Code of Criminal Procedure, 1898 (Section 345 - Section 491)

Citation: 1 BLT (HCD)-61, 9 BLT (HCD)-40, 11 BLT (HCD)-383, 12 BLT(HCD)-177, 14 BLT (HCD)-556, 8 BLT(HCD)-356, 6 BLT (HCD)-189, 9 BLT (HCD)-40, 12 BLT (HCD) 434,3 BLT (AD)-115, 8 BLT (HCD)-191, 4 BLT (AD)-258, 7 BLT (AD)-227, 12 BLT (HCD) 434, 11 BLT (HCD)-262, 1

Subject: Criminal Procedure

Delivery Date: 1970-01-01




Code of Criminal Procedure, 1898

[Act No. V of 1898]


Section- 345(5A)

Composition of offences under section 323 of the Penal Code-High Court Division allowed the composition of offence U/S 323 Penal Code and conviction and sentence set aside and the accuseds are acquitted of the charge U/S 323 Penal Code.

Mst. Subani and Mrs Benu Bibi Vs The State 1 BLT (HCD)-61

Section- 349A

Whether the provision of Section 349A of Code of Criminal Procedure are applicable for saving the judgment of the learned Sessions Judge which was admittedly based on the evidence not recorded by him but by the special Martial Law Court.

Held: It will remain a matter of regret that inspite of recording the evidence of as many as 50 witnesses there could not be a legal conclusion of the trial for an offence of murder which will be shelved without a judgment being delivered, one way or other, by a competent Court of Law.

The State Vs. Golam Mostafa & Ors 5 BLT (AD)-


Accused—a person is said to be accused if the information or complainant alleges against him in the complicity of the occurrence, or in a case where police after investigation found his complicity in the occurrence although he was shown as a witness or into a case where a person attending a criminal Court, may be detained for the purpose of inquiry into or trial of any offence of which such court can take cognizance.

Mst. Sahera Khatun Vs. The State & Ors 9 BLT (HCD)-40


Perverted Judgment In a case where the trial court has failed] to discuss and assess the expert evidence and other evidence on record and written his judgment without trying to determine the fact in issue, the same is definitely application perversed judgment.

Abul Hossion & Ors. Vs. The State & Ors 11 BLT (HCD)-383



The accused-appellants were charged under Sections 458/302/34 of the Pen? Code and the learned Trial Court found have convicted the accused-appellants under Section 302/34 of the Penal Code, but remained silent about the fate of charge so framed under Section 458 of the Penal Code which indicates the impugned judgment was not drawn as per provisions of Section 367 of the Code of Criminal Procedure.

Monu Sheikh & Ors Vs. The State 12 BLT(HCD)-177


Judgment —Points for determination

In the instant case, there appears to be finding  on  the  charge  under Sections 409/109 of the Penal Code. Having framed charge under those sections, the learn Judge is bound to come to a finding of either guilt or innocence as charged. Moreover there are innumerable instances misreading and failure to exercise pro[ judicial mind, which rendered the judgment defective and hence they cannot be sustained.

Dulal Chandra Shill & Ors Vs. The State 14 BLT (HCD)-556

Sectiion-367 and 424

Contents of judgment of the appellate Court

An appellate court disposing a criminal appeal must formulae points for determination, fhe decisions thereon and the reasons for the decisions. This necessarily implies that the appellate Court is required to discuss and consider the material evidence on record and arrive at his independent findings on all material points at issue.

Yasin Mollah & Anr. Vs. The State 8 BLT(HCD)-356

Section- 369

High Court has no power to review its Judgment.

The pronouncement of the verdict of the court is actually the delivery of the judgment irrespective of the time of actual signing of the judgment by the presiding judge, and the judgment takes effect with its pronouncement. So, there appears to be no logic in holding that although a full-fledged judgment has been delivered on the merit of the case, there is said further scope for the court to review its judgment in the garb of re-hearing a provision which is clearly not contemplated in law.

Maniruzzaman Vs. The State 6 BLT (HCD)-189


A judgment of a Criminal Court is final so far as that court is concerned and such court is functions officio after signing the judgment and has, therefore no power to Review override, alter with the judgment in judgement manner except where it is otherwise provided by the Code or for the purpose of correcting clerical error.

Mst. Sahera Khatun Vs. The State & Ors 9 BLT (HCD)-40


The convict is legally entitled to a copy of the judgment free of cost if he desires to present an appeal and intimates to the jail authority in this regard.-We direct the trial Courts to intimate to all the convicts who are not defended by a lawyer or the convicts though defended by a lawyer intend to prefer jail appeal due to financial or any other cause, of their right of getting copies of the judgment free of cost in order to enable them to present proper appeal within limitation without being misled in the hands of undesiring persons. This direction is given for the interest of justice on consideration of overall socio-economic conditions of the country.

Ayar @ Ayaruddin & Ors Vs. The State 12 BLT (HCD) 434

Section- 374

Zahiruddin killed his wife Velua Khatoon on suspicion of her illicit relationship with a paramour such fact being proved by PW 4 and having it corroborated by confessional statement of the accused, the husband was convicted u/s 302 of the Penal Code and sentenced to death. On death reference High Court Division confirmed the death sentence. Appellate Division commuted it to one of life imprisonment. Before causing death of his wife if one is suffered for some time from in bitter sense of being wronged by his wife having illicit connection with here paramour, sentences of death can be commuted to one of life imprisonment for ends of justice.

