Syed Ehsan Abdullah Vs. The State, represented by the Deputy Commissioner, Dhaka and another 2017 (1) LNJ 135

Case No: Criminal Miscellaneous Case No. 37421 of 2011

Judge: Muhammad Khurshid Alam Sarkar. J.

Court: High Court Division,

Advocate: Mr. M. Sayed Ahmed, Mr. Zainul Abedin Selim,

Citation: 2017 (1) LNJ 135

Case Year: 2015

Appellant: Syed Ehsan Abdullah

Respondent: The State, represented by the Deputy Commissioner, Dhaka and another

Subject: Criminal Law

Delivery Date: 2017-03-15

HIGH COURT DIVISION

(CRIMINAL MISCELLANEOUS JURISDICTION)

Md. Emdadul Huq, J

And

Muhammad Khurshid Alam Sarkar, J

Judgment on

06.12.2015

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Syed Ehsan Abdullah

. . . Accused-Petitioners

-Versus-

The State, represented by the Deputy Commissioner, Dhaka and another

. . . Respondents

Code of Criminal Procedure (V of 1898)

Section 561A

When and under what circumstances the jurisdiction of 561A can be invoked—Power endowed to High Court Division under Section 561A is of extra ordinary in nature aiming at empowering this Court to pass necessary orders in three situations namely (1) to give effect to any order under the CrPC, (2) to prevent the abuse of the process of any Court and (3) otherwise to secure the ends of justice. Normally, a criminal proceeding against an accused person must be tried under the law of the land and the High Court Division will be reluctant to interfere with the said proceeding. However, for the above three purposes the High Court may interfere with a proceeding/case, although in governing the exercise of inherent power for the above three situations it is neither possible nor desirable nor expedient to lay down any precise and clearly defined rule, for, a consideration justifying the exercise of inherent power may vary from case to case and, furthermore, this jurisdiction should not to be encased within the strait jacket of a rigid formula.

The test is that taking the allegations and the complaint as they are, if the High Court Division in exercising its inherent power without embarking upon an inquiry as to the truth or falsehood of the allegations made against the accused person finds that no offence is constituted, then there would be an occasion to bury the proceedings. The authenticity or falsity of the statement made in the FIR/complaint should be decided at the trial on taking evidence in support of the prosecution case and a complainant, who has disclosed a prima facie case in his complaint, must be given an opportunity of placing materials on which he bases his complaint before the Court through producing evidences before quashing the proceeding.

The Appellate Division, out of the cited cases, in course of dealing with the case of Sher Ali (Md) and others vs. State 46 DLR AD 67, laid down the guidelines and the grounds for the High Court as to when and how the inherent power should be exercised going one step ahead by saying that even the convicted persons are also competent to invoke the jurisdiction of Section 561A of the CrPC. Their Lordships’ guidelines are couched in the following language:

The inherent power may be invoked independent of powers conferred by any other provisions of the Code. This power is neither appellate power, nor revisional power, nor power of review and it is to be invoked for the limited purpose such as to give effect to any order under the Code, to prevent abuse of the process of the Court or otherwise to secure ends of justice. This power may 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.” (underlined by us)

The interesting side of all the cited cases, starting from the case of Emperor Vs Khaja Nazir Ahmed AIR 1945 PC 18 upto the latest case of the current year (ACC Vs AAM Habibur Rahman 67 DLR (AD) 278), are that the Privy Council/Indian Supreme Court/Pakistan Supreme Court/our Appellate Division although rejected the respective petitioner’s application under Section 561A of the CrPC, but they took the pain of formulating the principles and laying down the guidelines for exercising the inherent power by the High Court Division.                        . . . (11 and 25-27)

Code of Criminal Procedure (V of 1898)

Section 439A and 561A

In this case, however, best course of action for the accused-petitioner was to invoke the jurisdiction of the Sessions Judge under Section 439A for the aspired relief challenging the order passed by the learned Magistrate framing charge against him. But instead of that, he invoked the inherent jurisdiction of the High Court Division in an application under Section 561A of the CrPC when the case was fixed for trial. In these days, when the High Court Division is overwhelmingly over-burdened with huge back-log of cases, it is the expectation of this Court that the learned members of the Bar would not jump to the High Court Division bypassing the route/s prescribed in the relevant procedural law.                                . . . (37)

