Abul Bashar Chowkidar Vs. Abdul Manan @ Khademul Islam & others [4 LNJ AD (2015) 143]

Case No: Criminal Petition for Leave to Appeal No. 456 of 2011

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Mr. Md. Ruhul Amin Bhuiyan,Mr. Jamiruddin Sirker,,

Citation: 4 LNJ AD (2015) 143

Case Year: 2015

Appellant: Abul Bashar Chowkidar

Respondent: Abdul Mannan @ Khademul Islam and others

Subject: Reinvestigation of a Case,

Delivery Date: 2014-09-11


APPELLATE DIVISION
(CRIMINAL)
 
Nazmun Ara Sultana, J,
Syed Mahmud Hossain, J,
Muhammad Imman Ali, J,

Judgment on
11.09.2014
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Abul Bashar Chowkidar
...Petitioner
Versus
Abdul Mannan @ Khademul Islam and others
...Respondents
 
 
Code of Criminal Procedure (V of 1898)
Section 173(3B)
There is no gainsaying that the Code of Criminal Procedure does not provide for reinvestigation of any case. Whether or not the investigation done in any case subsequent to the submission of a charge sheet after the initial investigation is completed, is the result of a “reinvestigation” or a “further investigation” is a matter of semantics. ...(13)

Code of Criminal Procedure (V of 1898)
Section 173(3B)
The question that may be posed is whether or not there would be any prejudice if instead of calling it “reinvestigation”, the second investigation was termed “further investigation”, which is allowed by the law. Under normal circumstances, if on the basis of fresh evidence a supplementary charge sheet is submitted, for example by adding names of accused person(s) who had not been included in the initial charge sheet, there would be no questioning the legality of the supplementary charge sheet. That clearly is the purpose of section 173 (3B) of the Code. .... (13)

Code of Criminal Procedure (V of 1898)
Section 173(3B)
Although the initial charge sheet was submitted naming six accused persons upon finding prima facie evidence against them, the CID filed an application categorically for “reinvestigation” and thereafter went on to exonerate those six persons against whom charge sheet had been submitted and accepted by the learned Magistrate, while at the same time implicating the informant’s wife as an accused in the case. To our mind, the action of the CID smacks of mala fide which leads us to conclude that the subsequent charge sheet was indeed the result of reinvestigation, especially when we note that the subsequent charge sheet dated 28.02.2004 bears a new and independent number. Clearly, it is not a supplementary charge sheet.        . . . (14)

Code of Criminal Procedure (V of 1898)
Section 173
The second charge sheet is not one contemplated under the law and hence it is illegal. No trial can take place against accused Ayatun Nahar, on the basis of such illegal and palpably motivated charge sheet. Accordingly the impugned judgement and order passed by the High Court Division is modified. The direction of the High Court Division so far as it relates to Ayatun Nahar is set aside.     . . . (15)

Code of Criminal Procedure (V of 1898)
Section 173 (1) and 173 (3B)
Section 173 (3B) of the Code allows for further investigation and submission of a further report with further evidence, oral or documentary in respect of an offence, even after a report had been forwarded to the Magistrate under section 173 (1) of the Code. Hence, in this case, if it is felt necessary, a further investigation may be carried out and any other person or persons implicated as accused for the offence, if prima facie evidence is found against him/her/them.                                   . . . (16)
 
For the Petitioner : Mr. Jamiruddin Sirker, Senior Advocate, with Mr. Md. Ruhul Amin Bhuiyan, Advocate, Instructed by Mr. Mvi. Md. Wahidullah, Advocate-on-Record

Respondent No. 1-5 : :Mr. Kh. Mahbub Hossain, Senior Advocate, instructed by Mr. Md. Ashrafuz Zaman Advocate-on-Record

Respondent No. 6-7 : Not represented.

Criminal Petition for Leave to Appeal No. 456 of 2011
 
JUDGMENT
Muhammad Imman Ali, J.
 
