Md. Shakil Ahmed and others Vs. The State, 4 LNJ (2015) 628

Case No: Criminal Miscellaneous Case No. 25941 of 2009

Judge: J. N. Deb Choudhury,

Court: High Court Division,,

Advocate: Mr. Syed Mahmudul Ahsan,Mr. Kazi M. Ejarul Haque,Mr. Md. Shafquat Hussain,,

Citation: 4 LNJ (2015) 628

Case Year: 2015

Appellant: Md. Shakil Ahmed and others

Respondent: The State

Subject: Quashment of Proceedings,

Delivery Date: 2011-01-27


HIGH COURT DIVISION
(CRIMINAL APPELLATE JURISDICTION)
 
Syed Mahmud Hossain, J.
And
Md. Nazrul Islam Talukder, J.

Judgment on
27.01.2011
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Md. Shakil Ahmed and others
...Petitioners
-Versus-
The State
. . .Opposite Party
 
 
Code of Criminal Procedure (V of 1898)
Section-561A
It is a settled principle of law that if the First Information Report or the petition of complaint discloses prima facie allegations against the accused, those allegations are the matters of facts which are required to be decided by the Trial Court on taking evidence. The material question whether the accused-petitioners are bonafide purchasers for value or not, can be decided by the trial Court only on taking evidence and it cannot be made a ground for quashing the proceeding. ...(14 and 16)
 
Interpretation of Statute
A criminal case can be filed for criminal liability and a civil suit may for civil liability. Both the criminal case and civil suit can run at the same time.. . .(17)
 
Abdul Quader Chowdhury Vs. The State, 28 DLR (AD) (1976) 38, Ali Akkas Vs. Enayet Hossain and others, 17 BLD (AD) (1997) 44. Mr. Moudud Ahmed Vs. The State, 16 BLD (AD)(1996) 27, Dr. M. Faruq Vs. The State and another, 16 BLD (AD) (1996) 51, Khandaker Abul Bashar Vs State and another, 63 DLR(AD)(2011) 79 ref.
 
Mr. Syed Mahmudul Ahsan, Advocate
. . . For the petitioners.

Mr. Kazi M. Ejarul Haque, Deputy Attorney-General with
Mr. Md. Shafquat Hussain, Assistant Attorney-General.
. . . For the Opposite party

Criminal Miscellaneous Case No. 25941 of 2009
 
JUDGMENT
Md. Nazrul Islam Talukder, J:
 
This Rule, at the instance of the accused-petitioners, was issued on an application under section 561A  of  the Code of Criminal Procedure calling upon the opposite-party to show cause as to why proceeding of G.R. Case No.163 of 2007 arising out of Hajaribagh Police Station Case No. 11 dated 13.9.2007 under sections 420/406/468/471/109 of the Penal Code, now pending in the Court of learned Additional Chief Metropolitan Magistrate, 2nd Court, Dhaka should not be quashed and/or pass such other or further order or orders as to this Court may seem fit and proper.
 
Facts relevant for the purpose of disposal of this Rule may be, briefly, stated as follows:
        On 1.7.2007, one Md. Ain Uddin as complainant filed a petition of complaint before the Chief Metropolitan Magistrate, Dhaka against the accused-petitioners and others alleging, inter-alia, that the father and uncle of the complainant were the original owners of 1.24 acres of land by way of purchase by a registered deed of sale and their names were recorded in S.A, R.S and Mahanagar Survey jointly. They also got their shares separated by way of mutation in respect of the said property. Subsequently, Water Development Board acquired .88 acre of land out of 1.24 acres of land. Accordingly, the father and uncle of the complainant remained the owners of the remaining .36 acre of land in equal share. The uncle of the complainant sold out .18 acre of land to different persons. The father of the complainant, thereafter, became owner of .18 acre of land and got his share separated in his name by Mutation Case No. 143 of 2002 in respect of .18 acre of land through the office of Assistant Commissioner (Land), Dhanmondi Circle, Dhaka. The father of the complainant, who allowed accused Nos. 1-3, 7 and 8 to run their business as a garage in one part of the said land, died later on 25.5.2004 leaving behind a wife, 6 sons and 2 daughters. Taking advantage of the death of the father of the complainant, accused-petitioner Nos. 1 to 3, in connivance with other accused, created a forged deed of sale dated 28.2.2002 in order to grab the land property of the complainant and other co-sharers. Subsequently, accused-petitioner Nos. 1 to 3 filed an application before the Assistant Commissioner (Land), Dhanmondi Circle, Dhaka for opening separate Mutation khatian in their names. The complainant then came to know about the aforesaid forged deed of sale. Subsequently, the complainant collected a copy of the deed of sale No. 832 from the office of District Registrar and came to know about a forged deed by which the accused-petitioners wanted to grab the property of the complainant and his co-sharers. The accused-petitioners, by doing the aforesaid act, committed offence of forgery in order to grab the property of the complainant and his co-sharers. Hence this First Information Report was lodged against the accused-petitioners under sections 420/406/467/ 471/108 of the Penal Code on 13.9.2007.
 