Ratilal Vs. Assistant Collector of Customs, AIR 1967 SC 1639; Hazarilal Vs. Rameshwar, AIR 1972 SC 484; Pratul Chowdhuri and another Vs. The State, 1979 CrLJ 103; Surya Baksh Singh Vs. State of UP, (2014) 14 SCC 222; MA Sukkur Vs. Md Zahirul Huq, 23 BLT (AD) 76; Syed Ali Mir Vs. Syed Omar Ali, BCR 1990 AD 287; Latifa Akter and others Vs. The State, 19 BLD (AD) 20; Dewan Obaidur Rahman Vs. State, 19 BLD (AD) 128; Chandrapul Singh Vs. Maharaj Singh, (1982) 1 SCC 466; Vir Prakash Sharma Vs. Anil Kumar Agarwal, (2007) 7 SCC; State Vs. Lailun Nahar Ekram, 62 DLR (AD) 283; Sharda Prasad Sinha Vs. State of Bihar, (1977) 2 SCR 357; Inder Mohan Goswami Vs. State of Uttaranchal, (2007) 12 SCC 1; Emperor Vs. Khaja Nazir Ahmed, AIR 1945 PC 18; West Bengal Vs. SN Basak, AIR 1963 (SC) 447; Nagawwa Vs. Veeranna Shivalingappa Konjalgi, AIR 1976 (SC) 1947; State of Haryana Vs. Bhajan Lal, 1992 Supp (1) SCC 335; Medchl Chemicals and Pharma Pvt. Vs. Biological E Ltd, (2000) 3 SCC 269; Indian Oil Corporation Vs. NEPC, (2006) 6 SCC 736; Central Burea of Investigation Vs. A Ravishankar Prasad, (2009) 6 SCC 351; Kamlesh Kumari Vs. State of UP, (2015) 13 SCC 689; Muhammed Samiullah Khan Vs. State, 15 DLR (SC) 150; M.S. Khawja Vs. State, 17 DLR (SC) 153; Ghulam Muhammad Vs. Muzammal Khan, 19 DLR (SC) 439; Nagawwa Vs. Veeranna Shivalingappa Konjalgi, AIR 1976 SC 1947; State of Haryana Vs. Bhajanlal, 1992 Supp (1) SCC 335; Indian Oil Corporation Vs. NEPC Ltd, (2006) 6 SCC 736; Abdul Quader Chowdhury Vs. State, 28 DLR (AD) 38; Abdul Ali Vs. The State, 30 DLR (SC) 58; Bangladesh Vs. Ten Khing Hock, 31 DLR (AD) 69; Abdus Salam Master @ Salam Vs. The State, 36 DLR (AD) 58; Farruk Ahmed Vs. Abdul Quader Chowdhury, 38 DLR (AD) 18; Md. Shamsuddin Vs. The State, 40 DLR (AD) 69; SA Sultan Vs. State, 44 DLR (AD) 139; Arifur Rahman Vs. Santosh Kumar Sadhu, 46 DLR (AD) 180; Sher Ali Vs. State, 46 DLR (AD) 67; Sayed Mohammad Hashem Vs. State, 48 DLR (AD) 87; Rahela Khatun Vs. Abul Hassan, 48 DLR (AD) 213; Ali Akkas Vs. Enayet Hossain, 17 BLD (AD) 44 = 2 BLC (AD) 16; Nizamuddin Mahmood Vs. Abdul Hamid, 60 DLR (AD) 195; Faridul Alam Vs. State, 61 DLR (AD) 93; Habibur Rahman Mollah Vs. State, 62 DLR (AD) 233; ACC Vs. AAM Habibur Rahman, 67 DLR (AD) 278; Sher Ali (Md) and others Vs. State, 46 DLR AD 67; Emperor Vs. Khaja Nazir Ahmed, AIR 1945 PC 18; State Vs. Iqbal Hossain, 48 DLR (AD) 100 and Khandaker Abul Basher Vs. State, 63 DLR (AD) 79 ref.

Mr. M. Sayed Ahmed with

Mr. Sayed Ahammad Sami, Advocates

…. For the petitioner

Mr. Zoinal Abedin Selim, Advocate

. . . For opposite party no. 2.

JUDGMENT

Muhammad Khurshid Alam Sarkar, J:  Pursuant to an application filed by the accused-petitioner under Section 561A of the Code of Criminal Procedure, 1898 (CrPC), this Rule was issued calling upon the opposite parties to show cause as to why the proceedings of C.R. Case No. 1357 of 2009 instituted under Sections 420/406 of the Penal Code, pending before the Court of Chief Metropolitan Magistrate, Dhaka should not be quashed. 

2.             The background facts leading to issuance of this Rule are that the opposite party no. 2 Md. Mesbah Uddin Ahmed as the complainant filed the petition of complaint being C.R. Case No. 1357 of 2009 in the Court of Chief Metropolitan Magistrate, Dhaka against the accused-petitioner alleging, inter-alia, that the complainant and the accused were known to each other for a long time, as both of them were engaged in business. Based on their relationship, the accused-petitioner took loan from the complainant on several occasions. On 26.10.2008 in presence of the witnesses listed in the petition of complaint, the accused-petitioner took a loan of an amount of Taka 56,00,000/- (fifty six lac) for which the accused executed a contract in the form of the written undertaking that the loan shall be repaid within three months coupled with a verbal promise that he might repay it within two months. After receiving the said amount of loan money, the accused-petitioner issued a Cheque of Taka 5,00,000/- (five lacs) towards part-payment of the aforesaid loan through Account No. 11014643, Cheque No. 1516685 of Prime Bank Limited, Gulshan Branch, Dhaka  dated 22.01.2009. When the complainant presented the said Cheque before the concerned Branch, the same was dishonoured and the complainant informed the accused person about dishonor of the Cheque. The accused-petitioner then informed that he would take necessary steps for making the payment. Thereafter, the complainant requested the accused-petitioner on several occasions to make payment of the loan-money but the accused-petitioner was dillydallying the payment on this or that plea. On 28.02.2009 at 11.00am when the complainant had been in the office of the accused-petitioner and requested to make the loan-money, the accused-petitioner misbehaved with the complainant. Under the circumstances, the complainant issued a legal notice on 04.03.2009, but no reply was sent thereto. Finding no other way, the complainant filed this C.R. Case No. 1357 of 2009 in the Court of Chief Metropolitan Magistrate, Dhaka.

