Haji Muhd. Khorshed Alam Vs. The State, (Syed Md. Ziaul Karim, J.)

Case No: Criminal Revision No. 1237of 2003

Judge: Syed Md. Ziaul Karim, J And Sheikh Md. Zakir Hossain, J.

Court: High Court Division,

Advocate: Mrs. Sakila Rowshan,D.A.G. with Mrs. Sharmina Haque, A.A.G. and Mr. Md. Shorowardhi, A.A.G.,

Citation: 2019(1) LNJ

Case Year: 2014

Appellant: Haji Muhammad Khorshed Alam

Respondent: The State

Subject: Evidence Act

Delivery Date: 2019-11-27

HIGH COURT DIVISION

(CRIMINAL REVISIONAL JURISDICTION)

Syed Md. Ziaul Karim, J

And

Sheikh Md. Zakir Hossain, J.

 

Judgment on

22.10.2014

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Haji Muhammad Khorshed Alam

. . . Accused-Petitioners

-Versus-

The State

. . . Opposite party

Evidence Act (I of 1872)

Section 3

We should bear in mind, credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration.

a) The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.

b) The evidence must be such as to exclude to a moral certainty every reasonable doubt of the gilt of the accused.

c) In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons person should escape than that one innocent person suffer.

d) There must be clear and unequivocal proof of the corpus deficit.

e) The hypothesis of delinquency should be consistent with all the facts proved.

Inspite of the presumption of truth attached to oral evidence under oath if the Court is not satisfied, the evidence inspite of oath is of no avail.                . . . (9)

Code of Criminal Procedure (V of 1898)

Sections 173, 202 and 222

A  Charge" corresponds to an "indictment" in English Law and is very much more than a mere form. It is a precise formulation of specific accusation made against a person. Charge is defined as a 'precise formulation of the specific accusation made against a person who is entitled to know its nature at the very earliest stage. The necessity of a system of written accusation specifying a definite criminal offence is the essence of criminal procedure. Charge has to be framed on the basis of the material placed before the Trial Court and while doing so the Court is not bound by the inquiry report submitted under section 202 of the Code of Criminal Procedure or in a Police challan case by the report submitted under section 173 of the Code of Criminal Procedure.   . . .(10 and 11)

Code of Criminal Procedure (V of 1898)

Section 222

“The object of charge”- The object of framing a change is to enable the defence to concentrate its attention on the case that he has to meet, and if charge is framed in such a vague manner that the necessary ingredients of the offence with which the accused is convicted are not brought out in the charge, then the charge is defective. The framing of a proper charge is vital to a criminal trial and this is a matter on which the Magistrate or Judge should bestow the most careful attention. A charge should be carefully drawn up in accordance with the offence disclosed. The charge should be precise in its scope and particular in its details. . . . (11)

Words and Phrases

Ground

The word 'Ground' means basis, foundation or valid reason. . . . (12)

Code of Criminal procedure (V of 1898)

Section 222

“Conditions for framing of a charge”- conditions for framing of a charge are (i) presumption of the commission of an offence on the materials before the Court and (ii) offences triable exclusively by a competent Court.       . . .(12)

Narcotics Control Act 9XX of 1990)

Section 19(1)

On going to the materials on record it transpires that the informant categorically narrated the manner of crime committed by the accused. The learned Judge after considering the entire materials on record rightly framed charge under Clause 2(kha) of the Table of section 19(1) of the Narcotics Control Act, 1990 against the petitioner. All that is required at the stage of framing charge is to see whether the prima-facie case regarding commission of certain offence is made out. The truth veracity and effect of evidence which prosecution proposes to adduce at the time is not to be meticulously judged at the stage of framing charge. In the instant case the accused stand indicted for offence punishable under Clause 2(kha) of the Table of section 19(1) of the Narcotics Control Act, 1990.Cognizance has been taken under the said Act. We have meticulously examined the allegations made by the informant and we find that the offence punishable under Clause 2(kha) of the Table of section 19(1) of the Narcotics Control Act, 1990 have been clearly disclosed in the instant case against the petitioner. We have gone through the grounds taken in the petition of Revision and we find that such grounds are absolutely the disputed question of facts and the same should be decided at trial. The plea of the petitioner are nothing but the defence plea. Be that as it may the proposition of law is now well settled that on the basis of defence plea or materials the criminal proceedings should not be stifled before trial; when there is a prima-facie case for going for trial.    . . .14)

No one appears,

. . . For the accused-petitioner

Mrs. Sakila Rowshan,D.A.G. with

Mrs. Sharmina Haque, A.A.G. and

Mr. Md. Shorowardhi, A.A.G.

. . . For the State-opposite party

JUDGMENT

Syed Md. Ziaul Karim, J: By this Rule, accused-petitioner has challenged the legality and propriety of the order dated 07-06--2003 passed by learned Metropolitan Additional Sessions Judge, Third Court, Dhaka, (briefly as Judge) framing charge under Clause 2(Kha) of the Table of Section 19(1) of the Narcotics Control Act, 1990(briefly as Act, 1990), in Metro. Session Case no. 302 of 2002.

2.             Facts, in brief are that the petitioner is the accused of Metro. Session Case no. 302 of 2002 under the Act, 1990. The Police after investigation submitted charge-sheet accusing him under the Act, 1990.

3.             Eventually, the accused-petitioner was put on trial in the Court of Metropolitan Additional Sessions Judge, Third Court, Dhaka, wherein the accused filed an application under section 265C of the Code of Criminal Procedure (briefly as the Code) for discharging him from the case.

4.             After hearing the learned Judge framed charge under the Act, 1990 by rejecting the said application for discharge, fixing 31-08-2003 for evidence.

