The Law Messenger

VOLUME–I

2016

Head note of Cases

 (CIVIL & CRIMINAL JURISDICTION)


A

The Acid Aparadh Daman Ain, 2002

Section 13

Discrimination –We do not find any illegality or infirmity in the decision arrived at by the Administrative Appellate Tribunal. Evidently there was discrimination practiced by the petitioners in taking departmental action against the respondent alone when the Acid Aparadh Daman Tribunal highlighted neglect of duties of all three Investigating Officers, who were all on the same footing. the impugned order does not call for any interference by this Division.

Govt. of Bangladesh & others =VS= Ranjit Krishna Mazumder (Civil), 2016-[1 LM (AD) 370]

Administrative Tribunals Act, 1980

Section 4(2)

Promotion–

The Tribunal also declared that the appellant was entitled to his seniority on the basis of his past service with all “attendant benefits towards promotion from the date of which his juniors” were promoted along with increments, time scale, fixation of pay etc with arrears. Against the decision of the Administrative Tribunal.

We are constrained to hold that the Administrative Appellate Tribunal acted illegally in allowing the appeal, setting aside those of the Administrative Tribunal and we find merit in the appeal and accordingly, the same is allowed. The decision of the Administrative Appellate Tribunal is set aside and those of the Administrative Tribunal are restored.

Md. Mahmudul Haque =VS= Government of Bangladesh & others, (Civil), 2016-[1 LM (AD) 123]

Administrative Tribunals Act, 1980

Section 4(2)

The Administrative Appellate Tribunal came into a finding that while passing the impugned decision the Administrative Tribunal failed to consider that the departmental proceeding against respondent No.1 was not initiated and disposed of legally and that the Administrative Tribunal arrived at a wrong finding in disallowing the case causing serious miscarriage of justice. The findings arrived at and the decision made by the Administrative Appellate Tribunal having been based on proper appreciation of law and fact do not call for interference.

Janata Bank & another =VS= Md. Minhaj Uddin Ahmed & another, (Civil), 2016-[1 LM (AD) 178]

Administrative Tribunal Act, 1980

Service matter– Considering the above facts and circumstances we find that the Administrative Tribunal did not commit any wrong in setting aside the punishment of removal from service imposed on the respondent No.1. The Administrative Appellate Tribunal also, therefore, did not commit any wrong in affirming the judgment and order of the Administrative Tribunal.

Agrani Bank =VS= Md. Zakir Hossain & others, (Civil), 2016-[1 LM (AD) 109]

Administrative Tribunal, 1980

It is not permissible to take disciplinary action against a person solely on the basis of adverse remarks made by a Tribunal in a criminal case unless the allegations imputed in the adverse remarks are proved in disciplinary proceeding.

Bangladesh =VS= S.M. Raiz Uddin Ahmed, (Civil), 2016-[1 LM (AD) 260]

The Arbitration Act, 1940

Section-23, 30

The findings arrived at and the decision made by the High Court Division having been based on proper appreciation of law and fact do not call for interference.

Md. Kabir & others =VS= Dreebajati Hore & others, (Civil), 2016-[1 LM (AD) 332]

Arbitration Act, 2001:

Sections 39, 42, 43 and 44

A combined reading of the provisions of sections 42, 43 and 39 of the Act, 2001 clearly shows that the only remedy open to a person who wants to set aside an arbitral award is to file an application under section 42 of the Act, 2001 within sixty days from the date of receipt of the award and after the expiry of the period of sixty days as envisaged in the section, the award becomes enforceable within the meaning of section 44 thereof and thus, jurisdiction of the civil Court has impliedly been barred if not expressly. In the context, we may also refer to section 9 of the Code which has clearly provided that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred and therefore, in view of the provision of section 42 of the Act, 2001, clause (d) of rule 11, Order VII of the Code is attracted.

Md. Nurul Abser =VS= Alhaj Golam Rabbani & others, (Civil), 2016-[1 LM (AD) 137]

Arbitration Act, 2001

The Act, 2001 is a special law and it has been enacted with the sole purpose of resolving the dispute between the parties through arbitration and after an award is given by the Arbitrator(s), if it is allowed to be challenged in a civil suit, then the arbitration proceeding shall become a mockery and the whole purpose of the arbitration scheme as envisaged in the Act, 2001 shall fail. Therefore, the trial Court rightly rejected the plaint.

Md. Nurul Abser =VS= Alhaj Golam Rabbani & others, (Civil), 2016-[1 LM (AD) 137]

Arbitration Act

The arbitral award is generally not open to review by Courts for any error in finding on facts and applying law for the simple reason that it would defeat the very purpose of the arbitration proceedings.

TATA Power Company Ltd. =VS= M/S Dynamic Construction, (Civil), 2016-[1 LM (AD) 456]

Arbitration Act

Whenever an award is challenged before any Court, the Court, i.e. either District Court or as in this case the High Court Division, does not sit on appeal over the decision of the learned Arbitrator. Therefore, the scope of considering the merits of the case and factual aspects is again very limited.                       

TATA Power Company Ltd. =VS= M/S Dynamic Construction, (Civil), 2016-[1 LM (AD) 456]

Arbitration Act, 2001

Section 43 (1)(b) (ii) and (iii)

The factual and contractual positions are matters for decision of the Arbitrator and as such, unless there appears to be gross illegality, neither the High Court Division nor this Division would enter into the merit of such arguments.    

TATA Power Company Ltd. =VS= M/S Dynamic Construction, (Civil), 2016-[1 LM (AD) 456]

Artha Rin Adalat Ain, 2003

Section 34 sub-sections (2) and (11)

The Code of Civil Procedure

Order XXI Rule 37

Exempting a woman judgment-debtor– The High Court Division observed that there was no requirement under provisions of the Artha Rin Adalat Ain, 2003 to issue show cause notice and that the provisions of Order XXI of the Code are applicable in execution cases where the prayer is for execution of a money decree.

Mst. Sufia Khatun =VS= Artha Rin Adalat, Khulna & others, (Civil), 2016-[1 LM (AD) 151]

Arthe Rin Adalat Ain (VIII OF 2003)

Section 33

Against the order of discharge for default– The Appellate Division held that it appears from the record that earlier both the Rules were discharged for default in the High Court Division and those were restored .second time, both the appeared in the list with the names of the learned Advocates of the petitioner but he did not turn –up when those were taken up for hearing. Consequently .both the Rules were again discharged for default.   In view of the facts of the case and other circumstances, the Appellate Division does not find any illegality in the orders of the High Court Division in rejecting the prayers to recall the orders of discharged for default.  Accordingly both the petitions are dismissed.

Md. Nuruzzaman =VS= Artha Rin Adalat & others, (Civil), 2016-[1 LM (AD) 416]

Artha Rin Adalat Ain, 2003

Section 34 sub-sections (2) and (11)

Artha Rin Adalat Ain, 2003 for exempting a woman judgment-debtor from being arrested for the purpose of realisation of the decretal amount as per section 34 of the special law. Section 34 sub-sections (2) and (11) have exempted certain other persons from being arrested and non-inclusion of a woman judgment-debtor in the list of exempted persons indicates that this category is not exempted from being arrested.

Mst. Sufia Khatun =VS= Artha Rin Adalat, Khulna & others, (Civil), 2016-[1 LM (AD) 151]

Artha Rin Adalat Ain

Judgment and decree passed by the Artha Rin Adalat was not maintainable– The Appellate Division held that it is now well settled that a writ petition challenging the judgment and decree passed by the Artha Rin Adalat was not maintainable and moreover, respondent No.1 as defendant No.4 contested the suit. Such a decree can only be challenged by filing an appeal within the statutory period of limitation on depositing 50% of decretal amount.

Agrani Bank  =VS= Mrs.  Hosne  Ara  Begum & another, (Civil), 2016-[1 LM (AD) 334]

Artha Rin Adalat Ain (VIII of 2003)

Section 50

Bank interest will have to be calculated according to the prevailing interest rate.

The Appellate Division is of the view that the interest to be paid by the judgement debtor will have to be calculated according to the prevailing interest rate or rates, which may be different for different periods, from the time of filing of the suit till the payment of the decretal amount by the judgement debtor.                                                                    

M/S. Rajib Traders =VS= Artha Rin Adalat & another, (Civil), 2016-[1 LM (AD) 186]

Artha Rin  Adalat, suit for realisation  of loan–

The Appellate Division observed that the claim of the plaintiff is against two sets of defendants. Defendant Nos. 1 and 2 are the borrowers. Defendant Nos. 3 and 4 are parties to a tripartite agreement by which the goods purchased with the loan money were to be stored in a cold storage belonging to defendant No. 4. With regard to the liability of defendant Nos. 3 and 4 the High Court Division came to a finding that the tripartite agreement may gave rise to liability of defendant Nos. 3 and 4 but that liability is not related to the loan and the proper course would be for the plaintiff bank to sue defendant Nos. 3 and 4 for realisation of money and compensation in a money suit. So far as it relates to the claim against defendant Nos. 1 and 2 the High Court Division observed that although morabaha loan was granted by the bank in favour of defendant Nos. 1 and 2 there was no allegation against defendant Nos. 1 and 2 for non-payment of claimed money. The High Court Division upheld the decision of the trial Court observing that since defendant Nos. 1 and 2 did not get the remaining 844 bags of potatos, they have no liability to pay the price of the said goods.  Appellate Division does not find any illegality. Accordingly, the civil petition for leave to appeal is dismissed.

Islami Bank =VS= M/S Ahsanuddin Ahmed & others, (Civil), 2016-[1 LM (AD) 82]

Abolition of Death Penalty is not Possible– Our social conditions, social and cultural values are completely different from those of western countries. Our criminal law and jurisprudence have developed highlighting the social conditions and cultural values. The European Union has abolished death penalty in the context of their social conditions and values, but we cannot totally abolish a sentence of death in our country because the killing of women for dowry, abduction of women for prostitution, the abduction of children for trafficking are so rampant which are totally foreign to those developed countries.