3.             The concerned Metropolitan Magistrate, Dhaka examined the complainant under Section 200 of the Code of Criminal Procedure (CrPC) on 09.04.2009 and took cognizance of the alleged offences under Sections 406 and 420 of the Penal Code and issued process against the accused-petitioner. On 31.01.2011, the accused-petitioner appeared and obtained bail. Subsequently, on 25.09.2011 after hearing both the parties the trial Court rejected the accused-petitioner’s application under Section 241A CrPC for his discharge and, considering the materials on record, the Court framed charge against the petitioner under Section 420 of the Penal Code only, dropping the allegation under Section 406 of the Penal Code. However, before commencement of recording evidences, the accused-petitioner approached this Court with a prayer for quashing the proceeding and obtained this Rule. 

4.             Mr. Sayed Ahammed Sami, the learned Advocate appearing for the petitioner, takes us through the statements made in the petition of complaint and submits that both the parties are businessmen and the money taken by the accused-petitioner from the complainant-opposite party no. 2 has been spent for business. He next submits that there is no allegation in the entire petition of complaint pin-pointing any sort of malafides of the accused-petitioner in taking loan or any intention of defrauding the opposite party no. 2-complainant and therefore the petition of complaint does not disclose the offence of cheating as defined by Section 415 read with Section 420 of the Penal Code.

5.             The learned Advocate for the accused-petitioner then takes us through the charge-framing order and submits that the charge was framed on the basis of dishonour of the cheque issued by the accused-petitioner, but neither a suit in civil Court nor any case under the Negotiable Instrument Act, 1881 was filed by the opposite party-complainant. He forcefully contends that this petition of complaint under Sections 406 and 420 has been filed with an ill motive just to harass this accused-petitioner. In support of his above submissions, the learned Advocate for the accused-petitioner refers to a bundle of cases of our jurisdiction as well as that of the Supreme Court of India and Pakistan, which will be discussed in the latter part of this judgment. 

6.             By making the above submissions, the learned Advocate for the accused-petitioner prays for making the Rule absolute.

7.             Per contra, Mr. Zoinal Abedin Selim, the learned Advocate appearing for the complainant-opposite party no. 2, refers to the first paragraph of the petition of complaint and submits that the allegation of cheating is stated in the said paragraph in clearer terms. He contends that though there was no business relationship between the complainant and the accused petitioner, the latter built up a close rapport with the former with an ulterior motive to take the aforesaid loan from the complainant and thereby to cheat him eventually. He next submits that the petition of complaint clearly discloses the offence of cheating committed by the accused-petitioner and therefore Section 561A of the CrPC for quashment of the proceeding is not applicable to the scenario. He further submits that the accused-petitioner could have approached the learned Sessions Judge by invoking Section 439A of the CrPC challenging the legality or propriety of the order of framing charge, instead of opting for the said rout, the accused-petitioner wrongly invoked the jurisdiction of this Court under Section 561A of the CrPC to protract the trial.

8.             To substantiate his arguments he places a list of cases, which starts with the case of (1) Emperor Vs Khaja Nazir Ahmed AIR 1945 PC 18 and ends up with the latest pronouncement of our Appellant division reported in 67 DLR.

9.             By making the above submissions, the learned Advocate for the complainant-opposite party no. 2 prays for discharging the Rule.

10.         To appreciate the submissions of the learned Advocates of both the sides, it would be useful to look at the wordings of Section 561A of the CrPC under which the instant application has been filed.

561A. Saving of inherent power of the High Court Division: Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court Division to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

11.         This provision has been engrafted in the Code of Criminal Procedure by the Code of Criminal Procedure (Amendment) Act, 1923. Bangladesh, Pakistan and India have inherited provisions of inherent powers from English jurisprudence. From a plain reading of the above provision, any one would be able to have an unambiguous understanding that power endowed to High Court Division under Section 561A is of extra ordinary in nature aiming at empowering this Court to pass necessary orders in three situations namely (1) to give effect to any order under the CrPC, (2) to prevent the abuse of the process of any Court and (3) otherwise to secure the ends of justice. Normally, a criminal proceeding against an accused person must be tried under the law of the land and the High Court Division will be reluctant to interfere with the said proceeding. However, for the above three purposes the High Court may interfere with a proceeding/case, although in governing the exercise of inherent power for the above three situations it is neither possible nor desirable nor expedient to lay down any precise and clearly defined rule, for, a consideration justifying the exercise of inherent power may vary from case to case and, furthermore, this jurisdiction should not to be encased within the strait jacket of a rigid formula.

