DISTRICT: NARSINGDI
IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
CRIMINAL APPEAL NO………../_______
(AGAINST ORDER)
IN THE MATTER OF:
An application for appeal under section 28 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (as amended in 2003)
AND
IN THE MATTER OF:
X
S/o. Y
Bangladesh address:
Village: Monoharpur
P.S. Astagram
District: Kishoregonj
Germany address: Engel Bosteler Damm-132, 30167 Hannover, Germany
…….. Accused-Appellant
(On Bail)
-Versus-
The State represented by the Deputy
Commissioner, Narsingdi.
……..Respondent
A N D
IN THE MATTER OF:
An application of appeal against the order of framing of charge being No. 24 dated 7.01.09 passed by the learned Nari-O-Shishu Nirjatan Domon Tribunal, Narsingdi in Nari-O-Shishu Case No. 326/2005 corresponding to Narsingdi P.S. Case No. 48 dated 30.04.2005 under Sections 11(Ga) and 30 of the Nari-O-Shishu Nirjatan Domon Ain, 2000 (as amended in 2003) arising out of G.R. Case No. 458/05.
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 citizen of Germany. He comes from established and respected Muslim family of Bangladesh and has impeccable reputation in Bangladesh as foreign currency sender from Germany. The accused-appellant is permanently residing in Hanover, Germany. He permanently renounced his Bangladeshi nationality on 25.01.2005. He is not involved in any anti-social or anti-state activities at all.
02. That the informant (“the victim”) is the ex-wife of the accused-appellant who married each other on 20.02.2004 in accordance with Shari’ah law. The accused-appellant divorced the victim at the office of Kishoregonj Municipal Area Marriage & Divorce Registrar office, Kishoregonj at about 1 p.m. on 10.04.2005 as the relationship was not going well.
03. That the accused-appellant, after completion of his education in Bangladesh had gone to Germany in the year of 1990 and sought asylum there. He got the naturalization in Germany and became the permanent citizen of Germany on 01.12.2003. Thereafter he renounced his Bangladeshi nationality on 25.01.2005.
04. That having been informed in Germany that a Nari-O-Shishu Case No. 326/2005 filed against the accused-appellant along with 3 (three) other accused under Sections 11(Ga) and 30 of the Nari-O-Shishu Nirjatan Domon Ain, 2000 (as amended in 2003), the accused-appellant immediately traveled to Bangladesh on 09.11.2008 to contest the Case and surrendered before the learned Tribunal and prayed for bail. The learned tribunal after perusal of the bail application was satisfied to enlarge the accused-appellant in ad-interim bail.
05. That the prosecution case inter alia that after weeding with the victim on 20.02.2004, the brother and mother of the victim gave taka 4.0 lac (taka four lac) as dowry to the accused-appellant when he disclosed his interest to go to Germany. Then the accused-appellant left Bangladesh for Germany. In his absence, the accused No. 2 tortured the victim mentally. Later on, when the accused-appellant came in Bangladesh, victim’s brother invited the accused-appellant. The accused-appellant together with the accused Nos. 2-4 came to victim’s house at Narsingdi at about 10 am on 10.04.2005. After the lunch, upon request from victim’s brother, mother and neighbours to take the victim with them, the accused-appellant being motivated by the other accused demanded taka 5, 00,000.00 (taka five lac) from the victim and her brother and he told that he lost a large amount of money in Germany and he required taka 5.0 lac (taka five lac) in order to go Germany again as fresher. Being refused by the victim and her brother to give dowry, the accused got angered. At one point the victim told to file a case against them. Then the accused-appellant being excited beat in the victim’s chest and back and different parts of the body by a wooden stick and kicked at the abdomen which caused huge bleeding through the victim’s lower part. The victim was taken to the Sadar Hospital doctor and took treatment.