BLAST & others =VS= Bangladesh & others, (Civil), 2016-[1 LM (AD) 287]

Anti-Corruption Commission Act

The Anti-Corruption Commission Act is applicable in respect of public servant as well as “any other person”.

Anti Corruption Commission =VS= Md. Shahidul Islam & others, (Civil), 2016-[1 LM (AD) 357]

Challenging the proceedings of Special cases writ Petition No.9905 of 2007 and 8578 of 2007 are not maintainable inasmuch as Code of Criminal Procedure provides efficacious remedy to get redress if one feels himself aggrieved due to initiation of such criminal proceedings. In such view of the matter those two writ petitions were not maintainable.

Anti Corruption Commission =VS= Md. Shahidul Islam & others, (Civil), 2016-[1 LM (AD) 357]

Appointed Nikah Registrar– When a Kazi is appointed, his service will continue as Kazi until and unless he is in any way disqualified under the law. It is our view that the Kazi, who was operating as such within the Union Parishad continued as Kazi for the whole area of that Union Parishad, which then became the Pourasava, i.e. he continued as Kazi for all the Wards of the newly created Pourasava until his jurisdiction was lawfully curtailed in respect of some Wards.

Md. Abdul Motaleb =Vs= Md. Kamal Uddin & others, (Civil), 2016-[1 LM (AD) 105]

Applicability of Service Rules– The petitioner got appointment in 1997, that is, long before the promulgation of the Service Rules of 2005. So he is entitled to get benefit of the Service Rules under which he got his appointment, that is, he is entitled to get the benefits as provided in Service Rules of 1988 and his service would be regulated under the said provision of law.

Pachimanchol Gas Company Ltd =VS=Nuruzzaman & others, (Civil), 2016-[1 LM (AD) 180]

Assessment of the evidence and materials– Title Suit No. 1 of 1998 for declaration of title in the suit land with further– view of the discussion of the High Court Division upon assessment of the evidence and materials on record, we do not find that the impugned judgment calls for any interference by this Division.       

Abu Zaher & another =VS= Abu Taher Mijhi & others, (Civil), 2016-[1 LM (AD) 320]

After completion of works within the time stipulated the contractor did not get entire bill amount, filed Writ petition for remained unpaid bill– The Appellate Division held that the writ respondent- petitioners, though admitted the claim of the writ petitioner- respondent, did not pay the entire bill amount. Even after such admission, they preferred Leave Petition against the judgment and order of the High Court Division, which is also unfortunate. In view of the facts and circumstances mentioned above, the petition is dismissedby the Appellate Division.

Bangladesh & others =VS= Panaki Chowdhury, (Civil), 2016-[1 LM (AD) 414]

B

‡`Iwjqv welqK AvBb, 1997

Section- 2 (X), 5(1), 9(1)(S), 10, 110 read with

The Financial Institutions Act, 1993

Section- 2(j)

Maintainability of the Dewlia Suit–

The order dated 28.04.2000 passed by the Dewlia Adalat in Dewlia Suit No.27 of 2000 rejecting the plaint is set aside. The Dewlia Adalat is directed to proceed with the suit and dispose the same in accordance with law. The question of maintainability of the suit shall be decided along with the other issues at the trial of the suit.

Shinepukur Holdings Ltd. =VS= Abdur Rashid Chowdhury & others, (Civil), 2016-[1 LM (AD) 162]

Bengal Tenancy Act, 1885

Section 26(G)  and clause (1a)

The sale with a condition of re-conveyance being subsisting after commencement of Bengal Tenancy (Amendment) Act, 1940 became complete usufructuary mortgage after expiry of 15 years from the date of execution of that instrument (i.e. the Kot-kabala).

The Appellate Division observed that it was argued that the transaction in question became complete sale on 18.06.1950 since the executant of that Kot-kabala did not fulfill the condition, this argument is not at all entertainable  in view of the above quoted provisions of law. Long before 18.06.1950 the above quoted provision of law came into operation and as a result the said transaction in question (Kot-kabala) stood as a complete usufructuary mortgage with the expiry of 15 years by operation of law.

Khanje Ali Sikder =VS= Hazi Mozaharuddin & others, (Civil), 2016-[1 LM (AD) 51]

Bangabandhu Sheikh Mujib Medical University Act [I of 1998]

Section 40(1) (Ga)

A public body invested with statutory power such as those conferred upon the authority must take care not to exceed or abuse such power.

The appointment to any post under the University can only be made after a proper advertisement inviting application from eligible candidates and holding of selection by the committee whose members are fair and impertial through a written examination and some other rational criteria for judging the merit of candidates. There must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. A public body invested with statutory power such as those conferred upon the authority must take care not to exceed or abuse such power.

Dr. Khairun Nahar & others =VS= Prof. M. Iqbal Arslan & others, (Civil), 2016-[1 LM (AD) 62]

Bangladesh Shangbad Sangstha Chakuri Bidhimala, 1995

Rule 53

Determining the retirement age of the employees of the B.S.S.–

The Appellate Division observed that the High Court Division also noted that in the said judgment, the retirement age of 60 years introduced by B.S.S. Service Rules would apply equally to all employees of B.S.S. Therefore, the High Court Division declared SRO 40-Ain/213 dated 05.02.2013 issued by writ-respondent No.1 so far as it relates to disparity in retirement age among the different posts/employees to have been issued without lawful authority and to be of no legal effect. Accordingly, this civil petition is dismissed.

Ministry of Information & others =VS= B.S.S Employee’s Union & another, (Civil), 2016-[1 LM (AD) 258]

Bangladesh Sports Council Act, 1974

Clause 19.6

Both parties to hold the election of the Executive Committee of the Federation under a neutral body. In view of the above, this leave petition is disposed of in the following terms:

(a) An Election Commission headed by Mr. Kamal-ul Alam, Senior Advocate of this Court as its Chairman and Mr. Shafique Anwar, Secretary of National Sports Council and Mr. Abdur Rahman, Director, Planning– National Sports Council respectively as its members is constituted.

(b) The Election Commission shall conduct the election of the Executive Committee of the Bangladesh Shooting Federation within 2(two) months from the date of receipt of this order.

(c) The Chairman of the Election Commission shall be paid a sum of TK.3,00,000.00 by the Bangladesh Shooting Federation as his honorarium for doing the job.

(d) The operative portion of the judgment of the High Court Division stands modified accordingly.

Istiaq Ahmed =VS= Abdus Salam Khan & others, (Civil), 2016-[1 LM (AD) 444]

The Building Construction Act, 1952

Section 3B (5) (d)

Export Promotion Bureau did not obtain any right, title, interest or possession of the same–

Suo Moto Rule absolute by judgment and order dated 03.04.2011, holding that the 15 storied building constructed by BGMEA has been done on the water body illegally which is contrary to the master plan as well as the development plan of the Dhaka City in violation of Act XXXVI of 2000 and such construction cannot be allowed to remain in its position. Accordingly, the authority concerned was directed to demolish the said unauthorized building within 90 days. The High Court Division further held that ‘the money invested by the BGMEA in the construction of the said building can never be a ground to allow it to stay upright’. Thus it has ordered that ‘the BGMEA must return the money to those who bought flats/spaces in the said unauthorized building, as those transactions stand vitiated, within 12 months from the date of receipt of the claim. The flats/spaces buyers, can however, not, claim interest, because, they are guilty of contributory negligence as they had actual or constructive knowledge about BGMEA’s bareness of title and the illegality as to the construction of the said building’.

Bangladesh Garments Manufacturers and Exporters Association (BGMEA) =VS= Government of Bangladesh & others, (Civil), 2016-[1 LM (AD) 142]

See also: Bangladesh Public Service Commission (Consultation) Regulation, 1979, Regulation–6, [1 LM (AD) 86]

See also: Black Mark, [1 LM (AD) 370]

See also: h¡wm¡­cn ®m¡L fËn¡pe fË¢nrZ ®L¾cÐ Hl LjÑQ¡l£ Q¡L¥l£ fË¢hd¡ej¡m¡, 1992, Regulation 36(1)(B)(R) , [1 LM (AD) 429]

See also: The Building Construction Rules, 1996, Rule 3(I), [1 LM (AD) 143]

C

Civil Rules & Order

Rule 388(2)

Transfer of a case from one Court to another Court on an off date must be communicated either to the party concerned or to his advocate– The learned Judge approached the case absolutely mechanically and did not consider the pertinent broad fact involved in the suit that the fact of transfer of the suit was not communicated to the defendant. In the context, the learned Judge also failed to consider rule 388(2) and Note I thereto of the Civil Rules and Order which has mandated that the fact of transfer of a case from one Court to another Court on an off date must be communicated either to the party concerned or to his advocate.

Kashaituli Jame Mosque Waqf Estate =VS= Md. Abdus Salam & others, (Civil), 2016-[1 LM (AD) 239]

The Code of Civil Procedure

Rule 1(1) of Order XLVII read with

The Supreme Court of Bangladesh, (Appellate Division) Rules 1988.

Rule 1 of order XXVI

Review is not rehearing of an appeal–

Review is not rehearing of an appeal or to give a defeating party chance to start a second innings and the reasons given by a Court in not relying upon an exhibit in a case do not definitely come within the phraseology “or on account of some mistake or error apparent on the face of the record” within the meaning of rule 1(1) of Order XLVII of the Code of Civil Procedure read with rule 1 of order XXVI of The Supreme Court of Bangladesh, (Appellate Division) Rules 1988.

Suza Uddoula & others =VS= Arshad Hossain Haider & others, (Civil), 2016-[1 LM (AD) 170]

Code of Civil Procedure [V of 1908]

Section 115(1)

When the judgment impugned before the High Court Division was the judgment of reversal, it was its obligation to go through the record and see whether the Appellate Court reversed the decision of the trial Court adverting its findings and reasoningson  proper consideration of the evidence.

