The State Vs. Jahurul Haque Manju and others, 2016(1) LNJ 72

Case No: Criminal Revision No. 3745 of 1991

Judge: Syed Md. Ziaul Karim,

Court: High Court Division,,

Advocate: Mrs. Sakila Rowshan,Mrs. Sharmina Haque,Mr. Md. Shohrowardi,,

Citation: 2016(1) LNJ 72

Case Year: 2016

Appellant: The State

Respondent: Jahurul Haque Manju and others

Subject: Criminal Trail,

Delivery Date: 2014-5-7


HIGH COURT DIVISION
(Criminal Revisional Jurisdiction)

 
Syed Md. Ziaul Karim, J
And
Ashish Ranjan Das, J


Judgment on
07.05.2014
 
The State, represented by the Solicitor, Government of Bangladesh.
…Petitioner
Versus
Jahurul Haque Manju and others
. . . Accused-opposite parties.
 
 
The Code of Criminal Procedure (V of 1891)
Section 339D
The new Act was not given a retrospective effect, but inspite of repeal of section 339D of the Code (provision of revival of a stopped proceeding), provision was made in section 6 of the new Act for application of section 339D of the Code, as if it was not repealed, when, before the coming into force of the new Act,( i.e. on the 1st November, 1992), a proceeding was already stopped under the unamended provision of sub-section (4) of section 339C of the Code. If a proceeding is now stopped after the coming into force of the new Act either by the High Court Division or by this Court, the prosecution will not have any corresponding right of revival of the proceeding under the repealed provision of section 339D of the Code. The accused will be scot free and no proceeding can be continued against him without a fresh complaint or First Information Report. It is therefore to be borne in mind that under the unamended provision of sub-section (4) of section 339C of the Code, the accused did not enjoy an unqualified right or privilege or facility of stoppage of proceeding and release if the trial could not be completed within 270 days. His right was commensurate with the right of the prosecution to revive the prosecution. It cannot be the intention of the new Act that it is only the accused who will carry prospectively, in spite of the amendment, his right of stoppage of proceeding and release, while the prosecution will prospectively lose its right of revival. The new Act has effected a change in the procedural law, but it has not affected any vested right of the accused and the prosecution, because the accused had not in fact any absolute and vested right of stoppage and release. It was fettered and chained with the prosecution’s right to revive the proceeding. Now both the corresponding rights are gone. No one can complain of any loss thereby. By necessary intendment of any Act will be retrospective in operation in so far as sub-section (4) of section 339C and 339D of the Code of the new Act are concerned. Those will apply to pending cases. . . . (23)
 
Md. Aslam Vs. State, 19 DLR (SC) 242 ref.
 
Mrs. Sakila Rowshan,D.A.G. with
Mrs. Sharmina Haqaue, A.A.G. and
Mr. Md. Shorwardhi, A.A.G.
. . . For the State-Petitioner
No one appears,
. . . For the accused opposite parties.
 
Criminal Revision No. 3745 of 1991.
 
JUDGMENT
 
Syed Md. Ziaul Karim, J:
 
         By this Rule, the State, represented by the Solicitor, Government of the Bangladesh as petitioner has challenged the legality and propriety of the order dated 25-07-1991 passed by learned Additional Sessions Judge, and Special Tribunal Judge, Dhaka (briefly as Judge) in Special Tribunal Case no. 294 of 1990 stopping further proceedings of the case and releasing the accused opposite parties under Section 339C of the Code of Criminal Procedure(briefly as the Code).
 
2.      Facts in brief are that one Md. Abdur Razzak as informant lodged a first information report with Ramna Police Station against the accused-opposite parties alleging that on the night following 03-02-1990 at 1:00 a.m. all the accused in collusion with each other abducted his sister Sufia. Thereafter committed rape upon her. The case was recorded as Ramna P.S. Case no. 06 dated 04-02-1990 under Sections 323, 342, 109 and 376 of the Penal Code  read with Section 4 of the Cruelty to Women (Deterrent Punishment) Ordinance,1983 (briefly as Ordinance 1983).
 
3.      The Police after investigation submitted charge-sheet accusing all the accused.     
 
4.      Eventually, the case was taken up for trial by the Tribunal wherein ultimately the accused filed an application under Section 339C of the Code stating that stipulated period for conc-luding trial was elapsed. So the proceedings should be stopped and they should be released. After hearing the learned Judge allowed the prayer and stopped further proceedings of the case and released the accused.
 
5.      Feeling aggrieved the State-as petitioner preferred the instant revision for revival of the case under section 339D(1) (b) of the Code  and obtained the present Rule.
 