Zahiruddin Vs. The State 3 BLT (AD)-115


Recovery of Fine

A fine imposed by a Criminal Court upon an accused is recoverable from him under the provisions of Section-386 of the Code. A fine is a kind of financial punishment as distinguished from physical punishment and it must, therefore, be paid by the counvict under all normal circumstances. The accused has no option to plead that he will undergo imprisionment for a term fixed be the Court in lien of payment of the fine. If the accused is allowed to exercise his option, he can easily avoid the payment of fine by undergoing imprisonment for a fixed term for default in payment of fine and thereby frustrate the very purpose of impositions of the fine and defeat legislative intent. Fine being a charge upon the property of a convict as a public due, it continues to be so even after his death and it is recoverable from his successor-in-interest under the provisions of Section-386 C.P.C. A duty is cast upon the trial court to ensure recovery of the fine as promptly as possible.

Md. Ali Hossain & Ors. Vs. The State 8 BLT (HCD)-191

Section- 403

Fresh complaint, over the self same occurrence- when a proceeding is stopped under section 339C of the Code of Criminal Procedure and the accused stands released thereunder, such release is neither an acquittal nor a discharge as has been contemplated under the Code and as such the accused cannot claim the protection of section 403 of the Code from facing trial for the same offence.

Jotish Das Vs. Chandan Kumar Das 4 BLT (AD)-258

Section- 403

After acquittal under section 247 Cr.P.C. lodging of the second complaint on the self same allegations was barred under section 403 Cr.P.C.

Dewan Obaidur Rahman Vs. The State & Anr 7 BLT (AD)-227


Section 408 prescribes the forum of appeal from the sentence of Assistant Sessions Judge and the Magistrate of the first class. It provides that any person who has been sentenced by a Metropolitan Magistrate, or a Magistrate of the first class (a District Magistrate is a Magistrate of the! first Class) or any person is sentenced under section 349 or in respect of whom a sentence has been made under section 380 by a Magistrate of the first class, may appeal^ to the Court of Session. In case of an Assistant Sessions Judge passes any sentence not exceeding five years, the convict may appeal to the Court of Sessions. Only exception is that if a person is convicted under section 124 A of the Penal Code by a Magistrate, his appeal lies to the High Court Division. The convicts have already undergone their sentences before they are taken up for admission hearing.

Ayar @ Ayaruddin & Ors Vs. The State 12 BLT (HCD) 434


The plea of the appellant was not genuine] and it was an admission that he has committed the act, which is alleged to be an offence. An accused person who pleads guilty and is convicted thereon, he has no right to appeal exceed to the extent or legality of the sentence as provided in section 412 of the Code of Criminal Procedure. Where, however, the facts alleged by the prosecution do not amount to an offence the plea of guilty of an accused cannot stand in the way of his acquittal an section 412 of the Code cannot bar an appeal from his conviction.

Skeikh Mujibur Rahman @ Razibulla & Ors. Vs. The State 11 BLT (HCD)-262


The right of appeal of a convicted accused is taken away if the court has accepted the plea of guilty and convicted him on such plea.-The conviction of a person on his plea of guilty must be shown to have admitted distinctly each and every fact necessary to constitute an offence.

Ayar @ Ayaruddin & Ors Vs. The State 12 BLT (HCD)-434


Section 415A recognizes a right of appeal of an accused person against whom a non-appealable sentence is passed in a trial in which an appealable judgment is passed against any of the accused person. This on confers a general right of appeal and thought the co-accused can only appeal as to his conviction and not as to his sentence, yet the other accused can appeal as to both.

Ayar @ Ayaruddin & Ors Vs. The State 12 BLT (HCD)-434

Section-417A(1) and Section-417A(2)

In the Case arising out of complaint, the complainant is competent under Section 417A(2) of the Code of Criminal Procedure to prefer appeal against conviction before Appellate Court on the Ground of inadequacy of sentence but where the case arises out of an F.I.R the informant is not inadequacy of sentence. This right to prefer appeal lies with the Government as contemplated under Section 417A(1) of the Cods of Criminal Procedure and the same can be preferred before the High Court vision only.

Tajul Islam & Anr. Vs. The State 9BLT (HCD)-148


The 'special limitation' as has been provided in sub-section 3 of Section 417 of Cr. P. C. is applicable in a case where a complainant intends to file an appeal before the High Court Division against order of acquittal passed case registered upon a petition of complaint.

Dr. M. A. Mazed & Ors Vs. Bangladesh & Ors 12 BLT (AD) 154


An appeal either by a convict who has presented the appeal through the jail authority or otherwise, must be accompanied by a copy of the judgment or the order under challenge in order to enable the court to know that what accompanies the petition of appeal is a true transcription of the judgment or order appealed against.-If this mandatory provision is not complied with, it is open to the appellate Court to reject the appeal.

Ayar @ Ayaruddin & Ors Vs. The State 12 BLT (HCD) 434

Section-421 and Section 423

The essential difference between the dismissal of an appeal under this section and its dismissal under section 423 is that in the latter case the appeal is disposed of after trial, whereas in the former the court summarily dismisses it, refuses to try it at all.

Ayar @ Ayaruddin & Ors Vs. The State 12 BLT (HCD) 434

Section- 422

Notice in a criminal appeal- In a criminal appeal, that a complainant cannot have a right of ordinance once an accused is convicted on the basis of the complaint.

Kamal Mia Vs. Aleya Begum & Ors. 6 BLT (HCD)-90

Section- 423

If it is found that the accused had suffered a substantial part of the sentence imposed upon him or her in the mistrial, the Court may not for ends of justice direct a retrial.