On receiving the petition of complaint, the learned Chief Metropolitan Magistrate, Dhaka directed the police of Hajaribag Police Station to record the aforesaid petition of complaint as First Information Report and accordingly, the same was registered as Hajaribag police Station Case No. 11 dated 13.09.2007 under sections 420/406/467/468/ 471/109 of the Penal Code against the accused-petitioner and others.
 
During investigation, the police went to the place of occurrence and recorded the statements of the witnesses   under section 161 of the Code of Criminal Procedure. Having found prima facie case, the police submitted charge sheet No.129 dated 01.08.2008 under sections 420/406/467/468/471/109 of the Penal Code against the accused-petitioner and others.
 
At the commencement of the trial on 09.04.2009, the learned Additional Chief Metropolitan Magistrate, Dhaka framed charge against the accused-petitioners under sections 420/406/467/468/471/109 of the Penal Code and the same was read over to the accused-petitioners who denied the charge and claimed to be innocent and prayed to face trial in accordance with law.
 
It is to be noted here that on 08.4.2007, accused-petitioner Nos. 1-3 as the plaintiffs filed Title Suit No. 167 of 2007 before the 1st Court of learned Assistant Judge, Dhaka against one Abdul Baten and others for permanent injunction and the same is awaiting disposal.
 
Being aggrieved by the impugned proceeding, the accused-petitioners approached this Court with this application under section 561A of the Code of Criminal Procedure and obtained this Rule.
 
At the very  outset, Mr. Syed Mahmudul Ahsan, learned Advocate  appearing on  behalf  of  the  accused-petitioners, submits that learned Chief Metropolitan Magistrate, Dhaka took cognizance of the offence and framed charge against the accused-petitioners in violation of section 195(1)(C) of the Code of Criminal Procedure and as such, the impugned proceeding is liable to be quashed. He next submits that a civil suit is pending over a self-same matter and as such, the impugned proceeding is an abuse of the process of the court. He also submits that the allegations brought against the petitioners are of civil in nature and as such the criminal proceeding filed against the petitioner is abuse of the process of the Court. He further submits that in the First Information Report, there are no ingredients of sections 420/406/468/471/109 of the Penal Code against the accused-petitioners. He then submits that the instant criminal proceeding is so preposterous that no case stands against the petitioners and that the same has been filed only to harass and humiliate the petitioners. He lastly submits that the First Information Report does not disclose any criminal offence and as such, the initiation and continuation of the impugned proceedings against the accused-petitioners is an abuse of the process of the court and as such, the impugned proceeding is liable to be quashed. 
 
On the other hand, Mr. Kazi M. Ejarul Haque, learned Deputy Attorney-General along with Mr. Md. Shafquat Hussain, Assistant Attorney-General appearing for the State, submits that there are sufficient ingredients of the offences punishable under sections 420/406/468/471/109 of the Penal Code against the accused-petitioners. He next submits that the allegations brought against the accused-petitioners were found to be true during the investigation. He further submits that the allegations brought against the accused-petitioners are the factual matters which are required to be proved by evidence. He then submits that since charge has been framed against the petitioners and the witnesses, in the meantime, are to be examined, there is no ground to quash the proceeding at this stage. He lastly submits that there is no bar to filling of a criminal case inspite of the fact that a civil suit is pending over a self-same matter and as such, the Rule, in view of the above facts and circumstances of the case, should be discharged.
 
We have gone through the application under section 561A of the Code of Criminal Procedure and the materials annexed thereto. 
 
Now, the question arises whether the impugned proceeding should be quashed or not. To decide this issue, it will be necessary to see the extent of power and scope in which High Court Division may invoke its power and authority under section 561A of the Code of Criminal Procedure.
 
