Younus Chowdhury and others v. The State

Case No: CRIMINAL PETITION FOR LEAVE TO APPEAL NO. 410 OF 2011

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Biswajit Deb Nath,Md. Ashadullah,,

Case Year: 2014

Appellant: Younus Chowdhury and others

Respondent: The State

Delivery Date: 2014-07-22

 

IN THE SUPREME COURT OF BANGLADESH

Appellate Division

 

PRESENT

 

Madam Justice Nazmun Ara Sultana  

Mr. Justice Syed Mahmud Hossain

Mr. Justice Muhammad Imman Ali

 

CRIMINAL PETITION FOR LEAVE TO APPEAL NO. 410  OF  2011

(From the judgement and order dated 21st of July, 2011 passed by the High Court Division in Criminal Miscellaneous Case No.724 of 2005)

 

Younus Chowdhury and others

 

  ... Petitioners

  = Versus =

 

 

The State

... Respondent

For the Petitioner

 

:Mr. Md. Ashadullah, Advocate, Instructed by

Mr. Mohd. Nawab Ali,

Advocate-on-Record

The Respondent

:Mr. Biswajit Deb Nath,

Deputy Attorney General

instructed by Mr. Shamsul Alam,

Advocate-on-Record

Date of hearing & judgement

:The 22nd of July, 2014

     

 

J U D G E M E N T

 MUHAMMAD IMMAN ALI, J:-

This criminal petition for leave to appeal is directed against the judgement and order dated 21.07.2011 passed by a Division Bench of the High Court Division in Criminal Miscellaneous Case No. 724 of 2005 making the Rule absolute.

The facts relevant for disposal of the instant petition are that the petitioners along with several others are accused in Sessions Case No. 12 of 2003 under sections 302 and 34 of the Penal Code which is now pending in the court of Additional Sessions Judge, Narail. Eleven of the accused persons, other than the petitioners herein, filed Criminal Miscellaneous Case No. 724 of 2005 before the High Court Division under section 561A of the Code of Criminal Procedure for quashing the proceedings of Sessions Case No. 12 of 2003 arising out of Naragati Police Station Case No. 8 dated 14.05.2000, corresponding to G.R. No. 33 of 2000 pending in the court of Additional Sessions Judge, Narail, and Rule was issued. The petitioners were not party in Criminal Miscellaneous Case No. 724 of 2005.

The petitioners herein also filed a criminal miscellaneous case under section 561A of the Code, being No. 5800 of 2005, wherein Rule was issued on 24.04.2005 staying further proceeding of Sessions Case No. 12 of 2003. It was further directed that the Rule would be heard along with Criminal Miscellaneous Case No. 724 of 2005. However, when the Rule in Criminal Miscellaneous Case No. 724 of 2005 was heard and disposed of by the impugned judgement and order, Criminal Miscellaneous Case No. 5800 of 2005 was not tagged with it and still remains pending before the High Court Division.

Mr. Md. Ashadullah, learned Advocate appearing on behalf of the instant petitioners submits that in disposing of the Rule in Criminal Miscellaneous Case No. 724 of 2005 the High Court Division made a comment in the ordering portion, which will prejudice the instant petitioners when the Rule in Criminal Miscellaneous Case No. 5800 of 2005 filed by them is heard by the High Court Division in due course.

Mr. Biswajit Deb Nath, learned Deputy Attorney General appeared on behalf of the respondent.

We have considered the submissions of the learned Advocate for the petitioners, perused the impugned judgement and materials on record.

It transpires from the impugned judgement that the High Court Division made the Rule absolute in respect of the petitioners concerned in that case for the reason that the Magistrate concerned did not take cognisance of the offence against those petitioners and so the learned Sessions Judge had no jurisdiction to take cognisance of the offence against those petitioners. Hence the proceeding so far as it relates to those petitioners in that case was quashed. However, the High Court Division went on to say that, “The case will proceed against four accused namely (1) Yunus Chowdhury, (2) Manir Sheikh, (3) Uzzal and (4) Ejaj Sheikh against whom the competent Magistrate took cognisance and sent the case against them to the Court of Sessions for trial.”

In view of the fact that the instant petitioners were not party in Criminal Miscellaneous Case No. 724 of 2005 and the criminal miscellaneous case filed by the instant petitioners is still pending before the High Court Division in Criminal Miscellaneous Case No. 5800 of 2005, the comments of the High Court Division in the impugned judgement with regard to the instant petitioners is superfluous and will not be binding when the High Court Division comes to consider Criminal Miscellaneous Case No. 5800 of 2005.

With the above observation the instant criminal petition for leave to appeal is disposed of.