6.      The learned Deputy Attorney General appearing for the State-petitioner seeks to impeach the impugned order on three fold arguments:

Firstly:  Most of the time were allowed on the prayer of the accused-opposite parties on all false pleas to intentionally pass time for the trial as contemplated under section 339 C(4) of the Code.

Secondly: The State was always ready and willing to conclude the trial within the specified period as provided under the law but due to the non-co-operation of the opposite parties the time limit ran out.

Thirdly:  In order to secure ends of justice the case is required to be revived.
 
7.      No one appears on behalf of the accused opposite parties to oppose the Rule.
 
8.      In order to appreciate her submissions we have gone through the record and given our anxious consideration to her submissions.
 
9.      On going to the materials on record it transpires that the accused-opposite parties were being tried by the learned Tribunal, under Sections 323, 342, 109 and 376 of the Penal Code and eventually by the impugned order dated 25-07-1991 the learned Judge stopped the proceedings and released the accused-opposite parties under Section 339C(4) of the Code as the stipulated period for concluding trial was expired. Afterwards the State, represented by the Solicitor preferred the instant Revision for revival of the case under Section 339D(1) (b) of the Code.
 
10.    The Provisions of new section 339D of the Code for revival of the case was inserted by Section 3 of Ordinance no. XXVIII of 1986 which reads as hereunder:
3. Insertion of a new section 339D, Act V of 1898.- In the said Code, after section 339C, the following new section shall be inserted, namely:-

   " 339D, Revival of cases-(1) Notwithstanding anything contained in section 339C, any proceedings in respect of the trial of a case stopped under sub-section (4) of that section shall be revived, if an application for such revival is made by the Government to the Court, where such proceedings were pending on the date they were stopped within ninety days from that date; and the proceedings thus revived shall continue from the stage at which they were stopped;   
 
11.    Provided that where such Court is not in existence or has no jurisdiction to try the case for any reason the application for such revival shall be made to the Court which has jurisdiction to try such case.          
(2) Where any proceedings are revived under sub-section (1), the accused in the case shall, if he is accused of a non-bailable offence, be released on bail to the satisfaction of the Court unless for reasons to be recorded in writing the Court otherwise directs.
(3) Where any proceedings are revived under sub-section (1), the trial of the case after such revival shall be concluded within the time specified in sub-section (1), or sub-section (2) of 339C, as the case may be,
(4) If the trial of a case after revival cannot be concluded within the specified time, further proceedings in respect of the trial of the revived case shall stand stopped and the accused persons released.
(5) In this section, in determining the time for the purpose of trial.-
(a) the date of revival of a case shall be deemed to be the date on which the case is received for trial; and
(b) only the working days shall be counted. "
 
12.    Subsequently Section 339D of the Code was substituted by Section 5 of the Ordinance XII of 1991which reads as hereunder:  
 
5.      “ Act V of 1898 Hl section 339D এর সং­শাধন - উক্ত Code এর section 339D এর sub-section (1), (2), এবং (3) এর পরিব­­র্ত নিম্নর্রপ sub-section গুলি প্রতিস্থাপিত হই­বে,যথা - 
 
″(1) Notwithstanding anything contained in section 339C, the Government or an aggrieved person may, on cogent grounds:-
 
a. where the proceedings of the case were stopped and the accused person released in the Court of a Magistrate, make an application, within sixty days from the date on which the proceedings in respect of the trial of the case have been stopped, to the Sessions Judge;

b. where the proceedings of the case were stopped and the accused person released in the Court of a Sessions Judge, an Additional Sessions Judge or an Assistant Sessions Judge, make an application, within ninety days from the date on which the proceedings in respect of the trial of the case have been stopped, to the High Court Division,
for revival of the case and the Sessions Judge or, as the case may be, the High Court Division may pass thereon such orders as he or it thinks fit.

(2) Where the Sessions Judge or, as the case may be, the High Court Division orders for revival of the case, proceedings thereof shall continue from the stage they were stopped in the Court where such proceedings were pending on the date they were stopped, and where such Court is not in existence or has no jurisdiction to try the case for any reason, the proceedings shall continue in the Court which has jurisdiction to try the case.

(3) Where any case is revived under sub-section (2), the accused in the case shall, if he is accused of a non-bailable offence, be released on bail to the satisfaction of the Court where the case has been revived, unless for reasons to be recorded in writing, the Court otherwise directs.

(3A) Where any case is revived under sub-section (2), the trial of the case after such revival shall be concluded within the time specified in section 339C."
 
