Moslemuddin Vs. Md. Akbar Ali and another, 2018(1) LNJ 94

Case No: Criminal Appeal No. 1316 of 1996

Judge: Syed Md. Ziaul Karim, J.

Court: High Court Division,

Advocate: Mr. Ashif Hasan, Advocate, Mrs. Sakila Rowshan,D.A.G,

Citation: 2018(1) LNJ 94

Case Year: 2014

Appellant: Moslemuddin

Respondent: Md. Akbar Ali, The State

Subject: Code of Criminal Procedure

Delivery Date: 2018-05-29

HIGH COURT DIVISION

(CRIMINAL APPELLATE JURISDICTION)

Syed Md. Ziaul Karim, J

And

Ashish Ranjan Das, J.

Judgment on

17.07.2014

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Moslemuddin

. . .Informant-appellant

-Versus-

1. Md. Akbar Ali

…..Accused-Respondent

2. The State

. . .Respondent

Code of Criminal Procedure (V of 1898)

Section 265C

The proposition of law is now well settled that on the basis of defense plea or materials the criminal proceedings should not be stifled before trial; when there is a prima-facie case for going for trial. In view of such facts the grounds taken for discharge are not the correct exposition of law and there is a sufficient ground for proceedings against the accused-respondent for trial. . . . (16)

Code of Criminal Procedure (V of 1898)

Sections 173, 202 and 222

“A charge”- corresponds to an “indictment” in English law and is very much more than a mere form. It is a precise formulation of specific accusation made against a person who is entitled to know its nature at the very earliest stage. Charge has to be framed on the basis of the material placed before the trial court and while doing so the court is not bound by the inquiry report submitted under section 202 of the Code of Criminal Procedure or in a police challan case by the report submitted under section 173 of the Code of Criminal Procedure.          . . . (12 and 13)

Code of Criminal Procedure (V of 1898)

Section 222

“The object of charge”- The object of charge is to enable the defense to concentrate its attention on the case that he has to meet, and if charge is framed in such a vague manner that the necessary ingredients of the offence with which the accused is convicted are not brought out in the charge, then the charge is defective. The framing of a proper charge is vital to a criminal trial and this is a matter on which the magistrate or judge should bestow the most careful attention. The charge should be précised in its scope and particular in its details.     . . .(13 and 14)

Words and Phrases

“Ground”- means basis, foundation or valid reason.            . . .(14)

Code of Criminal Procedure (V of 1898)

Section 222

“Conditions for framing of charge”- conditions of framing of charge are (1) presumption of the commission of an offence on the materials before the court and (2) offences triable exclusively by a competent court.        . . .(14)

Evidence Act (I of 1872)

Section 3

“Principles for consideration of guilt or innocence of persons charged with crime”- While dealing with the serious question of guilt or innocence of persons charged with crime, the following principals should be taken into consideration-

(a) The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.

(b) The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused.

(c) In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should escape than that one innocent person suffer.

(d) There must be clear and unequivocal proof of the corpus delicit.

(e) The hypothesis of delinquency should be consistent with all the facts proved.    . . .(10)

No one appears,

. . . For the informant appellant.

No one appears,

. . . For the accused-respondent.

Mr. Ashif Hasan, Advocate,

. . . For the Anti-Corruption Commission (A.C.C.)

Mrs. Sakila Rowshan,D.A.G. with

Mrs. Sharmina Haque, A.A.G. and

Mr. Md. Shorwardhi, A.A.G.

. . . For the State-respondent.

JUDGMENT

Syed Md. Ziaul Karim, J: By this Rule, the informant appellant has challenged the legality and propriety of the order dated 04-08-1996 passed by learned Judge of Special Tribunal No. 3, Bogra (briefly as Tribunal) discharging the accused respondent under Section 265C of the Code of Criminal Procedure(briefly as the Code) in Special Case no. 10 of 1995.

2.            Facts in brief are that a First information report (briefly as FIR) was lodged by M.H. Rahmatullah, Assistant Inspector Bureau of Anti-Corruption, Bogra, against the accused-respondent for commission of offences under Sections 420, 406, 467, 471 of the Penal Code for misappropriation of Tk. 9,940/- by him. In the FIR it was stated that the accused respondent received a receipt book of 100 pages from the informant and got signature of him from Pages 26 to 33 of the receipt book and realized money from the cultivators of irrigation purpose; that the accused respondent used 92 receipts by forging the signature of informant. Further he used more 14 receipts and thus by forging his signature in 106 receipts realized Taka 76,416/- and misappropriated the same. Further he misappropriated Tk. 22,985/- by using 36 receipt among the cultivators. Thus the accused respondent has misappropriated Tk. 99,401/11 and committed offence under sections 420, 406, 467, 471 of the Penal Code.

3.            The Police after investigation submitted charge-sheet on 29-03-1995 under Sections 409, 420, 467, 471 of the Penal Code and Section 5(2) of Act II of 1947 accusing the accused respondent as accused.

4.            On receipt of the Police report the learned Magistrate referred the case record to the Tribunal for trial. Eventually, the learned Judge by the impugned order dated 04-08-1996 discharged the accused respondent under Section 265C of the Code without framing charge.

