Harabilash Mitra Vs. Sanjoy Biswas and another, 2 LNJ (2013) 98

Case No: Criminal Appeal No. 1450 of 2006

Judge: M. Enayeture Rahim,

Court: High Court Division,,

Advocate: Mr. Gazi Md. Mamunur Rashid,Mr. Bivash Chandra Biswas,Mr. Md. Ekramul Islam,,

Citation: 2 LNJ (2013) 98

Case Year: 2013

Appellant: Harabilash Mitra

Respondent: Sanjoy Biswas and another

Subject: Criminal Trail,

Delivery Date: 2011-12-07

HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
M. Enayetur Rahim,  J.
         And
Sheikh Md. Zakir Hossain, J.

Judgment
07.12.2011
  Harabilash Mitra
..Appellant.
Vs.
Sanjoy Biswas and anohter
...Respondents. 
 
 
Nari–o–Shishu Nirjaton Daman Ain (VIII of 2000)
Section 17
The investigating officer is absolutely an unauthorized and unwarranted person to initiate any proceeding under the provision of Section 17 of the Nari-o-Shishu Nirjatan Daman Ain, 2000.
From the plain reading of sub-section (2) of section 17 it appears that Tribunal can take cognizance only upon a written complaint. Section 200-203 of the Code of Criminal Procedure laid down the provisions how a complaint has to be made and proceeded with it. The Tribunal in passing the impugned order giving approval to the investigating officer to initiate the proceeding against the informant for making false allegation having no written complaint before it by the competent person has acted illegally and beyond the scope of Section 17 of the Nari-o-Shishu Nirjatan Daman Ain, 2000.

Since specific provision has been made in Nari-o-Shishu Nirjatan Ain, 2000 for punishment of making false allegation, the provision of Code of Criminal Procedure and Penal Code will not be applicable for committing the offence punishable under Section 17 of the Nari-o-Shishu Nirjatan Daman Ain, 2000.…(15, 16 and 18)

Nari–o–Shishu Nirjatan Daman Ain (VIII of 2000)
Section 17.
A large number of the Judges of the Nari-o-Shishu Nirjatan Daman Tribunal have been committing the error of law. They have been allowing the investigating officers to initiate the proceedings against the informant/complaint under the provision of Section 17 of the Nari-o-Shishu Nirjatan Daman Ain, 2000. The Tribunal must be stopped from committing the same mistake again and again.…(22).

Mr. Md. Ekramul Islam, Advocate
----For the Appellant
Mr. Bivash Chandra Biswas, Advocate
----For the Respondent No.1
Mr. Gazi Md. Mamunur Rashid, AAG
---- For the State

Criminal Appeal No. 1450 of 2006
 
JUDGMENT
M. Enayetur Rahim, J:
 
This appeal at the instance of the informant is directed against the order dated 06.03.2006 passed by the Nari-O-Shishu Nirjatan Daman Tribunal No.1, Magura in Nari-O-Shishu Nirjatan Case No.43 of 2006 discharging the accused respondent No.1 from the charge brought against him accepting the final report and giving approval to initiate proceedings against the informant appellant under Section 17 of Nari-O-Shishu Nirjatan Daman Ain,2000.
 
The present appellant as informant lodged a First Information Report on 19.01.2006 with the Mohammadpur Police Station against the respondent No.1 alleging, inter alia, that her daughter named Mukti Mitra aged about 16 years is a SSC Examinee; on her way back home from the school the respondent No.1 used to tease her who disclosed the said incident to him; his wife stating the said fact on 12.01.2006 lodged a G.D with Mohammadpur Police Station being G.D. Entry No.640; having been informed about the said G.D the respondent No.1 on 13.01.2006 at about 9-30 P.M forcibly entered in to the room of her daughter Mukti Mitra when she was preparing her lesson and offered a bad proposal to her; as her daughter declined, the respondent No.1 then tried to outrage her modesty forcibly; at one stage of the scuffle her daughter screamed and then her wife Anjali Rani Mitra rushed to the room and the respondent No.1 fled away pushing her back and the said occurrence were witnessed by many person in the locality; if her wife did not rush to the spot the accused respondent would have violated her daughter which might have put stigma for her whole life. On the basis of the said First Information Report Mohammadpur Police Station case No. 07 dated 19.01.2006 under Section 9(4)(Kha) [as written in the FIR, though in the law there is no such section] of the Nari-O-Shishu Nirjatan Daman Ain, 2000 was started.
 