There is no question that the court has undoubted right to direct a retrial where there has not been a trial in accordance with law. We are of the view that having regard to the facts and circumstances of the case and particularly in view of the fact that in the meantime (During pendency of appeal in this Court) the appellant has continued to suffer imprisonment, it is a fit and proper case in which the High Court Division should consider the case on merit also and then pass whatever order or orders it thinks appropriate in the interest of justice.

Asiman Begum Vs. The State 7 BLT (AD)-133

Section- 423

When it is found after a full trial that there was a mistrial of trial without jurisdiction, the Court of appeal before directing a fresh trial by an appropriate Court should also see whether such direction should at all be given in the facts and circumstances of a particular case.

If it is found that there was no legal evidence to support the conviction then in that case it would be wholly wrong to direct a retrial because it would then be an useless exercise. Further, the prosection should not be given a change to fill up its lacuna by bringing new evidence which it did not or could not produce in the first trial.

Asiman Begum Vs. The State 7BLT (AD)-133

Section-423 read with Children Act, 1974 Sections-6 and 66(1)

From the scrutiny of the record, we find some redeeming features and vital facts record to find that the question of accused appellant of being a child within meaning of the Children Act, 1974 unfortunately the defence did not prop and specifically did not press the is before the learned Tribunal urging upon ' to direct an enquiry to ascertain as whether he comes within any exception entitling him not be tried by the Tribunal the usual course, and the learned Spec Tribunal trialed him and convicted him, we find from the charge sheet that accused appellant Md. Monir Hossain 14-15 years on the day of submitting charge sheet against him on 24.09.1998. It also found form order No.6 dated 22.12.1998 from the order sheet of the S that the prayer for the accused appellant specifically grounded on the question of being a 'minor'. In the facts of the case, found that the question of the accused appellant of being a child was before learned Tribunal  although not specific pressed for an answer. Since the convict against the accused appellant is one imprisonment for life and the age of accused appellant on the date of framing charges against him is a matter of importance touching the jurisdiction of Court, we fee find it necessary in the interest of justice that the learned Special Tribunal should direct an enquire to satisfy himself to whether accused appellant Md. Monir Hossain was a child below 16 years of on the date of framing charges against on 31.11.1999

Md. Monir Hossain @ Monir Hossain Vs. State 9BLT (HCD)-285


Duty of the appellate Court

An appellate Court while disposing a criminal appeal must formulate points for determination and the decisions thereon with reasons. Merely saying that the appellate court agrees with the findings of the trial without referring to material evidence on record is not a proper judgment in the eye of law.

Soleman Momin & Anr. Vs The State & Anr. 9BLT (HCD)-35

Section- 426

Under the rules of the High Court Division the officer is to prepare paper book criminal appeals and the appellant has no responsibility in the matter  unless he volunteers in his own interest- The court cannot put a fetter on the right of appeal of an accused by asking him to prepare paper book nor can it be made a condition for granting or extending bail already granted.

Obaidul Hoque Vs. The State 2 BLT (AD)-1

Appellant Division do not approve granting bail to the petitioner when the appeals pending in the High Court Division the Petitioner should have moved the High Court Division again for hearing the appeal without paper book and if it was not possible to permit him to remain on bail.

Obaidul Hoque VS. The State 2BLT (AD)-1

Section- 426

The appellants along with 6 others were under section 302/34 of the Penal Code and were acquitted. Against  the said judgment and order of acquittal, the State filed government appeal before the High Court Division. In such circumstances it will not be fair and reasonable to put the appellants behind the prison bar when they have already got an order of acquittal from competent court after a full-fledged trial. It may also be mentioned that as a measure of punishment bail should not be refused in case when an order of acquittal has been passed appellants are entitled to bail.

Abdul Hafiz Howlader & Ors Vs. The state 3 BLT (AD)-1

Section- 426

Absconsion of the co-accused could not be a ground for refusing bail to these petitioners who have been in jail for a long time. In the matter of bail pending disposal of appeal or rule the period of sentence is a matter for consideration.

Dudu Mia Khalifa & Other Vs. The State 2 BLT (AD)-12

Section- 426

When Bail can be granted.

In cases of short sentence the accused may be released on bail where there is likelihood of delay in disposing of the appeal- If the appeal cannot be disposed of within the longest time, the accused petitioner may renew the prayer for bail.

Md. Jahangir Hossain Vs. The State 2BLT (AD)-16

Section- 426

Bail on pending appeal-imprisonment for life-In F.I.R. mentioning the names of as many as 8 accused persons and the parts taken by them in the alleged occurrence leading to the death of Jobbed Ali- the name of the appellant petitioner does not appear in the F.I.R. when was lodged on the following day and he is the only earning member of the Hindu joint family- allow the prayer for bail of the petitioner.

Paritosh Singha Vs. The State 4 BLT (HCD)-147

Section- 426

Bail- on 5.11.92 charge sheet was submitted against the petitioner and 8 other under section 366A of the Penal Code read with section 4 (b) of the Cruelty to Women (Deterrent punishment) Ordinance, 1983-No charge has yet been framed in the case. Holding of Trial is being unnecessarily delayed without any fault on the part of the appellant, the other co-accused persons have been enjoying the privilege of bail, granted by the Special Tribunal- the appeal is allowed.

Nurul Amin Vs. The State 4BLT (AD)-157

Section- 426

Bail in pending appeal on murder charge save and except self exculpatory confessional statement, wherein the co-accuseds mentioned the name of the appellant- petitioner, there is noting on record to showing the involvement of the accused petitioner in the murder of the deceased- there is no chance of hearing of the appeal in near future and by this time the appellant- petitioner has already suffered more than 2 and half years towards his sentence appellant- petitioner enlarged on bail.