12.         Let us now endeavour to delve deep into the above three statutory situations. While there are impressive interpretations in the scores of case-laws of our jurisdiction as well as that of this sub-continent on the situation nos. 1 & 2, however, any detailed interpretations on the situation no. 1 (to give effect to any order under the CrPC) are hardly available in the case-laws of our country, as reveals from a search of the reported cases of Bangladesh. The reason for this is that most of the celebrated cases of our jurisdiction have mainly centered around and dealt with the issues of quashing a criminal proceeding/case and probably there was no occasion for the Appellate Division to deal with the issue of giving effect to any order under the provisions of the CrPC passed by any subordinate Courts or investigating authority. Even, if the public functionaries, including the investigation agencies, or the public of our country had ever approached this Court for implementation of an order under the provisions of the CrPC passed by the subordinate Courts or other competent authorities, its number is very insignificant given that the same neither has been reported in any legal journal nor is within the common knowledge of the lawyers and the learned Judges, for, it has not come to our notice in course of carrying out the study and search undertaken by us on the provisions of Section 561A of the CrPC towards a fair and effective disposal of this Rule. In fact, it is the perception of most of the people, be it the member of the Bar, investigation agencies and the lay people, that 561A means “quashing of proceeding” having its practical result of setting aside or reversal of the order initiating the proceeding or continuing with a criminal case.

13.         However, in India there were few occasions when Indian Apex Court had the opportunity to take up the issue for examination. (i) In the case of Ratilal Vs Assistant Collector of Customs AIR 1967 SC 1639 when the High Court found that the accused was intimidating certain German citizens whom the prosecution intended to examine as witnesses, it cancelled the bail orders and directed him to surrender to the bail in the exercise of inherent jurisdiction, which was affirmed by the Apex Court. (ii) In the case of Hazarilal Vs Rameshwar AIR 1972 SC 484 at the time of granting bail to the two UK citizens who were accused of cheating, the High Court imposed a condition to surrender their passports having exercised the jurisdiction of Section 561A of the CrPC and the said conditional bail order was approved by the Apex Court. (iii) In the case of Pratul Chowdhuri and another Vs the State 1979 CrLJ 103 it was held that though the CrPC does not contain any provision empowering the Session Judges or High Court Judges in exercising its revisional jurisdiction, the High Court is competent to remand back the case to the Sub-ordinate Courts by virtue of its inherent power under Section 482 of Indian CrPC (Section 561A of the CrPC of Bangladesh). (iv) In the case of Fariyad - 1985 CrLJ NOC 75 (Raj) involving the allegation of murder, the High Court in exercise of its inherent power released an approver, whose statement had been recorded by the trial Court but the trial was not likely to be concluded within reasonable time due to non-receipt of material exhibit from Forensic Laboratory. (v) In the case of Surya Baksh Singh Vs State of UP (2014) 14 SCC 222 the High Court dismissed the appeals against the conviction and sentence on the ground of non-appearance of the convict-appellants who having been enlarged on bail was not taking steps for disposal of the appeal and when the appellants preferred appeal to the Apex Court, the reason taken by the High Court for dismissal of appeal was approved by the Apex Court in Admission/Leave Hearing and simply offered the accused an opportunity to place his case on merit before the Apex Court, without letting him to buy further time by going back to the High Court.

14.         In our way of understanding of the meaning of the above no. 1 situation is that this Court is always equipped with ample power of materializing/executing any order passed under any provision of the CrPC. When an order is passed by any Court of this land, merely for want of procedural law, the said order cannot be allowed to get frustrated. The Legislature has, thus, endowed this Court with the power “to make such orders as may be necessary” and thereby ensures that justice shall not be defeated due to some loopholes in the CrPC, as apparent from the wordings “nothing in this code shall be deemed to limit or affect the inherent power of the High Court Division .......” employed in the Section 561A of the CrPC. This Rule has its source in the maxim quado lex aliquid alicui concedit, concoders videtur id sine quo ipsa esse non potent which means that “when the law gives anything to anyone it gives also all those things without which the thing itself would not exist.”

15.         The second scenario for pressing the inherent power in aid is to prevent the abuse of the process of the Court. The claim of abusing the process of the Court must not be rhetoric and, therefore, the claimant must finger point the claimed abuse in black and white labelling the same as a flagrant abuse of the process of the Court. It is to be exercised very sparingly with circumspection and in the rarest of rare cases when exceptional features are brought to notice of the Court. In the case of MA Sukkur Vs Md Zahirul Huq 23 BLT (AD) 76, when the Apex Court found that in course of existing business relationship between the accused and the Bangladesh Shilpa Bank, the accused had issued two cheques in favour of the Bank and out of the said cheques while one was honoured, the other was bounced and thus it was seen by the Apex Court as a dealing of civil nature having held that it does not constitute an offence under Section 420 of the CrPC and the Apex Court saw the criminal proceedings as an abuse of the process of the Court and, accordingly, quashed the proceedings. In the case of Syed Ali Mir Vs Syed Omar Ali BCR 1990 AD 287, the Apex Court found that there was a business relationship among the accused and the complainant and eventually when an amount fell due, the complainant took the matter to the Martial Law Court where the dispute was settled. Therefore, the Apex Court treated the proceeding as an abuse of the process of the Court and quashed it. In the case of Latifa Akter and others Vs the State 19 BLD (AD) 20, it was revealed that the complainant filed the criminal case against a helpless widow to take revenge by abusing the process of the Court and the proceeding, therefore, was quashed. In the case of Dewan Obaidur Rahman Vs State 19 BLD (AD) 128, the Apex Court found that a business relationship was existing between the complainant and the accused. Therefore, filing of a criminal case for failure of the remaining portion of the bill by the accused does not attract the provisions of Section 420 of the Penal Code and, thus, the Apex Court termed the proceeding to be an abuse of the process of the Court.