06. That the real facts were inter alia that after the weeding on 20.02.2004 with the victim, the accused-appellant tried to take her in Germany since the accused-appellant is a German national. Being failed to convince the victim over phone and other means, the necessity of living together with the victim in Germany, the accused-appellant came to Bangladesh on 08.04.2005 and divorced the victim and registered the same in presence of witnesses at the office of Kishoregonj Municipal Area Marriage & Divorce Registrar office, Kishoregonj at about 1 p.m. on 10.04.2005 and sent the copy of Talaknama by registered post to the victim and local chairman of the victim on 16.04.2008. Having received the Talaknama from the accused-appellant, the victim made a false story and filed the said Nari-O-Shishu Case No. 326/2005 on 30.04.2005 against the accused-appellant along with 3 (three) other accused under Sections 11(Ga) and 30 of the Nari-O-Shishu Nirjatan Domon Ain, 2000 (as amended in 2003).
07. That upon conclusion of the investigation, the investigation officer submitted the charge sheet being No. 195 dated 12.07.2005 under section under Sections 11(Ga) and 30 of the Nari-O-Shishu Nirjatan Domon Ain, 2000 (as amended in 2003) against the accused-appellant along with 3 others.
08. That on 01.12.2008 the accused-appellant submitted a discharge petition before the learned Judge, Nari-O-Shishu Nirjatan Domon Tribunal, Narsingdi, stating that the case was filed to harass and humiliate the accused-appellant which was rejected by the same tribunal being order no. 24 dated 7.01.09 and fixed the next date on 25.03.2009 for the deposition of witnesses. But the learned tribunal adjourned the proceedings on 25.03.2009 and fixed the next date on 04.06.2008 for deposition of witnesses.
09. That a Division Bench of the Honorable High Court Division comprising of Mr. Justice Md. Abdul Wahhab Miah and Mr. Justice Md. Raisuddin stayed the all further proceedings of Nari-O-Shishu Case No. 326/2005 under Sections 11(Ga) and 30 of the Nari-O-Shishu Nirjatan Domon Ain, 2000 (as amended in 2003) Narsingdi, corresponding to P.S. Case No. 48 dated 30.04.2005 arising out of G.R. Case No. 458/05 for a period of 1 (one) year from the date of 13.12.2006, so far it was related to the accused Nos. 3 and 4.
10. That the prosecution case 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 victim due to lack of understanding and other reasons stated below. Despite making this submission the learned Tribunal failed to appreciate it.
11. That it was alleged in the prosecution case that “the accused-appellant together with the accused Nos. 2-4 came to victim’s house at Narsingdi on 10.04.2005 at about 10 am. After the lunch, upon request from victim’s brother, mother and neighbours to take the victim with them, the accused-appellant being motivated by the other accused demanded taka 5,00,000.00 (taka five lac) from the victim and her brother”. 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 accused-appellant divorced the victim on 10.04.2005 and registered the talaknama in presence of witnesses at the office of Kishoregonj Municipal Area Marriage & Divorce Registrar office, Kishoregonj at about 1 p.m. on 10.04.2005. Therefore, the allegation by the victim against the accused-appellant to visit the victim’s house at 10 am on 10.04.2005 at Narsingdi and having launch at noon and thereafter demanding dowry of taka 5.0 lac (taka five lac) from the victim and her brother are absurd. The learned Tribunal failed to consider that there is no ingredient of the alleged offence punishable under the Ain.
12. That it is submitted that the allegation “after weeding with the victim on 20.02.2004, the brother and mother of the victim gave taka 4.0 lac (taka four lac) to the accused-appellant when he disclosed his interest to go to Germany” are false. The accused-appellant had been living Germany since 1990 and became the national of Germany since 01.12.2003. Therefore, it is absurd to demand dowry from the victim for going to Germany.
