Md. Mahbubur Rahman Vs. The State and another [4 LNJ (2015) 135]

Case No: Criminal Revision No. 676 of 2010

Judge: Mohammad Ullah,

Court: High Court Division,,

Advocate: Mr. M.A. Muntakim,Mr. Abdullah-Al-Bakee,Mr. M. G. Sarder,Mr. Gazi Md. Mamunur Rashid,Mr. Abdul Mannan Bhuiyan,,

Citation: 4 LNJ (2015) 135

Case Year: 2015

Appellant: Md. Mahbubur Rahman

Respondent: The State and another

Subject: Withdrawal of a Case,

Delivery Date: 2014-01-23

HIGH COURT DIVISION
(CRIMINAL REVISIONAL JURISDICTION)

 
M. Enayeture Rahim, J.
And
Mohammad Ullah, J

Judgment on
23.01.2014
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Md. Mahbubur Rahman
. . . Petitioner
-Versus-
The State and another
. . . Opposite parties
 
Code of Criminal Procedure (V of 1898)
Section 494
This section empowers the Public Prosecutor to withdraw any case from prosecution subject to consent of the Court concerned. The consent should not be given mechanically rather it should be given judiciously taking into consideration the materials of such decision of the Government.
Section 494 of the Code of Criminal Procedure has given power to any Public Prosecutor to withdraw any case from the prosecution but this sort of decision should be materialized by the concerned court judiciously. The consent mentioned in section 494 of the Code is not to be given mechanically rather the court is to exercise its function judiciously before giving such consent which implies that the court will have to examine the materials on which the Government decides withdrawal of the case. . . . (9)

Code of Criminal Procedure (V of 1898)
Section 494
A long standing practice and decision of the Apex Court, withdrawal from  prosecution is subject to consent by the trial Judge and when the accused person or persons is/are absconding the discretions ought not to have been exercised.  . . . (10)
 
Code of Criminal Procedure (V of 1898)
Section 494
Neither any reason was assigned for withdrawal of the case from prosecution nor is there any indication considering the material before taking much decision, the withdrawal is an illegality. The Court should exercise its functions judicially but not mechanically.
No reason or ground has been assigned for the withdrawal of the case from the prosecution and there is no indication that materials were considered before taking the decision and thus the Druto Bichar Tribunal No. 3, Dhaka committed illegality in allowing the withdrawal under the given circumstances of the instant case. The Court is required to exercise its function judicially to accord withdrawal of any accused from prosec-ution. In other words the consent should not be given mechanically.… (11 and 12)
 
Sreemati Prativa Rani Dey Vs. Dr. Mohammad Yousuf, 52 DLR (AD) 8 ref.
 
Mr. M.A. Muntakim, and
Mr. Abdullah-Al-Bakee, Advocate
... For the Petitioner.
Mr. M. G. Sarder, D.A.G. with
Mr. Gazi Md. Mamunur Rashid, A.A.G.
…For the Opposite Party (State)
Mr. Abdul Mannan Bhuiyan, Advocate
….For the Opposite Party No. 2

Criminal Revision No. 676 of 2010

JUDGMENT
Mohammad Ullah,  J:
 
On an application under section 439 read with section 435 of the of the Code of Criminal Procedure this Rule was issued  calling upon the  opposite parties to show cause as to why the impugned order dated 29.04.2010  passed by the Druto Bichar Tribunal No. 03, Dhaka in Druto Bichar Case No. 03 of 2009 arising out of G.R. No. 403 of 2006 which arose out of Badda Police Station Case No. 43 dated 28.11.2006 under sections 302 and 34 of the Penal Code withdrawing the opposite party no. 2 from prosecution should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.
 
By the Rule issuing order dated 24.5.2010 operation of the aforesaid impugned order dated 29.04.2010 and all further proceedings of Druto Bichar Tribunal Case No. 03 of 2009 were initially stayed for a period of 3(three) months. Thereafter it was further extended on 10.10.2010 till disposal of the Rule from the date of expiry.
 