5.             Feeling aggrieved the appellant preferred the instant Revision and obtained the present Rule.

6.             No one appears on behalf of the petitioner to support the Rule. In view of the facts, this is an old Revision of 2003 we are inclined to take it up for disposal on merit considering the materials on record.

7.             The learned Deputy Attorney General appearing for the State-opposite party opposes the Rule and submits that after considering the materials on record the learned Judge of the Court below rightly framed charge which calls for no interference by this Court.

8.             In order to appreciate her submissions we have gone through the record and given our anxious consideration to her submissions.

9.             We should bear in mind, credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration.

a)            The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.

b)            The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused.

c)             In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should escape than that one innocent person suffer.

d)            There must be clear and unequivocal proof of the corpus delicit.

e)             The hypothesis of delinquency should be consistent with all the facts proved.

Inspite of the presumption of truth attached to oral evidence under oath if the Court is not satisfied, the evidence inspite of oath is of no avail.

10.         A "Charge" corresponds to an "indictment" in English Law and is very much more than a mere form. It is a precise formulation of specific accusation made against a person. Charge has to be framed on the basis of the material placed before the Trial Court and while doing so the Court is not bound by the inquiry report submitted under section 202 of the Code of Criminal Procedure or in a Police challan case by the report submitted under section 173 of the Code of Criminal Procedure.

11.         A charge is an important step in a criminal proceeding. It separates the inquiry stage from trial. The whole object of framing a charge is to enable the defence to concentrate its attention on the case that he has to meet, and if charge is framed in such a vague manner that the necessary ingredients of the offence with which the accused is convicted are not brought out in the charge, then the charge is defective. The framing of a proper charge is vital to a criminal trial and this is a matter on which the Magistrate or Judge should bestow the most careful attention. A charge should be carefully drawn up in accordance with the offence disclosed. The charge should be precise in its scope and particular in its details. A charge is defined as a ‘precise formulation of the specific accusation made against a person who is entitled to know its nature at the very earliest stage. The necessity of a system of written accusation specifying a definite criminal offence is the essence of criminal procedure.

12.         The charge-sheet to which the accused is called upon to plead is a very important document. It should be drawn up and considered with extreme care and caution, so that accused may have no doubt whatever as to the offences to which he is called upon to answer and the Judge of the Appellate Court also may have no doubt upon the matter. The word ‘Ground’ means basis, foundation or valid reason. The whole object of framing a charge is to enable the defence to concentrate its attention on the case that he has to meet. Conditions for framing of a charge are (i) presumption of the commission of an offence on the materials before the Court and (ii) offences triable exclusively by a competent Court.

13.         In the case of Mohd. Aqil and another Vs. The State 1988 Crl. L.J. 1484 held:

            " Framing of charge- Matters to be considered by Court indicated.

   For the purpose of framing a charge the Court is required to consider judicially asto whether on consideration of the materials on record, it can be said that the accused has reasonably connected himself with the offence alleged to have been committed and that on the basis of the said material there is reasonable probability or chance of the accused  being found guilty of the offence alleged. If the answer is in the affirmative, the Court will be at liberty to presume "that the accused has committed the offence” as mentioned in S. 228 for the purpose of framing the charge. In finding out a prima-facie case not only the F.I.R. or complaint but even the statements of the witnesses recorded under S. 161 although the same may have been recorded after some delay during the investigation of the case are to be taken into consideration and if from all other material, a prima facie case is made out against the accused then the Magistrate has no option but to frame a charge against the accused. The Court is not expected to make a roving enquiry in the pros and cons of the matter and weigh the evidence as if he was conducting a trial. However, in a case, if two views are possible and the Judge is satisfied that evidence produced before him while giving rise to some suspicion does not give rise to grave suspicion against the accused, he will be fully within his right to discharge the accused."

14.         On going to the materials on record it transpires that the informant categorically narrated the manner of crime committed by the accused. The learned Judge after considering the entire materials on record rightly framed charge under Clause 2(kha) of the Table of section 19(1) of the Narcotics Control Act, 1990 against the petitioner. All that is required at the stage of framing charge is to see whether the prima-facie case regarding commission of certain offence is made out. The truth veracity and effect of evidence which prosecution proposes to adduce at the time is not to be meticulously judged at the stage of framing charge. In the instant case the accused stand indicted for offence punishable under Clause 2(kha) of the Table of section 19(1) of the Narcotics Control Act, 1990.Cognizance has been taken under the said Act. We have meticulously examined the allegations made by the informant and we find that the offence punishable under Clause 2(kha) of the Table of section 19(1) of the Narcotics Control Act, 1990 have been clearly disclosed in the instant case against the petitioner. We have gone through the grounds taken in the petition of Revision and we find that such grounds are absolutely the disputed question of facts and the same should be decided at trial. The plea of the petitioner are nothing but the defence plea. Be that as it may the proposition of law is now well settled that on the basis of defence plea or materials the criminal proceedings should not be stifled before trial; when there is a prima-facie case for going for trial. In view of such facts the grounds taken in the petition of Revision are not the correct exposition of law. Moreso interruption of the course of Justice will set up a wrong precedent by which the course of justice instead of being advanced readily been stifled inasmuchas the grounds advanced before us are not correct or legal exposition of law. Therefore we hold that there are sufficient grounds for proceeding against the petitioner for going for trial under Clause 2(kha) of the Table of section 19(1) of the Narcotics Control Act, 1990. To that end in view we are at one with the learned Judge of the Court below regarding framing of charge against the petitioner. In view of the above we failed to discover any merit in this Revision. Thus the Rule having no merit fails.

15.         In view of foregoing narrative the Rule is discharged. The order of stay granted earlier stands vacated.

         Office is directed to communicate the order at once.

Ed.



Criminal Revision No. 1237of 2003