Md. Ayub Ali & Ors Vs. The State 2 BLT (HCD)-167


Proper discretion in the matter of granting bail in a pending appeal filed against a short sentence.

Principle laid down in the case reported in 11 BLD (AD)-96—The learned Judge apparently failed to get the message from the case cited before him. It was observed in that case that in an appeal against a short sentence (2 years ringorous imprisonment as in the present case) bail should be ordinarily granted in the exercise of a proper discretion because usually it takes time to hear the appeal and within passage of the Period of sentence the appappeal becomes infructuous. The The learned Judge would be justified in refusing bail if he could ensure the disposal of the appeal within a reasonable time i.e. within 3-6 months, otherwise the refusal of bail will be manifestly unjust.

AM Uddin Vs. The State 8 BLT (AD)-5

Section 426(1)

Accused appellant challenging the order conviction and sentence by appeal -Appeal was filed with a separate application for bal but no order was passed on this application and hence by way of an application und» section 426(1) of the Code of Criminal Procedure -Held; we think that it would just and proper if the learned Metropolitan sessions Judge is directed to dispose of the application for bail of the appellant petitioner at an early date preferably on before 25.3.2007.

Shamsuzzaman Vs. The State & Ors 15 BLT (HCD) 98


An appeal against a sentence of fine shall not abate by reason of the death of the accused appellant; because it is not a matter which affect his person but one which affects his estate and hence that part of the; appeal which relates to sentence of imprisonment shall abate on the death of the appellant but the other part relating to sentence of fine shall not abate—relied on 22 DLR 244.

S. Talibur Rahman Vs. The State 10 BLT (HCD)-387

Section- 435& 439A

The proper course which the lea Additional Sessions Judge ought to have taken in Criminal Revision Case was to an order for further inquiry by the learned Magistrate, not an order of revival of the petition case as contended by the petitioner's Counsel.

Held: We direct that the order of revival of petition case No. 392 of 1996 be altered to a direction to the learned Magistrate to hold further inquiry.

Md. Ferdous Mondal & Ors Vs. The State & Anr 5 BLT (AD)-56

Section- 435/439A, 561A

(a) There is no second criminal revision under the abuse of S.561 A Cr. P. C. Relied on Nader Ali Sheik Vs. State 1(1984) BLD (AD) 7.

Md. Rehman Ali & Others Versus The State 1 BLT (HCD)-74

(b) Where is abuse of process of Court the bar of second revision will not stand in die way of invoking the provision of 561A to secure the ends of justice and to prevent the abuse of the process of the Court. [Relied on 36 DLR (AD) 44].

Md. Rehman Ali & Others Versus The State 1 BLT (HCD)-74

(c) If a party is aggrieved by a charge farmed by the Magistrate u/s 242 Cr. P. C. the aggrieved may seek remedy under section 439 and 439A Cr. P. C. before the Sessions Judge. There being no appeal against the order.

Md. Rehman Ali & Others Versus The State 1 BLT (HCD)-74

(d) The order of the Magistrate to the investigation officer to submit the charge sheet for the offence of dacoity is unauthorized and the I. O. need submit the supplementary charge sheet- the order of the Ld. Additional Sessions Judge should not be quashed as there is not illegality in it- rule discharged.

Md. Rehman Ali & Other Versus The State 1 BLT (HCD)-74


The requirement of Section 436 of the Code of Criminal Procedure is the satisfaction of the Sessions Judge on examining any record under section 435 or otherwise that a further enquiry should be made into any complaint which has been dismissed or into the case of any person accused of an offence who has been discharged. Even when the Magistrate takes cognizance on the basis of Judicial enquiry, examination of the Complainant on oath is not a condition-precedent.

Abu Jafar Siddiqi Vs. The State & Ors 11 BLT (HCD)-440

Section- 437,438,439 (4), 439A (2), 369 and 561A

(a) Section 437 omitted and Section 438 has given concurrent powers and jurisdictions to the Sessions Judge, the Chief Metropolitan Magistrate and the District Magistrate to make a report in respect of criminal proceedings for orders to be passed by the High Court Division.

Mafizuddin & Others Vs. Alauddin & Another 2BLT (HCD)-53

(b) Interpretation of statute- difficulties have arisen due to the insertion of section 439A in the code- whether the order passed under section 439A is amenable to the jurisdiction of the High Court Division effect of Law Reforms Ordinance No. 49 of 1978 in inserting sub-section (4) in section 439.

Mafizuddin & Others Vs. Alauddin & Another 2BLT (HCD)53

(C) Interpretation of statute- Sections 439(4), 439A(2) and 561 A- Construction of the words "adjudicata" under sections 439 or 561A occurring in the Code- whether 561A can be invoked to adjudicate upon all orders passed by the Sessions Judge under Section 439A.

Mafizuddin & Others Vs. Alauddin & Another 2BLT (HCD) 53

Section- 438

Executive Director of the Securities and Exchange Commission filed reports under section 25 of the Securities and Exchange Ordinance, 1988 before the Chief Metropolitan Magistrate, alleging offences under section 17 read with section 24 of the said ordinance where upon the CMM took cognizance of offence and directed issuance warrant of arrest against the accused petitioners, on the day following, the accused petitioners obtained anticipatory bail from the High Court Division, then they filed criminal revision cases before the Sessions Judge, under sections 435 and 43 9A of the Code of Criminal Procedure for setting aside the order of the CMM- Held: The reference made by the Sessions Judge was misconceived because he himself could set aside the order of the CMM which was actually prayed for.