The facts, relevant for the purpose of disposal of this Rule, are that the petitioner as informant lodged a first information report on 28.11.2006 with Badda Police Station about killing of his younger brother Md. Mostafizur Rahman alias Sharif aged about 27 years alleging an offence under sections 302 and 34 of the Penal Code against 5 accused persons including the opposite party no. 2. The informant alleged that his younger brother had been living with him and running a constr-uction goods supply business. The accused persons, namely, 1) Kowsar @ Golakata Kowsar (28), 2) Babu @ Guti Babu (30), 3) Topu @ Langra (45), 4) Kala Ripon @ Kailla Ripon (26) and 5) Kailla Masud (25) were used to demand ransom from his brother. When brother of the informant Mostafizur Rahman alias Sharif denied to pay the said ransom the accused persons threatened to kill the brother of the informant. On 27.11.2006 at about 11:45 accused Topu @ Langra Topu took the brother of the informant at a place namely Sohag Tailors near Huda's House of Link Road of Comilla Para of Modhya Badda and accused Kowsar @ Galakata Kowsar and Kailla Ripon in a bid to kill the brother of the informant shot by firearms upon the head, neck and back side of the brother of informant Mustafizur Rahman. Upon hearing the gunshot and utter, the informant then and there rushed to the place of occurrence and found the accused persons were fleeing away throwing blank fire. Then the informant with the help of neighbor Ripon took his severely injured brother to a Doctor where victim was declared dead. The accused persons in a body in order to materialize their pre-plan shot his brother and killed him.
 
Accordingly, Badda Police Station Case No. 43 dated 28.11.2006 was recorded against the accused opposite party No. 2 and other accused persons under sections 302 and 34 of the Penal Code which subsequently gave rise to G.R. No. 406 of 2006.
 
Police after investigation submitted charge-sheet on 07.09.2008 against 8 accused persons including the accused opposite party No. 2 under sections 302 and 34 of the Penal Code.
 
When the said G.R. Case was ready for trial, it was sent to the Druto Bichar Tribunal No. 3, Dhaka for trial and disposal wherein Druto Bichar Tribunal Case No. 3 of 2009 was recorded. The Tribunal framed charge against the accused opposite party No. 2 and others under aforesaid section of the Penal Code and the prosecution in the meantime produced 11 P.Ws. in support of its case.  At this stage Government took a decision not to proceed with the case against the accused opposite party no. 2 Kowsar alias Golakata Kowsar invoking provision of section 494 of the Code of Criminal Procedure and by the impugned order dated 24.09.2010 the Tribunal allowed the above withdrawal prayer of the prosecution.
 
Mr. M.A. Muntakim and Mr. Abdullah-Al-Bakee, learned Advocates have appeared on behalf of the informant-petitioner. In support of the Rule the learned Advocate submitted that the Tribunal did not at all look into the gravity of the offence of the accused opposite party no. 2 as disclosed in the first information report and in the meantime 11 prosecution witnesses have already been examined and even did not take into consideration that the accused opposite party no. 2 was very much absent when he was discharged from prosecution and hence the order of the tribunal is ex-facie illegal and not tenable in law and on fact thus, it is liable to be set-aside in the interest of justice. The learned Advocate further submitted that the Tribunal failed to record essential finding while allowing the application of the learned Public Prosecutor for non prosecution of the case and as such, the order of the Tribunal was mechanical once, which is not sustainable in the eye of law.
 
Mr. Abdul Mannan Bhuiyan, learned Advocate, on the other hand, appearing on behalf of the accused-opposite party no. 2 Kowsar @ Galakata Kowsar submited that since the case is a political one and as such on consideration of the harassment of the accused opposite party No. 2 the Government has rightly taken decision to withdraw the case. Accordingly, learned Public Prosecutor placed the matter along with the decision of the Government, and the Tribunal on consideration of the submission of the Public Prosecutor passed the impugned order and thereby affirmed the decision of the Government and thus, the Tribunal did not commit any illegality in passing the impugned order.
 
Heard the learned Advocates, of both the parties, perused the materials on record placed before us including the impugned order dated 29.4.2010 passed by the Druto Bichar Tribunal, Dhaka. Section 494 of the Code of Criminal Procedure has given power to any Public Prosecutor to withdraw any case from the prosecution but this sort of decision should be materialized by the concerned court judiciously.  The consent mentioned in section 494 of the Code is not to be given mechanically rather the court is to exercise its function judiciously before giving such consent which implies that the court will have to examine the materials on which the Government decides withdrawal of the case. 
 
