Md. Mustafizur Rahman Vs. The State 2017 (1) LNJ 95

Case No: Criminal Revision No. 1388 of 2010

Judge: Kashefa Hussain, J.

Court: High Court Division,

Advocate: Mr. Md. Nurul Islam, Md. Fazlur Rahman Khan,

Citation: 2017 (1) LNJ 95

Case Year: 2016

Appellant: Md. Mustafizur Rahman

Respondent: The State

Subject: Criminal Law

Delivery Date: 2017-03-12

HIGH COURT DIVISION

(CRIMINAL REVISIONAL JURISDICTION)

Md. Rezaul Hasan, J,

And

Kashefa Hussain, J.

Judgment on

10.01.2016

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Md. Mustafizur Rahman

. . . Petitioner

Versus

The State

….Opposite Party

Code of Criminal Procedure (V of 1898)

Sections 222 and 234

The learned Court below framed charge against the petitioner and implicated him as an accused even though he had not even assumed office when the alleged offence had taken place and therefore to implicate the accused-petitioner in the alleged offence and framing charges against him is without any basis and upon a total non application of judicious mind. Nothing whatsoever transpires from the charge-sheet No.61/7 dated 27.03.2008 which could otherwise indicate towards any reason or basis for implicating the accused-petitioner. As is obvious from the records it is true that initially in the charge-sheet No.61/7 dated 27.03.2008, where he was made a witness only. However for reason best known to him without any factual or legal basis the Court below listed him as accused under Sections 109/409 of the Penal Code and failed to consider that during alleged dates of occurrence of the offence he had not even assumed office and therefore implicating him in this case is a factual absurdity.            . . .(7)

Mr. Md. Nurul Islam (Sujon) with

Mr. Rawshan Alom Khan, Advocates.

-------For the Accused-petitioner. 

Mr. Md. Fazlur Rahman Khan, DAG with

Mr. Md. Ali Zinnah and

Mr. Md. Osman Goni, AAGs

---- For the State-opposite-party.

JUDGMENT

Kashefa Hussain, J: Rule was issued in the instant of the criminal revisional application calling upon the opposite party to show cause as to why the impugned order dated 13.01.2010 passed by the learned Special Judge, Sylhet in Special Case No.30 of 2009 framing charge under Sections 109/409 of the Penal Code along with Section 5(2) of the Act-II, 1947 against the accused-petitioner arising out of Chhatak Police Station Case No.23 dated 29.09.2002 corresponding to G.R. No.212 of 2002, now pending in the Court of Special Judge, Sylhet should not be set-aside so far as it relates to the accused-petitioner and/or pass such other or further order or orders as to this Court may seem fit and proper.

2.            The prosecution case in short is that the complainant one Md. Shafiqur Rahman, Assistant Inspector, Zilla Anti-corruption Bureau, Bangladesh Railway, East Chittagong lodged an First Information Report with Chhatak Police Station on 29.09.2009 alleging inter alia that searching in DAB, Rail/East Chittagong E/R No.6/2001 it is found from the record in 1992 to 1994 verification by Mr. Abdur Rob and after verifying  60 items of goods was found inadequate which was received at different times by accused Fazlur Rahman, the store keeper (S.K.P) through issue note but no entry of the same was in the store book and also the goods were not found in the store room. The approximate value of the misappropriated goods are 27,47,483,49/- and accused Fazlur Rahman the Store Keeper (S.K.P) defalcated the goods and hence Chhatak Police Station Case No.23 dated 29.09.2002 under Section 409 of the Penal Code and section 5(2) of the Anti Corruption Act, 1947 has been started against the accused-petitioner.

