnv‡`i evox‡Z 5,00,000.00 (cuvP j¶) UvKv †hŠZzK `vex Kwi‡j evw`bx AcviMZv cÖKvk Kivq ci w`b A_©vr 09.11.2007 Bs ZvwiL mKvj 10.00 NwUKvq evw`bx‡K Zvnvi wcÎvj‡q wbqv Av‡m Ges Awffve‡Ki mvg‡b 5,00,000.00 (cuvP j¶) †hŠZzK `vex Kwi‡j’ is vague and concocted statement made only to bring the so called activity within the ambit of the definition of “DOWRY” so that it attracts the provisions of the Ain. It is submitted that the accused-appellant 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 the complainant-respondent and her parents is unreasonable, unbelievable, false, concocted, vexatious which caused serious doubt in the averments of the complainant-respondent in the Complaint. That it was humbly submitted before the learned Tribunal Court that the allegation as brought against the accused-appellant 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 accused-appellant. Surprisingly the learned Tribunal Court failed to appreciate the discrepancy in the statement of the complainant and hastily framed charge which is not tenable in law.
17. That it is submitted that the learned Tribunal Court did not consider the fact that the Complainant filed the instant case long after 3 months of the date of the alleged offence which shows that the story of claiming dowry and causing injury is a per-planned one which does not carry any weight because of being defective and doubtful. The learned Tribunal Court failed to take this delay into consideration and illegally framed the charge against the Appellant which is liable to be struck out.
18. That the learned Tribunal Court failed to consider that the Complainant received medical advice for her alleged injury 2 (two) days after the alleged assault took place which causes serious suspicion about the allegation of the assault and the entire story. It is submitted that the doctor issued the medical certificate on 10.02.2008, 3 (three) months after the alleged treatment dated 11.11.2007, and just 2 (two) days prior to the filing of the complaint case by the complainant-respondent. Therefore, managing a medical certificate 3 (three) months after the treatment also creates serious doubt about the alleged assault on the Complainant and entire allegation. The learned Tribunal Court failed to appreciate these and illegally framed the charge.
19. That the learned Tribunal Judge failed to consider that upon receiving the divorce notice dated 09.01.2008 from the accused-appellant, which was posted by accused-appellant from Narashino, Tokyo, Japan on 11.01.2008 and received by the Complainant in Bangladesh on 08.02.2008, the Complainant became vindictive and filed this case to harass and disrepute the accused-appellant’s reputation purposely.
20. That it is submitted that the accused-appellant has been falsely implicated in the case by the interested group with a sole purpose of harassing him and maligning his good reputation. As such continuation of the proceedings against the Appellant will be an abuse of process.
21. That the learned Tribunal Court hastily accepted the investigation report vide order No. 4 dated 31.03.2008, prepared by the local ward commissioner, Azizur Rahman (Akter) although it was prepared without investigating the alleged offence and being biased and influenced by the Complainant. The report is a mind-made report which is merely an opinion of the said commissioner regarding the alleged offence. The so called report does not reveal any ingredient of the alleged offence. It does neither disclose any evidence in support of the alleged offence that the Complainant and other witnesses. But the learned Tribunal Court failed to consider the above and erroneously framed the charge.
22. That being aggrieved by and dissatisfied with the order No. 11 dated 19.06.2008 passed by the learned judge, Nari-O-Shishu Nirjatan Domon Tribunal, Narsingdi, in Nari-O-Shishu Case No. 82/2008 dated 12.02.2008 rejecting the discharge petition the accused-appellant above named begs to prefer this instant appeal on the following amongst other-
I. For that the impugned order dated 19.06.2008 is unjust, illegal, improper and bad in law and as such the same is liable to be set aside.
II. For that the accused petitioner is quite innocent and is falsely implicated in this case by his ex-wife for harassment. But the Tribunal Judge most illegally farmed charge against the appellant.
III. For that the learned Tribunal Court failed to consider that the Complainant 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 order is liable to be set aside.
IV. For that the learned Tribunal Court did not consider that the doctor issued the medical certificate to the complainant-respondent vide dated 10.02.2008, 3 (three) months after the alleged treatment vide dated 11.11.2007 and just 2 (two) days prior to filing of the complaint case by the Complainant. As such framing of charge is erroneous as there is in fact no reliable medical evidence to implicate the Appellant.
V. For the learned Tribunal Court failed to appreciate that creating and issuing of medical certificate 3 (three) months after the alleged treatment creates serious doubt about the alleged assault on the Complainant and the entire allegation of offences under the Ain. As such the order dated 19.06.2008 is liable to be set aside.
VI. For that the learned Tribunal Court failed to take into notice that upon receiving the divorce notice dated 09.01.2008 from the Appellant, the Complainant became vindictive and filed this case on 12.02.2008 to harass and disrepute the reputation of him purposely. As such the order dated 19.06.2008 is liable to struck out.
VII. For that the learned Tribunal Court did not weigh the fact that where the Appellant 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 as dowry is fabricated which has been made up only to attract the relevant provision of the Ain with a view to harassing and humiliating the Appellant.
VIII. For that the learned Tribunal Court failed to consider that the Complainant filed the instant case against the Appellant long after 3 (three) months of the alleged offence which caused serious doubt in the Complainant’s story. As such the impugned order No.11 dated 19.06.2008 is liable to be set aside.
IX. For that in view of the above facts and circumstances your Lordships may kindly be pleased to admit the appeal.
Wherefore, it is humbly prayed that your Lordships would graciously be pleased to admit the appeal, issue usual notices upon the respondents, call for the record and on perusal of the record and hearing the parties, your Lordships be further pleased to allow the appeal and set aside the impugned order No.11 dated 19.06.2008 passed by learned Judge of Nari-O-Shishu Nirjatan Domon Tribunal, Narsingdi in Nari-O-Shishu Case No.82/2008 dated 12.02.2008 and pass such other order or further order or orders as to your Lordships may deem fit and proper.
Pending disposal of the appeal your Lordships would be further pleased to stay the proceedings of the Nari-O-Shishu Nirjatan Domon Tribunal, Narsingdi in Nari-O-Shishu Case No. 82/2008 dated 12.02.2008.
And for this act of kindness, the petitioner, as in duty bound, shall ever pray.