The Appellate Division has gone through the judgments and decrees of the Courts  below and the impugned judgment and order. It frankly speaking, on reading the impugned judgment and order, Appellate Division  failed to understand what the High Court Division wanted to say, except that it made the Rule absolute. The entire judgment is absolutely confusing and full of repetition. Further when the judgment impugned before the High Court Division was the judgment of reversal, it was its obligation to go through the record and see whether the Appellate Court reversed the decision of the trial Court adverting its findings and reasoningson  proper consideration of the evidence, The High Court Division did  nothing, that being the factual and the legal position, Appellate Division  finds no option but to send the revision back to the High Court Division for hearing afresh and dispose of the same on merit in accordance with law on the evidence on record.

Mst. Tahmina & others =VS= Zafar Ali & others, (Civil), 2016-[1 LM (AD) 251]

Code of Civil Procedure (V OF 1908)

Order 7 Rule 11 read with section 151

Specific Relief Act (I OF 1877)

Section 42

Maintainability of the application for rejection of the plaint– The Appellate Division found that the very nature of the claim that the decree has been obtained by practicing fraud upon the court without impleading the plaintiff presupposes the maintainability of the suit. Its stated that the defendants attempted  to get the said decree executed for which the plaintiff are prejudiced seriously and that there are disputed  facts which cannot be adjudicated upon without recording any evidence. The High Court Division miserably failed to consider that aspect to the matter and thereby has committed error of law resulting on error in the decision occasioning failure of justice in rejecting the plaint. The judgment of the High Court Division is set aside. The Appellate Division directed the triad Court to dispose of the  trial of the suit expeditiously, accordingly the appeal was allowed.                         

Jahangir Khandaker & others =VS= Mosammat Ayesha & others, (Civil), 2016-[1 LM (AD) 253]

The Code of Civil Procedure

Order VII Rule 11(d) read with section 151

For rejection of the plaint– For declaration that the contract No.315510058 dated 31.01.2011 was illegal, void and the same is not binding upon the plaintiff– High Court Division that the High Court Division found that there was a valid agreement between the plaintiff and defendant wherein an arbitration clause has been stipulated and pursuant to the said agreement an arbitration proceeding has already been commenced before the Arbitration Tribunal at Liverpool. This suit has been instituted subsequent to the arbitration proceeding. The High Court Division held that though written statement has been filed but, in fact, the same can be treated as information to the court regarding pendency of arbitration proceeding before Arbitration Tribunal at Liverpool.

We are of the view that the High Court Division rightly disposed of the Rule staying further proceeding of the suit with a direction to settle the dispute in the arbitration proceeding.

Mosharaf Com. Tex. Mills Ltd =VS= ECOM Agro. Corp. Ltd & others, (Civil), 2016-[1 LM (AD) 173]

Code of Civil Procedure, 1908(V of 1908)

Section 115(1)

The Appellate Division held that the High Court Division totally failed to exercise the jurisdiction as vested under section 115(1) of the Code of Civil Procedure. The Appellate Division  found that the two Courts below took two reverse views about the title and possession of the respective parties in the suit land, so before the High Court Division, the judgment and decree impugned was the judgment and decree of reversal. Therefore, it was incumbent upon the High Court Division to consider and sift the evidence on record with reference to pleadings of the parties and see whether the Appellate Court reversed the findings of the trial Court with reference to the evidence on record in accordance with the dictate of law, but unfortunately, the High Court Division did not make any exercise whatsoever in that direction and it, without applying its judicial mind just discharged the Rule by making general superficial observations. And as such Appellate Division   sent back the matter back to the High Court Division for hearing the revision afresh and disposed of the same on merit in accordance with law on the evidence on record.

Muktejuddin =VS= Alauddin, (Civil), 2016-[1 LM (AD) 175]

Code of Civil Procedure, 1908(V of 1908)

Order 41, rule 31

The Appellate Division found that the High Court Division did not say anything on the merit of the case. Appellate Division sent back the case to the High Court Division for hearing afresh.

The Appellate Division found that it appears that both the Courts below particularly the Appellate Court discussed the evidence on record and gave its finding on each and every issue. Therefore, we failed to understand what the High Court Division wanted to mean by referring to Order XLI, rule 31 of the Code. Be that as it may, since the High Court Division did not say anything on the merit of the case and sent the case back to the Appellate Court. Appellate Division finds no other alternative but to send back the revision to the High Court Division for hearing afresh and dispose of the same on merit in accordance with law on the evidence on record.

Rahima Begum & others =VS= Lal Mia & others, (Civil), 2016-[1 LM (AD) 162]

Code of Civil Procedure (V OF 1908)

Order VII, rule 11 read with

Section-151

For specific performance of contract- The learned Judges invoked section 151 of the Code, but the inherent power under the section cannot be exercised on assumptions and presumptions of facts and or on suspicion.

Md. Noor Hossain & others =VS= Mahbuba Sarwar & others, (Civil), 2016-[1 LM (AD) 341]

Code of Civil Procedure [V of 1908]

Order IX, rule 13 read with

Limitation Act [IX of 1908]

Section 5

The Appellate Division  observed that it is true that the application under Order IX, rule 13 of the Code was filed after 30(thirty) days from the date of the decree, but sufficient explanations were given for filing the same out of time and prayer was made for condoning the delay. But the learned Judge considered nothing. The learned Judge did not also advert the findings and the reasoning of the Subordinate Judge in condoning the delay in filing the application out of time. The only reason assigned by the learned Judge in making the Rule absolute was that the application was filed beyond 30(thirty) days. In the context, the learned Judge failed to consider that section 5 of the limitation was applicable to an application filed under IX, rule 13 of the Code beyond limitation and thus erred in law in interfering with the order of the learned Subordinate Judge. In the result, the appeal is allowed.

Kashaituli Jame Mosque Waqf Estate =VS= Md. Abdus Salam & others, (Civil), 2016-[1 LM (AD) 164]

Code of Civil Procedure [V of 1908]

Section-561A

Quashment– Moudud Ahmed has not converted the property for his own use. The alleged agreement for sale was executed in favour of Monjur Ahmed, who is a distinct person and not a member of his family. Though the petitioner has challenged the order of taking cognizance of the offence, we noticed that the initiation of the proceeding itself is an abuse of the process of the court and no fruitful purpose will be served if we allow the criminal case to proceed with. The proceeding, is therefore, liable to be quashed.

RAJUK =VS=Manzur Ahmed & Others, (Civil), 2016-[1 LM (AD) 3]

Criminal misconduct– A criminal misconduct is said to have been committed by a public servant, if he accepts or obtains or agrees to obtain or attempts to obtain for himself or for any other person in gratification.  

RAJUK =VS=Manzur Ahmed & Others, (Civil), 2016-[1 LM (AD) 3]

Criticism Judgment– There is no wrong in critiquing a judgement once it is finally published. However, it must be borne in mind that deliberations during the course of any hearing may not be subjected to analysis or criticism since such comments in a sub judice matter might be prejudicial and taint the mind of the public before the judgement is pronounced.

The State =VS= Adv. Md. Qamrul Islam, M.P & another, (Civil), 2016-[1 LM (AD) 30]

Code of Civil Procedure [V of 1908]

Section 34

The Appellate Division held that since the respondents are obliged to pay the loan taken from the Bank for utilizing the amount in the contract work at the rate of 18% compound interest, ends of justice would be best served if the appellant is directed to pay interest at the rate of 18% in respect of the decreetal amount till realization. The High Court Division also found that the interest calculated and awarded by the trial Court is maintainable and there is no evidence to show that awarding or calculating of such interest is against any agreement or against any interest on record, the appeal is dismissed.

D.C.C =VS= M/s. Abdul Kader (Pvt.) Ltd & others, (Civil), 2016-[1 LM (AD) 418]

Code of Civil Procedure, 1908

Order I rule 10(2)

Though there is no clear provision mentioning the word ‘transposition’ but order I rule 10(2) of the Code of Civil Procedure enables the courts to make such transposition, Order I rule 10(2) has empowered the courts to strike out name of any party, either plaintiff or defendant, improperly joined and also to add any persons-either as plaintiff or defendant-who ought to have been joined whether as plaintiff or defendant or whose presence before the court may be necessary for effectual and complete adjudication of the matter. Exercising this very power the courts can make transposition also of either of the parties of a suit or other proceeding to the other category of the parties and the courts also are doing so, and it has become a long practice now. Of course, generally, the courts will not allow transposition of defendants as plaintiffs after striking the names of the original plaintiffs or after transposing them as defendants. But in appropriate facts and circumstances-as these are in the present case-the courts should not be reluctant to make such transposition of the parties for the ends of justice or to prevent abuse of the process of the court.

Mrs. Ruksana Huq & others =VS= A. K. Fayazul Huq & others, (Civil), 2016-[1 LM (AD) 452]

Code of Civil Procedure [V of 1908]

Preliminary– The main allegation in the plaint for declaring that preliminary decree and final decrees void was that the decrees were obtained by plaintiffs by suppressing the summonses of the suit upon the defendants.

The Appellate Division  found from the judgment and decree of the trial Court, it set aside the decree of Title Suit No.254 of 1996 on the clear finding that summonses of the suit were not served upon the defendants of that suit, i,e. the plaintiffs of the instant suit. The High Court Division being the last Court of fact also affirmed the said finding of fact of the trial Court. The Appellate Division  held that the suit should be proceeded with and disposed of in accordance with law and accordingly, the trial Court is directed to proceed with Title Suit No.254 of 1996 and dispose of the same in accordance with law. Accordingly petition is dismissed.

Anjuman Ara & others =VS= Md. Abul Hossain & others, (Civil), 2016-[1 LM (AD) 133]

Code of Civil Procedure [V of 1908]

Section 107 (Power of appellate court)

The Appellate Division is of the view that justice would be best served to both the parties if the appeal is remanded to the Appellate Court of hearing afresh giving chance to the plaintiff to amend the plaint by impleading the necessary party, namely, Roads and Highway and the other necessary parties, if there be and also bringing in hotchpotch the entire property of the khatian. Accordingly, Appellate Division sent the appeal  back to the Appellate Court for hearing it afresh .