3.            Md. Shafiqur Rahman Assistant Inspector DAB, Railway East, Chittagong and Md. Jahangir Alam, Assistant Director, Anti-corruption Commission after investigation submitted charge-sheet being numbered 61/6 dated 27.03.2008 against the petitioner and 2 others. Firstly the investigation officer filed charge-sheet being No.184 dated 31.12.2003 and also two others charge-sheet were submitted and accordingly three cases being Nos. Special Case No.1 of 2004, Special Case No.2 of 2004 and Special Case No.3 of 2004 were started against Fazlur Rahman and thereafter the matter was further investigated and one Jahangir Alam submitted a supplementary charge-sheet being No.61/1 dated 27.03.2008; thereafter another 8 charge-sheets was submitted by him; that charge-sheet No.61/1 was kept in Special Case No.2 of 2004 and charge-sheet No.61/2 was kept in Special Case No.3 of 2009 and another 6 charge-sheets made new 6 Special Cases being numbered 1 of 2008, 2 of 2008, 3 of 2008, 4 of 2008, 5 of 2008 and 6 of 2008. The Senior Special Judge, Sunamgonj by its order dated 18.06.2008 treated all the charge-sheets submitted in second time as the supplementary charge-sheets and made the petitioner as accused in all the new cases. The petitioner voluntarily surrendered before the learned Senior Special Judge, Sunamgonj on 29.07.2009 and the learned Special Judge was pleased to enlarge the petitioner on bail. As per the FIR the occurrence committed on 1992 to 1994 and accordingly the investigating officers submitted charge-sheet No.184 dated 31.12.2003 against one Fazlur Rahman where this petitioner was made as witness No.4; that the petitioner thereafter was made accused in supplementary charge-sheets, cognizance was taken against him and on the day for framing charge i.e. on 13.01.2010 the petitioner filed an application for discharging him from charge. On 11.01.2010 after hearing the parties, the learned Special Judge, Sylhet was pleased to reject the application under Section 265(c) of the Code of Criminal Procedure for discharging the petitioner and was pleased to frame charge under Sections 109/409 of the Penal Code along with Section 5(2) o the Act-II of the (Anti Corruption Act-1947) against this petitioner and others who pleaded not guilty and claimed to be tried and against the order rejection the petitioner preferred the instant Criminal Revision and is before us.  

4.            Mr. Md. Nurul Islam (Sujon) with Mr. Rawshan Alom Khan, learned Advocates appeared on behalf of the accused-petitioner while Mr. Md. Fazlur Rahman Khan, learned Deputy Attorney General with Mr. Md. Ali Zinnah and Mr. Md. Osman Goni, the learned A.A.Gs for the State-opposite party opposed the Rule.

5.            Mr. Md. Nurul Islam (Sujon), the learned Advocate for the accused-petitioner submits that there is no legal or factual basis for framing charge against the accused-petitioner, but the Court below unlawfully passed the impugned order of framing charge against the petitioner under Sections 109/409 of the Penal Code along with Section 5(2) of the Anti-corruption Act. While elaborating his submissions he takes us to the FIR lodged by the complainant wherein he draws our attention to the fact that the accused-petitioner was not even FIR named. He further submits that in the charge-sheet No.184 dated 31.12.2003 the petitioner was made a witness only, but the Court below upon non-consideration of the records placed before him and without application of mind framed charges against him as accused No.3. While elaborating his submissions he asserted that the alleged incident as took also stated in the FIR supposedly took place sometime between 1992 to 1994 but the petitioner took over charge on 06.05.1995 and therefore he persuades that the question of the accused-petitioner being involved in any offence at all relating to the instant case does even arise.

6.            Mr. Md. Fazlur Rahman Khan, the learned Deputy Attorney General found it difficult to oppose made by the accused-petitioner.

7.            We have heard the learned Advocates of both sides and perused the application including the FIR, charge-sheet dated 29.09.2002 and the other materials available on record. After examination of the record it does strangely appear that the accused-petitioner and as it also appears in the records he assumed office on 06.05.1995 and therefore evidently took over charges much later than the period when the alleged occurrence took place. Therefore our considered finding is that the learned Court below framed charge against the petitioner and implicated him as an accused even though he had not even assumed office when the alleged offence had taken place and therefore to implicate the accused-petitioner in the alleged offence and framing charges against him is without any basis and upon a total non application of judicious mind. Nothing whatsoever transpires from the charge-sheet No.61/7 dated 27.03.2008 which could otherwise indicate towards any reason or basis for implicating the accused-petitioner. As is obvious from the records it is true that initially in the charge-sheet No.61/7 dated 27.03.2008, where he was made a witness only. However for reason best known to him without any factual or legal basis the Court below listed him as accused under Sections 109/409 of the Penal Code and failed to consider that during alleged dates of occurrence of the offence he had not even assumed office and therefore implicating him in this case is a factual absurdity.

8.            In view of the facts and circumstances and after perusal of the laws we find merits in the Rule. Hence, the Rule is made absolute.

9.            In the result, the Rule is made absolute without any order as to costs. The impugned order dated 13.01.2010 passed by the learned Special Judge, Sylhet in Special Case No.30 of 2009 framing charge under Sections 109/409 of the Penal Code along with Section 5(2) of the Act-II, 1947 against the accused-petitioner arising out of Chhatak Police Station Case No.23 dated 29.09.2002 corresponding to G.R. No.212 of 2002, now pending in the Court of Special Judge, Sylhet is hereby set-aside so far as it relates to the accused-petitioner.

10.        However, the proceeding shall proceed against the accused Nos.1 and 2 accordingly.

Communicate this judgment and order at once. 

Ed.



Criminal Revision No. 1388 of 2010