13.    Later Section 339D of the Code was again substituted by Section 8 of Act XVI of 1991 which reads as hereunder:      
 
8.      “ Act V of 1898 এর section 339D এর সং­শাধন -উক্ত Code এর section 339D এর sub-section (1), (2), এবং (৩) এর পরিব­র্ত নিম্নর্রপ sub-section গুলি প্রতিসহাপিত হই­ব,যথা - 

″(1) Notwithstanding anything contained in section 339C, the Government or an aggrieved person may, on cogent grounds:-
where the proceedings of the case were stopped and the accused person released in the Court of a Magistrate, make an application, within thirty days from the date on which the proceedings in respect of the trial of the case have been stopped, to the Sessions Judge;
where the proceedings of the case were stopped and the accused person released in the Court of a Sessions Judge, an Additional Sessions Judge or an Assistant Sessions Judge, make an application, within sixty days from the date on which the proceedings in respect of the trial of the case have been stopped, to the High Court Division,
for revival of the case and the Sessions Judge or, as the case may be, the High Court Division may pass thereon such orders as he or it thinks fit.

(2) Where the Sessions Judge or, as the case may be, the High Court Division orders for revival of the case, proceedings thereof shall continue from the stage they were stopped in the Court where such proceedings were pending on the date they were stopped, and where such Court is not in existence or has no jurisdiction to try the case for any reason, the proceedings shall continue in the Court which has jurisdiction to try the case.

(3) Where any case is revived under sub-section (2), the accused in the case shall, if he is accused of a non-bailable offence, be released on bail to the satisfaction of the Court, unless for reasons to be recorded in writing, the Court otherwise directs.

(3A) Where any case is revived under sub-section (2), the trial of the case after such revival shall be concluded within the time specified in section 339C."
 
14.    Lastly Section 339 D of the Code was repealed by Section 4 of the Act XLII of 1992 which reads as hereunder:
 
৮।        Act V of 1898 এর section 339D এর বি­লোপ-উক্ত Code এর section 339D বিলুপ্ত হই­বে।
 
15.    The Provision was made in section 6 of the new Act for application of section 339D, as if it was not repealed "which reads as hereunder:
 
৬।    কতিপয় ক্ষে­ত্রে Act V of 1898 এর বিলুপ্ত section 339D এর প্র­­য়োগ। - এই আইন দ্বারা উক্ত Code এর section 339D বি­লোপ সত্বেও, এই আইন বলবৎ হইবার পূ­র্ব section 339D এর সং­শোধন পূর্ব sub-section(4) এর বিধান অনুসা­রে বন্ধ হইয়া­ছে, এমন কোন বিচার কার্যক্রম পূনর্জ্জীবিত করার জন্য দরখাস্ত দাখিল, প্র­য়োজনীয় কার্যক্রম গ্রহণ এবং উহার নিষ্পত্তি এইরু­প করা যাই­বে যেন section 339C বিলুপ্ত হয় নাই।
 
16.    The question that arises in the instant case is that during pendency of the Criminal revision before this Court the new Provisions 339D introduced by Ordinance XXVIII of 1986 was repealed by Act XLII of 1992 came into force and this being procedural law whether it will apply to a pending case.
 
17.    Sub-section (4) of section 339C of the Cr.P.C. was in the following terms before amendment by the Code of Criminal Procedure (Second Amendment) Act 1992 (Act no. XLII of 1992).

″(4) If a trial cannot be concluded within the specified time as mentioned in sub-section (3), further proceedings in respect of the trial shall stand stopped and the accused person released. ″
 
18.    It was provided in sub-section (3) of section 339C that if for any reason the Sessions Judge or the Additional Sessions Judge was unable to conclude the trial of the case within 240 days he shall conclude such trial within 30 days after the expiry of the specified time. In other words, the Sessions Judge or the Additional Sessions Judge was to conclude the trial within 270 working days. But sub-section (4) of section 339C has been substituted by Act XLII of 1992 which runs as follows:

″(4) If a trial cannot be concluded within the specified time, the accused in the case, if he is accused of a non-bailable offence, may be released on bail to the satisfaction of the Court, unless for reasons to be  recorded in writing, the Court otherwise directs. ″
 
19.    Before the Code of Criminal Procedure was further amended by Act no. XLII of 1992, shortly the new Act, it was the combined effect of all the sub-sections of section 339C and 339D of the Code that a trial of a sessions case had to be concluded within 240 days. With an additional grace of 30 days, where-after, as per sub-section (4) of section 339C of the Code, "further proceedings in respect of the trial shall stand stopped and the accused person released". That was the right which the accused was seeking to pursue, but that right was not an absolute one. Under section 339D of the Code the proceedings could be revived upon a prayer from the prosecution within a stated period. The whole purpose of un-amended section 339C of the Code was to whip up the prosecution and activse the trial Court so as not to delay the trial of a case unnecessarily. It was also not a signal to the defence to resort to all manners of delaying tactics to get out of the trial net. The stopping of a case and the release of an accused would rouse the prosecution from its slumber and would necessarily subject it to an accountability. The purpose was not to give the accused a right not to be tried any more on the same charge or a clean bill of acquittal, even if he was accused of a heinous crime. Stoppage of the trial did not mean an end of the woes of the accused. A revival would revive his woes.        
 
