Anowarul Huq Sabbir and another Vs. The State, VII ADC (2010) 252

Case No: Criminal Petition for Leave to Appeal No. 2 of 2008

Judge: Md. Abdul Matin,

Court: Appellate Division ,,

Advocate: Mr. A. M. Amin Uddin,Mr. Syed Haider Ali,,

Citation: VII ADC (2010) 252

Case Year: 2010

Appellant: Anowarul Huq Sabbir and another

Respondent: The State

Subject: Criminal Trail,

Delivery Date: 2009-3-8

 
Supreme Court
Appellate Division
(Criminal)
 
Present:
MM Ruhul Amin CJ
Md. Abdul Matin J
Md. Abdul Aziz J
 
Anowarul Huq Sabbir alias A.F.M. Anowarul Huq Sabhbir and another
……….Petitioners
Vs.
The State and another
..........Respondents
 
Judgment
March 8, 2009.
 
Code of Criminal Procedure, 1898
Section 241A
It appears that the petitioner filed an application under Section 421(241A) A of the Code of Criminal Procedure and that petition was rejected by the learned judge  and charge was framed as the judge was satisfied that there is a prima facie case made out by the evidence on record. A co-accused early moved the High Court Division for quashing the proceeding and the Rule was discharged. The present petitioners also filed similar application and the High Court Division held that the   Judge committed no illegality in framing the charge. ….. (16)
It further appears that an order under Section 241A of the Code of Criminal Procedure could have been only challenged if at all under Section 439 of the Code of Criminal Procedure and not under 561A of the Code of Criminal Procedure. Moreover the trial court was not satisfied on the basis of material on record about a prima facie case against the petitioners and rejected  the application for discharging and framed charges.
 
Lawyers Involved:
A. M. Aminuddin, Advocate instructed by Md. Zahirul Islam, Advocate-on-Record-For the Petitioners.
Syed Haider Ali, Advocate instructed by Syed Mahbubar Rahman and A.S.M. Khalequzzaman, Advocate-on-Record-For the Respondents.
 
Criminal Petition for Leave to Appeal No. 2 of 2008.
(From the judgment and order dated 29.10.2007 passed by the High Court Division in Criminal Revision No. 859 of 2006.)
 
JUDGMENT
 
Md. Abdul Matin J.
 
This petition for leave to appeal is directed against the judgment and order dated 29.10.2007 passed by the High Court Division in Criminal Revision No.859 of 2006 discharging the Rule affirming the order dated 15.05.2006 passed by the learned Special Sessions Judge and Jana Nirapatta Bignokari Aparad Daman Tribunal, Barisal in Special Case No.11 of 2002 under Sections 167/109 and 220/109 of the Penal Code read with Section 5(2) of Act II 1947 rejecting the petition filed by the petitioner under Section 241A of the Code of Criminal Procedure.
 
2. The short facts giving rise to the present petition are as under:-
 
3. The respondent No.2 A.B.M. Kamrul Ahsan (Nihad) filed a petition of complaint in the court of the learned Senior Special Judge, Barisal against the petitioners and 3 others alleging, inter-alia, that accused-peti­tioners are his cousin (Mamato Bhai). His maternal grandfather Md. Shamsuddin Talukder has multistoried building in Hatkhola and Kawnia at Barisal Town and also had Pharmaceutical Industry namely Indo Bangla Pharmaceuticals Limited at College Road. There are 4 storied residen­tial buildings within pharmaceuticals com­pound. Azizul Haque, father of accused petitioners was the eldest son of Md. Shamsuddin Talukder. Azizul Haque used to look after the business and taking the advan­tage he created papers fraudulently for grab­bing the business establishments. Azizul Haque died in the year 1999 and accused petitioners took charge of the business of their father. Distance arose between accused-petitioners in one side and their grand father Shamsuddin Talukder on another side over business and Shamsuddin Talukder started case being no G.R. No. 121 of 2000 against the accused-petitioners and the case was pending in the Court of Additional District Magistrate, Barisal and the case was fixed on 13.12.2000 and accused-petitioner No.2 though did not appear but obtained bail by false personifi­cation. Samsuddin Talukder filed an appli­cation under Sections 195 and 476 of the Code of Criminal Procedure against the accused-petitioners and as a result accused-petitioners became furious against their grand father. Mizanur Rahaman son of Shamsuddin Talukder instituted suits being Title Suit Nos.165 of 2000 and 33 of 2001 impleading accused petitioners and other as defendants in the suit. The complainant and his father always used to raise protest against the activities of accused-petitioners for which the accused-petitioners tried to humiliate the complainant and his father in the estimation of the public and with that end in view influenced accused Nos.1 and 2.
 
