Nazir Vs. The State, 1 LNJ (2012) 462

Case No: Criminal Miscellaneous Case No. 19601 of 2009

Judge: Md. Nazrul Islam Talukder,

Court: High Court Division,,

Advocate: Mr. Md. Showardi,,

Citation: 1 LNJ (2012) 462

Case Year: 2012

Appellant: Nazir

Respondent: The State

Subject: Quashment of Proceedings,

Delivery Date: 2011-06-07

HIGH COURT DIVISION
(Criminal Miscellaneous Jurisdiction)
 
Moyeenul Islam Chowdhury, J. 
And
Md. Nazrul Islam Talukder, J.

Judgment
07.06.2011
  Nazir
...Petitioner
-Versus-
The State
...Opposite party
 
Code of Criminal Procedure (V of 1898)
Section 561A
Considering the evidence on record, it cannot be said be said that there is no legal evidence against the petitioner  and for the insufficiency the petitioner is not entitled to invoke the jurisdiction of section 561A of the Code. Moreso, the petitioner after being enlarged on bail remained absconding till delivery of judgment and he was arrested in connection with another case and then he was shown arrested in the present case. Since the petitioner deliberately avoided the proceeding keeping himself abscondence, he has not approached this court with clean hands, he cannot get any relief under section 561A of the Code. … (19, 21, 24 and 25).

Masud and others Vs. State, 3 BLC 107, State Vs. Sarowar Uddin, 5BLC 451, Delwar Hossain Vs. State, 16 BLC(2011) 32 and Md. Harun Bepari Vs. State, 5 MLR (2000) 395, Md. Sayem Islam Vs. State, 13 MLR 155, Aslam Jahangir Vs. State, 20 BLD 426, Pear Ali Vs. State, 7 BLT (HCD) 59 and Ashok Kumar Saha Vs. State, 2 BLT (HCD) 79, Ali Akkas Vs. Enayet Hossain and others, 17 BLD (AD) (1997) 44,and Bangladesh Vs. Tan Khen Hock, 31 DLR (AD) (1979) 69, Sher Ali (Md) and others Vs. The State, 46 DLR (AD) (1994) 67, Ayub Ali (Md) Vs. Abdul Khaleque, 56 DLR(HC)(2004) 489, 49 DLR (HCD) (1997) 630, Sher Ali(Md) and others Vs. State, 46 DLR (AD) (1994) 67 and Md. Khoka Mollah Vs. The State, 22 BLD (AD) (2002) 229, Abu Taleb Vs. The State, 59 DLR (AD) (2007) 93, Amir Hossain Hawlader Vs The State, 4 BLD (AD) (1984) 193, ref.
 
Mr. Md. Shah Alam Dewan, Advocate
....... For the Petitioner
Mr. Md. Shohrowardi, D.A.G with
Mr. Md. Nazibur Rahman, A.A.G &
Mr. Md. Monjur Kader, A.A.G.
....... For the Opposite party

Criminal Miscellaneous Case No. 19601 of 2009
 
Judgment
Md. Nazrul Islam Talukder, J:

This Rule, at the instance of the convict-petitioner, was issued calling upon the opposite-party to show cause as to why the judgment and order of conviction and sentence dated 19.7.2006 passed by the learned Judge of the Special Tribunal No. 4, Dhaka in Special Tribunal Case No. 144 of 1999 arising out of Keranigonj Police Station Case No. 11 dated 4.12.1998 corresponding to G.R. No. 412 of  1998 convicting the convict-petitioner under section 4 of the Explosive Substance Act, 1908 and sentencing him thereunder to suffer rigorous imprisonment for 7 (seven) years and to pay a fine of Tk. 5,000/= in default to suffer rigorous imprisonment for 6 (six) months more 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 disposal of this Rule may be, briefly, stated as follows: Acting on a tip-off, in the morning of 4.02.1998, the informant came to know that a gang of dacoits would go at Rajarhat on Dhaka Mawa road for committing dacoity. The informant along with some Constables, on the basis of aforesaid information, went to the place of occurrence. After reaching the place of occurrence, the informant and others started searching out the different vehicles which were plying on the way. On the date of occurrence at around 7:15 a.m, a baby taxi being No. Dhaka Metro. 031289 was heading towards the place of occurrence from Dhaka. At the time of searching the baby taxi, 5 suspected persons tried to flee away from the baby taxi. However, the informant and others caught them red-handed and carried out a search and recovered a pipe gun loaded with one round bullet from the waist of the convict, namely, Akram, 9 Cocktails from the waist of present convict-petitioner, a Chapati of 15 inches long with a wooden bat from the waist of another convict, namely, Alamgir, 8 Cocktails from the waist of convict, namely, Babul and 5 Cocktails from waist of convict, namely, Safar Ali. The informant and others prepared a seizure list in presence of the local witnesses and took their signature on it. The convict-petitioner and other convicts could not offer any satisfactory account for keeping the alleged arms and explosive substance in their possession. Hence, the F.I.R was lodged against the convict-petitioner (hereinafter referred to as the petitioner) and others under section 4 of the Explosive Substances Act on 4.12.1998.