Jahed Ali Sardar & others =VS= Malin Chandra Dhali & others, (Civil), 2016-[1 LM (AD) 78]

Code of Criminal Procedure (v of 1898)

Section–167

Shown arrest– Writ petitioner has been shown arrested in a good number of cases and some of the order sheets have been placed before this court. On perusal of the order sheets. We have noticed that the police officers have not complied with the provisions of section 167 of the Code of Criminal Procedure while praying for showing him arrested and repeatedly made petitions showing him arrested in many cases and the Magistrate passed mechanical orders on their applications.

It is now settled that an accused person cannot be shown arrested without being produced in court and without afforded an opportunity of being heard through his lawyer.

Government of Bangladesh & others =VS= Mahmudur Rahman & another(Civil), 2016-[1 LM (AD) 100]

Code of Civil Procedure

The trial Court rejected the prayer by its order dated 24.09.2012. Against that order the pre-emptees filed Civil Revision No.232 of 2012 before the District Judge, Dhaka under section 115(2) of the Code of Civil Procedure (the Code). Revision was rejected by the learned Additional District Judge, 8th Court, Dhaka by his order dated 15.03.1914. Against the order of the learned Additional District Judge, the pre-emptees filed a second revision before the High Court Division under Section 115(4) of the Code. The Rule was discharged affirming those of the learned Additional District Judge, hence this petition for leave to appeal.

Alhaj Md. Maruf Hasan Swapan & another =VS= Kohinur Aziz & others, (Civil), 2016-[1 LM (AD) 273]

The Code of Civil Procedure

Order XLI Rule 27

Praying for declaration of title– Order XLI Rule 27 of the Code of Civil Procedure provides:

"27 (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined."

Harunur Rashid & others =VS= Mosammat Yarun Nissa & others, (Civil), 2016-[1 LM (AD) 385]

The Code of Civil Procedure

Order XXIII, rule 3

compromise between the parties– The learned judges, just cannot act or be tuned on the submission of the learned Advocate of a party or fanciful wish of a party. Even in case of a compromise by the parties on the basis of joint application, the learned judges must see whether the terms of compromise entered into between the parties are lawful or not as provided in Order XXIII, rule 3 of the Code of Civil Procedure (the Code).       

National Engineers Ltd. & others =VS= Jubak Housing & others, (Civil), 2016-[1 LM (AD) 308]

Constitution of Bangladesh

Articles 94(4) and 116A

The District Courts will be at liberty to take immediate step to fill up the vacant sanctioned posts for smooth functioning of the courts without taking prior approval or clearance from Ministry of law and Justice as well as the Ministry of Public Administration.

The Appellate Division helds that the Ministry of Public Administration’s circulars under memo dated 15th March, 1992, 11th May, 1991 and 17th January, 2000 are not applicable to the District Courts. Henceforth, the District Courts will be at liberty to take immediate step to fill up the vacant sanctioned posts for smooth functioning of the courts without taking prior approval or clearance from Ministry of law and Justice as well as the Ministry of Public Administration. The said circulars are not applicable to the lower judiciary.

Govt. of Bangladesh & another =VS= Md. Abul Kalam Azad & others, (Civil), 2016-[1 LM (AD) 267]

Constitution of Bangladesh

Articles 109

The law declared by the Appellate Division shall be binding on the High Court Division and the law declared by the High Court Division of the Supreme Court shall be binding on all courts subordinate to it all District Courts are subordinate to the High Court Division. It is not subordinate to the Ministry of Law and Justice Department.

Govt. of Bangladesh & another =VS= Md. Abul Kalam Azad & others, (Civil), 2016-[1 LM (AD) 267]

Constitution of Bangladesh

Article-108

Contempt of court may be classified into three categories, namely (1) disobedience of court orders and breach of undertakings given to the court, (2) scandalisation of the court and (3) interference with the administration of justice. The first category is termed as civil contempt, whereas the other two categories are contempt of a criminal nature. In the facts and circumstances of the instant case, we are not concerned with the first category since there is no allegation of any breach or non-compliance by the contemnors-respondents of any order issued by this Court. The question to be considered is whether the respondents have made comments/remarks which scandalise the Court or which interfere with the administration of justice.

The State =VS= Adv. Md. Qamrul Islam, M.P & another, (Civil), 2016-[1 LM (AD) 29]

Constitution of Bangladesh

Article 111

Article 111 provides that the ‘law’ declared by the Appellate Division shall be binding on the High Court Division and the law declared by either Division of the Supreme Court shall be binding on all courts subordinate to it.

The State =VS= Adv. Md. Qamrul Islam, M.P & another, (Civil), 2016-[1 LM (AD) 29]

Constitution of Bangladesh

Article 108

Punishment– It is generally accepted that for the sake of maintaining proper order and to ensure compliance of the directions given in judgements, the courts have an inherent power to punish any person or authority for contempt. The Supreme Court has been given specific power by the Constitution to punish for its contempt. Article 108 of the Constitution.

The contemnors have tendered unconditional apology at the earliest opportunity, we are taking a lenient view in awarding the sentence. The contemnors are sentenced to pay fine of Tk.50,000/- (fifty thousand only) each within seven days from date and donate the same to the Islamia Eye Hospital (Dhaka City), Farmgate, Dhaka and the National Liver Foundation of Bangladesh, 150 Green Road, Panthapath, Dhaka-1215, in default to suffer simple imprisonment for seven days.

The State =VS= Adv. Md. Qamrul Islam, M.P & another, (Civil), 2016-[1 LM (AD) 30]

The Constitution of Bangladesh

Ambit of article 102(5)

The bank concerned being a company under the Companies Act, does not come within the ambit of article 102(5) of the Constitution. So, we are of the view that the Rule in the instant case ought to have been discharged on the same ground, especially when the same Bench had decided earlier that the employees of Pubali Bank Limited are not in the service of the Republic or of any Corporation, National Enterprise or Local Authority.

Pubali Bank Ltd =VS= Abdur Rashid Miah & others, (Civil), 2016-[1 LM (AD) 420]

The Constitution of Bangladesh

Article 116A

Natural justice violation– The judicial functions cannot be evaluated by the Administrative Authority– It is well settled principle of natural justice that no one should be condemned unheard. In addition, strictures or scathing language should not be used by the higher Courts in exercise of their appellate or supervisory jurisdiction against the Judges of the lower Courts. Errors of the judgments should be corrected by reasons of law.

Comments were made without hearing the learned Judge and, as such, the principles of natural justice were violated.

Sharif Hossain Hyder =VS= Sonali Bank & others, (Civil), 2016-[1 LM (AD) 102]

Constitution of Bangladesh

The instant process was a policy decision involving complex economic factors. The court would be slow from interfering with the economic decisions as it has been recognized that the economic expediencies lack adjudicative decision and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits. It is the administrators and legislators who are entitled to frame policies and take such administrative decisions as they think necessary in the public interest. The court should not ordinarily interfere with policy decisions, unless clearly illegal. We do not find any violation of constitutional provision or legal limits in the instant scheme.

BADC & others =VS= Md. Abdur Rashid & others, (Civil), 2016-[1 LM (AD) 389]

Constitution of Bangladesh

Article-102

Remission of Interest of the Sick Industry– The condition precedent for availing the opportunity of Special Interest Remission was that from the date of recommendation of the Special Committee, the sick industry was required to make down payment of 5% out of the outstanding amount excluding the interest. Neither in annexure-A nor in annexure-B of the writ petition, there was any recital that the concerned Ministry or BSRS gave any assurance or any undertaking to the writ petitioner that the money paid by it prior to the decision of the Special Committee on Interest Remission would be adjusted against the total amount of remission of interest. To avail the opportunity one must make deposit of the required amount as a condition precedent within thirty days from the date of receipt of the notice. Since the writ petitioner did not avail of the opportunity, it does not acquire any right on the question of remission of interest.

The appeal is therefore, allowed without any order as to cost. The judgment of the High Court Division is set aside.

Bangladesh Shilpa Rin Sangstha & another =VS= Rony Twines Ltd & others, (Civil), 2016-[1 LM (AD) 125]

Constitution of Bangladesh

In section 11(Ka) of the Ain of 2000, it is provided that if death is caused by husband or husband’s, parents, guardians, relations or other persons to a woman for dowry, only one sentence of death has been provided leaving no discretionary power for the tribunal to award a lesser sentence on extraneous consideration. This provision is to the same extent ultra vires the Constitution.

BLAST & others =VS= Bangladesh & others, (Civil), 2016-[1 LM (AD) 288]

Constitution of Bangladesh

Since we hold that Sub-Sections (2) and (4) of Section 6 of the Ain, 1995 and Sub-sections (2) and (3) of Section 34 of the Ain of 2000 are ultra vires the Constitution, despite repeal of the Ain of 1995, all cases pending and the appeals pending under the repealed Ain shall be regulated under the said law, but on the question of imposing sentence, the sentences prescribed in respect of those offences shall hold the field until new legislation is promulgated. I hold that there was total absence of proper application of the legislative mind in promulgating those Ains, which may be rectified by amendments. In respect of section 303 of the Penal Code, the punishment shall be made in accordance with section 302 of the Penal Code. It is hereby declared that despite repeal of Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995, the pending cases including appeal may be held under the repealed Ain, while dealing with the question of sentence, the alternative sentences provided in the corresponding offences prescribed in the Nari-O-Shishu Nirjatan Daman Ain, 2000 shall be followed.

BLAST & others =VS= Bangladesh & others, (Civil), 2016-[1 LM (AD) 288]

Constitution  of Bangladesh

Articles 102 and 117(2)

Since the vires of any law was not challenged writ petition is not maintainable– The Appellate Division observed that law is now settled that except on the limited scope a writ petition involving question of  determination of the matters relating to term and condition of service of a person in the service of the Republic is not entertainable by the High Court Division under Article 102 of the Constitution.  The object of providing Article 117(2) in obviously to relieve the congestion in courts and provide for speedy disposal of service matters clogging the courts for year by establishing alternative forums with exclusive jurisdiction. Administrative Tribunal has the jurisdiction, power and authority to adjudicate  upon the disputes relating to service matter including the power to deal with the questions involving fundamental rights.                               