Shinepukur Holding LTD. & Ors. Securities Exchange Commission & Anr 6 BLT (AD)-265

Section- 439

Non issuance of any notices to the State, cannot by itself be a bar in filing the revisional application against the order of acquittal.

Abu Taher & Ors Vs. Hasina Begum & Ors. 6 BLT (HCD)-120

Section- 439

It appears from the judgment of the High Court Division that the two injured witnesses namely Titu Mia and Jainal did not name the accused- respondents before the investigating officer in their statement, recorded under Section 161 Cr. P. C. and respondent No. 3, Giasuddin was not even named in the F.I.R. - Held: We do not find any illegality in the impugned judgment, which warrants interference by this Division.

Ayub Ali Miazi VS. S. A. Molla & Ors. 5 BLT(AD)-140


Whether against an order of Cancellation of bail, application under section 498 of codm of Criminal Procedure is maintainable.

In the event of cancellation of bail by a Court of Session the accused again cannoJ invoke jurisdiction under section 498 of The Code and the remedy lay for him is invoking Revisional Power under section 439 of the Code of Criminal Procedure.

Mohsin Ali Pramanik Vs. The State 11 BLT (HCD)-241


Revisional jurisdiction of High Court Division under section 439 of The Code of Criminal Procedure is a kind of Paternal and] Supervisory Jurisdiction exercised to correct a miscarriage of Justice arising from apparent harshness of treatment resulting is some injury and undeserved hardship to an individual. Revisional Jurisdiction of High Court Division is in its real purpose, not merely a power but a duty which is to be exercised in aid of justice High Court Division] may exercise revisional jurisdiction on the application of a party or even Suo-moto.

Mohsin Ali Pramanik Vs. The State 11 BLT HCD)-241



The power of the High Court Division envisaged in Section 439 of the Code of  Criminal procedure is a kind of paternal or supervisory power which is to be exercised on case where there is a glaring defect in the procedure or there is a manifest error point of law and consequently there been a flagrant miscarriage of justice.


power is to be exercised in aid of justice and there is no form of injustice that the long arm of the Court cannot reach because for administering and dispensing real and substantial justice, the court alone exists and there is no species of injustice where the High Court Division cannot correct where  its interference is called for.

Moni Begum@ Moni Vs. Shamsur Rahman & Ors. 10 BLT (HCD)-70



We are of the view that an application under Section 439 of the Code of Criminal procedure by an informant in a Sessions case against order of discharging an accused is maintainable in spite of the position that the state has not filed such application. More so the power of exercising such discretion is clearly vested in the Court even if this Court Otherwise comes to know of any illegality in any order of any inferior Court within its jurisdiction.

Md. Abdur Rahman Kha Vs. The State 10 BLT (HCD)-78


Sections- 439 (5) and 561A

(a) The trial was held under the Special powers Act, 1974 which provides for an appeal under Section 30 of the said Act-special period of limitation has been prescribed by section 30 of the Act for preferring an appeal. The convict accused petitioners could not prefer any appeal within time, the appeal is barred by limitation- In the circumstances, the High Court Division should not entertain an application under section 561A of the Code inasmuch as to entertain the said application beyond the special period of limitation would amount to entertaining a time barred appeal under special law in the garb of an application under section 561A of Code - if no appeal is preferred against the order passed by the Special Tribunal, on the expiration of the special period of limitation, the order passed by the Special Tribunal becomes final, past and closed transition in relation to the High Court Division exercising its criminal jurisdiction.

Abdus Salam & Ors Vs The State 2 BLT (HCD)-126

(b) Section 439 (5) of the Code has absolutely prohibited the High Court Division to entertain a revision when an appeal under the Code has been provided for- if no jurisdiction to entertain a revision, the High Court Division cannot exercise its inherent power under section 561 A.

Abdus Salam & Ors Vs The State 2 BLT (HCD)-126

Section- 439 Read with Section 497

There being sufficient materials before the High Court Division for believing that the petitioners were guilt of an offence punishable with death or imprisonment for life- the order for their surrender before the trial court is justified.

Faruque Hasan Joarder & Others Vs. The State 2BLT (AD)-14

Section- 439, 439A and 561 A

(a) A first information report was lodged against the accused appellants and others the police after investigation submitted charge sheet against appellants-the naraji petition filed by the informant was rejected by the Magistrate but the Sessions Judge allowed in and not only directed further investigation but also specifically asked the police to submit charge sheet under the Anti Terrorism act, So far as the direction to hold further investigation into the case is concerned, it is quite lawful: but the direction to submit charge sheet is clearly without the court’s jurisdiction the division of the learned Judges of the High Court Division that the application under section 561A is liable to be rejected for lack of jurisdiction is held to be totally erroneous and as such it is set aside- the appeal is allowed in part.

Md. Sher Ali & Ors Vs the State 2 BLT (AD)-38

(b) Interpretation of statute- The High Court Division has been given power of revision under section 439(1) of the Code-Effect of Law Reforms Ordinance No. 49 of 1978 in inserting sub- section (4) in section 439 revisional jurisdiction has been concurrently conferred on the High Court Division and the Sessions Judge- section 439A (2) provides that the Sessions Judges decision is not final in relation to a person who has not filed the revisional application to the Sessions Judge but has been impleaded therein as opposite party. Therefore he is free to go to any appropriate forum to challenge the Sessions Judge's decision; but he cannot go to the High Court Division with another revisional application under section 439(1) of the Code as this revisional application is expressly barred by section 439(4)- it is settled law.

