Kamrul Matubbar and others Vs. The State, 2018(1) LNJ 164

Case No: Criminal Revision No. 1123 of 2016

Judge: Borhanuddin, J.

Court: High Court Division,

Advocate: Mr. Nurul Islam Sujon, Mr. Md. Nazibur Rahman, D.A. G,

Citation: 2018(1) LNJ 164

Case Year: 2017

Appellant: Kamrul Matubbar and others

Respondent: The State

Subject: Code of Criminal Procedure

Delivery Date: 2018-05-30

HIGH COURT DIVISION

(CRIMINAL REVISIONAL JURISDICTION)

Borhanuddin, J

And

Md. Ashraful Kamal, J.

Judgment on

25.07.2017

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}

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Kamrul Matubbar and others

. . .Petitioners

-Versus-

The State

. . .Opposite Party

Code of Criminal Procedure (V of 1898)

Sections 265 C and 265 D

It is clear that in discharging the accused the court is under obligation to record its reason for so doing but in framing charge the court is to form an opinion that there is ground for presuming that the accused has committed an offence. Section 265 D does not speak to record reason in support of forming opinion. Section 265 C provides that “if, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the court considers that there is no sufficient ground for proceeding against the accused, it shall discharge the accused and record the reasons for so doing”.            . . . (14)

Code of Criminal Procedure (V of 1898)

Sections 222 and 265 D

It is now settled by our apex court that at the stage of framing of charges what is relevant for consideration is the sufficiency of ground for proceeding against the accused and whether the materials on record are sufficient and adequate for a conviction being rendered. At the stage of framing of charges, meticulous consideration of evidence and materials by court is not required. Section 265D provides that (1) if, after such consideration and hearing as aforesaid, the court is of opinion that there is ground for presuming that the accused has committed an offence, it shall frame in writing a charge against the accused. (2) Where the court frames a charge under sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.           . . .(16)

Debobrota Baiddya @ Debu Vs. State, 58 DLR 71; State Vs. Kazi Mahbubuddin Ahmed, 18 BLD (AD) 210; Khandakar Md. Moniruzzaman Vs. State, 47 DLR 341; State Vs. Khandakar (Md) Moniruzzaman, 1 BLC (AD) 226; Mr. Moudud Ahmed Vs. State, 16 BLD (AD) 27; Most. Rahela Khatun Vs. Md. Abul Hasan and others, 16 BLD (AD) 264; Superintendent and Remembrancer of Legal Affairs West Bengal Vs. Amit Kumar Bhunja and others, 1979 4 Supreme Court Cases 274 and Md. Akbor Dar and others Vs. State of Jammu and Kashmir and others, AIR 1981 (SC) 1548 ref.

Mr. Nurul Islam Sujon, with

Mr. A. S. M. Abdul Mobin, Advocates 

... For the Petitioners.

Mr. Md. Nazibur Rahman, D.A. G

... For the Opposite Party

Mr. Khandaker Bashir Ahmed, Advocate

…. For the informant-applicant

JUDGMENT

Borhanuddin, J: This Rule has been issued calling upon the opposite party to show cause as to why order dated 28.02.2016 passed by the learned Additional Sessions Judge, 2nd Court, Faridpur, in Sessions Case No. 768 of 2015 arising out of Banga Police Station Case No. 16 dated 21.03.2013 corresponding to G. R. No.62 of 2013, now pending in the 2nd Court of Additional Sessions Judge, Faridpur, rejecting an application under section 265C of the Code of Criminal Procedure and thereby framing charge against the accused-petitioners under sections 302/201/34 of the Penal Code, should not be set aside and/or such other or further order or orders passed as to this court may seem fit and proper. 

2.          Facts relevant for disposal of the Rule are that on an occurrence of unnatural death of the victim Mintu Khalashi, his elder brother Badsha Khalashi on 10.02.2013 lodged information of unnatural death to Banga Police Station, Faridpur, stating that the victim was addicted to drugs and often used to leave house without informing family members; On 04.02.2013 at 10.00 am the victim left house without informing anyone; Since he did not come back, inmates of the house started searching but he was not found; On 10.02.2013 at about 05.00 pm, the informant came to know that a deadbody was found in a pond adjacent to the house of Mostafa Sheikh; Informant went to the place and saw a decomposed deadbody; He identified his brother with the shirt worn by the victim; He guessed that the victim being addicted suddenly rolled down in the ditch and drowned.