Ministry of Communication & others =VS= Md.Iqbal Hossain (Civil), 2016-[1 LM (AD) 347]

Constitution of Bangladesh, 1972

Article-102, 29 & 133

Promotion– Promotion is not a matter of right, it is to be earned by meritorious service which includes efficiency, good conduct, character and integrity, dynamic personality and, above all, sense of value and promotion. Seniority alone is not sufficient for promotion but it is certainly one of the primary requisites for promotion. Though by seniority alone a person cannot earn promotion, he, by virtue of seniority, has a right to be considered for promotion.

Bangladesh Bank & another =VS= Sukamal Sinha Choudhury & another, (Civil), 2016-[1 LM (AD) 56]

Constitution of Bangladesh

We would like to point out here that whenever the High Court Division grants certificate it ought to have formulated the points on which the certificate is granted containing inter alia that the case involves a question of law as to the interpretation of the Constitution or that the question is a substantial one.

BLAST & others =VS= Bangladesh & others, (Civil), 2016-[1 LM (AD) 287]

Constitution of Bangladesh

Article 102 and 117

Clause (1) of Article 102 of the Constitution ordains that any person aggrieved may seek judicial review in the High Court Division for enforcement of fundamental rights conferred by Part III of the Constitution. Clause (5) of Article 102 puts an embargo to the seeking of such relief. It states that the person refers to in Article 102 includes a statutory public authority and any court or tribunal against whom such relief can be claimed, but it has excluded a court or tribunal established under a law relating to the defence services or a disciplined force or tribunal established in accordance with Article 117 of the Constitution.

Bangladesh & others =VS= Md. Abdus Satter & others, (Civil), 2016-[1 LM (AD) 378]

Constitution of Bangladesh

Article 45

The fundamental rights available in Part III of the Constitution cannot be invoked by a member of a disciplined force if any law prescribed a provision limited for the purpose of ensuring the proper discharge of his duty or maintenance of that force.

Bangladesh & others =VS= Md. Abdus Satter & others, (Civil), 2016-[1 LM (AD) 378]

Constitution of Bangladesh

Writ petitioners did not challenge any disciplinary action taken against them by the Inspector–General of Police. The authority did not give the directions in accordance with the Police Act or the Bengal Police Regulations or the Ordinance of 1969. The writ petitioners also did not challenge the propriety of the imposition of black marks upon them. They have challenged the embargo imposed upon them by the Police Headquarter, which directly affected their right to be considered for promotion to the next higher post. Clause (5) of Article 102 does not stand in their way of making an application under Article 102(1) of the Constitution subject to the provision of Article 45 of the Constitution.

Bangladesh & others =VS= Md. Abdus Satter & others, (Civil), 2016-[1 LM (AD) 379]

Constitution of Bangladesh

A legislature lacking legislative power or subject to a constitutional prohibition may frame its legislation so as to make it appear to be within its legislative power or to be free from constitutional prohibition. Such a law is colourable legislation, meaning thereby that while pretending to be a law in the exercise of undoubted power, it is in fact a law on a prohibited field.

Bangladesh & others =VS= Md. Abdus Satter & others, (Civil), 2016-[1 LM (AD) 379]

The Constitution of Bangladesh

Article 47(3) and 102(3)

In view of the clear bar under article 47(3) of the Constitution read with article 102(3) thereof, the High Court Division had no jurisdiction to entertain the writ petition in question and the same not being entertainable, it ought to have summarily rejected the writ petition on the ground of its maintainability. It is true that the High Court Division has not said anything as to the vires of the sections of the Act, 1973 challenged in the writ petition, but it disposed of the same in the manner as quoted hereinbefore after making some observations as stated earlier; there may be a misgiving in the mind of litigant people that a writ petition challenging a provision of the Act, 1973 or any action of the International Crimes Tribunal, is amendable to the writ jurisdiction of the High Court Division under article 102 of the Constitution. Moreso, the learned Judges cannot arrogate to themselves as advisors and it was not an act of discreet on their part to advise the writ-petitioners to redress their grievance by invoking article 104 of the Constitution.

Bangladesh =VS= Shireen Pervin Huq & others, (Civil), 2016-[1 LM (AD) 195]

Constitution of Bangladesh

In sub-section (3) of section 6 of the Ain of 1995, if similar offence is committed by more than one person all of them will be sentenced to death. Suppose 5 persons are involved in the commission of the crime of them two directly participated in the commission of rape and other three persons abeted the offence. If these three persons are sentenced to death with other two, it will be contrary to norms and the sentencing principles being followed over a century.

BLAST & others =VS= Bangladesh & others, (Civil), 2016-[1 LM (AD) 287]

Constitution of Bangladesh

Criminal contempt and a violation of the provisions of the Constitution– The respondents have intentionally made the utterances as reported and have indeed expressly admitted their guilt. They have acted in violation of law and are in breach of their oath of office to preserve, protect and defend the Constitution. In their exuberance, they have undermined the sanctity of the institution of the judiciary by questioning the justice delivery system. The Constitution enjoins all citizens to abide by the law and makes the decisions of the Supreme Court law to be given effect to by all. The respondents have scandalized the Supreme Court in a highly motivated manner in order to influence the judgement of the Court. This is gross criminal contempt and a violation of the provisions of the Constitution. The contemnors deserve no sympathy other that the lenient view taken in awarding sentence which has already been expressed in the short order passed by this Court on 27th March, 2016.

The State =VS= Adv. Md. Qamrul Islam, M.P & another, (Civil), 2016-[1 LM (AD) 30]

See also: Code of Civil Procedure, Order XXI Rule 37, [1 LM (AD) 151]

See also: The Constitution of Bangladesh, Article 27, [1 LM (AD) 429]

See also: The Civil Procedure Code, Section-115(2), 115(4) , [1 LM (AD) 273]

See also: Criminal Law Amendment Act [XL of 1958], Section 3(2), [1 LM (AD) 136]

D

Dhaka City Corporation  Public Market Upabidhimala, 2003

Rule 4

Rule 4 of the said Upabidhimala relates to the manner of selection and criteria to be considered at the time of allotment of shops of Public Markets . This rule does not provide any provision for giving priority in the matter of allotment of shops to the affected persons.

Bangladesh =VS= Zaker Super Market & others, (Civil), 2016-[1 LM (AD) 263]

Durnity Daman Commission Ain–2004

Section 28 read with

Criminal Law Amendment Act–1958

Section 3(2)

These provisions are self explanatory and in this regard no further explanation is necessary. The Sessions Judge in a Sessions Division is ex-officio Senior Special Judge and therefore, he has all the powers of a Special Judge within the meaning of the Criminal Law Amendment Act and the Durnity Daman Commission Ain.

The Appellate Division  held that the offences punishable under the Money Laundering Protirod Ain are schedule offences of the Durnity Daman Commission Ain and section 28 of the Ain of 2004 clearly provides that the offences punishable under the said Ain shall exclusively be triable by the Special Judge which includes the Senior Special Judge. Therefore, the High Court Division was totally unmindful in arriving at such conclusion. The decisions referred by the High Court Division in Nurul Huda V. Bahar Uddin, 41 DLR(HCD)395 and Zaved Khan V. ACC, 63 DLR(HCD)221 are also to the same extent based on misconception of law.

Anti Corruption Commission & others =VS= Abdul Azim & others, (Civil), 2016-[1 LM (AD) 136]

Discretion–Discretion, means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reasons. It is to be not arbitrary vague, and fanciful, but legal and regular. And it must be exercised within limit, to which an honest man competent to the discharge of his office ought to confine himself.

Dr. Khairun Nahar & others =VS= Prof. M. Iqbal Arslan & others, (Civil), 2016-[1 LM (AD) 63]

Declaration that Kabala No. 908 dated 04.03.2001 executed by defendant No. 3 in favour of defendant No. 1 and Kabala No. 7442 dated 26.07.2001 that the learned Judge of the Single Bench considered the evidence on record, both oral and documentary, the findings of the Appellate Court on the question of plaintiffs title and possession in the suit land and the genuineness of the kabalas challenged in the suit and found those based on proper appreciation of the evidence on record.

Abdul Malek =VS= Abdul Jalil & others, (Civil), 2016-[1 LM (AD) 275]

Declaration of her title in .39 acre of land stating for declaration of title without prayer for partition is not maintainable– We find from the plaint that the description of the suit land as given in the schedule to the plaint is discrepant vis-à-vis the deposition of the plaintiff in cross-examination. Also in his deposition P.W. 1 admitted that in 29 decimals of land in the Southern part, both he and the defendant are in possession. In such circumstances, the parties, if so advised, may take recourse to a proper suit. In view of such facts and circumstances the proper course would have been for the parties to file a partition suit.

Arabind Mallik & others =VS= Joydeb & others, (Civil), 2016-[1 LM (AD) 282]

Doctrine of promissory estoppel– The Appellate Division held that if the Ministry of Education had the authority to affiliate a college/school for providing degree courses, in that case also, a teacher of a private college/school could claim a right of the privilege of MPO after such affiliation on the said doctrine. This doctrine may be invoked if the decision of the authority deprives a person some benefit or advantage which he either had been permitted to enjoy by the authority, which he could legitimately expect to continue until he is intimated some rational grounds for withdrawing it and he has been given an opportunity to comment, or has received assurance from the authority that they will not be withdrawn without giving him an opportunity of advancing reasons for contending that they should not be withdrawn.

Gov. of Bangladesh & others -Vs.- Md. Akram Ali & others, (Civil), 2016-[1 LM (AD) 114]

Discretionary power– Only provision in which the court cannot exercise the discretionary power in awarding the sentence is section 303, which provides that “whoever, being under sentence of imprisonment for life commits murder shall be punished with death”. I find no rational justification for making a distinction in the matter of punishment between two classes of offenders, one is, under the sentence of life imprisonment, who commits murder whilst another, not under the sentence of life imprisonment.                 

