Azad Rahman and another Vs. The State, (Muhammad Khurshid Alam Sarker , J.)

Case No: Criminal Miscellaneous Case No. 47693 of 2017

Judge: Md. Rezaul Haque, J And Muhammad Khurshid Alam Sarkar, J

Court: High Court Division,

Advocate: Mr. AF Hassan Ariff, Senior Advocate with Mr. Nabil Ahsan, Advocates,

Citation: 2018(2) LNJ

Case Year: 2017

Appellant: Azad Rahman and another

Respondent: The State

Subject: Code of Criminal Procedure

Delivery Date: 2019-12-02

HIGH COURT DIVISION

(criminal miscellaneous jurisdiction)

Md. Rezaul Haque, J

And

Muhammad Khurshid Alam Sarkar, J

 

Judgment on

13.12.2017

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Azad Rahman and another

. . . Accused Petitioners

-Versus-

The State

. . .Opposite-Party

Code of Criminal Procedure (V of 1898)

Section 526 (1)

It is not possible for any Court to define the expression ‘for the ends of justice’ in the fixed words and, thus, it would be an improper step for this Court to endeavour to lay down any guideline of the situations which may cover the said expression. Upon meticulously examining particular fact and circumstance of a case, when a Court arrives at a conclusion that there is no specific statutory provision in place which may fit in with the stated fact/circumstance for transferring the case from the concerned trial Court to a competent Court, but the conscience of a Judge, at the same  time, dictates to hold a view that the case should be transferred from the present trial Court to a competent Court for ensuring a fair trial, that situation may be called/termed to be a situation when this Court ‘for the ends of justice’ should pass necessary order/s for conducting the trial of the case either by the equivalent/superior Court of the same District or by the equivalent/superior Court of a different District or by the High Court Division itself.                  . . .(12)

Code of Criminal Procedure (V of 1908)

Section 526 (1)

If the allegations are taken to be true and, as per the prayer of the petitioners, the case is transferred to the District of Dhaka, the petitioners cannot guarantee that the same situation would not be created by the Minister in Dhaka; rather it would be convenient for the Minister to monitor the case and, thereby, influence the same. ...(13)

Code of Criminal Procedure (V of 1908)

Section 526 (1)

The Courts of Bangladesh are independent in dealing with any case and, if at any point of time, when a Judge is unduly communicated and pressured by the executive or by any person, the concerned trial Court Judge’s duty is either to deal with the matter by her/himself towards punishing the contemnor or to report the same to the Registrar of this Court.                     . . . (14)

Code of Criminal Procedure (V of 1908)

Section 526 (1)

Trial of a case should not be held in the present Court for securing ‘the ends of justice’ or for mitigating the situations set out in clauses (a) to (d) of Section 526(1) of the CrPC, then, this Court may pass necessary order/s to transfer it either to any equivalent criminal Court or to a Court of Sessions or to itself. Litigants must approach this Court/Sessions Judge with clean hands in availing the discretionary relief under Section 526 of the CrPC. In a fit and proper case, this Court shall never hesitate to transfer the trial of a case from the concerned Court to any competent Court for the sake of justice. At the same time, this Court owes a constitutional duty of maintaining a discipline in the administration of justice in the subordinate judiciary of this country.  . . .(17)

Code of Criminal Procedure (V of 1908)

Section 526 (6A)

The propensity of the litigants to transfer the trial of a case from the concerned trial Court to another Court on omnibus ground requires to be trimmed down for the sake of administration of justice of this land and, which is why, the Legislature has empowered this Court to punish an applicant who intends to waste the invaluable time of this Court by filing trivial or fallacious application for transferring a case from the present Court to another Court.                                                           . . .(17)

Mr. AF Hassan Ariff, Senior Advocate with

Mr. Nabil Ahsan, Advocates

. . . For the petitioners

Mr. Md. Khurshedul Alam, D.A.G

. . . For the State

JUDGMENT

Muhammad Khurshid Alam Sarkar, J: Pursuant to an application filed by the accused-petitioners under Section 526 of the Code of Criminal Procedure, 1898 (CrPC), this Rule was issued calling upon the opposite parties to show cause as to why the Kot Druto G.R. Case No. 40 of 2015 arising out of Kotchandpur Police Station Case No. 08 dated 29.07.2015, under Sections 4(1)/5 of the Ain Srinkhola Bighnokari Aporadh Damon Ain, 2002 (as amended in 2014), now pending before the Senior Judicial Magistrate, 1st Court, Jhenaidah (Druto Bichar Adalat at Jhenaidah), should not be transferred to any competent Court within the District of Dhaka. 