In the case of Abdul Quader Chowdhury Vs. The State, 28 DLR (AD) (1976) 38, it has been spelt out that to bring a case within the purview of section 561 A of the Code of Criminal Procedure for the purpose of quashing a proceeding one of the following conditions must be fulfilled:
  1. Interference even at an initial stage may be justified where the facts are so preposterous that even on admitted facts no case stands against the accused.
  2. Where the institution and continuation of the proceeding amounts to an abuse of the process of the court.
  3. Where there is a legal bar against the initiation or continuation of the proceeding.
  4. In a case where the allegations in the F.I.R or the petition of complaint, even if taken at their face value and accepted in their entirety, do not constitute the offence as alleged.
  5. The allegations against the accused although constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge.
 Similar view, on the principles and categories of cases for quashing the proceedings, was, subsequently, followed in the decision in the case of Ali Akkas Vs. Enayet Hossain and others, 17 BLD (AD) (1997) 44.
 
It is a settled principle of law that if the First Information Report or the petition of complaint discloses prima facie allegations against the accused, those allegations are the matters of facts which are required to be decided by the Trial Court on taking evidence. The aforesaid legal view finds support in the case of Mr. Moudud Ahmed Vs. The State, 16 BLD (AD)(1996) 27 wherein it has been 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 as all these fall outside the ambit of section 242 and 561A of the Code of Criminal Procedure.”
 
On a plain reading of the First Information Report, it appears that the present accused-petitioners, in connivance with the other accused, created and manufactured a deed of sale by forging signature of the father of the complainant. The First Information Report further discloses that in the alleged forged deed of sale, the father of the complainant was shown as a seller and accused-petitioner Nos.1-3 were shown as buyers but, in fact, the father of the complainant never sold out any land to accused-petitioner Nos.1 to 3. The aforesaid factual matters can only be decided by the learned Judge of the trial court on taking evidence. In this connection, we may refer to a decision in the case of Dr. M. Faruq Vs. The State and another, 16 BLD (AD)(1996) 51 wherein it has been decided:
 
“In the face of clear allegations of conspiracy, forgery and abetment against the accused persons, collectively and individually, there is no scope to quash the proceedings against them under Section 561A of the Code of Criminal Procedure.”
 
The material question whether the accused-petitioners are bonafide purchasers for value or not, can be decided by the trial Court only on taking evidence and it cannot be made a ground for quashing the proceeding.
 
Now we turn to another ground that has been stated in the application under section 561A that since the accused-petitioners have got a registered deed of sale executed and registered by the father of the complainant, that deed of sale cannot be said to be a forged one unless the same is set aside by a competent civil Court. It is also a settled principle of law that a criminal case can be filed for criminal liability and a civil suit may for civil liability. Both the criminal case and civil suit can run at the same time. In this connection, we may refer to a decision in the case of  Khandaker Abul Bashar Vs State and another, 63 DLR (AD) (2011) 79 wherein it has been spelt out  :
 
“There is no legal impediment to file a criminal case even if a civil suit is pending on the self-same allegations provided the ingredients of the offence are present.”
 
In the instant case, it appears from the record of the case that accused-petitioner Nos.1 to 3 as the plaintiffs filed civil suit No.167 of 2007 before the learned Assistant Judge, 1st Court, Dhaka against the informant and others for permanent injunction. On a bare reading of the First Information Report, we find that there is a prima facie allegation of forgery against the accused-petitioners who allegedly manufactured the deed of sale by forging the signature of the father of the complainant. So, we find that there are prima facie ingredients of forgery in the instant case. It is very much evident from the above mentioned decision that there is no legal bar to filing of a criminal case for the criminal liability and a civil suit for the civil liability. If, for the sake of argument, we hold that a civil suit has been filed challenging the legality and genuineness of the deed, even then there is no bar to proceeding with the criminal case if the First Information Report or the petition of complaint discloses prima-facie allegations having ingredients of the offence of forgery against the accused-petitioners.
 
On the facts and in the circumstances of the case and the decisions discussed above, we are of the view that the First Information Report and other prosecution materials prima-facie disclose the offence against the accused-petitioners punishable under sections 467/ 468/474/109 of the Penal Code and in that view of the matter, there is no legal impediment to proceed with the case in accordance with law.
 
Having considered all aspects of the case, we do not find any merit in this Rule.
 
Accordingly, the Rule is discharged.
 
The order of stay granted at the time of issuance of the Rule is, hereby, recalled and vacated.
 
The learned Judge of the trial court is directed to proceed with the case in accordance with law.
 
Communicate this Judgement to the Trial Court forthwith.
 
Ed.