This criminal petition for leave to appeal is directed against the judgement and order dated 18.08.2004 passed by a Division Bench of the High Court Division in Criminal Miscellaneous Case No. 9556 of 2004 discharging the Rule.

The facts relevant for disposal of the case are that on 20.2.2001 the petitioner as informant lodged a First Information Report (FIR) with the Chakaria Police Station against six accused persons namely Abdul Mannan, Abdul Hamid, Baharuddin, Buri Begum, Abdul Quader and Saber Ahmed alleging, inter-alia, that he had land dispute with the accused persons, who on 20.2.2001 at 1:00 p.m. being armed with dao, spade, iron rod, lathi etc. forming an unlawful assembly began to cut earth from his homestead land and spread the same on their own land contiguous to his homestead. The wife of the informant Ayatun Nahar protested. Then the accused persons attacked her. Accused Abdul Mannan gave a spade blow causing grievous bleeding injury on her left arm and she fell down. Other accused persons also assaulted her. They also outraged her modesty and took away a gold necklace from her neck. His (informant’s) six year old daughter, Ripa Mani Akter came forward to rescue her mother when accused Abdul Mannan struck on her head with the back of a spade causing fracture of her head and her brain came out. Other accused persons also beat her. She died instantaneously. Hearing hue and cry the witnesses, namely Amiruddin Master, Enam, Abul Kalam, Hasan and Md. Nurul Islam came forward. Then the accused persons fled away. The informant upon receiving the information returned home and heard the occurrence from his wife and other witnesses.

Accordingly Chakaria Police Station Case No. 21 dated 20.1.2001 under sections 143/447/323/354/379/302/ 34 of the Penal Code against six accused persons was recorded.

After completion of investigation the Investigating Officer submitted charge-sheet No. 113 dated 23.05.2002  under sections 143/447/323/324/354/379/302 of the Penal Code against 6 (six) FIR named accused.

The learned Magistrate concerned accepted the police report and issued warrant of arrest against the accused persons. Thereafter, one Inspector of CID with reference to a letter of Police Head Quarters, Dhaka, filed an application to the Magistrate concerned seeking permission for re-investigation and to have the case docket. This application was allowed. An Inspector of CID after re-investigation submitted “supplementary” charge sheet No. 18 dated 28.02.2004 under section 302 of the Penal Code against Ayatun Nahar, the wife of the informant and mother of the deceased while stating that during his investigation he did not find any evidence against the six accused named in the earlier charge sheet. The Magistrate concerned accepted that supplementary charge sheet, issued warrant of arrest against Ayatun Nahar and discharged the six accused persons, against whom the earlier charge sheet had been submitted.

Against that order the informant preferred Criminal Revision No. 49 of 2004 under section 439A of the Code of Criminal Procedure before the Sessions Judge, Cox’s Bazar, which was summarily rejected.

Thereafter, the informant moved the High Court Division filing an application under section 561A of the Code of Criminal Procedure for quashing the proceeding of the case pending against accused Ayatun Nahar and obtained Rule.

By the impugned judgement and order the High Court Division discharged the Rule and set aside the order dated 29.3.2004 passed by the learned Magistrate in the aforesaid case so far as it relates to discharging the six accused persons, against whom the earlier charge sheet had been submitted. The High Court Division also ordered that two cases, the one against the six accused persons charge-sheeted earlier and the other against Ayatun Nahar will be tried simultaneously by the same Court as cross-cases in accordance with law.

Being aggrieved by and dissatisfied with the impugned judgement and order of the High Court Division the petitioner has filed the instant criminal petition for leave to appeal before this Division.