2.             The prosecution case, in short, is that one Md. Saiful Islam Litu, as a complainant, filed a complaint petition before the Senior Judicial Magistrate, 1st Court, Jhenaidah, under Sections 4(1)/5 of the Ain Srinkhola Bighnokari Aporadh Damon Ain, 2002. It was alleged in the said complaint-petition that the complainant is a farmer who was accorded permission by the Government for purchasing power tillers at a 25% subsidized rate to sell the same to the real cultivators at the said subsidized price. The accused-petitioners are journalists who demanded extortion of Tk. 1,50,000/- from the complainant threatening him to publish a news regarding the selling of the power tillers to the persons other than cultivators and, out of fear and anxiety, the complainant gave Tk. 20,000/- to the accused-petitioners. However, the accused-petitioners threatened the complainant to publish news if the balance amount is not paid. Later on, when the complainant declined to make any further payment, the accused-petitioners on 02.06.2015 published a false news in the Daily Prothom Alo. To this end, an inquiry was carried out by the Ministry of Agriculture and the inquiry committee of the ministry found the news to be false. Thereafter, when the complainant published a rejoinder in the Daily Somokal on 06.07.2015 against the said false news, the accused-petitioners kept threatening the complainant to publish further false news, which compelled the complainant to lodge this case.

3.             Upon going through the above complaint-petition, the learned Magistrate directed the Officer-in-Charge of Kotchandpur Police Station to treat it as an FIR and to do the needful. Accordingly, the FIR was registered as Kotchandpur Police Station Case No. 08 dated 29.07.2015 and, thereafter, the same was forwarded to the learned Judicial Magistrate, cognizance Court Jhenaidah, where the case was registered as Kot Druto GR Case No. 40 of 2015. On 19.08.2015, the Police submitted charge sheet no. 72 dated 10.08.2015 and on 25.08.2015, the accused-petitioners voluntarily surrendered before the Magistrate and obtained bail and on 14.10.2015, the case was transferred for trial to the Court of Senior Judicial Magistrate, 1st Court, Jhenaidah in which the power and jurisdiction of the Druta Bichar Adalat of Jhenaidah has been vested. Thereafter, on 22.11.2015 the trial Court (the Druto Bichar Adalat) framed charge under Section 4 of the Ain Srinkhola Bighnokari Aporadh Damon Ain, 2002 (as amended in 2014) against the accused-petitioners and, by now, 6 (six) witnesses have been examined. It is stated that on 29.05.2017 the case was fixed for examination of witnesses and, on the said day, upon hearing the accused-petitioners’ application for staying all further proceedings of the case when the learned Judge of the Druta Bichar Adalat was passing the stay order, he uttered that “Please Avcbviv GLvb †_‡K gvgjv mwi‡q wbb”. Thereafter on 04.07.2017, when the accused-petitioners prayed for adjournment of the case, the learned Judge again uttered that “GLvb †_‡K gvgjv e`wj K‡i wbb”. For the above reasons, the accused-petitioners filed this miscellaneous case praying for transferring the aforesaid case from Jhenaidah to Dhaka and obtained the instant Rule.

4.             Mr. AF Hassan Ariff, the learned Senior Advocate, appearing for the accused-petitioners at the very outset draws our attention to the comments passed by the learned Judge of the trial Court (the Druta Bichar Adalat) in course of hearing of the application filed by the accused-petitioners for staying further proceedings and again, on another day, in the midst of hearing of the application for adjournment and submits that the learned Judge is not feeling comfortable to conduct trial of the case. He, then, contends that the news which gave rise to the case is against the Ministry of Agriculture and from the subsequent conduct of the concerned Ministry, the accused-petitioners have cogent reason to believe that at the behest of the Minister of the said Ministry the case was initiated and at her direction, the local political leaders are constantly pursuing the case and on each and every date a number of the local political leaders and workers appear in the Court premises and use intangible filthy language to the accused-petitioners and from such activities of the local political leaders and supporters, there has been a reasonable apprehension in the mind of the accused-petitioners that the Government officials at the Ministry of Agriculture are acting against the accused-petitioners and a fair and impartial trial cannot be held in the aforesaid trial Court. Mr. Ariff lastly submits that inordinate delay in disposing of this case indicates that this false case is filed for harassing the accused-petitioners inasmuch as this case is a case of Druto Bichar Ain and the trial of the case was supposed to have been completed within the shortest possible time prescribed in the law.

5.             By making the above submissions, the learned Advocate for the petitioners prays for making the Rule absolute.