16.         In the case of Chandrapul Singh Vs Maharaj Singh (1982) 1 SCC 466, when the Supreme Court found that the complainant (who is an Advocate) as a landlord after losing his case in civil Courts implicated the tenant in the criminal case on the same matter, it was treated as an abuse of the process of the Court and the Supreme Court quashed the proceedings. In the case of Roy VD Vs State of Kerala, the illicit materials (ganja) were collected through search and arrest by an Excise Inspector who was not authorized by law to do so. The Indian Supreme Court saw it as an abuse of the process and quashed the proceedings. In the case of Murari Lal Gupta Vs Gopi Singh, the Indian Supreme Court traced the relationship between the complainant and the accused to be of seller and buyer of the land and, thus, held that failure to pay the rest of the amount does not create any criminal liability and, therefore, the proceedings was quashed to prevent the abuse of process of the Court. In the case of Vir Prakash Sharma Vs Anil Kumar Agarwal (2007) 7 SCC, when the Indian Supreme Court found that in course of selling and purchasing welding rods, the accused failed to pay the amount paid in cheque, it quashed the criminal case, which was filed with an allegation of committing the offence of cheating.

17.         The third situation where invocation of inherent power becomes necessary is for securing the ends of justice. When the injustice to be remedied is grave in character and ends of justice are put to jeopardy, to correct patent illegalities the inherent power can be exercised to secure the ends of justice. If the impugned criminal proceeding is regarding an offence alleged to have been committed by an accused and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding or there is an infraction or evasion of law calling for immediate redress, the High Court Division would be justified in quashing the proceeding. For example, when the allegation in the First Information Report or in the petition of complaint, even if they are taken at their face value and accepted in their entirety, do not constitute any offence, in such cases it will be legitimate for the High Court Division not to allow the proceeding to be continued against the accused persons. In the case of State Vs Lailun Nahar Ekram 62 DLR (AD) 283, the Apex Court found that in the FIR no prima facie case was made out and, therefore, continuation of further proceeding was stopped by the Apex Court to secure the ends of justice having quashed the proceedings. In the case of Sharda Prasad Sinha Vs State of Bihar (1977) 2 SCR 357, the Indian Supreme Court quashed the proceeding to secure ends of justice, for, the allegation set out in the complaint does not constitute any offence. In the case of Inder Mohan Goswami Vs State of Uttaranchal (2007) 12 SCC 1, when the High Court declined to quash the criminal proceedings, the Indian Supreme Court upon setting aside the High Court’s Judgment quashed the proceeding to secure ends of justice, for, it was found by the Supreme Court that even all the averments made in the FIR are taken to be correct, the case for prosecution under Section 420 and 467 of the Penal Code was not made against the accused.

18.         We may now look at those cases where the Apex Court of our jurisdiction as well as of other jurisdiction of this sub-continent declined to quash the proceedings, but they laid down very impressive propositions on the nature of inherent power of the High Courts. An illustrative examination was carried out, for the first time in this sub-continent, in the case of Emperor Vs Khaja Nazir Ahmed AIR 1945 PC 18 where after elaborately discussing the procedural law for criminal trial of this sub-continent namely, Criminal Procedure Code, 1898 and the purpose of insertion of the provision of Section 561A in the CrPC, the Privy Council made the following observations:

Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged. So it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India there is a statutory right on the part of the police under Ss. 154 and 156 to investigate the circumstances of alleged cognizable crime without requiring any authority from the judicial authorities, and it would be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court under S. 561A. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course subject to the right of the Court to intervene in an appropriate case when moved under S. 491, Criminal P.C., to give directions in the nature of habeas corpus. In the case of a cognizable offence, the Court’s functions begin when a charge is preferred before it and not until then and, therefore, the High Court can interfere under S. 561A only when a charge has been preferred and not before. As the police have under Ss. 154 and 156, a statutory right to investigate a cognizable offence without requiring the sanction of the Court to quash the police investigation on the ground that it would be an abuse of the powers of the Court would be to act on treacherous grounds.

No doubt if no cognizable offence is disclosed, and still more if no offence of any kind is disclosed the police would have no authority to undertake an investigation and if they do so the High Court may interfere under S. 561A.

It is not correct to say that S. 561A has given increased powers to the Court which it did not possess before that Section was enacted. The Section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code and that no inherent power had survived the passing of the Criminal Procedure Code.

19.         After 1947 when the India and Pakistan got their own Supreme Courts, the said principle was followed by their respective Apex Courts in a series of cases namely; West Bengal Vs. SN Basak AIR 1963 (SC) 447;  Nagawwa Vs Veeranna Shivalingappa Konjalgi AIR 1976 (SC) 1947; State of Haryana Vs Bhajan Lal 1992 Supp (1) SCC 335; Medchl Chemicals and Pharma Pvt Vs Biological E Ltd (2000) 3 SCC 269; Indian Oil Corporation Vs NEPC (2006) 6 SCC 736; Central Burea of Investigation Vs A Ravishankar Prasad (2009) 6 SCC 351; Kamlesh Kumari Vs State of UP (2015) 13 SCC 689; Muhammed Samiullah Khan Vs State 15 DLR (SC) 150; M.S. Khawja Vs State 17 DLR (SC) 153; Ghulam Muhammad Vs Muzammal Khan 19 DLR (SC) 439.