During investigation, the police 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. 2090 dated 7.6.1999 against the petitioner and others under section 4 of the Explosive Substance Act, 1908. After submission of the charge sheet, the case record was sent to the Special Tribunal for trial.

At the time of commencement of trial, the learned Judge of the Tribunal framed charge against the petitioner and others under section 4 of the Explosive Substance Act and the same was read over and explained to them who pleaded not guilty and claimed to be tried in accordance with law.

At the trial of the case, the prosecution examined as many as 11 witnesses to prove the case. The learned Judge of the Tribunal after recording the evidence from the witnesses and on perusal of the same found the petitioner and others guilty under section 4 of the Explosive Substance Act and sentenced them thereunder by the impugned judgment and order as aforesaid.

It is to be noted that the petitioner was arrested by the police on 5.12.1998 and he was enlarged on bail by the learned Judge of the Tribunal on 29.02.2000, but after enlarging on bail he was found absent from the proceeding and accordingly, the order of bail was cancelled by the learned Judge of the Tribunal on 23.10.2000. However, the petitioner remained absconding till delivery of judgment.

After delivery of judgment, the petitioner was arrested by the police in connection with another case and he was shown arrested in the present case on 11.02.2009 and produced before the learned Judge of the Tribunal, who sent him to jail to undergo the sentence. The petitioner thereafter submitted an application for certified copy of the impugned judgment and order and other relevant papers for preferring a miscellaneous case under section 561A of the Code of Criminal Procedure. After procuring the certified copy of the judgment and order, the petitioner approached this court with an application under section 561A or the Code of Criminal Procedure and obtained the present Rule.

At the very outset, Mr. Shah Alam Dewan, the learned Advocate appearing on behalf of the petitioner, submits that there is no sufficient legal evidence on record to connect the petitioner with the alleged offence under section 4 of the Explosive Substances Act and that the evidence adduced by the police personnel was not supported by the public witnesses. He next submits that P.W.4, a seizure list witness, has not supported and corroborated the prosecution story and the recovery of the Cocktails from the possession of the petitioner. He then submits that since the informant and Investigating Officer are same person, the evidence adduced by him appears to be doubtful and the impugned judgment and order, on the basis of doubtful evidence, is liable to be quashed. He empathically submits that though Cocktails allegedly recovered from the possession of the petitioner were not examined by any explosive expert to come to a decision as to whether the alleged Cocktails were really Cocktails or not and as such the impugned judgment and order of conviction and sentence is not based on satisfactory and reliable evidence and as such the same is liable to be quashed. The learned Advocate for the petitioner, in support of his submissions,  relied upon the cases of Masud and others Vs. State, 3 BLC 107, State Vs. Sarowar Uddin, 5BLC 451, Delwar Hossain Vs. State, 16 BLC(2011) 32 and Md. Harun Bepari Vs. State, 5 MLR (2000) 395, Md. Sayem Islam Vs. State, 13 MLR 155, Aslam Jahangir Vs. State, 20 BLD 426, Pear Ali Vs. State, 7 BLT (HCD) 59 and Ashok Kumar Saha Vs. State, 2 BLT (HCD) 79. 

On the other hand, Mr. Md. Shohrowardi, learned Deputy Attorney-General along with Mr. Md. Nazibur Rahman, learned Assistant Attorney-General and Mr. Md. Monjur Kader, learned Assistant Attorney-General appearing on behalf of the State, submits that there is sufficient legal evidence on the record of the case to connect the petitioner with the alleged offence under section 4 of the Explosive Substances Act. He next submits that the prosecution examined as many as 11 witnesses to prove the prosecution case and that there is sufficient legal evidence on record to connect the petitioner with the offence under section 4 of the Explosive Substances Act. He then submits that this Court not being the Court of appeal has hardly any scope to sift and assess the evidence like a Court of appeal in its extra-ordinary jurisdiction under section 561A of the Code of Criminal Procedure. He emphatically submits that the convict-petitioner being enlarged on bail deliberately remained absconding at the time of cross-examining the prosecution witnesses and that he also remained absconding at the time of delivery of judgment. He lastly submits that since the petitioner has not come before this Court with clean hands, he is not entitled to get relief under section 561A of the Code of Criminal Procedure and as such the Rule should be discharged.

We have gone through the application under section 561A of the Code of Criminal Procedure and the materials annexed thereto.

Before we take up the question for consideration as to whether the impugned judgment and order of conviction and sentence should be quashed or not, it will be necessary to see the extent of power, scope, principles and categories of cases 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 held that the High Court Division may quash a criminal proceeding invoking its jurisdiction  under section 561A of the Code of Criminal Procedure in the following circumstances:

      (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 proceeding was, subsequently, followed in many cases including the cases of Ali Akkas Vs. Enayet Hossain and others, 17 BLD (AD) (1997) 44,and Bangladesh Vs. Tan Khen Hock, 31 DLR (AD) (1979) 69.

It is pertinent to note that the inherent power under section 561A of the Code of Criminal Procedure can be invoked at any stage of the proceeding even after conclusion of the trial, if it is necessary to prevent the abuse of the process of the court or otherwise to secure the ends of justice. In the case of Sher Ali (Md) and others Vs. The State, 46 DLR (AD) (1994) 67 it has been decided that the inherent power under section 561A of the Code of Criminal Procedure can be exercised to quash a proceeding or even a conviction on conclusion of a trial if the court concerned got no jurisdiction to hold the said trial or the facts alleged against the accused do not constitute any Criminal offence, or the conviction has been based on ‘no evidence’ or otherwise to secure ends of justice.

Coming back to the present case, we want to address the submissions of the learned Advocates for the petitioner seriatim.

It is on record that in order to prove the prosecution case, the prosecution examined as many as 11 witnesses to prove the prosecution case. P.W.1 Rabindra Narayan Saha supported and corroborated the prosecution case in his deposition and cross-examination and claimed that 9 Cocktails were recovered from the possession of the petitioner. The aforesaid evidence given by the P.W.1 was also supported and corroborated by P.W.2, P.W.5,6 and 7. A reference to the evidence given by the prosecution witnesses clearly and manifestly shows that 9 Cocktails were recovered from the exclusive control and possession of the convict-petitioner. It should be borne in mind that the jurisdiction under section 561A can not be invoked for the purpose of examining the correctness, legality and propriety of any finding, sentence and order passed by the criminal Courts inferior to this Court. Section 561A may be invoked only for the specific purpose set out in this section and this Court may, in appropriate cases, exercise its extra-ordinary power under this section to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. Admittedly, the power of this Court under section 561A is very limited. This court not being the court of appeal is not in a position to re-assess and sift the evidence on record like the court of appeal in its extra-ordinary jurisdiction under section 561A of the Code of Criminal Procedure.

In order to address the submission of learned Advocate for the petitioner that since the informant and investigating officer is the same person, the informant is an interested witness and the impugned judgment and order based on the evidence of interested witness is not sustainable in the eye of law.

It is true that generally, an informant who is a police officer should not be an investigation officer in order to maintain the neutrality and acceptability of the trial of the case in the estimation of litigant public and the posture to appoint the informant as an investigating officer is normally deprecated and discarded. Practically, there is no bar on the part of the informant to act as an Investigating Officer in the eye of law. It is a well settled principle of law that the evidence of police personnel should not be discarded simply because they belong to police force as their evidence is also legal evidence within the meaning of section 3 of the Evidence Act. Section 134 of the Evidence Act contemplates that no particular number of witnesses shall, in any case, be required for the proof of any fact and as such conviction can be based on the evidence of a solitary witness if his evidence is full, complete and self-contained having no blemish and taint thereto. There is nothing on record to show that there was any enmity between the petitioner and the informant nor any suggestion was given to that effect. Under the circumstances, we do not find any material and circumstances which may lead us to hold that the evidence of informant and investigating officer is blemished and tainted one that may persuade us to keep the same out of consideration. Furthermore, this Court not being the Court of appeal has hardly any scope to sift and assess the evidence like the Court of appeal in its extra ordinary jurisdiction and the aforesaid view has been reflected in the case of Ayub Ali (Md) Vs. Abdul Khaleque, 56 DLR(HC)(2004) 489. Against this backdrop of the case, the submission made by the learned Advocate does not hold good and the same falls through.

Considering the above facts and circumstances of the case and the evidence of record, it can not be said that there is no legal evidence against the petitioner to connect him with the offence levelled against him and for insufficiency of the evidence if any, it can not be said that the petitioner may escape from the conviction and sentence on the ground of insufficiency of evidence of the case under the Jurisdiction of section 561A of the Code of Criminal Procedure.

Precisely speaking, it is not the case of the petitioner that the trial of the case was a coram non-judice. So, we would not like to embark upon that aspect of the case for our consideration and decision.

Now, we want to consider as to whether the petitioner has come before this Court with clean hands or not. It appears from the record of the case that the petitioner was enlarged on bail by the learned Judge of the Tribunal on 29.2.2000 which is very much evident from the annexure-E to the application. However, the petitioner being admitted to on bail remained absconding during cross examination of the prosecution witnesses. Accordingly, during trial, the learned Judge of the Tribunal cancelled the order of bail of the petitioner on 23.10.2000. Admittedly, the petitioner remained absconding during trial of the case and as such he could not cross examine the prosecution witnesses. Any way, the trial was held in absence of the petitioner. The learned Judge of the Tribunal, after taking evidence and on perusal of the evidence and other materials on record, found the petitioner guilty under section 4 of the Explosive Substances Act and sentenced him thereunder to suffer rigorous imprisonment for 7 (seven) years and to pay a fine of Tk. 5,000/-, in default, to suffer rigorous imprisonment for 6 (six) months more. Admittedly, the petitioner was found absent at the time of delivery of judgment. However, after delivery of judgment the petitioner was arrested in connection with another case and sent to jail to suffer the sentence. Subsequently, the petitioner filed this application under section 561A of the Code of Criminal Procedure before this Court and obtained this Rule.

In this connection, it may be mentioned that this Court has always disfavored to grant relief in its extraordinary jurisdiction under section 561A of the Code of Criminal Procedure to an absconder who does not approach the Court with clean hands. In the case of Alamgir Hossain Vs. State reported in 49 DLR (HCD) (1997) 630, it has been decided that:

“A convict may invoke the jurisdiction of this Division under section 561A of the Code of Criminal Procedure if he can make a case of Coram non judice of the trial Court or that the facts alleged do not constitute any criminal offence or the conviction has been passed on no evidence or other wise to secure the ends of justice and with that we add that he should approach the Court with clean hands.”

The aforesaid view has been reflected and endorsed by the Appellate Division in the cases of Sher Ali(Md) and others Vs. State, 46 DLR (AD) (1994) 67 and Md. Khoka Mollah Vs. The State, 22 BLD (AD) (2002) 229.

It is an indisputable fact that after being admitted to bail on 29.2.2000, the petitioner remained absconding till delivery of judgment on 19.7.2006 and he was also on the run for a long time till he was shown arrested in the present case on 11.2.2009. Section 27(6A) of the Special Powers Act, 1974 provides that if the accused being enlarged on bail remains absconding , there is no necessity for issuing a further direction directing the accused to appear in the proceeding. The aforesaid view finds support in the case of Abu Taleb Vs. The State, 59 DLR (AD) (2007) 93. Since the petitioner was enlarged on bail and he, deliberately, avoided the proceeding keeping himself in abscondence which disentitles him to get relief under section 561A of the Code of Criminal Procedure. In view of section 8 of the Evidence Act, abscondence of an accused lends support to the direct evidence of eye witnesses connecting the accused with the crime. The aforesaid view has been reflected in the case of Amir Hossain Hawlader Vs The State, 4 BLD (AD) (1984) 193.

However, the petitioner could not offer any plausible explanation as to his abscondence from proceeding jumping bail. Taking this aspect of the matter in view, we feel constrained to hold that the convict-petitioner has not approached this court with clean hands.

Considering the facts and circumstances of the case and the settled proposition of law as discussed above, the decisions cited by the learned Advocate for the petitioner do not fit in the facts and circumstances of the present case as the facts, purpose and scope of those decisions are quite different and distinguishable from the present case and as such those decisions have no manner of application in the instant case.

Considering the above facts and circumstances of the case and the evidence on record, it cannot be said that there is no legal evidence on the record of the case to connect the convict-petitioner with the offence levelled against him under section 4 of the Explosive Substances Act.

On the facts and in the circumstances of the case and the stated decisions discussed above, we are of the view that the present case is not a case of ‘no evidence’; rather it is a case of ‘evidence’, however insufficient it may be.

Having considered all aspects of the case, we do not find any merit in this Rule.

Accordingly, the Rule is discharged.

      Communicate this judgment to the concerned Tribunal immediately.

Ed.