6.             Per contra, Mr. Khurshedul Alam, the learned Deputy Attorney General (DAG) appearing for the State reads over the provisions of Section 526 of the CrPC and submits that the grounds taken by the accused-petitioners do not attract the provisions of Section 526 of the CrPC. He submits that there will be anarchy in the criminal justice administration of our country if trials of criminal cases are halted and transferred on these types of grounds. He contends that all the parties of this case, namely the accused persons and the witnesses, are the inhabitants of Jhenaidah, and submits that it would be harassment for them if the case is transferred to Dhaka or to any other district. He alleges that the attending facts amply suggest that this petition has been filed with an ill motive of delaying completion of the trial of this case. He further alleges that the Daily Prothom Alo, being a highly powerful newspaper of the country, has a tendency of influencing not only the social and political issues of the country, but also the judicial performance of this country and submits that if this case is transferred to Dhaka, a bad message will be passed on to the general litigants.

7.             By making the above submissions, the learned DAG humbly prays that the Rule should be discharged and, further, there should be a direction upon the trial Court to complete the trial of this case within a specified time.

8.             We have heard the learned Advocate for the petitioners and the learned DAG, perused the application together with its annexures wherefrom it transpires that the core issue for adjudication upon by this Court is whether there exists any reason for transferring this case from the present trial Court to any equivalent Court/Sessions Court in the District of Dhaka which may fall within the ambit of the provisions of Section 526(1) of the CrPC. For a fair adjudication of the issue, we may look at the provisions of Section 526(1) of the CrPC, which are reproduced below:

526.(1) Whenever it is made to appear to the High Court Division:-

(a)          that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or

(b)          that some question of law of unusual difficulty is likely to arise, or

(c)          that a view of the place in or near which any offence has been committed may be required for the satisfactory inquiry into or trial of the same, or

(d)          that an order under this section will tend to the general convenience of the parties or witnesses, or

(e)          that such an order is expedient for the ends of justice, or is required by any provision of this Code; it may order-

(i)           that any offence be inquired into or tried by any Court not empowered under sections 177 to 183 (both inclusive), but in other respects competent to inquire into or try such offence;

(ii)         that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior;

(iii)       that any particular case or appeal be transferred to and tried before itself; or

(iv)        that an accused person be sent for trial to itself or to a Court of Sessions.

9.             From a plain reading of the above provisions, it appears that clauses (a) to (e) of sub-Section 1 of Section 526 of the CrPC are the grounds for entertaining an application under Section 526 of the CrPC and clauses (i) to (iv) of the same are the type, mode or nature of the orders that may be passed by this Court.

10.          While the grounds for transferring a case from the concerned trial Court to any other equivalent/superior Court are specifically spelt out in unambiguous wordings in clauses (a) to (d) of sub-Section 1 of Section 526 of the CrPC and, thus, the same being self-explanatory do not require any interpretation, however, clause (e) of the same having made a broader scope for the litigants to file an application for transferring a case from one Court to another Court on the ground/s which may appear to a party of a criminal case to be appropriate ‘for the ends of justice’, discussions on the meaning of the above expression and on the scope of its application sometimes becomes necessary. In other words, it becomes incumbent upon this Court to examine the claim of the applicant as to whether ‘for the ends of justice’, the case should to be transferred from the present trial Court to the any other competent Court and, thereby, see as to whether an order to that effect is expedient or not.

11.          When the learned Senior Advocate for the petitioners was faced with the question by this Court as to which ground/s of Section 526 of the CrPC calls for transferring this Court from the present trial Court to the District of Dhaka, he frankly conceded that clauses (a) to (d) of Section 526(1) do not attract the petitioners’ situation and put his best effort to make out his case within the provision of clause (e) of Section 526(1) of the CrPC. Let us now see what is meant by the above phraseology ‘for the ends of justice’ and, then, examine as to whether the facts and circumstances of this case demand transfer on the ground of ‘for the ends of justice’.

12.          It is not possible for any Court to define the expression ‘for the ends of justice’ in the fixed words and, thus, it would be an improper step for this Court to endeavour to lay down any guideline of the situations which may cover the said expression. Upon meticulously examining particular fact and circumstance of a case, when a Court arrives at a conclusion that there is no specific statutory provision in place which may fit in with the stated fact/circumstance for transferring the case from the concerned trial Court to a competent Court, but the conscience of a Judge, at the same  time, dictates to hold a view that the case should be transferred from the present trial Court to a competent Court for ensuring a fair trial, that situation may be called/termed to be a situation when this Court ‘for the ends of justice’ should pass necessary order/s for conducting the trial of the case either by the equivalent/superior Court of the same District or by the equivalent/superior Court of a different District or by the High Court Division itself.

13.          In this case, the petitioners’ allegations are that this case has been filed at the instance of the Minister of the Ministry of Agriculture and, secondly, the learned Judge is not feeling comfortable to deal with the case. The petitioners of this case, however, have not been able to substantiate the above allegations by stating any plausible incident, not to speak of adducing any ocular evidence and, thus, these allegations appear to us to be vague. However, even if the allegations are taken to be true and, as per the prayer of the petitioners, the case is transferred to the District of Dhaka, the petitioners cannot guarantee that the same situation would not be created by the Minister in Dhaka; rather it would be convenient for the Minister to monitor the case and, thereby, influence the same.