BLAST & others =VS= Bangladesh & others, (Civil), 2016-[1 LM (AD) 287]

Declaration of title to the suit land and for recovery of its possession– The trial Court did not at all discuss the evidence of the PWs in deciding the question of possession of the suit land. The Appellate Court being the last Court of fact did not at all apply its mind and it simply dittoed the findings of the trial Court. The High Court Division also relied upon the judgment of the Appellate Court saying that it was the last Court of fact without looking in to the fact whether the Courts below considered the evidence on record in dismissing the suit. We find it proper to send the revision back to the High Court Division for hearing afresh and dispose of the same in accordance with law on the evidence on record.

Md. Chan Miah & others =VS= Md. Afazuddin Bhuiyan & another, (Civil), 2016-[1 LM (AD) 143]

A death may be commuted to imprisonment for life– On the following grounds:- 

(a) The condemned-prisoner has no significant history of prior criminal activity.

(b) Youth of the condemned-prisoner at the time of commission of the offence.

(c) The condemned-prisoner would not be likely to commit acts of violence if released.

(d) Confinement of the condemned-prisoner in the condemned cell from 09.06.2005 till date i.e. for more than 7 years during which period the sword of death has been hanging on his head.                                                                                                                        

BLAST & another =VS= Bangladesh & others, (Civil), 2016-[1 LM (AD) 353]

Defendant did not try even to controvert the pleadings of the plaintiffs either before the trial court or before the High Court Division. No suggestion even was ever made to any of the P.Ws. So Appellate Division helds new defence plea that plaintiff could not prove his case is not acceptable.

The Appellate Division helds that the defendant bank did not try even to controvert the above pleading of the plaintiffs and this exhibit-11 produced by the plaintiffs either before the trial court or before the High Court Division. No suggestion even was ever made to any of the P.Ws. to the effect that the plaintiffs did not pay against those travellers’ cheques or the purchasers did not encash those. The defendant could not return those travellers’ cheques or did not make any statement to the effect that they would return those travelles’ cheques to the plaintiff bank. So, in these circumstances Appellate Division is unable to accept this new defence plea that the plaintiff could not prove the sale of  those travellers’ cheques by the defendant bank.

Uttara Bank =VS= Credit and Commerce Insurance & others, (Civil), 2016-[1 LM (AD) 448]

The High Court Division has erred in modifying the decree passed on concurrent findings of fact upon reassessing the evidence– The Appellate Division finds on calculation of the shares of the defendant in the suit land High Court Division accordingly decreed the suit. The Appellate Division has perused the said calculation and the appellant could not show any mistake or otherwise any defect in the said allottment of shares in allowing a separate saham in respect of 2.05 acres of land in favour of the plaintiffs instead of 3.48 acres of land as decreed by the Courts below allotting 16 annas share in suit land in favour of the plaintiff to the exclusion of the shares of defendants.  Accordingly, the appeal is dismissed.

Md. Yasin Khan & others =VS= Ayub Ali Khan & others, (Civil), 2016-[1 LM (AD) 441]

See also: Discrimination , [1 LM (AD) 370]

E

Easements Act [V OF1882]

Section 60 read with

Transfer of Property Act [IV OF 1882]

Section 118

An exchange, value of which exceeds Tk.100/-, is to be registered– The Appellate Division held that an exchange, value of which exceeds Tk.100/-, is to be registered but in the present case the value of the alleged exchange though more than Tk.100/-was not registered and accordingly having not been registered the alleged exchange is not admissible in evidence and so the finding of the courts below that the exchange has not been proved cannot be interfered and accordingly in the present case Rajab Ali was a custodian of the property and not a licensee. Appellate Division is of the view that the High Court Division on correct assessment of the evidence and the materials on record arrived at a correct decision. Accordingly the appeal is dismissed.

Munshi Firoz & others  =VS= Ruhul Amin & others, (Civil), 2016-[1 LM (AD) 434]

Easements Act [Act V of 1882]

Section 15 read with

Limitation Act [IX of 1908]

Section 23

One should bring a suit within 2(two) years of interruption of his enjoyment (distinct from actual user) of easement right when the cause of action arises– The Appellate Division  observed that the High Court Division took the view that since the suit was not filed within two years from 1990, i.e. when the wall was erected by the defendants, the suit is barred. The Appellate Division  is of view the finding of the High Court Division is quite erroneous. The requirement of the law is that in establishing the right of easement it has to be shown that the right was openly enjoyed as an easement, and as of right, without interruption for 20 years and the period of 20 years shall be taken to be a period ending with the interruption of the enjoyment of the easement right when the cause of action arises and the suit is to be instituted within 2 years from the date when the cause of action arises. 

Shamsul Huq Molla =VS= Shunil Chandra Biswas, (Civil), 2016-[1 LM (AD) 373]

The Electricity Act

Sec-52A, 54C

Revisional power–The findings of the last court of facts are based on evidence. The revisional court having a limited jurisdiction to see the error of law resulting in an error in the decision occasioning failure of justice has reversed the findings of facts there-by exercised its revisional power improperly.

The appeal is allowed. The judgment and order dated 06.07.1999 passed by the High Court Division in Civil Revision No. 185 of 1998 is hereby set aside.

PDB, Khulna & others =VS= Southern Food Ltd, (Civil), 2016-[1 LM (AD) 313]

Employment of Labour (Standing Orders) Act [EPA VIII of 1965]

Section 25(b)

The Appellate Division observed that the High Court Division on consideration of the materials on record held that there is no material to prove that the management was hostile or annoyed for any reason towards the appellant. The order of termination of service appeared from it was a termination simpliciter and the appellant failed to establish that the establishment terminated his service in the garb of dismissal by adducing sufficient material. The Court cannot go behind the order of termination to gather the motive of the order. When there is no expressed words in the impugned order itself which throw a stigma on the employee, the Court would not embark upon a roving enquiry to gather the motive of the order. Accordingly, this appeal is dismissed.

Md. Shamsul Islam =VS= B.J.M.C & others, (Civil), 2016-[1 LM (AD) 131]

The Evidence Act

Sections-77, 78, 78(6) & 86

A foreign judicial record is a public document–

A public document may be proved by production of the original or by a certified copy under section 77 or in the manner prescribed in section 78. A foreign judicial record is a public document and may be proved by a copy certified in the manner prescribed by sections 78(6) and 86 of the Evidence Act. Reference in this connection is Haranund Chetlangia V. Ram Gopal Chetlangia, 27 IA 1 (PC) and AIR 1964 SC 538.        

RAJUK =VS=Manzur Ahmed & Others, (Civil), 2016-[1 LM (AD) 2]

Evidence Act [I of 1872]

Sections 58 and 90

The revisional Court could not re-open the case unless it was shown that the findings were based on non-consideration or misreading of material evidence.

The Appellate Division observed that the High Court Division observed that the plaintiff could not produce any single document of title, showing his acquisition of right, title and interest in the suit property. The plaintiff also failed to prove its possession in the suit land by producing any witness in support of its claim. The High Court Division concluded that since the question of title and possession had been finally decided by lower appellate Court, the revisional Court could not re-open the case unless it was shown that the findings were based on non-consideration or misreading of material evidence. The High Court Division also noted that the defendant's applications to get lease of the suit tank could not be a ground for passing a decree in favour of the plaintiff, who must establish his own case in order to succeed.

Sylhet Pourashava =VS= Purnendu Bikas & others, (Civil), 2016-[1 LM (AD) 69]

The executing court cannot go beyond the decree–  The executing court cannot go beyond the decree. The decree was passed against the writ-respondent Nos.2 to 5 also and, therefore, the executing court had no jurisdiction to strike out their names from the execution case.

Sheikh Sekander Ali & others =VS= Agrani Bank Limited & others, (Civil), 2016-[1 LM (AD) 135]

Evidence Act, 1872

Section-44

The date 30.05.1971 was written by different ink and different hand writing. From the report of delivery of possession, it appeared that, in fact, no delivery of possession was given and no witnesses were present during delivery of possession as there was no signature of any witness on exhibit 1(ka).

Findings and decision arrived at by the High Court Division having been made on proper appreciation of law and fact do not call for interference.

Shamsul Alam Mia =VS= Sirajul Hoque & others, (Civil), 2016-[1 LM (AD) 316]

Ex­parte decree– When Title Suit (No.46 of 1991) was decreed ex-parte and a suit was filed for setting aside the said ex­parte decree, the question of rejection of the plaint of the suit did not arise at all.

Md. Noor Hossain & others =VS= Mahbuba Sarwar & others, (Civil), 2016-[1 LM (AD) 341]

See also: The Environment Conservation Act 1995, Sections “6 Uma” and 12, [1 LM (AD) 143]

F

The Foreign Exchange Regulation Act

Section-18

The trial court concluded its finding holding that admittedly the defendant Inge Flatz being a foreigner the agreement was required to be executed with prior permission of Bangladesh Bank, but the plaintiff did not obtain permission and thus, the agreement was hit by section 18 of the Foreign Exchange Regulation Act.

RAJUK =VS=Manzur Ahmed & Others, (Civil), 2016-[1 LM (AD) 3]

Fraud document create– The judgment and order of the appellate Court that it was observed that the contesting defendants claimed that the plaintiffs had created the document Exhibit-4 by fraud, but did not particularise the elements of fraud. The appellate Court deduced from the evidence of D.W. 1 that Moijan must have died around the year 1963 and, therefore, had the right to transfer her share of .42 acre, which she did in the kabala dated 10.6.1958. The appellate Court held therefore, that the share of Moijan did not pass on to defendant No. 1 after her demine (demise) as she had already transferred her share to the plaintiffs by the kabala (Exhibit-4), and, therefore, defendant No. 1 did not have the right to transfer the said .42 acre of land to defendant Nos. 5-9 by virtue of register heba deeds dated 13.11.1968 and 19.06.1983.

Shamar Uddin Mollah & others =VS= Ahammad Ali Mollah & others, (Civil), 2016-[1 LM (AD) 326]

Fraud practiced upon Court– The Appellate Division held that since the judgments were obtained by practicing fraud upon the court, Appellate Division has no alternative but to set aside the said judgments of the Company Court and the persons concerned should be put to justice. Appellate Division direct the Registrar to file complaints before the Chief Metropolitan Magistrate, Dhaka against the respondent(s) for using forged documents for securing judgments from the Company Court.