20.         The Supreme Court of India in Nagawwa vs. Veeranna Shivalingappa Konjalgi, AIR 1976 SC 1947, laid down the following principles for the High Court Divisions for exercising its power under Section 561A of the Code:

(1)   Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2)   Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3)   Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4)   Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

21.         In the case of State of Haryana Vs Bhajanlal 1992 Supp (1) SCC 335, the Indian Supreme Court reiterated the same principle in the following language and manner:

(1)  Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2)  Where the allegations in the first information report and other materials, if any accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3)  Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of an offence and make out a case against the accused.

(4)  Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5)  Where the allegations made in the FIR or Complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion ant there is sufficient ground for proceeding against the accused.

(6)  Where there is an express legal bar engrafted in any of the provisions of the Code of the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7)  Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

22.         The latest principles relating to exercise of inherent power have been set down by the Indian Supreme Court, in the case of Indian Oil Corporation Vs NEPC Ltd (2006) 6 SCC 736, in the following Style:

(i)        A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.

For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint is warranted while examining prayer for quashing of a complaint.

(ii)      A complaint may also be quashed where it is a clear abuse of the process of the Court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

(iii)    The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv)    The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.

(v)      A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong and also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different form a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed of, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.

23.         The Supreme Court of Pakistan also at one point of time put down the nature and scope of Section 561A of the Code in the case of Ghulam Mohmmad vs. Mozammel Khan and 4 others 19 DLR (SC) 439. Hamoodur Rahman, J (as his Lordship then was) speaking for the Court observed thus:

The inherent jurisdiction given by Section 561A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this Section can certainly not be utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The High Court, as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where a competent Court has, after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence.

24.         After independence of Bangladesh, our Appellate Division also continued to apply the principles laid down by the defunct Privy Council. Eventually, in the celebrated case of Abdul Quader Chowdhury Vs State 28 DLR (AD) 38, the Appellate Division laid down the nature, scope and extent of the principle of inherent power of the High Court Division under Section 561A of the CrPC in a comparatively specific terms by categorizing the situations in which the High Court Division should quash the criminal proceeding:

The High Court has, in view of its general jurisdiction over all the criminal Courts subordinate to it, inherent power to give effect to any order of any such Court under the Code, and to prevent the abuse of process of any such Court, or otherwise to secure the ends of justice. The power to quash a proceeding under this Section being in its nature extraordinary, it should be exercised sparingly, carefully and only where such exercise is justified to prevent the abuse of the process of the Court and to do the real and substantial justice for the administration of which alone the Court exists.

The inherent jurisdiction should not be invoked where some other remedy is available. The jurisdiction given by Section 561A is not an alternative jurisdiction nor an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. This power cannot be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the Code.

Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code and the said proceedings should not be generally interfered with at an interlocutory stage in exercise of the inherent jurisdiction provided under Section 561A of the Code.

25.         The said principle has been consistently followed by the Apex Court as of today in the subsequent all of the cases, including the cases of Abdul Ali Vs The State 30 DLR (SC) 58; Bangladesh Vs Ten Khing Hock 31 DLR (AD) 69; Abdus Salam Master @ Salam Vs The State 36 DLR (AD) 58; Farruk Ahmed Vs Abdul Quader Chowdhury 38 DLR (AD) 18; Md. Shamsuddin Vs The State 40 DLR (AD) 69; SA Sultan Vs State 44 DLR (AD) 139; Arifur Rahman Vs Santosh Kumar Sadhu 46 DLR (AD) 180; Sher Ali Vs State 46 DLR (AD) 67; Sayed Mohammad Hashem Vs State 48 DLR (AD) 87; Rahela Khatun Vs Abul Hassan 48 DLR (AD) 213; Ali Akkas Vs Enayet Hossain 17 BLD (AD) 44 = 2 BLC (AD) 16; Nizamuddin Mahmood Vs Abdul Hamid 60 DLR (AD) 195; Faridul Alam Vs State 61 DLR (AD) 93; Habibur Rahman Mollah Vs State 62 DLR (AD) 233 and the case of ACC Vs AAM Habibur Rahman 67 DLR (AD) 278. The Appellate Division, out of the above-cited cases, in course of dealing with the case of Sher Ali (Md) and others vs. State 46 DLR AD 67, laid down the guidelines and the grounds for the High Court as to when and how the inherent power should be exercised going one step ahead by saying that even the convicted persons are also competent to invoke the jurisdiction of Section 561A of the CrPC. Their Lordships’ guidelines are couched in the following language:

The inherent power may be invoked independent of powers conferred by any other provisions of the Code. This power is neither appellate power, nor revisional power, nor power of review and it is to be invoked for the limited purpose such as to give effect to any order under the Code, to prevent abuse of the process of the Court or otherwise to secure ends of justice. This power may 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.” (underlined by us)

26.         The interesting side of all the aforecited cases, starting from the case of Emperor Vs Khaja Nazir Ahmed AIR 1945 PC 18 upto the latest case of the current year (ACC Vs AAM Habibur Rahman 67 DLR (AD) 278), are that the Privy Council/Indian Supreme Court/ Pakistan Supreme Court/our Appellate Division although rejected the respective petitioner’s application under Section 561A of the CrPC, but they took the pain of formulating the principles and laying down the guidelines for exercising the inherent power by the High Court Division.