4. The further case of the prosecution is that accused No.1 at the relevant time was sub-Inspector of Police at Pirojpur Police Station and accused No.2 was P.S.I at Kotwali Police Station. The accused Nos.1 and 2 being influenced by the accused-peti­tioners made a plan to keep the complainant and his maternal uncle in custody and with that end in view accused No.1 created inquiry slip being No.53 of 2001 in connec­tion with Pirojpur Police Station Case No.1 (7) 2001 under Sections 143/148/341/385/326/307/379/114 of the Penal Code and sent the inquiry slip to Kotwali Police Station on 07.08.2001 for securing arrest of the complainant and wit­ness No.1. The accused No.2 took the inquiry slip and arrested the complainant on 11.08.2001 and the complainant obtained bail on 13.08.2001. Subsequently the com­plainant procured the papers of said Police Station Case No.1(7) 2001 and found that in the FIR the name of the petitioner and his maternal uncle no appear but inspite of that accused Nos.1 and 2 being influenced by the accused-petitioner misused their official powers.
 
5. The learned Senior Special Judge on 25.04.2002 sent the original petition of complaint   to District Anti Corruption Officer, Barisal for inquiry and report.
 
6. One Md. Abdul Wadud, Assistant Inspector Bureau of Anti-Corruption inquired into the complaint petition and sub­mitted report on 30.06.2002 and in the report the inquiry officer re-commended for obtaining sanction from appropriate authority under Sections 161/166/167/220/109 Penal Code read with Section 5(2) of Act II of 1947 and the learned Senior Special Judge on receipt of the inquiry report regis­tered the petition of complaint as Special Case No. 11 of 2002 and wrote to authority for according sanction against accused S.I Emam Hossain and S.I Abdul Khair.
 
7. On 18.09.2002 the learned Senior Special Judge obtained sanction and fixed the case to 21.09.2002 for appearance of the com­plaint.
 
8. On 21.09.2002 the learned Senior Special Judge examined the complainant on oath and took cognizance against 4 persons including the petitioner under Sections 161/166/167/220/109 of the Penal Code read with Section 5(2) of Act II of 1947.
 
9. Subsequently the case was transferred to the Court of Special Senior Judge and Jananirapatta Bignokari Aparad Daman Tribunal, Barisal.
 
10. The petitioners on 09.11.2005 filed an application under Section 241A of the Code of Criminal Procedure for discharging them from the case on the ground that the petition of complaint does not disclose any offence against the petitioner under Section 166/167/220/109 Penal Code read with Section 5(2) of Act II of 1947.
 
11. The learned Special Judge by his order dated 15.05.2006 rejected the application filed by the petitioners under Section 241A of the Code of Criminal Procedure.
 
12. The petitioners being aggrieved by the aforesaid order dated 15.05.2006 filed Criminal Revision being No.859 of 2006 before the High Court Division under sec­tion 10(1A) of the Criminal Law Amendment Act, 1958 and obtained Rule and order of stay of further proceedings of said special case.
 
13. A Division Bench of the High Court Division by judgment and order dated 29th October 2007 discharged the Rule and vacated the order of stay granted earlier.
 
14. As against the judgment and order of the High Court Division the petitioners have filed this petition for leave to appeal.
 
15. Heard the learned Advocate and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.
 
16. It appears that the petitioner filed an application under Section 241A of the Code of Criminal Procedure and that petition was rejected by the learned Judge and charge was framed as the Judge was sat­isfied that there is a prima facie case made out by the evidence on record. A co-accused early moved the High Court Division for quashing the proceeding and the Rule was discharged. The present petitioners also filed similar application and the High Court Division held that the Judge committed no illegality in framing the charge.
 
17. It further appears that an order under Section 241A of the Code of Criminal Procedure could have been only challenged if at all under Section 439 of the Code of Criminal Procedure and not under Section 561A of the Code of Criminal Procedure. Moreover the trial court was satisfied on the basis of materials on record about a prima facie case against the petitioners and reject­ed the application for discharging and framed charges.
 
We find no illegality in the judgment and order of the High Court Division calling for interference by this Court and accord­ingly the petition is dismissed.
 
Ed.