Md. Sher Ali & Ors Vs. The State 2 BLT (AD)-38

(c) Interpretation of statute- The High Court Division can exercise its inherent power under section 561 A- the inherent jurisdiction of the High Court Division would be available even to a party who had lost in revision before the Sessions Judge-this inherent power is neither an additional power nor an alternative power of the court, the inherent power under section 561Acan be invoked at any stage of the proceeding] and even after conclusion of trial, if it is necessary to prevent the abuse of the process] of the court or otherwise to secure ends of justice- section 561A of the Code gives no new power to the High Court.

Md. Sher Ali & Ors Vs The State 2 BLT (AD)-38

(d) Section 439(4) is not a special law in relation to section 561A though 439(4) is a later provision than section 561A there is no conflict between them and both of them can stand together- section 561A directly applies to a case if it attracts the specific conditions set out thereby- the idea that both the courts one under section 439(4) the other under section 439A are equal in power and the judgment of the one is the judgment of the other appears to be grotesque displaying
perversity of thought.

Md. Sher Ali & Ors Vs The State 2 BLT (AD) -38

(e) 35 DLR case in respect of interpretation of section 439A(2), there is no dissent in the latest decision (45 DLR-AD, 9) the Appellate Divisions Jurisdiction is exercised on an appeal from a decision of the High Court Division only to suggest that a leave petition may be field under Article 103 of the Constitution challenging the Sessions Judge's decision was in fact an exercise in utter misconception of the provisions on sections 439, 439A and 561A of the Code.

Md. Sher Ali & Ors Vs the State 2 BLT (AD)-38

(f) A law declared by the Appellate Division is binding upon all the courts] including the High Court Division the lower judicial hierarchy being bound by the decision of the higher judicial hierarchy-l The judicial discipline and decorum demand that the decisions of the Appellate Division must be obeyed without any criticism and comments.

Md. Sher Ali & Ors Vs the State 2 BLT (AD)-38

Section-439 read with Evidence Act, 1872 Section-114(g)

High Court as a revisional court is to see correctness, legality or propriety of the findings of the appellate court. If it is found that any injustice has been done, this court may set aside the findings of the appellate Court. The duty of this court is to correct patent defect or error of the appellate court. The  object of rivisional legislation is to confer upon superior criminal courts a kind pattern or superior jurisdiction in order to correct miscarriage of justice arising out of misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment -It is the cardinal rule in the law of evidence that the available evidence should be brought before the court to prove the fact or points in -The learned trial court as well as the apellate court has failed to realized that the prosecution has withheld the important eye witnesses and injured witnesses and also has to adduce any reliable and convincing evidence to prove that the accident caused due to rash and negligent driving and thus the courts below failed to decide the points at issue correctly.

Md. Abdul Quddus & Anr Vs. The State 15 BLT (HCD)-470


The main question the Sessions Judge has to consider in revision  is whether substantial justice has been done. Where there has been no failure of justice, the Sessions judge will not interefere in revision even though there may have been an irregularity. Where however the order of the Magistrate is a proper one or cannot be said to be wrong, the Sessions Judge will not interfere against such order.

Mst. Sakera Khatun Vs. The State & Ors 9 BLT (HCD)-40

Section- 473

There has not been an elaborate discussion of the evidence on record- In view of the fact that the High Court Division did not write out a proper judgment we took pains of going through both the judgments and we do not find that any miscarriage of justice has been caused. After a careful consideration we feel that no useful purpose will be served in sending the case back to the High Court Division for writing out a proper judgment as the same suffers from no error of law and fact.

Abdul Khaleque Master & Ors Vs. The State 7 BLT (AD)-179

Section- 473

Remand to the trial court for a fresh decision and allowed both the complainant and the accused to examine further witnesses on the point whether the alleged executant, Renu Bala died on 5.7.82 as alleged by the complainant or on 5.8.82 as alleged by the accused persons- Held: The learned Judges of the High Court Division in consideration of the evidence of PW2 and his report Ext. 2 found an indication of commission of forgery on the deed in question, and held rightly that the trial Magistrate had conveniently failed to consider the opinion of both the hand writing expert and the fingerprint expert to facilitate a judgment of acquittal.

Bhulu Rani Saha Vs. Sri Pran Ballov Podder & Anr. 7 BLT (AD)-215.

Section-476 read with Penal Code, 1860 [XLV of I860] Sections-193 and 212

The commission of offence under Sections 193, 212 of the penal Code do not depend upon the outcome of the original trial.

The concerned witnesses and other persons may still be guilty of giving false evidence with intention of screening the accused from legal punishment as the case may be, if the ingredients of those offence are proved on evidence against them. As a matter of fact the ommission of offence, under Section-193/212 of the Penal Code do not depend upon the acquittal or conviction of the original accused persons for whom the false evidence was given or sought to be screened from punishment.

Md. Masur Rahman Mollah & Anr Vs The State 9 BLT (HCD)-63


Any allegation of offence alleged to have been committed in or in relation to any proceeding in any court, should not be taken lightly. There is no scope for leniency or complacency in this regard. Rather, it is imperative on the part of the concerned court to deal promptly with such allegation and strictly in accordance with law as it concerts the administration of Public Justice.