20.    By the new Act the period of trial was extended to 360 days. By deleting sub-section (3) of section 339C of the Code the grace period of 30 days was done away with and by substituting sub-section (4) of section 339C of the Code with a new sub-section (4) the proceedings cannot be stopped now and the accused can now only obtain bail to the satisfaction of the Court with the expiry of 360 days, if the trial has not been concluded. Section 339D of the Code has been repealed. The position now is, no stoppage, no revival.
 
21.    The legal position of an amendment in procedural law has been aptly summed up by SA Rahman J, ( as his Lordships then was) in the case of Md. Aslam vs. State 19 DLR (SC) 242 in the following words:

         ″ ….. When the law is altered during the pendency of an action, the rights of the parties are to be decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to vary such rights. Where the legislature has made its intention clear that the amending Act should have retrospective operation, there is no doubt that it must be so construed, even though the consequences may entail hardship to a party. But even without express words to that effect, retrospective effect may be given to an amending law, if the new law manifests such a necessary intendment. With regard to the procedural laws, the general principle is that alterations in procedure are retrospective unless there be some good reason against such a view. If a statute deals merely with the procedure in an action, and does not affect the rights of the parties, it will be held to apply prima facie, to all actions pending aswellas future. It is only if it be more than a mere matter of procedure, that is, if it touches a right in existence at the passing of new Act, that the aggrieved party would be entitled to succeed in giving a successful challenge to the retrospective effect of the Act….. ".
 
22.    We are in respectful agreement with the afore quoted summing-up of the law on the subject.
 
23.    The new Act was not given a retrospective effect, but inspite of repeal of section 339D of the Code (provision of revival of a stopped proceeding), provision was made in section 6 of the new Act for application of section 339D of the Code, as if it was not repealed, when, before the coming into force of the new Act,( i.e. on the 1st November, 1992), a proceeding was already stopped under the unamended provision of sub-section (4) of section 339C of the Code. If a proceeding is now stopped after the coming into force of the new Act either by the High Court Division or by this Court, the prosecution will not have any corresponding right of revival of the proceeding under the repealed provision of section 339D of the Code. The accused will be scot free and no proceeding can be continued against him without a fresh complaint or First Information Report. It is therefore to be borne in mind that under the unamended provision of sub-section (4) of section 339C of the Code, the accused did not enjoy an unqualified right or privilege or facility of stoppage of proceeding and release if the trial could not be completed within 270 days. His right was commensurate with the right of the prosecution to revive the prosecution. It cannot be the intention of the new Act that it is only the accused who will carry prospectively, in spite of the amendment, his right of stoppage of proceeding and release, while the prosecution will prospectively lose its right of revival. The new Act has effected a change in the procedural law, but it has not affected any vested right of the accused and the prosecution, because the accused had not in fact any absolute and vested right of stoppage and release. It was fettered and chained with the prosecution’s right to revive the proceeding. Now both the corresponding rights are gone. No one can complain of any loss thereby. By necessary intendment of any Act will be retrospective in operation in so far as sub-section (4) of section 339C and 339D of the Code of the new Act are concerned. Those will apply to pending cases.
 
24.    On meticulous examination of the record we find that the impugned order was passed on 25-07-1991 and the instant revision was filed in the year 1991 upon which the Rule was issued on 17-12-1991. Therefore, the same will attract section 6 of the Act XLII of 1992, consequently the Special Tribunal Case no. 294 of 1990 will be revived. Thus the Rule have merit succeeds.
 
25.    In view of foregoing narrative the Rule is made absolute. The Special Tribunal Case no. 294 of 1990 pending in the Court of Additional Sessions Judge, and Special Tribunal Judge, Dhaka stands revived and the same shall proceed in accordance with law and in the light of observations made above.
 
26.    In view of the facts this is an old case of 1990, the learned Judge of the Court below is directed to dispose of the case within six months from date.
        
Office is directed to send down the record at once.
        
Ed.