14.          All that we wish to say that the Courts of Bangladesh are independent in dealing with any case and, if at any point of time, when a Judge is unduly communicated and pressured by the executive or by any person, the concerned trial Court Judge’s duty is either to deal with the matter by her/himself towards punishing the contemnor or to report the same to the Registrar of this Court. In this case, there is nothing in the order sheets (record) to show that the learned Judge of the trial Court has ever been communicated by any one requiring him to deal with the matter by himself or to report this Court about the alleged communication or pressure. With regard to the comments allegedly to have been made by the learned Judge, our observation is that, if the petitioner’s claim as to making the said comments is taken to be true, the learned Judge might have said it due to the non-cooperation of the accused-petitioners in completing the trial in the light of the fact that from the order sheets it is evident that the petitioners, instead of cross-examining the prosecution witnesses, not only have sought adjournments time and again, but also have eventually made prayer for transferring the case from his Court to another Court. Thus, it appears to us that the learned Judge might have said something at the instigation of the accused-petitioners. This Court, thus, does not find any materials/ evidence on record to blame the complainant for making the above comments, if it had at all happened.

15.          Furthermore, from a perusal of the order sheets of this case, it transpires that the petitioners have sought adjournments on most of the dates and the delay has occurred in completing the trial. Therefore, the allegation raised by the learned Advocate for the petitioners that by making delay in completing the trial by the informant-side, they are being harassed - appears to us to be a false allegation.

16.          The above discussions lead us to hold that the petitioner’s case does not come within the periphery of the provisions of Sections 526 of the CrPC and, hence, this Rule is destined to be discharged.     

17.          The power vested in the High Court Division by the provisions of Section 526(1) of the CrPC is discretionary in nature; meaning that if the High Court Division is satisfied that trial of a case should not be held in the present Court for securing ‘the ends of justice’ or for mitigating the situations set out in clauses (a) to (d) of Section 526(1) of the CrPC, then, this Court may pass necessary order/s to transfer it either to any equivalent criminal Court or to a Court of Sessions or to itself. Litigants must approach this Court/Sessions Judge with clean hands in availing the discretionary relief under Section 526 of the CrPC. In a fit and proper case, this Court shall never hesitate to transfer the trial of a case from the concerned Court to any competent Court for the sake of justice. At the same time, this Court owes a constitutional duty of maintaining a discipline in the administration of justice in the subordinate judiciary of this country. The propensity of the litigants to transfer the trial of a case from the concerned trial Court to another Court on omnibus ground requires to be trimmed down for the sake of administration of justice of this land and, which is why, the Legislature has empowered this Court to punish an applicant who intends to waste the invaluable time of this Court by filing trivial or fallacious application for transferring a case from the present Court to another Court. In this context, Section 526 (6A) of the CrPC may be looked at, which is reproduced below:

526. (6A) Where any application for the exercise of the power conferred by this section is dismissed, the High Court Division may if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand taka as it may consider proper in the circumstances of the case.

18.          After hearing the learned Senior Advocate for the petitioner and the learned DAG at length, when it appeared to this Court that the Rule is devoid of any substance, we asked the learned Senior Advocate as to whether he intends to receive a detailed judgment on this case or he would non-prosecute the Rule to save this Court’s invaluable time which requires for delivering a full-fledged judgment. At that juncture, we were told by the learned Senior Counsel that the learned filing lawyer would inform this Court on the next day about receiving the full fledged judgment or non-prosecuting the Rule after consulting the matter with the petitioners. But unfortunately today, (on the next date of hearing the case) none appeared before this Court and, under the circumstance, this Court does not have any option other than to deliver a full-fledged judgment. Thus, it is a fit case to slap cost upon the petitioners under the provisions of Section 526(6A) of the CrPC. However, given the fact that Mr. Hassan Ariff, a Senior Advocate of this Court with a high standing in legal profession, was engaged in this case, we restrain ourselves from imposing any cost in discharging this Rule. 

19.          In the result, the Rule is discharged without any order as to costs.

20.          However, the learned Judge of the trial Court of this case is directed to directly report henceforth to this Court, if he faces any pressure from any corner at any point of time in conducting the trial of the case. He is further directed to complete the trial of this case within the shortest possible time, preferably within thirty days, from the date of receipt of this judgment and order.

21.          Office is directed to communicate this order at once to the learned Senior Judicial Magistrate, 1st Court, Jhenaidah (Druta Bichar Adalat at Jhenaidah) by Fax and by registered post.

         Ed.