13. That it is submitted that the allegation “the accused-appellant being motivated by the other accused demanded taka 5, 00,000.00 (taka five lac) from the victim and her brother and told he lost a large amount in Germany and he required taka 5.0 lac (taka five lac) in order to go Germany again as fresher” are false. It is submitted that as a German national it is absurd that the accused-appellant would go to Germany as fresher. He is already a citizen and a resident of Hanover. They accused-appellant got return ticket with him when he came in Bangladesh on 08.04.2005, two days prior to the divorce date. As a German national, the accused-appellant did not require more than the ticket cost and he had bought that from Germany. Therefore, the allegation of dowry against the accused-appellant is false and fabricated.
14. That it is submitted that due to lack of understanding with the victim, the accused-appellant decided finally not to carry out the marital relationship with her. The accused-appellant divorced the victim on 10.04.2005 due to continuous irritating behaviour with accused-appellant over phone and other means. The accused-appellant was bound to make such a drastic decision as there was no other alternative. But the victim was not happy with that decision at all. The ultimate consequence of her discontent is the Nari-O-Shishu Case No. 326/2005 dated 30.04.2005 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 without considering the facts and circumstances framed the charge which does not have any legal basis.
15. That it is submitted that the learned Tribunal failed to consider that “the accused-appellant being motivated by the other accused demanded taka 5, 00,000.00 (taka five lac) from the victim and her brother and he told that he lost a large amount of money in Germany and he required taka 5.0 lac (taka five lac) in order to go to Germany again as fresher. Being refused by the victim and her brother to give dowry, the accused got angered. At one point the victim told to file a case. Then the accused-appellant being excited beat in the victim’s chest and back and different parts of the body by a wooden stick and kicked at the abdomen which caused huge bleeding through the victim’s lower part.” are absurd, 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 in our society beating a wife by her husband and his relatives in wife’s house in front of wife’s relatives where the husband house is 100 miles away from the wife’s house is absurd. Therefore, the allegation that the accused-petitioner claimed taka 5,00,000.00 (taka five lac) as dowry from the victim and her brother is unreasonable, unbelievable, false, concocted, vexatious which caused serious doubt in the averments of the victim in the prosecution case. That it was humbly submitted before the learned Tribunal 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 failed to appreciate the discrepancy in the statement of the complainant and hastily framed charge which is not tenable in law.
16. That it is submitted that the learned Tribunal Court did not consider the fact that the victim filed the instant case long after 20 days 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 failed to take this delay into consideration and illegally framed the charge against the accused-appellant which is liable to be struck out.
17. That it is submitted that the learned Tribunal Judge failed to consider that upon receiving the divorce notice being dated 10.04.2005 from the accused-appellant, which was posted by accused-appellant from Kishoregonj on 16.04.2005, the victim became vindictive and filed this case to harass and disrepute the accused-appellant’s reputation purposely.
18. 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 accused-appellant will be an abuse of process.
19. That it is submitted that the learned Tribunal hastily accepted the charge sheet. The investigation officer being biased and influenced by the victim submitted the charge sheet against the accused-appellant. But the learned Tribunal failed to consider the above and erroneously framed the charge.
20. That being aggrieved by and dissatisfied with the order No. 24 dated 7.01.09 passed by learned judge, Nari-O-Shishu Nirjatan Domon Tribunal, Narsingdi in Nari-O-Shishu Case No. 326/2005 dated 30.04.2005 lodged against the accused-appellant along with 3 (three) 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 the accused-appellant above named begs to prefer this instant appeal on the following amongst other-
GROUNDS
I. For that the impugned order dated 7.01.09 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 take into notice that upon receiving the divorce notice dated 10.04.2005 from the accused-appellant, the victim became vindictive and filed this case on 30.04.2005 to harass and disrepute the reputation of him purposely. As such the order dated 7.01.09 is liable to struck out.
