An application under section 439 of the Code of Criminal Procedure

DISTRICT: NARSINGDI

IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CRIMINAL REVISIONAL JURISDICTION)

CRIMINAL REVISION NO. OF ________

IN THE MATTER OF:

An application under section 439 of the Code of Criminal Procedure, 1898.

AND

IN THE MATTER OF :

X,

S/o. Y

Village – Kharia

Police Station- Shibpur

District- Narsingdi

…Convict-petitioner

(in Jail)

-Versus-

1. Z

…Complainant-Opposite party

2. The State

…Opposite party

AND

IN THE MATTER OF:

Order being No. 2 dated 8.06.08 passed by Mr. Md. Abul Hossain Khan, Learned Session Judge, Narsingdi in Criminal Appeal No. 26/08 disallowing the petition of

condonation of delay and thereby rejection of the admission of appeal for judgment and order being dated 26.05.1998 passed by Mr. Md. Kutub Uddin, 1st Class Magistrate, Narsingdi in C.R. Case No. 184/1996 (Shibpur) convicting the convict-petitioner under section 4 of the Dowry Prohibition Act, 1980 and sentencing him to suffer rigorous imprisonment for 1 (one) year and 6 (six) months.

AND

IN THE MATTER OF:

Order being No. 1 dated 29.01.2009 passed by Mr. Md. Abul Hossain Khan, Learned Session Judge, Narsingdi in Criminal Appeal No. 5/09 rejection of appeal for being not pressed.

To

Mr. Justice M. M. Ruhul Amin, the Honourable Chief Justice of the Supreme Court of Bangladesh and His companion Justices of the said Honourabe Court.

The humble petition of the above named convict-petitioner most respectfully –

SHEWETH:

1. That the complainant-opposite party (the “opposite party”) filed C.R. Case No. 184/1996 under section 4 of the Dowry Prohibition Act, 1980 against the convict-petitioner (the “petitioner”) alleging inter alia that the petitioner demanded 50,000.00 (fifty thousand) taka on the date of alleged offence from the opposite party at her home and upon refusal, the petitioner got angered and took away their 3 (three) years old daughter and left away the opposite party at her father’s home.

2. That the learned 1st Class Magistrate, Narsingdi took the case for holding trial. He framed the charge under section 4 of the Dowry Prohibition Act, 1980 against the petitioner and the charge was read over before the petitioner who claimed himself innocent and prayed for trial.

3. That in the trial only 4 (four) witnesses have been examined and defence examined none and after concluding the trial the petitioner was convicted under the aforesaid section and sentenced to suffer 1 (one) year and 6 (six) months rigorous imprisonment by the judgement and order dated 26.05.1998, passed by Mr. Md. Kutub Uddin, 1st Class Magistrate, Narsingdi.

4. That the petitioner consulted with his lawyer just after the conviction. His lawyer advised him not to file the appeal against the said conviction. The lawyer told the petitioner that he would not get any benefit in the appeal. The petitioner relied on wrong advice of his lawyer and refrained from preferring the appeal. Moreover, he did not get the conviction-warrant till arrest on 15.05.2008. The police arrested the petitioner on 15.05.2008 from his village home in connection with the said C.R. case and the petitioner came to know that the conviction-warrant was issued against him since passing the judgment.

5. That the petitioner consulted the learned advocate through his tadbirkar and instructed him to file an appeal against the conviction. The concerned lawyer informed him that the L.C.R. could not be found and without having the certified copy of the judgment, the appeal could not be filed. Thereafter, the petitioner raised an allegation through the Deputy Jailer against the said lawyer to the President of the Narsingdi District Bar. He alleged that he paid the fees of 8000.00 (eight thousand) taka to that lawyer for preparation and preferring the appeal but he failed to take any step in that regard.

6. That subsequent to his arrest on 15.05.2008, the petitioner engaged another lawyer through the tadbirkar. The said lawyer filed a memo of appeal on 29.05.08 together with an application for condonation of delay. He drafted the memo of appeal very negligently and without having any conference and consultation with the petitioner or his tadbirkar. Even he failed to mention the actual ground mentioned in paragraph Nos. 4 and 5 for condonation of delay.