The police after investigation into the case submitted final report in favour of the Respondent No.1 stating that the allegation was not proved against him under section 9(4)kha) (as mentioned in the police report)of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and the investigating officer sought permission for initiating proceedings against the informant under Section 17 of the Nari-O-Shishu Nirjatan Daman Ain, 2000.
 
The Magistrate receiving the said police report sent the case record to the Nari-O-Shishu Nirjatan Daman Tribunal No.1, Magura for necessary order.
 
On 06.03.2006 date was fixed for hearing as regards to taking cognizance of offence against the accused person. The learned Judge of the Tribunal after hearing the public prose-cutor and perusing the materials on record found that there is no ingredient for taking cognizance into the case against the accused person and accepted the final report submitted by the investigating officer and also allowed the investigating officer to initiate the proce-edings against the informant under Section 17 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 as prayed by him.
 
Being aggrieved by the said order the informant has filed this appeal.
 
Mr. Md. Ekramul Islam, the learned Advocate of the informant appellant submits that the learned Judge of the Nari-O-Shishu Nirjatan Daman Tribunal acted illegally in passing the order giving approval to the investigating officer to initiate proceeding against the informant under Section 17 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 as the Tribunal had no jurisdiction to direct the investigating officer or any other person to initiate such proceeding and such direction to the investigating officer is beyond the scope of Section 17 of the Nari-O-Shishu Nirjatan Daman Ain, 2004. The learned Advocate further submits that before submission of the police report no intimation was given to the informant as provided in the law and the informant had no knowledge about the submission of the final report in favour of the accused person and the impugned order.
 
We have perused the impugned order and other materials on record.
 
From the impugned order dated 06.03.-2006 it appears that the learned Judge of the Nari-O-Shishu NIrjatan Daman Tribunal after accepting the final report in favour of the present Respondent No.1 gave approval to the investigating officer to initiate proceedings under the provision of Section 17 of Nari-O-Shishu Nirjatan Daman Ain, 2000 against the informant appellant for filing false case, as prayed by the investigating officer.
 
Section 17 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 as amended 2003 is as under;
"১৭। মিথ্যা মামলা, অভিযোগ দায়ের ইত্যাদির শাস্তি - (১) যদি কোন ব্যক্তি অন্য কোন ব্যক্তির ক্ষতিসাধনের অভিপ্রায়ে উক্ত ব্যক্তির বিরুদ্ধে এই আইনের অন্য কোন ধারার অধীন মামলা বা অভিযোগ করার জন্য ন্যায্য বা আইনানুগ কারণ নাই জানিয়াও মামলা বা অভিযোগ দায়ের করেন বা করান তাহা হইলে মামলা বা অভিযোগদায়েরকারী ব্যক্তি এবং যিনি অভিযোগ দায়ের করাইয়াছেন উক্ত ব্যক্তি অনধিক সাত বৎসর সশ্রম কারাদন্ডে দন্ডিত হইবেন এবং ইহার অতিরিক্ত অর্থ দন্ডেও দন্ডনীয় হইবেন।''
(২) কোন ব্যক্তির লিখিত অভিযোগের ভিত্তিতে ট্রাইবুনাল উপ-ধারা (১) এর অধীন সংঘটিত অপরাধের অভিযোগ গ্রহন ও মামলা বিচার করিতে পারিবে।"
 
Sub Section(2) of Section 17 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 clearly speaks that the Tribunal only can take cognizance of the offence punishable under Section 17(1) of the said Ain and proceed with the trial if a written complaint is made by ‘কোন ব্যক্তি’ before it. If we read sub-section (1)and (2) of the above section together, it will be crystal clear that ‘কোন ব্যক্তি’ as mentioned in sub-section (2) means the person against whom allegation was made to cause his injury.
 