27.         From the observations made in the above celebrated cases it is, therefore, manifestly clear that proceedings against the accused can be quashed only if on the face of the complaint or the papers accompanying the same, the allegations made therein do not disclose an offence; meaning that without adding or subtracting anything and without considering the defence materials/arguments, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 561A of the Code. In other words, the test is that taking the allegations and the complaint as they are, if the High Court Division in exercising its inherent power without embarking upon an inquiry as to the truth or falsehood of the allegations made against the accused person finds that no offence is constituted, then there would be an occasion to bury the proceedings. The authenticity or falsity of the statement made in the FIR/complaint should be decided at the trial on taking evidence in support of the prosecution case and a complainant, who has disclosed a prima facie case in his complaint, must be given an opportunity of placing materials on which he bases his complaint before the Court through producing evidences before quashing the proceeding.

28.         The bottom line of the above discussions is that this Court would quash a criminal proceeding case only where from the contention of the petition or FIR or charge sheet or from the charge-framing order or from any prosecution materials, it is revealed that continuation of a criminal proceeding shall cause harassment to the accused person and none of the provisions of the CrPC helps a litigant to get justice or there is no relevant law available or the fact of the case warrants interference of this Court for ends of justice.

29.         Judged by the above tests, let us see whether the proceeding in the case in our hand is liable to be quashed or not.

30.         In the petition of complaint, the complainant brought allegation of cheating against the petitioner having categorically stated that the complainant gave loan of Taka 56,00,000/- (fifty six lacs) to the accused-petitioner on his request as they are closely known to each other. The petition of complaint goes to state that since there was no business relationship among them a written contract  to repay the loan-money within three months was made and, accordingly, towards the repayment, a small amount of money of Tk. 5,00,000/- (five lacs) was paid through Cheque No. 1516685 dated 22.01.2009, but the same was dishonored and on 28.02.2009 when the complainant went to the office of the accused-petitioner along with the witness nos. 1-3 and requested to pay back the money, the accused not only declined to repay any money, but hurled filthy abuses at the complainant. Thereafter on 04.03.2009 the complainant issued a legal notice which the accused-petitioner received on 09.03.2009 and then the complainant approached the Court of Metropolitan Magistrate, Dhaka who took the cognizance under Sections 406 & 420 of the Penal Code. Eventually, upon examining the contention and the materials on record the learned Metropolitan Magistrate, Dhaka found that a prima facie case of cheating has been made out in the petition of complaint and, accordingly, he framed charge against the accused-petitioner under Section 420 of the Penal Code.

31.         In this context, it would be profitable if we look at Section 415 of the Penal Code which is reproduced below:

Section-415.  Cheating. –Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any persons, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.  

32.         Our simple understanding from the provisions of Section 415 of the Penal Code is that if a person deceives another person in course of dealing with property, be it movable or immovable, causing damage, it is cheating. Therefore, when the complainant categorically states that the accused petitioner took loan with a promise to pay back within a specified time and, subsequently, the accused denied paying back the money, we find that there is a prima facie ingredients of cheating. Furthermore, after dishonour of the cheque of five lac, when the accused did not take any positive step to pay the cheque amount, the intention of the accused petitioner to defraud the complaint is apparent. The case of the complainant, thus, deserves to be examined and adjudicated upon by the evidence, for, from the incriminating/ prosecution materials in tandem with the conduct of the complainant, the trial Court did not or this Court does not get any indication that the case has been filed to harass the accused-petitioner as a business partner, or the complainant is trying to convert the civil claim into a criminal case. Had it been the case of the accused-petitioner that in course of business transactions a single payment out of series of payments have fallen due for some unavoidable circumstance or that there have been some miscalculations by the complainant, then there was probably a little scope to consider this case to be of civil nature.

33.         Cheating may occur even in course of carrying out business by any of the side of the business partner subject to the condition that the complaint is not related merely to the issue of miscalculation of the transactions or is not arisen out of making payment or non-payment of a business transaction. Thus, we find it difficult to concede to the submissions advanced by the learned Advocate for the accused-petitioner that if there is any business relationship between the complainant and the accused-petitioner, no criminal liability arises. The argument of the learned Advocate for the accused-petitioner that there was no initial intention of dishonoring the cheque does not hold good, for, intention of cheating cannot be known from the initial dealings. It can be gathered from a single transaction out of numerous dealings. In others words, the intention of defrauding the other side entirely cannot be known at the time of initial transaction, rather the intention of defrauding the other side would be surfaced by the subsequent acts of the parties. In a case of cheating, thus, the intention of the accused person can be founded only at the time of commission of offence. Even, a transaction on its face, though may apparently be of a civil nature, may give and does many a time give rise to criminal liability. In a proper case a breach of contract, also, amounts to cheating and criminal breach of trust punishable under the Penal Code. It cannot be absolutely said that in all cases for breach of contract no criminal proceeding can lie and only a civil proceeding is the sole forum. Each and every case is dependent upon the facts and circumstances of that case only and the alleged offence can be established on production of evidences at the time of trial. Our above view gets approval from a series of case laws of our jurisdiction as well as of this sub-continent. In the case of State Vs Iqbal Hossain 48 DLR (AD) 100 (relevant Para 17& 18), the Apex Court made the following observation:

Transaction based on contract ordinarily gives rise to civil liabilities but that does not preclude implications of a criminal nature in a particular case and a party to the contract may also be liable for a criminal charge or charges of elements of any particular offence are found to be present. The distinction between a case of mere breach of contract and one of cheating depends upon the intention of the accused at the time as alleged which may be judged by his subsequent act.