7. That in addition to the negligence and wrong advice of the said lawyers, the learned Session Judge drew a wrong factual observation. He mentioned in his order, “It is fact that the accused had knowledge about the case but he did not face the trial. At the time of trial he was absconded. Trial was completed in absentia.” But in fact, the petitioner faced the trial and he was examined u/s 342. Only the judgment was pronounced in absentia on 26.05.1998. The learned Session Judge rejected the condonation of delay application and accordingly rejected the appeal being order No. 2 dated 08.06.2008.

8. That the lawyer did not communicate the order being No. 2 dated 08.06.2008 to the petitioner. The petitioner thought that the said lawyer did not proceed with the appeal application.

9. Finally, the petitioner appointed another lawyer through the tadbirkar on 25.01.2009 and the lawyer obtained the certified copy of the judgment on 28.01.2009 and the learned lawyer filed a memo of appeal being Criminal Appeal no. 5/09 together with the condonation of delay petition. But after the filing of the said memo, it was revealed to the lawyer that there was a memo of appeal was filed and rejected earlier. Then the learned Lawyer having being informed about said rejection by the concerned department, not pressed that memo of appeal.

10. That being aggrieved and dissatisfied with the aforesaid order No. 2 dated 8.6.08 disallowing the petition of condonation of delay and thereby rejection of the admission of appeal, your humble petitioner begs to prefer the instant application on the following amongst other-

GROUNDS:

I. For that the impugned order of rejection of admission of appeal is unjust, improper, illegal and as such the same is liable to be set aside.

II. For that the learned Court below has completely failed to apply his mind judicially in passing the order of rejection of admission of appeal.

III. For that the learned Court below failed to consider that the petitioner faced the trial and he was examined u/s 342.

IV. For that the impugned order of rejection of admission of appeal is based merely on surmise.

V. For that the learned Court below failed to consider the circumstances of delay which is contrary to law.

VI. For that the impugned order is bad in law and as such the same is liable to be set aside.

VII. For that the petitioner already passed about 11(eleven) months in rigorous imprisonment out of 1 ½ years’ sentence.

Wherefore, it is humbly prayed that your Lordship would be graciously be pleased to issue a Rule, calling upon the opposite party to show cause as to why the order No. 2 dated 8.6.08 passed by Mr. Md. Abul Hossain Khan, the learned Session Judge, Narsingdi, rejecting the Admission of Appeal in Criminal Appeal No. 26/08 against judgment and order being dated 26.05.1998 passed by Mr. Md. Kutub Uddin, 1st Class Magistrate, Narsingdi in C.R. Case No. 184/1996 (Shibpur) convicting the petitioner under section 4 of the Dowry Prohibition Act, 1980 and sentencing him to suffer rigorous imprisonment for 1 (one) year and 6 (six) months shall not be set aside, call for the record, and after perusal of records and cause shown, if any and on hearing the parties, your Lordships be further pleased to make the Rule absolute and or pass such order or further order or orders as to your Lordships may deem fit and proper.

And

Pending disposal of the Rule, your Lordships would further be pleased to enlarge the petitioner on bail for the ends of justice.

And for this act of kindness the petitioner, as in duty bound, shall ever pray.

AFFIDAVIT

I, …………………………………, son of …………………………, of village: ………………, P.S.: ………………………, District- ………………., aged about …….years, by occupation ………………….., by faith ______________, by nationality Bangladeshi by birth do hereby solemnly affirm and say as follows:

1. That I am the tadbirkar of the Convict-Appellant/ Petitioner in the above mentioned case and fully conversant with the facts and circumstances of the case and competent to swear this Affidavit.

2. That the statements made in the application are true to my knowledge and belief and in witness whereof I swear this affidavit and signed below on the________ day of _________ at _________-before the Commissioner of affidavit.

DEPONENT
The deponent is known to me and

identified by me.
ADVOCATE

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