Mr. Jamiruddin Sirker, learned Senior Advocate appearing on behalf of the petitioner submitted that once a charge sheet had been submitted and accepted by the court, under the scheme of the Code of Criminal Procedure, there is no scope for reinvestigation into the case, and the submission of a supplementary charge sheet after reinvestigation, and the proceeding on the basis of such supplementary charge sheet is illegal, without jurisdiction and an abuse of the process of the court. He further submitted that the CID filed the application for reinvestigation into the case with ulterior motive in order to exonerate the real culprits and included the name of the informant’s wife as an accused in the so-called supplementary charge sheet in order to screen the real offenders. The learned Advocate pointed out that the earlier charge sheet clearly implicated the six accused persons with prima facie evidence, which was accepted by the learned Magistrate. In such event, even further investigation would not justify a final report against those accused persons who had been included in the earlier charge sheet on the basis of evidence gathered as a result of the first investigation. He also submitted that the High Court Division failed to appreciate that there is no provision for reinvestigation upon scrapping the earlier investigation report. Referring to section 173 of the Code of Criminal Procedure, he submitted that there is no provision for reinvestigation of any case once a charge sheet has been submitted and accepted by the court. He pointed out that section 173 (3B) of the said Code provides for further investigation, but there is no scope for reinvestigation. In support, he referred to the case of Afia Khatoon versus Mobasswir Ali and others, reported in 3 BLT (AD) 74.

Mr. Khondaker Mahbub Hossain, learned Senior Advocate appearing on behalf of the respondents submitted that the criminal miscellaneous case filed by the petitioner before the High Court Division was not maintainable since the petitioner had earlier filed two separate criminal revisions before the Sessions Judge without filing any Naraji Petition against the acceptance of the second charge sheet and these facts were suppressed. He further submitted that since the investigation by the CID has revealed prima facie evidence against the informant’s wife, there is no reason why the proceedings against her could not continue.

We have considered the submissions of the learned Advocates for the parties concerned, perused the impugned judgement as well as the evidence and materials on record.

There is no gainsaying that the Code of Criminal Procedure does not provide for reinvestigation of any case. Whether or not the investigation done in any case subsequent to the submission of a charge sheet after the initial investigation is completed, is the result of a “reinvestigation” or a “further investigation” is a matter of semantics. The question that may be posed is whether or not there would be any prejudice if instead of calling it “reinvestigation”, the second investigation was termed “further investigation”, which is allowed by the law. Under normal circumstances, if on the basis of fresh evidence a supplementary charge sheet is submitted, for example by adding names of accused person(s) who had not been included in the initial charge sheet, there would be no questioning the legality of the supplementary charge sheet. That clearly is the purpose of section 173 (3B) of the Code.

However, in the facts of the instant case, it appears that although the initial charge sheet was submitted naming six accused persons upon finding prima facie evidence against them, the CID filed an application categorically for “reinvestigation” and thereafter went on to exonerate those six persons  against whom charge sheet had been submitted and accepted by the learned Magistrate, while at the same time implicating the informant’s wife as an accused in the case. To our mind, the action of the CID smacks of mala fide which leads us to conclude that the subsequent charge sheet was indeed the result of reinvestigation, especially when we note that the subsequent charge sheet dated 28.02.2004 bears a new and independent number. Clearly it is not a supplementary charge sheet.

In view of the above discussion, we are of the opinion that the High Court Division was correct in directing the trial to proceed against the six accused persons who were named in the first charge sheet. However, we are of the view that the second charge sheet is not one contemplated under the law and hence it is illegal. No trial can take place against accused Ayatun Nahar, on the basis of such illegal and palpably motivated charge sheet. Accordingly the impugned judgement and order passed by the High Court Division is modified. The direction of the High Court Division so far as it relates to Ayatun Nahar is set aside.

We would again reiterate that section 173 (3B) of the Code allows for further investigation and submission of a further report with further evidence, oral or documentary in respect of an offence, even after a report had been forwarded to the Magistrate under section 173 (1) of the Code. Hence, in this case, if it is felt necessary, a further investigation may be carried out and any other person or persons implicated as accused for the offence, if prima facie evidence is found against him/her/them.

With the above observations, this criminal petition for leave to appeal is disposed of.

Ed.