34.         In the case of Khandaker Abul Basher Vs State 63 DLR (AD) 79, our Appellate Division held that:

There is no legal impediment to file a criminal case even if a civil suit is pending on the selfsame allegations provided the ingredients of the offence are present.

35.         The usual position of law is that a criminal proceeding against an accused person should be tried under the law of the land and the High court Division would be reluctant to interfere with the said proceeding until the trial is concluded. In the instant case the complainant had been examined by the Court under Section 200 of the CrPC and cognizance had been taken against the accused-petitioner. The Court after hearing the parties and on consideration of all the materials brought on record found a prima facie case against the accused-petitioner under Section 420 of the Penal Code and framed charge thereunder. The case was also fixed for trial on 25.12.2011 but the trial could not be commenced because of the accused-petitioner’s move before this Court where he obtained the present Rule and got the proceeding stayed. It is well recognised that when a Court, on disclosure of offence, on a First Information Report or on petition of complaint takes cognizance and issues process against an accused person and on being satisfied as to the existence of a prima facie case frames charge, the High Court Division will be very much reluctant to quash the proceeding. On a reading of the petition of complaint, it is difficult to hold that the allegations and the complaint do not disclose any offence and the continuance of the proceeding will be a flagrant abuse of the process of the Court and the same is to be buried without going into the trial of the case and the inherent power, which are in the nature of extraordinary power, has to be pressed in aid. Rather, the criminal offence alleged can be seen only on production of evidences at the time of trial and not before that. If the evidences do not disclose any offence under Section 420 of the Penal Code, the prosecution will fall through and the accused petitioner will be entitled to be acquitted. If the proceeding against the accused-petitioner is now interfered with, that would result in permitting him to escape the just reward of his misdoings. The present case does not appear to be a case of injustice where civil liability is being twisted into a criminal liability in order to cause harassment to the accused-petitioner. The circumstances of the instant case, thus, do not satisfy the conditions for an action under Section 561A of the Code of Criminal Procedure.

36.         The learned Advocate for the complainant has raised the issue of forum by arguing that after framing charge the accused petitioner’s only forum was available under Section 439A of the CrPC and invocation of Section 561A bypassing an available forum in not permitted. By Ordinance No. XXIV of 1982 Section 241A had been incorporated in the CrPC. Section 241A of the CrPC stipulates that after the accused appears or is brought before the Magistrate and if the Magistrate, upon consideration of the record of the case and the documents submitted therewith and making such examination of the accused and after giving the prosecution and the accused an opportunity of being heard, considers the charge to be groundless, he shall discharge the accused on recording his reasons for so doing. This Section affords the accused an opportunity to file an application before the Magistrate for an order of discharge showing to the Court that no case is made out against him.

37.         From the materials on record it transpires that the accused-petitioner filed an application under Section 241A of the CrPC for discharging him of the charge labelled against him and after a full-fledged hearing by both the sides, learned Magistrate rejected the application and framed charge against the accused-petitioner under Section 420 of the Penal Code. The petitioner did not challenge the order of framing charge before the Court of Sessions under Section 439A of the Code. Section 439A has been added to the Code of Criminal Procedure by the Law Reforms Ordinance of 1978 which came into operation on June 1, 1979. Section 439A of the CrPC is also an extraordinary special power given to the Sessions Judge who may exercise all or any of the powers exercisable by the High Court Division in revision under Section 439 of the CrPC. However, it has not curtailed or ousted the jurisdiction of the High Court Division for exercising the inherent power in examining the propriety of the charge framing order or the entire proceedings, for, in a fit case the High Court Division is competent to exercise this power at any stage of a criminal proceeding, starting from filing FIR/Complaint upto the stage of delivering the judgment. In this case, however, best course of action for the accused-petitioner was to invoke the jurisdiction of the Sessions Judge under Section 439A for the aspired relief challenging the order passed by the learned Magistrate framing charge against him. But instead of that, he invoked the inherent jurisdiction of the High Court Division in an application under Section 561A of the CrPC when the case was fixed for trial. In these days, when the High Court Division is overwhelmingly over-burdened with huge back-log of cases, it is the expectation of this Court that the learned members of the Bar would not jump to the High Court Division bypassing the route/s prescribed in the relevant procedural law.

38.         In view of the discussions made and the reasons stated hereinbefore, we hold that there is no reason for interference by this Court at this stage, for, we find that there is a prima facie case to be tried by the trial Court and, thus, the Rule being devoid of substance is destined to fail.

39.         In the result, the Rule is discharged without any order as to costs. The order of stay granted earlier by this Court is hereby vacated. The learned Chief Metropolitan Magistrate, Dhaka is directed to proceed with and to dispose of C.R. Case No. 1357 of 2009 in accordance with law.

         Office is directed to send down a copy of this judgment along with the Lower Court Record (LCR) at once.  

Ed.