3.          On the basis of said information, Sub-Inspector of Banga Police Station Abdul Jalil Mia alongwith his force went to the place of occurrence on 10.02.2013 and saw the deadbody. After taking photo, police lift the decomposed deadbody from ditch and prepared inquest report. No sign of injury was found on the body. A doctor of Faridpur Medical College Hospital examined the deadbody and prepared post mortem report but opinion relating to cause of death kept pending for chemical examination which was prepared subsequently with an opinion that the cause of death was asphyxia leading respiratory failure resulting from antemortem drowning. On 22.03.2013 the investigating officer submitted final report in the case of unnatural death stating that Anna Begum, sister of the victim, lodged an FIR on 21.03.2013 at Banga Police Station alleging that the victim was killed by the accuseds named in FIR and on the basis of said FIR. Banga Police Station Case No.16 dated 21.03.2013 under sections 302/201/34 of the Penal Code was started which is under investigation as such final report of the unnatural death may be enclosed with Banga Police Station Case No. 16 dated 21.03.2013.

4.          Contents of the FIR lodged by Anna Begum, sister of the victim, at Banga Police Station, Faridpur, on 21.03.2013 at 18.45 hours in brief are that due to previous enmity arose out of monetary transaction, accused Kamrul Matubbar with his gang alongwith other unknown persons severely injured the victim and pushed him into the ditch where the victim was drowned and dead. It is also stated in the FIR that the informant came to know about previous enmity due to monetary transaction from witnesses named in the FIR. Upon investigation, police submitted final report on 29.12.2013 stating that no complicity of the accused persons was found with the alleged occcurrence. Against the final report, informant Anna Begum filed naraji petition. On 04.09.2014, the informant filed an application for withdrawal of her Naraji petition with a prayer to discharge the accuseds. Naraji petition alongwith withdrawal petition filed by the informant were heard together by the learned Judicial Magistrate, Faridpur, on 07.09.2014. After hearing the parties, learned Magistrate passed an order directing CID, Faridpur, to investigate the case holding that at the time of hearing learned advocate for the informant submits that the informant did not file any application for withdrawl of her Naraji petition. After holding investigation, CID, Faridpur, submitted charge sheet against the accuseds on 25.12.2014. Four witnesses recorded statement under section 164 of the Code of Criminal Procedure and some other witnesses recorded statement under section 161 of the Code.

5.          Accuseds filed an application in the court below under section 265C of the Code of Criminal Procedure for discharge. Upon hearing the application, learned Additional Sessions Judge, 2nd Court, Faridpur, rejected the application and framed charge against the accuseds under sections 302/201/34 of the Penal Code vide order dated 28.02.2016.

6.          Being aggrieved, the accuseds as petitioners preferred instant criminal revision by filing an application under section 439 read with section 435 of the Code of Criminal Procedure and obtained the present rule alongwith an order of stay. 

7.          Mr. Nurul Islam Sujon, learned advocate appearing for the accused-petitioners submits that the court below framed charge against the accuseds without considering the factual aspect that elder brother of the victim informed local police station in writing about unnatural death of his younger brother, the victim, on 10.02.2013 and about one and half month thereafter, the informant who lives 16 kilometers away lodged the FIR which is improbable as such impugned order is liable to be set aside. He also submits that the witnesses who recorded their statement under section 161 of the Code of Criminal Procedure immediately after the occurrence did not implicate anyone for the occurrence but the court below without considering this legal and factual aspect passed the impugned order which is liable to be set aside. In support of his submissions, learned advocate referred to the case of Debobrota Baiddya @ Debu-Vs- State, reported in 58 DLR 71.