Bangladesh Bank =VS= Eagleway Investment Ltd & others, (Civil), 2016-[1 LM (AD) 337]

See also:The Financial Institutions Act, 1993, Section- 2(j) [1 LM (AD) 162]

H

Hindu Law

Legal necessity for transferring the land– Instituted Title Suit No. 103 of 1997 for partition  of ejmali property– It is true that in this kabala dated 02.03.1997 it has been mentioned that for performing the Shradhya ceremonies of her parents Komoda sold this land to the plaintiff. But this recital only in the document is not enough to prove that actually there was legal necessity for transferring this land by Komoda-who, admittedly, had life interest only in the land in question. Evidence is necessary to prove that actually there was legal necessity for transferring this land by Komoda.

Abdus Sobhan Munshi =VS= Komada Daishya & others, (Civil), 2016-[1 LM (AD) 410]

It appears that the trial court, on proper examination and assessment of all these evidence, rightly found that it had not been proved at all that Komoda sold the suit land to the plaintiff for performing Shradhya of her parents and that she actually performed Shradhya of her parents. We find no reason to differ with these findings and decision of the trial court. It is also not believable that Komoda sold this land to perform Shradhya of her father-who admittedly died long 50/60 years before and of her mother-who also died long 5/6 years before depriving the reversioners. So we are unable to accept this story.

Abdus Sobhan Munshi =VS= Komada Daishya & others, (Civil), 2016-[1 LM (AD) 410]

A Hindu widow or a Hindu woman having life interest can maintain a suit for partition:

If a Hindu widow or a Hindu woman having life interest is not allowed to pray for partition of the joint properties by metes and bounds, then she would be deprived of enjoying her such right, as in the absence of partition by metes and bounds, she would not be able to enjoy her life interest therein. And if it is held that a Hindu widow or a Hindu woman having life interest would not be able to file a suit for partition, then the other co-sharers of the joint properties may use such decision as lever against such Hindu woman and thus create obstructions in the enjoyment of her life interest in the joint properties. Therefore, we find no substance in the point that plaintiff No.1 not being a co-sharer in the suit khatain and having life interest only could not maintain the suit for partition. And we hold that a Hindu widow or a Hindu woman having life interest can very much maintain a suit for partition for the fullest enjoyment of her such right in the joint properties.

Md. Abdus Sattar Miah =VS= Sreemati Raman Sona Dashya & others, (Civil), 2016-[1 LM (AD) 145]

I

Income Tax Ordinance (XXXVI of 1984)

Sections 154 (2) and 60

The Appellate Division found that the High Court Division observed that the questions raised were absolutely questions of fact which required to be proved with the help of evidence. The High Court Division came to a finding that both the appellate forum below had given concurrent findings in this matter and that it was not inclined to interfere with the forum created under section 160 of the Income Tax Ordinance, 1984. The High Court Division noted that even the very demand notice issued on 29.11.2006 clearly stood against the contention of the learned Advocate for the petitioner. Therefore, the High Court Division concluded that the question formulated in this reference was answered in the affirmative and in favour of the respondents and against the assessee-applicant-petitioner. Accordingly, this civil petition is dismissed. 

Dhaka Insurance Ltd =VS= Commissioner of Taxes, Dhaka, (Civil), 2016-[1 LM (AD) 182]

J

Jibon Bima Corporation (Officers and Employees) Service Regulations, 1992

Regulation-12(1) (2)

Having considered the sub-regulations (1) and (2) of Regulation 12, in general, and sub-regulation (2) thereof in particular, we find that in fact, sub-regulation (2) controls sub-regulation (1) of Regulation 12. If more than one employee is appointed at the same time, their seniority will be counted on the basis of merit list prepared by the selection committee and not from the date of their joining. A different interpretation of sub-regulations (1) and (2) other than the interpretation made above will make sub-regulation (2) meaningless. Therefore, the authority corrected the mistake by restoring the spirit of the letters of sub-regulation (2) of Regulation 12 by issuing the office order under memo dated 29.05.2006.

Jibon Bima Corporation & others =VS= Md. Abu Kawsar Jalil & others, (Civil), 2016-[1 LM (AD) 255]

The “Joladhar” Ain, 2000”

Section 5 read with

The Environment Conservation Act 1995

Sections “6 Uma” and 12 read with

The Building Construction Rules, 1996

Rule 3(I)

We have no hesitation to hold that the BGMEA building complex has been constructed by the petitioner illegally in violation of all the laws of the land which cannot stay upright rather the same deserves to be demolished at once–

The petitioner is directed to demolish the building namely, “BGMEA Complex” situated on the water body of “Begunbari khal” and “Hatirjheel lake” at once, at its own costs, in default the RAJUK is directed to demolish the same within 90 days from the date of receipt of this judgment and realize the entire demolition costs from the petitioner, BGMEA.

Bangladesh Garments Manufacturers and Exporters Association (BGMEA) =VS= Government of Bangladesh & others, (Civil), 2016-[1 LM (AD) 143]

The Judges are the final arbiter– The Judges are the final arbiter between litigants and between the public and powerful authorities and organisations. The authority of the Courts and the Judges is not undermined in any way.

The State =VS= Adv. Md. Qamrul Islam, M.P & another, (Civil), 2016-[1 LM (AD) 29]

L

Land Reforms Ordinance, 1984

Section 5:

The words ‘immoveable property’ occurring in section 5 of the Ordinance include both agricultural and non-agricultural properties. There is no scope for encroaching upon the domain of legislature by importing the words ‘rural area’ in section 5 and addition of such words will amount to legislation by the judiciary which is not at all permissible.

S. N. Kabir =VS= Fatema Begum & others, (Civil), 2016-[1 LM (AD) 401]

Limitation Act [IX of 1908]

Article 148

60 years limitation for the mortgagor to bring a suit to recover possession from the mortgagee when the right so accrued.

The Appellate Division held’s that the present suit for redemption was filed under the above quoted provision of law. The limitation for such suit is 60 years as per Article 148 of the Limitation Act. This suit, therefor, is well within the statutory period of limitation.

Khanje Ali Sikder =VS= Hazi Mozaharuddin & others, (Civil), 2016-[1 LM (AD) 51]

Limitation Act

Barred by limitation– It is crystal clear that the plaintiffs miserably failed to prove their title to the suit land. Admittedly, the plaintiffs filed Title Suit No.63 of 1954 for declaration of title in respect of the suit land which was dismissed. Subsequently, the plaintiffs filed Title Appeal No.64 of 1957 before the learned District Judge, Sylhet, which was also dismissed. Therefore, it appears that instant Title Suit No.112 of 1972 filed by the plaintiffs is hopelessly barred by limitation.

Israil Kha & others  =VS= Syed Anwar Hossain & others, (Civil), 2016-[1 LM (AD) 277]

The Local Government Ordinance, 1976

Section 91

Section 91 of the Ordinance in clear terms has provided that no suit shall be instituted against a local parishad or against any member, officer or employee of a local parishad in respect of any act done or purporting to be done in official capacity, until the expiration of one month next after notice in writing has been, in the case of local parishad.

There is no consequential provision for non-service of the notice. But when the language of the section absolutely prohibits institution of the suit without prior notice, the suit becomes still-born and has to be buried at its institution. I could not but therefore hold that the provision is mandatory.

Since the provision of section 91 of the Ordinance was not complied with the suit was not maintainable.                                

District Council, Feni =VS= Feni Alia Madrasha Mosque Committee, (Civil), 2016-[1 LM (AD) 155]

A law which is not consistent with notions of fairness and provides an irreversible penalty of death is repugnant to the concepts of human rights and values, and safety and security.

BLAST & others =VS= Bangladesh & others, (Civil), 2016-[1 LM (AD) 288]

A provision of law which deprives the court to use of its beneficent discretion in a matter of life and death, without regard to the circumstances in which the offence was committed and, therefore without regard to the gravity of the offence cannot but be regarded as harsh, unfair and oppressive. The legislature cannot make relevant circumstances irrelevant, deprive the court of its legitimate jurisdiction to exercise its discretion not to impose death sentence in appropriate cases. Determination of appropriate measures of punishment is judicial and not executive functions. The court will enunciate the relevant facts to be considered and weight to be given to them having regard to the situation of the case. Therefore we have no hesitation in holding the view that these provisions are against the fundamental tenets of our Constitution, and therefore, ultra vires the Constitution and accordingly they are declared void.

BLAST & others =VS= Bangladesh & others, (Civil), 2016-[1 LM (AD) 288]

See also: Limitation Act [IX of 1908], Section 5, [1 LM (AD) 164]

See also: Limitation Act[IX of 1908], Section 23, [1 LM (AD) 373]

See also: Laboratories (Regulation) Ordinance 1982, Section 3, [1 LM (AD) 408]

M

Masjid Babosthapona Nitimala, 2006

Regarding his Pay Scale– The High Court Division by the impugned judgment and order made the said Rule 'absolute and directed the writ respondent-petitioner to  pay in the scale of Pesh Imam in accordance with Nitimala.

TSP Complex Ltd & another =VS= Md. Abdul Momen & others, (Civil), 2016-[1 LM (AD) 190]

Municipal Administration Ordinance, 1960

Section 58

A Municipal Committee may with the previous sanction of the Controlling Authority declare any source of water, spring, river, tank, pond, or public stream, or any part thereof within the municipality, which is not private property, to be a public water-course. Hence, it appears that private tanks are beyond the scope of the Pourasava’s authority.

Sylhet Pourashava =VS= Purnendu Bikas & others, (Civil), 2016-[1 LM (AD) 69]

Medical Practice and Private Clinics and Laboratories (Regulation) Ordinance 1982

Section 3 read with

Safe Blood Transfusion Act (Act XII of 2002)

Section 27 (1) read with

Safe Blood Transfusion Rules 2008

Rules 20 and 21

Before realization of the user fees who engaged in high risk job are entitled  to get incentive– The Appellate Division observed that it is the duty of the Government to ensure treatment of its citizen but simultaneously the doctors, technicians and other employees who have been functioning in various high risk departments of the hospitals are also entitled to get incentive for their high risk job but before realization of the user fees at enhanced rate, legislative support is necessary.