Md. Masudur Rahman Mollah & Anr Vs the State 9 BLT (HCD)-63


In view of the materials on record and that as there is substance in the submissions of the learned Advocate entering into caveat for the decree holder respondent Nos. 1-15 in Civil Petition for leave to Appeal No. 741 of 2000 we are of the view that the application filed under Section 476A Cr.P.C. on behalf of the decree holder respondent Nos. 1-15 for making complaint to the Magistrate for committing offence said to be under one of the sections of the] Penal Code as mentioned in Section 195(1 )(c) of the Cr.P.C. metrits consideration.

Mst. Makhan Baral & Anr. Vs. Shaylendra Nath Mondal 9 BLT (AD)-162

Section- 476B

Whether in appeal the appellate court has jurisdiction to order remand of the cast under section 476 to the trial Court.

In case of making complaint the appellate court is to follow the provision of section 476. The authority of the Appellate Court is thus clearly pronounced and it cannot go beyond it. Sending a case on remand by thd appellate court amounts to acting beyond jurisdiction.

Khizir Hayat Khan Eusuf Zai Vs. Maja (Rtd.)Md. Muqtadir Ali & Ors 7 BLT(AD)-252

Section-476 Read with Section-195(1) (b) (c)

Both section 195 and 476 of the Code of Criminal Procedure clearly speak of production of a document in a proceeding before a court, Section 195 (2) speaks of civil, revenue or Criminal Court and Section 476 of the Code speaks of an enquiry into any offence referred to section 195 sub section (1) clauses (b) and (c) when offence appears to have been committed relation to a proceeding in that Court. Thus it is absolutely clear that unless document is filed in Court, the Court can make a complaint.

Shamsuddin Ahmed Chowdhury Vs. The State & Anr. 5BLT (AD)-

Section- 488

(a) The provisions of the Family C Ordinance, 1985 (Ordinance XVIII of 171  has  not  taken  away  the  power of a Magistrate to order for maintenance under section 488 Cr. P. C.

Meher Negar Vs Md. Mozib-ur- Rahman 2 BLT (HCD)-203

(b) The term matters has wider meaning then the term suit and the former term definitely includes civil suits as well as criminal or quasi criminal proceedings.

Meher Negar Vs Md. Mozib-Ur- Rahman 2 BLT (HCD)-203

Section- 491

Primary evidence being there that the girl is minor and that she is the victim of an offence,  she should be returned to the custody of her parents from where she was abducted as contended by the learned Advocate for the Appellant Mother.

Held: We think it is right and proper that the girl should stay with her parents rather than be given to the family of the accused. The girl cannot be allowed to make her own choice because, prima facie it appears that she is a Minor.

Jharna Rani Saha Vs. Kh. Zayedul Haque & Anr. 7 BLT (AD)-242

Section- 491

Custody of the minor girl who is a victim of an offence of abduction and the opinion of a minor girl- High Court Division disposed of with the direction that, "Hence it is ordered mat if the victim girl is willing to go with her father, she may be allowed to go with father, but if she does not want to go with her father then she will be kept in judicial custody till the disposal of the criminal case as well as till she attains majority that is the age of 18 years"- Held: learned Judges having found the victim girl to be a minor ought to have given the minor in the lawful custody of the father.

The opinion of the minor is irrelevant and the same cannot be a condition precedent for giving her custody to the father. The learned Judges failed to consider that a minor's refusal to go with her father is not at all a material consideration regarding her custody. Father being the best well- wisher of a minor daughter is entitled to custody and in her own interest she should be given in her father's custody.

Sree Mongol Chandra Nandi Vs. Bangladesh 5 BLT (AD)-l

Section- 491

A mother was complaining that an offence of kidnapping/ abduction was committed by the accused persons in respect of her minor girl who is a victim of the offence and she should be rescued from the offenders and given to her custody- Held: In any event having regard to the fact in this particular case that all the available materials so far, supported the claim of the mother that the girl was aged about 15/16 years except the statements of herself the High Court Division cannot be said to have acted judiciously and properly in ignoring the said materials and relaying solely on the statement of the girl herself and their own observation of the girl and in making a finding thereupon that she was a major above 18 years. We are of the opinion that the mother has a reasonable grievance to make against the impugned judgment which does not seem to have been passed upon a proper appreciation keeping in view the welfare of the victim girl who is alleged to be minor- appeal is allowed.

Khairunnessa Vs. Illy Begum & Ors 4 BLT (AD)-112


Prima facie—it appears that the victim girl is minor and she is a victim of an offence under Section-9(Kha) and (Ga) of Nari-O-Shishu Nirjaton (Bishesh Bidhan) Ain, 1995. She was put to judicial custody by the learned Magistrate in April. 1997 when she was produced before him. Since then she has been staying in a prison house except for a few days when she came out therefrom on getting adinterim bail from the High Court Division. It is entirely unacceptable that a young girl who is an innocent victim of the alleged offence should remain in an unwholesome atmosphere of a jail for an indefinite period. It is not known when the trial will conclude which, we have been informed, has however, started. The young girl cannot be allowed to walk away from the prison house of her own, because she has not independent place to stay. The parties have not been able to provide any answer to our query whether she could be put in a safe neutral home pending disposal of the case. The welfare of the girl, in our opinion, should be the deciding factor in such a situation. The appellant produced a certificate from the school where the girl was reading which corroborates the statement of the appellant that his daughter was a minor at the relevant time. The radiologists opinion also supports the appellants case. Having considered all aspects of the matter we are satisfied that it will be fit and proper and in the best interest of the girl if she is released from custody and given to the care of her father.

