Abdul Hakim Vs. The State, 2 LNJ (2013) 309

Case No: Criminal Revision No. 1011 of 1993

Judge: Md. Akram Hossain Chowdhury,

Court: High Court Division,,

Advocate: Mr. Gazi Md. Mamunur Rashid,Mr. Abdul Baset Majumdar,Mrs. Sanda Ghosh,,

Citation: 2 LNJ (2013) 309

Case Year: 2013

Appellant: Abdul Hakim

Respondent: The State

Subject: Quashment of Proceedings,

Delivery Date: 2013-01-23

HIGH COURT DIVISION
(CRIMINAL REVISIONAL JURISDICTION)
 
M. Enayetur Rahim, J.
And
Md. Akram Hossain Chowdhury, J.
 
Judgment
23.01.
2013
 
Abdul Hakim
. . . . Petitioner
-Versus-
The State
. . . Opposite party
 
 
Code of Criminal  Procedure (V of 1898)
Sections  167(5), 173(3) (b)  and  561A
A similar application in the form of Criminal Revision was earlier filed which went upto  the Appellate Division of the Supreme Court of  Bangladesh wherein the present issue has  already been settled by the Appellate Division that there is no legal bar for holding  further investigation under section 173(3)(b) of the Code of Criminal Procedure. The period elapsed owing to the pendency of the several  legal proceeding initiated by both the parties should not be counted under section 167(5) of the Code.…(8)
 
Mr. Abdul Baset Majumder, with
Mrs. Sanda Ghosh, Advocates
. . . For the petitioner
Mr. Gazi Md. Mamunur Rashid, AAG
. . . For the State, opposite party
 
Criminal Revision No. 1011 of 1993
 
JUDGMENT
Md. Akram Hossain Chowdhury, J:
 
This Rule was issued at the instance of the informant petitioner calling upon the Deputy Commissioner, Mymensingh to show cause as to why the impugned Judgment and order dated 03.05.1993 passed by the learned Sessions Judge, Mymensingh in Criminal Revision No. 93 of 1992 affirming those dated 06.02.1992 passed by the learned Upazilla Magistrate, Fulbaria, Mymensingh in Fulbaria P.S. Case No. 5 dated 19.01.1989 correspon-ding to G.R. No. 5(2)1989 under Section 302/34 of the Penal Code, allowing the CID to proceed with the further investigation of the case, should not be quashed and/or such other or further order or orders passed as to this Court may seem fit and proper.

The petitioner being informant lodged a First Information Report with the Fulbaria Police Station being Fulbaria P.S. Case No.5 dated 19.01.1989 corresponding to G.R. No. 5(2) of 1989 implicating the 11(eleven) accused persons for committing offence under Section 302/34 of the Penal Code. In the said case the police submitted charge sheet on 05.01.1989 against all the FIR named accused under section 302/34 of the Penal Code and the said charge sheet was sent to the Upazilla Magistrate, Fulbaria, Mymensingh for accep-tance. The learned Magistrate by its order dated 14.4.1989 accepted the same but soon after the said charge sheet CID vide its Memo dated 23.05.1989 prayed for permission to hold further investigation into the case; which was allowed by the learned Additional District Ma-gistrate (ADM), Mymensingh on 08.07.1989. Against the said order of further investigation the informant filed a Criminal Revision being No.265 of 1989 before the Sessions Judge, My-mensingh. Subsequently, the learned Sessions Judge after hearing the parties by his Judgment and order dated 04.02.1990 allowing the revision set aside the order of the ADM. Then the state being petitioner filed an application before the High Court Division under Section 561A of the Code of Criminal Procedure challenging the said proceeding and subsequent order of the learned Sessions Judge, Mymen-shingh dated 04.02.1990 which was ultimately allowed by the High Court Division on 31.01.1991 and thus allowed the CID for further investigation.