8.          Mr. A. S. M. Abdul Mobin, learned advocate who also appear on behalf of the accused petitioners submits that in many cases our apex Court held that at the time of framing charge, trial Court is to apply independent judicial mind to the facts and circumstances of the case and the materials on record particularly the FIR so as to be satisfied that innocent persons are not harassed unnecessarily but in the instant case, court below without scrutinizing record of the case and statements recorded by the witnesses under section 161 of the Code of Criminal Procedure immediately after the occurrence placed reliance upon the statements recorded long after the date of occurrence as such impugned order is liable to be set aside. He also submits that the court below committed illegality in not considering the factor of time mentioned in section 157 of the Evidence Act which stands as a safeguard against fabrication of evidence inasmuch as statements made long after the occurrence does not exclude the chance of false implication of the innocent persons as such impugned order is liable to be set aside. He further submits that the court below without proper consideration of the materials on record under sections 265C and 265D of the Code of Criminal Procedure wrongly opined that there is sufficient ground for framing charge against the accuseds under sections 302/201/34 of the Penal Code when it is apparent that there is no sufficient materials on the record to implicate the accuseds with the alleged occurrence as such impugned order is liable to be set aside. In support of his submissions, learned advocate referred to the case of State-Vs- Kazi Mahbubuddin Ahmed, reported in 18 BLD(AD)210, the case of Khandakar Md. Moniruzzaman-Vs-State, reported in 47 DLR 341 and the case of State-Vs- Khandakar (Md) Moniruzzaman, reported in 1 BLC (AD)226.

9.          Mr. Najibur Rahman, learned Deputy Attorney General appearing for the state opposes the rule. Learned Advocate Mr. Khandker Bashir Ahmed assisted the State on behalf of the informant-applicant pursuant to court’s order dated 17.11.2016.

10.      Mr. Khandker Bashir Ahmed, learned advocate submits that the documents referred by the learned advocate for the accused-petitioners are defence materials and a criminal proceeding cannot be quashed on the basis of defence materials which are not part of the record of the case as such the rule is liable to be discharged. He also submits that it is evident from the impugned order that the court below after perusing record of the case found existence of a prima facie case against the accused persons and it is settled by now that in framing charge the trial court will only see whether materials collected by the prosecution is sufficient go for the trial as such there is nothing to interfere with the impugned order. He again submits that it is apparent from the impugned order that the trial court is of the opinion that there is ground for presuming that the accuseds committed an offence which need not require further reasoning with so many words as such the rule is liable to be discharged. In support of his submissions, learned advocate referred to the case of Mr. Moudud Ahmed-Vs- the State, reported in 16 BLD(AD)27, the case of Most. Rahela Khatun-Vs-Md. Abul Hasan and others, reported in 16 BLD(AD)264 and an unreported judgment dated 06.04.2017 passed by this Division in criminal revision no.1050 of 2016 (Major Md. Nazmul Haque -Vs- the State and another). 

11.      Heard learned advocates for the accused petitioners and learned Deputy Attorney General for the State as well as learned advocate for the informant-applicant. Perused the revisional application and annexures appended thereof alongwith lower Courts record and decisions cited by the learned Advocates.

12.      This criminal revision under section 439 read with section 435 of the Code of Criminal Procedure preferred by the accused petitioners against the order of rejecting application under section 265C of the Code of Criminal Procedure and thereby framing charge against them. Facts gathered from the statement of revisional application and annexures appended thereof that the victim was found dead in a ditch. On the written intimation by his elder brother, local police went to the place of occurrence and lift the decomposed deadbody from ditch. At the time of inquest, no injury was found on the decomposed deadbody. A doctor of Faridpur Medical College Hospital examined the deadbody and prepared post mortem report. Though opinion regarding cause of death kept pending for chemical examination but post mortem report shows that “on dissection it is found that in the deadbody there was antemortem haematoma (2”X 1 ½ “ ) found under the skin of Lt. Nipple area and there was a small antemortem haematoma (1” X ½ “) found which were caused by hard blunt weapon and antemortem in nature”. After chemical examination, Doctor opined that the cause of death was asphyxia leading respiratory failure, resulting from antemortem drowing. Police submitted final report in the case of unnatural death on 22.3.2013. Before submitting final report in the case of unnatural death, sister of the victim lodged an FIR with Banga Police Station on 21.03.2013 brought allegation of murder against the accuseds named in FIR under sections 302/201/34 of the Penal Code as such final report of the unnatural death case tagged with the case arose out of the FIR filed by Anna Begum which was then under investigation. However, on investigation police found no complicity of the accuseds with the occurrence and submitted final report. Informant filed naraji petition which was heard by the learned Judicial Magistrate who directed to investigate the matter by the CID, Faridpur. After holding investigation, CID submitted charge sheet. Accuseds submitted application for discharge under Section 265C of the Code of Criminal Procedure. Upon hearing the application, Court below rejected the application and framed charge against the accuseds. Learned advocate for the petitioners emphasized much on the statement recorded by the witnesses namely Md. Jafar Munshi and Jahangir Matabbar under section 161 of the Code of Criminal Procedure on 20.06.2013 when the matter was under investigation by the Detective Branch. In the statements, the witnesses did not say anything implicating anyone with the occurrence. On perusal of the lower court record, it appears that aforementioned two persons again recorded their statement under section 161 of the Code of Criminal Procedure when the case was investigated by the CID, Faridpur, wherein these witnesses recorded a different version narrating vividly the occurrence as eye witnesses. It also appears from the record that victim’s elder brother Badsha Khalashi also recorded his statement under section 161 of the Code of Criminal Procedure on 21.03.2013 which is completely a different version from the written information regarding unnatural death. Apart from them, other witnesses including mother of the victim also recorded their statement under section 161 of the Code of Criminal Procedure. However, we are not entering into merit of the case. The question before us is whether at the time of framing charge, Court below is bound to assign reason in so many words.