Bashu Dev Chatterje Vs. Mr. Umme Salma 8 BLT (AD)-168


Victim petitioner was put into judicial custody—application under Section 491 of the Code of Criminal Procedure is maintainable.

The petitioner has challenged the order judicial custody under the provision of 491 of the Code of Criminal Procedure considering the impugned order is so kind of detention passed under the veneer of judicial custody as the order which is under challenged does not bear the legal acumen to its true sense. Indeed there are ingredients Section 491 of the Code of Criminal Procedure for filing the present Criminal Miscellaneous Case, the intended provision of Section 491 of the Code of Criminal Procedure is to secure justice for those w are detained in illegally & the present c~ fall within the ambit of Section 491 of Code of Criminal Procedure, as such only course is open to the petitioner f getting remedy under the provision of Seed 491 of the Code of Criminal Procedure.

Jasim Nahar Vs. The State 9 BLT (HCD)-164


Whether the application under Section-4 of the Code is not maintainable.

Victim was put into judicial custody —when the order of custody of the detenu  is passed by a competent court, a petition" cannot get any relief under Section-491 the Code unless and until that order is aside by a superior court.

Monsur Ali Vs. The State 9 BLT (HCD)-172


The power given to this court und Section491 is limited and confined to f determination of the question whether person is detained illegally or improperly, determining this question, this court exercise of the power given under section cannot decide whether the order the learned Sessions Judge was legal or not and also cannot set aside that order.

Monsur Ali Vs. The State 9 BLT (HCD)-172


Whether wrong in granting ad interim bail to the detenu

Held: We have gone through the available materials and it appears that this detenu was in jail and was serving out the sentence of imprisonment imposed in default of payment of fine and there was an order from the court below to release him from jail when the convict managed to pay 50% of the fine imposed and thereafter the order of detention was passed. From the judgment of the High Court Division it appears that it is in the back of mind of the Judges that a person who was in custody of the State as a prisoner cannot be a factor for deterioration of law and order if he comes out of jail and thereafter ad interim bail was granted.

Bangladesh Vs. Md. Naziur Rahman & Ors. 10 BLT (AD)-31


Maintainability—A person may have a t to move before higher court challenging Legality of the order, one could approach the High Court Division under the said Section 491 of the Code Criminal Procedure for a direction that his or ward having been detained in judicial custody illegally or in an improper manner, made over to the custody of her natural guardian in the best interest of her welfare.

Arun Karmakar Vs. The State 10 BLT (AD)-40


Maintainability—Appellant is the father of victim—an application under Section 491 of the Code of Criminal Procedure is maintainable for custody of a minor to see that the minor is not held illegally and in an improper manner and in the instant case when the age of the victim is prima facie below the age of majority we are inclined to allow the victim to the custody of the appellant.

Md. Abdul Majid Sarker Vs. The State & Ors. 10 BLT (AD)-127


Custody —Prima facie—being prima facie a minor on the date of occurrence and even today we are of the view that the girl not being an accused has been illegally and improperly detained in judicial custody and when prima facie she is minor it is right and proper that the girl should stay with her parents and as she is not an accused she cannot be kept in judicial custody. In such a situation the opinion of the girl who is a minor is irrelevant. The minor's refusal to go with her father the appellant is not at all a material consideration. The father being the best well wisher of the minor is entitled of her custody and for her own interest she should be given to her father’s custody.

Md. Abdul Majid Sarker Vs. The State & Ors. 10 BLT (AD)-127


Section 491 of the Code enshrines that if a person within the territorial Jurisdiction of the Court is illegally or improperly detained in public or private custody, the High Court Division may direct that the said Detenu be brought before it to be dealt with according to law and he is not being held in detention illegally and unlawfully and be set at liberty.

Md. Afzal Hossain Vs. Ministry Home Affairs 10 BLT (HCD)-1


An order of detention passed upon a citizen of fictitious, vague and indefinite grounds and founded on colourable satisfaction affecting the right of a citizen and not in the larger interest of the society and public at large must be quashed.

Section -491

Section 491 of The Code is a procedure for enquiry as to whether a person is illegally or improperly detained in custody and if it so found the court would direct the release of such person. The power to issue directions in the nature of Habeas Corpus is a specie in itself and it affords effective means of immediate release from unlawful detention. High Court Division is quite competent to pass an order under section 491 of The Code for release of a detenu from illegal detention.

A.A. Sakib Vs. The State 14 BLT (HCD)-402


Oath-Affidavit to the original application under Section 491 of the Criminal procedure has been sworn by one Jafirul Islam, Cousin of Mukter Hossain, the principal accused being an interested person not competent to depose.

Merina Renu Vs The State 14 BLT (HCD)-177

Section- 491 Sub-Section(1) B

Alleged in the F. I. R. that the petitioner had entered the international border ridding a bicycle and carrying Indian currency and crossed into Bangladesh - The learned Special Tribunal no. 1 Panchagarh framed the charge against the petitioner under Section 25 B of the Special Powers Act. Upon this charge the petitioner pleaded guilty and the Special Tribunal convicted the petitioner u/s 25B of the Special Powers Act- The learned Special Tribunal didri apply his mind to the facts of the case ar! went only on the petitioner's pleading guilty for passing the conviction a sentence- The fact of the present case do n bring the case within the ambit of Special Powers Act. The trial has b without jurisdiction and unlawful. Petitio should be set at liberty forthwith i accordance with Section 491 Sub- Sectio| (1) B of the Code of Criminal Procedure.

Ananta Vs The Sate 2 BLT (HCD)-116.