Being aggrieved by the said Judgment and order of the High Court Division, the informant moved in the Appellate Division of the Supreme Court and the Hon’ble Judges of the Appellate Division upheld the High Court’s Judgment and order dated 31.01.1991. Thereby the case was sent back to the concerned Court of Magistrate to adjudicate the matter but the informant again filed an application stating that since the CID could not investigate the case within the stipulated period, the further investigation should be stopped; upon which the learned Magistrate, Fulbaria, Mymensingh by his order dated 16.01.1992 directed the CID to stop the investigation and also ordered to transmit the case record to the Sessions Judge, Mymensingh for trial. Then on 06.02.1992 all the charge sheeted accused persons appearing before the Upazilla Magistrate prayed for enlarging them on bail and simultaneously filed an application for reviving the order of the learned Magistrate dated 16.01.1992; by which the learned Magistrate stopped the further investigation by CID. In the said application it has been contended inter-alia that the time limit of the case has been elapsed due to a revisional application was filed by the prosecution before the learned Sessions Judge, Mymensingh challenging the order of further investigation by CID and then the matter was moved up to the Appellate Division, as such, the investigation by CID could not be comple-ted within the stipulated period; therefore the statutory period of investigation should not be counted in the present case. The learned Magistrate after hearing both the parties by his order dated 06.02.1992 allowing the said application revived his earlier order dated 16.01.1992 and again directed the CID for further investigation.

Being aggrieved by the said order of the learned Magistrate dated 06.02.1992, the informant as petitioner again filed a Criminal Revision being No.93 of 1992 before the learned Sessions Judge, Mymensingh, and the learned Sessions Judge after hearing both the parties by his judgment and order dated 03.05.1993 affirming the judgment and order of the Magistrate dated 06.02.1992, dismissed the said revision.

Being aggrieved by and dissatisfied with the said order of the learned Sessions Judge, Mymenshingh dated 03.05.1993, the informant as petitioner by filing an application under Section 561A of the Code of Criminal Procedure obtained the present rule.

Mr. Abdul Baset Majumder, the learned Advocate appearing with Ms. Sanda Ghosh, Advocate for the petitioner submitted that by the impugned judgment and order the learned Sessions Judge, Mymensingh after a long lapse of time dismissing the revision and upholding the order of the Magistrate allowed the CID to re-investigate the case after long lapse of more then three years; which is nothing but an abuse of the process of the Court. Whereas the police after proper investigation submitted charge sheet against the FIR named accused persons earlier and since the case was being ready for trial no further investigation is required. Hence, the instant rule is to be absolute.

On the other hand Gazi Md. Mamunur Rashid, the learned Assistant Attorney General opposing the rule submitted that there is no bar in holding further investigation under Section 173(3)(b) of the Code of Criminal Procedure though a charge sheet has been submitted. Thus, the learned Sessions Judge, Mymensingh has not committed any illegality in passing the impugned order and the said judgment and order deserves no interference. As such, the instant rule is liable to be discharged.

Heard the learned Advocates, perused the materials on record and gone through the impugned Judgment and order of the Court below. It appears from the record that a similar application in a form of Criminal Revision was earlier filed by the prosecution at the instance of the present petitioner which has been moved up to the Appellate Division of the Supreme Court, on which the present issue has already been settled by the Appellate Division that the further investigation should have to be done by the CID and there is no bar in the eye of law for further investigation. The period as claimed has been elapsed was happened due to the pendency of the several legal proceeding initiated by both the parties one after another up to the apex Court and the said period should not be counted under Section 167(5) of the Code of Criminal Procedure for holding investigation of the case and there is no bar for further investigation under Section 173(3)(b) of the Code of Criminal Procedure even though a charge sheet has already been submitted. As such, the investigation could not be held by CID within the time limit in the instant case.

Having considered the above we are of the opinion that since the same issue has already been settled by the Appellate Division of the Supreme Court earlier upon elaborate discussion and observations and the learned Session Judge, Mymensingh relying on the said observations of the Supreme Court passed the impugned judgment and order dated 03.05.1993 which do not calls for any interference.

In view of the above we find no merit in the rule, thus, inclined to discharge the same.

In the result, the rule is discharged. The impugned judgment and order dated 03.05.1993 passed by the Sessions Judge, Mymensingh, in Criminal Revision No. 93 of 1992 affirming those dated 06.12.1992 passed by the Upazilla Magistrate, Fulbaria, Mymens-ingh allowing the CID for further investigation into the case is hereby upheld and to be maintained. The order of stay granted earlier by this Court on 18.01.1996 is recalled and vacated. The CID, Mymenshingh is directed to file its report within the stipulated period as provided by law after holding investigation into the case from the date of receipt of this judgment and accordingly the Court below is at liberty to proceed with the case in accordance with law.    

Communicate this judgment and order to the Court concerned at once.

Ed.