5.            Feeling aggrieved the appellant preferred the instant appeal.

6.            No one appears on behalf of the appellant to support the appeal. In view of facts this is an old appeal of 1996, we are inclined to take it up for disposal on merit considering the materials on record.

7.            No one appears on behalf of the accused respondent to oppose the appeal.

8.            The learned Deputy Attorney General appearing on behalf of the State-respondent and the learned Advocate on behalf of the Anti Corruption Commission oppose the appeal. Their common contention are that the accused misappropriated money for Tk. 99,401/11 and the Police after investigation submitted the charge-sheet against him. They add that there are prima facie case against the accused, but the learned Judge by the impugned order discharged the accused relying on some defence materials, which cannot be sustained in the eye of law.

9.            In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions.

10.        We should bear in mind, credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration.

a)      The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor.

b)      The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused.

c)      In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should escape than that one innocent person suffer.

d)      There must be clear and unequivocal proof of the corpus delicit.

e)      The hypothesis of delinquency should be consistent with all the facts proved.

11.        Inspite of the presumption of truth attached to oral evidence under oath if the Court is not satisfied, the evidence inspite of oath is of no avail.

12.        A "Charge" corresponds to an "indictment" in English Law and is very much more than a mere form. It is a precise formulation of specific accusation made against a person. Charge has to be framed on the basis of the material placed before the Trial Court and while doing so the Court is not bound by the inquiry report submitted under section 202 of the Code of Criminal Procedure or in a Police challan case by the report submitted under section 173 of the Code of Criminal Procedure.

13.        A charge is an important step in a criminal proceeding. It separates the inquiry stage from trial. The whole object of framing a charge is to enable the defence to concentrate its attention on the case that he has to meet, and if charge is framed in such a vague manner that the necessary ingredients of the offence with which the accused is convicted are not brought out in the charge, then the charge is defective. The framing of a proper charge is vital to a criminal trial and this is a matter on which the Magistrate or Judge should bestow the most careful attention. A charge should be carefully drawn up in accordance with the offence disclosed. The charge should be precise in its scope and particular in its details. A charge is defined as a ‘precise formulation of the specific accusation made against a person who is entitled to know its nature at the very earliest stage. The necessity of a system of written accusation specifying a definite criminal offence is the essence of criminal procedure.

14.        The charge-sheet to which the accused is called upon to plead is a very important document. It should be drawn up and considered with extreme care and caution, so that accused may have no doubt whatever as to the offences to which he is called upon to answer and the Judge of the Appellate Court also may have no doubt upon the matter. The word ‘Ground’ means basis, foundation or valid reason. The whole object of framing a charge is to enable the defence to concentrate its attention on the case that he has to meet. Conditions for framing of a charge are (i) presumption of the commission of an offence on the materials before the Court and (ii) offences triable exclusively by a competent Court.

15.        In the case of Mohd. Aqil and another Vs. The State 1988 Crl. L.J. 1484 held:

         "Framing of charge- Matters to be considered by Court indicated.

         For the purpose of framing a charge the Court is required to consider judicially asto whether on consideration of the materials on record, it can be said that the accused has reasonably connected himself with the offence alleged to have been committed and that on the basis of the said material there is reasonable probability or chance of the accused  being found guilty of the offence alleged. If the answer is in the affirmative, the Court will be at liberty to presume "that the accused has committed the offence” as mentioned in S. 228 for the purpose of framing  the charge. In finding out a prima-facie case not only the F.I.R. or complaint but even the statements of the witnesses recorded under S. 161 although the same may have been recorded after some delay during the investigation of the case are to be taken into consideration and if from all other material, a prima facie case is made out against the accused then the Magistrate has no option but to frame a charge against the accused. The Court is not expected to make a roving enquiry in the pros and cons of the matter and weigh the evidence as if he was conducting a trial. However, in a case, if two views are possible and the Judge is satisfied that evidence produced before him while giving rise to some suspicion does not give rise to grave suspicion against the accused, he will  be fully within his right to discharge the accused."

16.        On going to the materials on record it transpires that the informant categorically narrated the manner of crime committed by the accused. The Police after investigation also submitted charge-sheet accusing him as accused. The learned Judge after considering the entire materials on record initially took cognizance of the offence under Sections 409, 420, 467, 468, 471 of the Penal Code and section 5(2) of the Act II of 1947 against the accused. All that is required at the stage of framing charge is to see whether the prima-facie case regarding commission of certain offence is made out. The truth veracity and effect of evidence which prosecution proposes to adduce at the time is not to be meticulously judged at the stage of framing charge. In the instant case the accused should be indicted for offence punishable under Sections 409, 420, 467, 468, 471 of the Penal Code and section 5(2) of the Act II of 1947. Cognizance has been taken under the said sections. We have meticulously examined the allegations made by the informant and in Police report we find that the offence punishable under Sections 409, 420, 467, 468, 471 of the Penal Code and section 5(2) of Act II of 1947 have been clearly disclosed in the instant case against the accused-respondent. We have gone through the grounds taken for discharge and we find that such grounds are absolutely the disputed question of facts and the same should be decided at trial. The plea of the accused are nothing but the defence plea. Be that as it may the proposition of law is now well settled that on the basis of defence plea or materials the criminal proceedings should not be stifled before trial; when there is a prima-facie case for