DISTRICT: NARSINGDI
IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
CRIMINAL APPEAL NO………../________
(AGINST ORDER)
IN THE MATTER OF:
An application under section 28 of the Nari-O-ShishuNirjatan Daman Ain, 2000
AND
IN THE MATTER OF:
X
Son of late Y
Permanent address:
Village- Laksmipur
Thana- Jamalpur
District- Sunamgonj
At present- House No. 16, Topuban Residential Area, Akhalia, Sylhet
Accused-Appellant
(On Bail)
-Versus-
1. The State represented by the Deputy
Commissioner, Narsingdi.
Respondent
2. Z
Daughter of A
98, West Brahmondi
Thana and District- Narsingdi
Complainant- Respondent
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.
To
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 –
SHEWETH:
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 never involved in any anti-social or anti-state activities at all.
02. That the complainant-appellant 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 his business with reputation in Tokyo for 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.
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-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), 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-appellant as accused No. 1 along with 2 (two) other accused.
05. That thereafter, accused-appellant filed a Criminal Misc. Case No. 7738 of 2008 in the High Court Division of Bangladesh. A Division Bench of the High Court Division comprising of Mr. Justice Nazrul Islam Chowdhury and Mr. Justice Md. Ataur Rahman Khan graciously pleased to enlarge the accused appellant ad-interim anticipatory bail for a period of two months vide order dated 27.05.2008.
06. 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. Upon refusal to pay such an amount, 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 guardian. 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.
Certified copy of the complaint is annexed herewith and marked as ANNEXURE- “B”
07. That the learned judge being received the complaint from the complainant-respondent ordered the local ward commissioner of the complainant-respondent, Mr. Azizur Rahman (Akter) to investigate the complaint and to submit the report within 7 (seven) days from the date of the receipt of the notice. The said commissioner investigated the matter and on 18.03.2008 submitted the report in the learned court.
Certified copy of the ward commissioner report is annexed herewith and marked as ANNEXURE-“C”
08. That being receipt and heard of the report the learned judge took the cognizance of alleged offence against the accused-appellant.
Certified copy of the relevant order is annexed herewith and marked as ANNEXURE-“D”
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 thecomplainant- respondent due to her immoral lifestyle and other reasons stated below.
10. That on 20.04.2003 the accused-appellant married thecomplainant- 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 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.
12. That the statement of the complaint, “The accused-appellant demanded the dowry of taka 5,00,000.00 (taka five lac) on the day before of the alleged offence 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.” 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 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 complainant-respondent’s residence would be at 10.30 a.m. and @ 60 kilo metres/ph speed of the bus, the arrival time would be 11 a.m. Therefore, the statement revealed in the complaint 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.
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.
A copy of the G.D dated 19.11.2007 is annexed herewith and marked as ANNEXURE “E”.
14. 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 thecomplainant- 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.
A copy of the Divorce-notice is annexed herewith and marked as ANNEXURE “F”
16. That it is humbly submitted 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.
17. That it is false and baseless 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’. 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.
18. That it is submitted that the complainant-respondent filed the instant case long after 3 months of the date of the alleged offence which shows that the story of the complainant-respondent is a per-planned one which does not carry any weight because of being doubtful.
19. That it is submitted that the complainant-respondent 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. More over the doctor issued the medical certificate vide dated 10.02.2008, 3 (three) months after the alleged treatment vide dated 11.11.2007, and just 2 (two) days prior to the filing of the complaint case by the complainant-respondent. Therefore, creating and issuing of medical certificate 3 (three) months after the treatment also creates serious doubt about the alleged assault upon complainant-respondent and entire allegation.
Copy of the doctor’s medical certificate is annexed herewith and marked as ANNEXURE: “G”
20. That it is submitted that upon receiving the divorce notice vide dated 09.01.2008 from the accused-appellant [the notice was posted by accused-appellant from Narashino, Tokyo, Japan on 11.01.2008 and received by the complainant-respondent in Bangladesh on 08.02.2008], the complainant-respondent became vindictive and filed this case to harass and disrepute the accused-appellant’s reputation purposely.
The envelope of the copy of divorce letter that sent to the brother-in-law of the accused-appellant is annexed herewith and marked as ANNEXURE –“H”
21. 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.
22. That it is submitted that the learned court accepted the investigation report vide order No. 4 dated 31.03.2008, prepared by the local ward commissioner, Azizur Rahman (Akter), of the complainant-respondent. In fact, the said commissioner without investigation of the alleged offence and being biased through the influence of the complainant-respondent submitted a mind-made report which is merely an opinion of the said commissioner regarding the alleged offence. The said so called report failed to reveal any ingredient of the alleged offence. It also failed to disclose any evidence in support of the alleged offence that the complainant-respondent and other witnesses allegedly disclosed to the said commissioner.
23. That on 17.06.2008 the accused-appellant submitted a discharge petition before the learned judge, Nari-O-Shishu Nirjatan Domon Tribunal, Narsingdi, which was rejected by the same court.
Certified copy of the order of the learned judge, vide No. 11 dated 19.06.2008 is annexed herewith and marked as ANNEXURE-“I”
24. That having been 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 in rejecting the discharge petition the accused-appellant above named begs to prefer this instant appeal on the following amongst other-
GROUNDS
I. For that the impugned order impugned order 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.
III. For that the 1st bus leaves the Sylhet inter city bus terminal at 7.00 am in the morning. The distance between 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. The approximate arrival time at complainant-respondent’s residence would be at 10.30 am. and @ 60 kilo metres/ph speed of the bus, the arrival time would be 11 a.m. Therefore, the statement revealed in the complaint itself that the accused-appellant took the complainant-respondent from sylhet to Narsingdi 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. As such the order is liable to be set aside.
IV. For that the complainant-respondent 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.
V. For 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-respondent. Therefore, creating and issuing of medical certificate 3 (three) months after the treatment also creates serious doubt about the alleged assault upon complainant-respondent and entire allegation. As such the order is liable to be set aside.
VI. For that upon receiving the divorce notice vide dated 09.01.2008 from the accused-appellant, the complainant-respondent became vindictive and filed this case on 12.02.2008 to harass and disrepute the accused-appellant’s reputation purposely. As such the order is liable to be set aside.
VII. For that where the accused-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 by the accused-appellant from the complainant-respondent as dowry is only to harass and disrepute the accused-appellant’s reputation purposely.
VIII. For that the complainant-respondent filed the instant case against the accused-appellant after 3 (three) months of the alleged offence which caused serious doubt in the complainant’s story. As such the impugned order is liable to be set aside.
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 appeal.
Wherefore, it is humbly prayed that your Lordships would graciously be pleased to admit the instant 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 dated 17.06.2008 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 lordship may deem fit and proper.
AND
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.
AFFIDAVIT
I, ___________________, son of ______________ aged about ____________ years, of ____________________, by faith ____________, by profession ___________, 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: | |
| Advocate
______________________________ |
Deponent
_______________________ |
| Solemnly affirmed before me on this the _________ day of ______________ at ____ a.m. | The deponent is known to me and identified by me. |
| Advocate
______________________ |
COMMISSIONER OF AFFIDAVITS
SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION