Syed Abu Siddique Vs. The State, 2 LNJ (AD) (2013) 37

Case No: Criminal Petition For Leave to Appeal No. 1 of 2010

Judge: Md. Shamsul Huda,

Court: Appellate Division ,,

Advocate: Mr. S. N. Goswami,,

Citation: 2 LNJ (AD) (2013) 37

Case Year: 2013

Appellant: Syed Abu Siddique

Respondent: The State

Delivery Date: 2011-11-24

APPELLATE DIVISION
(CRIMINAL)

 
Md. Muzammel Hossain, CJ.
S. K. Sinha, J.
Md. Abdul Wahhab Miah, J.
Nazmun Ara Sultana, J.
Syed Mahmud Hossain, J.
Muhammad Imman Ali, J.
Mohammad Mamtaz Uddin, J.
Md. Shamsul Huda, J.

Judgment
24.11.2011
  Syed Abu Siddique
---Petitioner
-Versus-
The State
---Respondents
 
 
Code of Criminal Procedure, 1898 (V of 1898)
Sections 241A and 439A
Facts stated in the application under Section 241A of the Code of Criminal Procedure praying for discharge are nothing but defence pleas and these cannot be considered at the time of framing of charges. The learned Sessions Judge committed no illegality in summarily rejecting the accused-petitioner's revisional application under section 439A of the Code....(8)
 
For the Petitioner : Mr. S. N. Goswami, Advocate. Instructed by Mr. Syed Mahbubur Rahman, Advocate -on- Record.

For the Respondent: No one appears.

Criminal Petition For  Leave to Appeal No. 1 of 2010
 
JUDGMENT
Md. Shamsul Huda, J:

This Criminal Petition for Leave to Appeal is directed on behalf of the petitioner against the judgment and order dated 3.12.2009 passed by the High Court Division in Criminal Miscellaneous Case No. 27508 of 2009, summarily rejecting the application under Section 561A of the Code of Criminal Procedure and affirming the order dated 18.11.2009 passed by the learned Sessions Judge, Faridpur in Criminal Revision No. 85 of 2009, summarily rejecting the revisional application preferred against the order dated 29.10.2009 passed by the learned Additional Chief Judicial Magistrate, Faridpur in Complaint Case No. C-128 of 2007 rejecting an application under Section 241A of the Code of Criminal Procedure and framing charge under Section 40A of the Electricity Act, 1910.

The facts relevant for disposal of the Petition for Leave to Appeal, in short, are that one Md. Anowarul Haque, Assistant Engineer, Power Development Board, Faridpur Area, Faridpur filed a petition of complaint in the Court of Magistrate, Power Development Board, Faridpur Area, Faridpur alleging inter alia that the brother of the accused took electricity connection for his fishery project who died recently. The accused petitioner is the Managing Director of the said fishery project and there are dues of Tk. 3, 01,445/- to the aforesaid fishery project as arrear electricity bill. After hearing the parties and considering the application under Section 241A of the Code of Criminal Procedure filed by the accused petitioner herein, the learned Magistrate rejected the same. Thereafter, he preferred Criminal Revision under Section 439A of the Code of Criminal Procedure before the learned Sessions Judge, Faridpur who by his judgment and order dated 18.11.2009 summarily rejected the revisional application.

The petitioner herein thereafter preferred Criminal Miscellaneous Case No. 27508 of 2009 under Section 561A of the Code of Criminal Procedure before the High Court Division challenging the propriety of the aforesaid order of the learned Sessions Judge, Faridpur.

A Division Bench of the High Court Division after hearing the learned Advocate for the petitioner summarily rejected the aforesaid  application   by   its   order  dated 3.12.2009 holding inter alia that the electricity connection was taken for the fishery firm, named and styled as "Silver Carp Ltd." Of which   the   accused   petitioner   was   the Managing Director. Although during life time of Syed Joglul Ali  Pasha electricity was consumed for the aforesaid Fishery Firm and there was dues of Tk. 3,01,4457- only as electricity charge for which electricity line was  disconnected  on  27.2.2005,   but  the accused petitioner herein without paying the said amount reinstated the electricity line un authqrisedly.

Mr. S.N. Goswami, learned Advocate for the   petitioner   submits   that   the   learned  Magistrate     took     cognizance     without considering the fact that the fishery firm belonged to his brother Syed Joglul Ali Pasha, who consumed the electricity and he died leaving   sons   and   daughters,    who   has responsibility  to  pay  the   dues   and   thus committed illegality in taking cognizance against the petitioner herein. On the other hand the learned Sessions Judge most illegally passed the judgment and order rejecting the revisional application summarily, which is a non speaking order and at the same time the High Court Division also committed illegality in rejecting the application under Section 561A of the Code of Criminal Procedure on misconception of law and facts.

Heard the learned Advocate for the petitioner, perused the leave petition, petition of complaint and application under Section 241A of the Code of Criminal Procedure, filed before the learned Magistrate, Power Development Board, Faridpur Area, Faridpur. Facts stated in the aforesaid application under Section 241A of the Code of Criminal Procedure are nothing but defence pleas which cannot be considered at the time of framing of charge. In view of above facts the learned Sessions Judge, Faridpur committed no illegality in rejecting the revisional application under Section 439A of the Code of Criminal Procedure summarily. The High Court Division passed the impugned judgment and order considering the relevant facts and law and summarily rejected the application under Section 561A of the Code of Criminal Procedure the same is not maintainable.

Whether the petitioner being Managing Director of the Fishery project, namely "Silver Carp Ltd." is responsible to pay the dues as stated above is a contentious question of facts which can not be resolved in proceeding under Section 561 A of the Code of Criminal Procedure, except trial.

We do not find any illegality or infirmity in the impugned judgment and no interference is called for.

In the result, the Criminal Petition for Leave to Appeal is summarily dismissed.

Ed.