It appears from the impugned order no. 51 dated 29.04.2010 that the accused opposite party no. 2 was very much absent from the Tribunal when the Tribunal dealt with the matter and acquitted the accused opposite party No. 2 from the prosecution. But a long standing practice and decision of the Apex Court, withdrawal from  prosecution is subject to consent by the trial Judge and when the accused person or persons is/are absconding the discretions ought not to have been exercised.
 
It also appears from the materials on record that there is a direct and specific allegation against the accused opposite party no. 2 to kill the victim Md. Mustafizur Rahman @ Sharir and upon such allegation police inquiring into the matter submitted charge-sheet against this opposite party no. 2 and others and in the meantime 11 prosecution witnesses  have been examined. But while dealing with this matter the Tribunal only held that there was a long standing dispute between the parties and the learned Public Prosecutor filed an application for withdrawal of the case thus it is allowed. No reason or ground has been assigned for the withdrawal of the case from the prosecution and there is no indication that materials were considered before taking the decision and thus the Druto Bichar Tribunal No. 3, Dhaka committed illegality in allowing the withdrawal under the given circumstances of the instant case.
 
In the aforesaid facts and circumstances of the instant case, now let us consider whether on the basis of the decision of the Government the case can be allowed to be withdrawn. It appears from the impugned judgment of the Druto Bichar Tribunal that it allowed withdrawal of the case   from the prosecution as a matter of course.             It is now well-settled that the Court is required to exercise its function judicially to accord withdrawal of any accused from prosecution. In other words the consent should not be given mechanically.
 
Above view of ours finds support in the case of Sreemati Prativa Rani Dey Vs. Dr. Mohammad Yousuf reported in 52 DLR(AD) 8 wherein their Lordships observed:

"It further appears that the accused persons in this case are all along absconding. And while they are still absconding the Government decided to withdraw from the prosecution which was allowed. It is now well settled that such withdrawals subject to consent by the trial Judge and when the accused persons are still absconding the discretion ought not to have been exercised by the Divisional Special Judge in the present case.
It is well settled that the consent mentioned in section 494 of the Code of Criminal Procedure is not to be given mechanically. The Court is to exercise its function judicially before giving such consent which implies that the Court will have to examine the materials on which the Government decides withdrawal of a case."
 
In the facts and circumstances of the instant case and in the impugned order it appears that the learned Tribunal without giving any reason, just on taking into consideration of the Memo of the Ministry of Home Affairs filed by the learned Public Prosecutor, mechanically allowed the same as like as a routine work and accorded permission for non prosecution which is neither sustainable in law nor maintainable on the facts of the given case.
 
In view of what has been stated above we find merit in this Rule, and thus the Rule should be made absolute.
 
In the result, the Rule is made absolute.
 
The impugned order No. 51 dated 29.4.2010 passed by the Druto Bichar Tribunal No. 3, Dhaka in Druto Bichar Case No. 03 of 2009 arising out of G.R. No. 403 of 2006 which arose out of Badda Police Station Case No. 43 dated 28.11.2006 under sections 302 and 34 of the Penal Code then pending in the Druto Bichar Tribunal No. 3, Dhaka is hereby set-aside.
 
The order of stay granted at the time of issuance of the Rule and its subsequently extention stands recalled and vacated.
 
The Druto Bichar Tribunal No. 3, Dhaka is directed to conclude the trial in accordance with law.
 
The opposite party No. 2 Kowsar @ Galakata Kowsar son of Md. Shahidullah of Ta-122, Middle Badda, Comilla Para, Badda, Dhaka is directed to surrender to the trial Court within 4(four) weeks from the date of receipt of this order failing which trial court is at liberty to take necessary steps for securing his arrest.
 
Let a copy of this judgment be sent to the learned Druto Bichar Tribunal No. 3, Dhaka at once.
 
Ed.

Reference: 4 LNJ (2015) 135