IV. For that the learned Tribunal failed to take into consideration that the accused-appellant had been living Hanover, Germany since 1990 and became the permanent citizen of Germany since 01.12.2003, prior to weeding with the victim on 20.02.04 and therefore, the allegation that after weeding with the victim on 20.02.2004, the brother and mother of the victim gave taka 4.0 lac (taka four lac) as dowry to the accused-appellant when he disclosed his interest to go Germany are false. As such the order dated 7.01.09 is liable to struck out.
V. For that learned Tribunal failed to consider the fact that the accused-appellant divorced the victim on 10.04.2005 and registered the talaknama in presence of witnesses at the office of Kishoregonj Municipal Area Marriage & Divorce Registrar office, Kishoregonj at about 1 p.m. on 10.04.2005. Therefore, the allegation by the victim against the accused-appellant to visit the victim’s house at 10 am on 10.04.2005 at Narsingdi and having launch at noon and thereafter demanding dowry of taka 5.0 lac (taka five lac) to the victim and her brother are absurd. As such the order dated 7.01.09 is liable to struck out.
VI. For that the learned Tribunal failed to consider the fact that as a German permanent national since 2003, the accused-appellant does not require to go Germany as fresher and therefore the allegation that the accused-appellant demanded the dowry of taka 5.0 lac (taka five lac) in order to go Germany again as fresher are false. As such the order dated 7.01.09 is liable to struck out.
VII. For that the learned Tribunal Court failed to consider that the victim filed the instant case against the accused-appellant long after 20 days of the alleged offence which caused serious doubt in the prosecution’s story. As such the impugned order No.24 dated 7.01.09 is liable to be set aside.
VIII. For that the learned Tribunal failed to consider the fact that a Division Bench of the Honorable High Court Division comprising of Mr. Justice Md. Abdul Wahhab Miah and Mr. Justice Md. Raisuddin stayed the all further proceedings of Nari-O-Shishu Case No. 326/2005 dated 30.04.2005 under Sections 11(Ga) and 30 of the Nari-O-Shishu Nirjatan Domon Ain, 2000 (as amended in 2003) for a period of 1 (one) year from the date of 13.12.2006, so far it was related to the accused Nos. 3 and 4 considering the absurdity of the allegations. As such the impugned order No.24 dated 7.01.09 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 respondent, call for the record and upon perusal of the record and hearing the parties, your Lordships be further pleased to allow the appeal by setting aside the impugned order No.24 dated 7.01.09 passed by learned Nari-O-Shishu Nirjatan Domon Tribunal in Narsingdi Nari-O-Shishu Case No. 326/2005 corresponding to Narsingdi P.S. Case No. 48 dated 30.04.2005 under Sections 11(Ga) and 30 of the Nari-O-Shishu Nirjatan Domon Ain, 2000 (as amended in 2003) arising out of G.R. Case No. 458/05 and pass such other or further order or orders as your Lordships may deem fit and proper.
AND
Pending disposal of the appeal your Lordships would be further pleased to stay the proceedings in Nari-O-Shishu Case No. 326/2005 pending before the Nari-O-Shishu Nirjatan Domon Tribunal, Narsingdi.
And for this act of kindness, the petitioner, as in duty bound, shall ever pray.
A F F I D A V I T
I, …………………………….., son of …………………………………, of Village- …………………………., P.S. ……………………, District: …………….. aged about …………. years by faith Muslim, by profession ……………………, nationality Bangladeshi by birth, do hereby solemnly affirm and say as follows:-
01. That I am the Tadbirkar of the accused-appellant 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 in paragraph Nos. 1 to 20 hereinabove are true to my knowledge and matters of record, which I verily believe to be true and the rests are submission before this Hon’ble Court.
Prepared in my office
___________________________
(……………………………………..) DEPONENT
Advocate
………………….. Dhaka. The deponent is known to me and identified by me.
Solemnly affirmed before me by
the said ___________________ at
the premises of the Supreme Court of
Bangladesh, Dhaka on this the ________ day
of __________ at _____________-.
(…………………………………….)
Advocate