The first portion of the sentence of sub-section (1) of section 17 of the Nari-O-Shishu Nirjatan Ain, 2000 is as under;
"যদি কোন ব্যক্তি অন্য কোন ব্যক্তির ক্ষতিসাধনের অভিপ্রায়ে উক্ত ব্যক্তির বিরুদ্ধে এই আইনের অন্য কোন ধারার অধীন মামলা বা অভিযোগ করার জন্য ন্যায্য বা আইনানুগ কারণ নাই জানিয়াও মামলা বা অভিযোগ দায়ের করেন বা করান তাহা হইলে...''
 
On critical analysis of the above language it appears to us that the word ‘কোন ব্যক্তি’ as used in the first portion of the sentence of sub-section (1) means the person namely the informant or complainant and subsequent words ‘কোন ব্যক্তির ক্ষতি সাধনের অভিপ্রায়ে উক্ত ব্যক্তির বিরুদ্ধে’ means the person against whom allegation had been made to cause his injury which found to be false after proper investigation. The said aggrieved person is the only competent person to file a written complaint before the Tribunal.
 
The word ‘কোন ব্যক্তি’ as used in sub-section (2) does not mean any person other than the person/persons against whom allegation was made to cause his injury which was found false after investigation or inquiry. In view of the provision of sub-section (2) the investigating officer of the case is a 3rd person in the proceeding or case. The investigating officer does not come with in the meaning of the words ‘কোন ব্যক্তির ক্ষতি করার অভিপ্রায়ে’ and he has nothing to be aggrieved if after completion of the investigation he found that the allegations false, against whom it was made.
 
In view of that the investigating officer is absolutely an unauthorized and unwarranted persons to initiate any proceedings under the provision of Section 17 of the Nari-O-Shishu Nirjatan Daman Ain, 2000.
 
Further from the plain reading of sub-section (2) of section 17 it appears that Tribu-nal can take cognizance only upon a written complaint. Section 200-203 of the Code of Criminal Procedure laid down the provisions how a complaint has to be made and proceed with it. The Tribunal in passing the impugned order giving approval to the investigating officer to initiate the proceedings against the informant for making false allegation having no written complainant before it by the comp-etent person has acted illegal and beyond the scope of Section 17 of the Nari-O-Shishu Nirjatan Daman Ain, 2000.
 
Having discussed as above we are of the view that the learned Judge of Tribunal has exceeded it’s jurisdiction in allowing the investigating officer to initiate the proceedings against the informant for making false allega-tion against the present Respondent under the above provision of section 17 of the Nari-O-Shishu Nirjatan Ain, 2000.
 
Since specific provision has been made in Nari-O-Shishu Nirjatan Ain, 2000 for punish-ment of making false allegation, the provision of Code of Criminal Procedure and Penal Code will not be applicable for commi-tting the offence punishable under Section 17 of the Nari-O-Shishu Nirjatan Daman Ain, 2000. 
 
The learned Judge of the Tribunal had accepted the final report and discharged the Respondent No.1 from the charges brought against him. The informant did not file any naraji against the said report. As such we are reluctant to interfere with that part of the order discharging the Respondent No.1 from the charge.
 
In the result, the appeal is allowed-in-part.
 
The order dated 06.03.2006 passed by the Nari-O-Shishu Nirjatan Daman Tribunal No.1, Magura in Nari-O-Shishu Nirjatan Case No. 43 of 2006 so far as it relates allowing the investigating officer to initiate proceedings against the informant appellant under Section 17 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 is hereby set aside.
 
In our little experience we see that a large number of the Judges of the Nari-O-Shishu Niujatan Daman Tribunal have been committing the above error of law. They have been allowing the investigating officers to initial the proceedings against the informant/ complaint under the provision of Section 17 of the Nari-O-Shishu Nirjatan Ain, 2000. The Tribunal must be stopped from committing the same mistake again and again.
 
In view of above let a copy of this judgment and order be sent to the Secretary, Ministry of law, Justice and Parliamentary Affairs, and he is directed to circulate the same to the learned Judges of the Nari-O-Shishu Nirjatan Tribunal for their appraisal. 
 
Communicate the Judgment and order at once. 
 
Ed.