13.      Sections 265C and 265D of the Code of Criminal procedure are reproduced below:

265C. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Court considers that there is no sufficient ground for proceeding against the accused, it shall discharge the accused and record the reasons for so doing. ”

265D. (1) If, after such consideration and hearing as aforesaid, the Court is of opinion that there is ground for presuming that the accused has committed an offence, it shall frame in writing a charge against the accused.

(2) Where the Court frames a charge under sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.”

14.      From above it is clear that in discharging the accused the court is under obligation to record its reason for so doing but in framing charge the court is to form an opinion that there is ground for presuming that the accused has committed an offence. Section 265D does not speak to record reason in support of forming opinion.

15.      All Courts, whether civil or criminal, possess in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice. While exercising powers under the section, the court does not function as a Court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself.

16.      It is now settled by our apex court that at the stage of framing of charges what is relevant for consideration is the sufficiency of ground for proceeding against the accused and whether the materials on record are sufficient and adequate for a conviction being rendered. At the stage of framing of charges, meticulous consideration of evidence and materials by Court is not required. In the case of Mr. Moudud Ahmed-Vs- the State, reported in 16 BLD (AD) 27, our apex Court held:

In exercising power under section 561A the High Court Division is only to see if there are prima facie allegations disclosing criminal offences. The admissibility, relevance, propriety or sufficiency of materials collected by the prosecution are matters for the trial court to decide on taking evidence.”

………………………………………...

“The trial Court framing the charge will only see whether on the basis of the materials collected by the prosecution a prima facie case to go for the trial has been made out against the accused; The existence of a prima facie case to go for trial justifies the framing of charges”.

17.      In the case of Superintendent and Remembrance of Legal Affairs West Bengal -Vs- Amit Kumar Bhunja and others, reported in (1979) 4 Supreme Court Cases 274, their lordships held:

“Where the case is at a stage of framing charges and the prosecution evidence is yet to commence, the trial Court has to consider the question of sufficiency of the ground for proceeding against the accused on a general consideration of materials placed before him by the investigation agency. The truth, veracity and effect of the evidence are not to be meticulously judged. The standard of the test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at this stage. At this stage, even a very strong suspicion found upon materials before the court, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of commission of the offence.”

18.      Again, in the case of Md. Akbor Dar and others-Vs-State of Jammu and Kashmir and others, reported in AIR 1981(SC)1548, their lordships observed:

“All that is required at the stage of framing charge whether prima facie case regarding the commission of certain offence is made out. The question whether the charges will eventually stand proved or not can be determined only after the evidence is recorded in the case. At this stage, the court is not to weigh the evidence. The court is not to go into the details on the pros and cons of the matter or enter into meticulous consideration of the evidence.”

19.      Under the facts and circumstances of the case and for the reasons stated above, we find no merit in the rule.

20.      Accordingly, the Rule is discharged without any order as to cost.

21.      Order of stay granted at the time of issuance of the rule is hereby vacated.

22.      Facts and circumstances of the cases referred by learned Advocates for the petitioners are quite distinguishable from the facts and circumstances of the case in hand.

23.      Send down lower court records alongwith a copy of this judgment to the court concern at once. 

Ed.



Criminal Revision No. 1123 of 2016