Govt. of Bangladesh =VS= Human Rights and Peace for Bangladesh(HRPB) & others, (Civil), 2016-[1 LM (AD) 408]

Members of Parliament are Public Servants– The oath that they took referred to their obligation to “faithfully discharge the duty” upon which they were about to enter. They are public servants since they held office by virtue of which they were authorized or required to perform public duty. The word “office” has been used in Articles 3 and 3D of P.O.28 of 1973 meaningfully.

Anti Corruption Commission =VS= Md. Shahidul Islam & others, (Civil), 2016-[1 LM (AD) 357]

N

National Anthen Rules, 1978

Singing of national anthem should not be restricted only in respect of the occasions specified in the Rules only. We have already modified the restriction of the singing of national anthem in the body of the judgment.

Axiata (BD) Ltd. =VS= Kalipada Mridha & others, (Civil), 2016-[1 LM (AD) 123]

Commercial Use of National Anthem– There is no gainsaying the fact that each of the leave-petitioners has been charging revenue for playing the national anthem on the mobile phones. On consideration of the Rules, in general, we find that there is no scope for commercial use of the national anthem. Such commercial use of national anthem shows utter disrespect to the national anthem.

Orascom Telecom =VS= Kalipada Mridha & others, (Civil), 2016-[1 LM (AD) 157]

National University Ain [XXXVII of 1992]

Sections 20 and 21

A teacher of a private educational institute cannot claim as of right to afford him MPO because of the fact that unless the college/school is affiliated with the National University/Board for conducting degree courses over which the government has no control, he will not be entitled to apply for MPO.

The Appellate Division held that the granting of MPO to a teacher of school/college is subject to the condition that the school/college must be affiliated/recognised by the University. Though there is nexus between the affiliation and payment of MPO, the sanctioning authorities being two independent bodies, none of the provisions covering the field will prevail over the other. Neither a college/school can claim as of right to be affiliated under the University/Board for providing degree courses nor a teacher of a college/school can claim MPO as of right unless the conditions are fulfilled. Both fields are regulated by different bodies by different Regulations/Circulars. There is no scope to infer overlapping of the one by the other.

Gov. of Bangladesh & others -Vs.- Md. Akram Ali & others, (Civil), 2016-[1 LM (AD) 114]

Non-Government Secondary School Teachers'(BISE, Comilla) Terms and Conditions of Service Regulation, 1979 (the Regulations)– Admittedly, the dispute between the parties ultimately reached its finality by the decision of the Appeal and Arbitration Committee of the Board as communicated by the Secretary of the Board vide exhibit-kha(10) and kha(11) letters addressed to the Headmaster (in-charge) of the School with copies thereof to the plaintiffs.” The High Court has quoted the contents of the compromise reached by the parties which was in the interest of the school and with the full consent of the plaintiffs.

The order of the Board was passed on an admitted compromise whereby the dispute reached its finality, and the decision of the Board has not been challenged, the suit was rightly held as not maintainable.

View that the High Court Division has properly assessed the materials and evidence of record and reached a decision which in our view does not call for any interference by this Division.

Md. Jainal Abedin & another =VS= Kazi Abul Bashar & others, (Civil), 2016-[1 LM (AD) 330]

New Rule effective and applicable– The new rules adding new terms and conditions including the one as to the promotion to the next higher posts shall be effective and applicable to the employees, who will be appointed after the coming into effect or force of the same.

Bangladesh Bank & another =VS= Sukamal Sinha Choudhury & another, (Civil), 2016-[1 LM (AD) 56]

P

Partition Act [IV of 1893]

Section 4

Buy the share of a stranger purchaser in the undivided commercial place under the guise of undivided dwelling house– The Appellate Division observed that the High Court Division held that The expression ‘dwelling house belonging to an undivided family’ appearing in Section 4 has been borrowed from Section 4 of the Transfer of Property Act and bears the same meaning, a commercial business place cannot be termed as a dwelling house under section 4 of the Partition Act.” From the materials evidence on record the High Court Division found that the suit land is not a dwelling house but it is a commercial business place which includes restaurant and hotel run by the petitioner and many shops rented to different shop keepers for running business as commercial place.  The High Court Division also found that the application under section 4 of the Partition Act does not show any specific identification of the dwelling house that covers the specific area of the suit land. From a clear reading of the plaint of the miscellaneous case it does not appear that a specific and definite case on dwelling house has been made out. The High Court Division rightly found that there are many shops and restaurant in the suit plot and that the petitioners failed to prove that the suit land is a dwelling house. Considering the facts and circumstances of the case, the High Court Division rightly held that one cannot invoke section 4 of the Partition Act to buy the share of a stranger purchaser in the undivided commercial place under the guise of undivided dwelling house. Accordingly, the High Court Division rightly found that the trial court has arrived at a correct decision upon proper appreciation of pleading and evidence that the case of dwelling house is not proved in evidence and the property is a commercial one. Thus, there is nothing to interfere with the impugned order.                    

Hossain Shahid =VS= Abdul Wahab & others, (Civil), 2016-[1 LM (AD) 394]

Partnership Act (IX of 1932)

Section 32

Legal status of the partnership firm– Under the Partnership Act, a partnership has not been given any legal status. It is not a juristic person and the independent status given to the partnership firm under the Act has to be limited only for the purposes of that.

A firm is not an entity or 'person' in law but is merely an association of individuals and a firm name is only a collective name of those individuals who constitute the firm. In other words, a firm name is merely an expression, only a compendious mode of designing the persons who have agreed to carry on business in partnership.

Dine Ara & others =VS= Bangladesh Rubber Industries & others, (Civil), 2016-[1 LM (AD) 91]

Partition Act

The Appellate Division is of the view that the High Court Division rightly found that the suit land is not an undivided dwelling house rather it is admittedly a commercial place on which petitioners and other co-sharers have been conducting their business treating the suit land as commercial premises. Since the suit land is not a undivided dwelling house but a commercial place an application under section 4 of the Partition Act cannot be invoked to buy out the share of a stranger purchaser in the suit land.

Hossain Shahid =VS= Abdul Wahab & others, (Civil), 2016-[1 LM (AD) 395]

®hplL¡l£ ¢hnÄ¢hcÉ¡muBCe 2010[XXXV of 2010]

Section 46(4)

Without taking due approval of the U.G.C. a private university is barred from offering any course to the respective students.

The Appellate Division held that the High Court Division observed that it is apparent that without taking due approval of the U.G.C. private university is barred from opening, expanding or even amending any course as well as its curriculum and syllabus. Most important of all, before obtaining the said approval no students can be admitted in the respective course. In view of the said legal position non-publication of result of the petitioners of Writ Petition No.613 of 2011 by the Bangladesh Bar Council pursuant to memo dated 08.12.2010 issued by the respondent Nos. 9 and 10 on behalf of the U.G.C. on the ground that neither there was any permission to open 2 years LL.B. (Pass) Course nor due approval was taken as to its syllabus, cannot be termed as unlawful. Accordingly, the civil petition for leave to appeal is dismissed.        

Darul Ihsan University =VS= Khan A Salam & Others, (Civil), 2016-[1 LM (AD) 25]

®hplL¡l£ ¢nr¡ fË¢aù¡­el ¢nrL  J LjÑQ¡¢l­cl ®hae i¡a¡¢c plL¡l£ Awn J Sehm L¡W¡­j¡ pÇf¢LÑa e£¢aj¡m¡ (1995)

Rule 7(2)

The Appellate Division observed that the authority of educational institute can appoint teachers and employees “beyond the approved structures of the teachers and employees and in that case 100% salary and allowances of the concerned teachers/employees is to be borne by educational institute itself’.

After this pronouncement there cannot be any argument that a teacher of a private institute who is appointed beyond the staffing pattern of the government can claim MPO as of right from the government.

Gov. of Bangladesh & others -Vs.- Md. Akram Ali & others, (Civil), 2016-[1 LM (AD) 115]

Possession-For declaration of title in the suit land– The claim by the plaintiffs is that they took pattan from the C.S. tenant Brojo Hori, but they could not produce any document to substantiate their claim. In the absence of any evidence as to how the plaintiffs got title to the suit land and considering the fact that the S.A. and R.S. records are in the name of the Government, the admission by D.W. 2 regarding possession by the plain-tiffs is of no help to the plaintiffs.

Md. Soleman Ali Akan & others =VS= Mst. Taramon Bewa & others, (Civil), 2016-[1 LM (AD) 160]

The plaintiff is not entitled to any decree for a specific performance on the strength of forged deeds– A relief for specific performance being discretionary, the court is not bound to pass a decree even if the plaintiff proves the execution of the agreement for sale and payment of consideration unless and until the plaintiff comes in court with clean hands. Therefore, the plaintiff is not entitled to any decree for a specific performance on the strength of forged deeds.

RAJUK =VS=Manzur Ahmed & Others, (Civil), 2016-[1 LM (AD) 3]

The Police Regulations, Bengal (P.R.B.)

Rule 861

Black Mark– The petitioner for submitting false investigation report with intent to save the accused persons for illegal gain. the petitioner was charged under Rule 861 of the Police Regulations, Bengal (P.R.B.) and after completing a departmental proceeding, major penalty of “Black Mark” was imposed on 17. 08.2009.

Govt. of Bangladesh & others =VS= Ranjit Krishna Mazumder (Civil), 2016-[1 LM (AD) 370]

Police Officers (Special Provisions) Ordinance, 1976

Section 3 read with

Bangladesh Public Service Commission (Consultation) Regulation, 1979

Regulation–6

On consideration of section 3 of the Ordinance vis-a-vis regulation 6 of the Regulations, it is obvious that consultation with Public Service Commission is mandatory before passing the order of dismissal in respect of each of the respondent as section 3 of the Ordinance has not ousted the operation of other laws, rules and regulations.

Bangladesh =VS= Md. Bellal Hossain Mollik, (Civil), 2016-[1 LM (AD) 86]

Opinion of Public Service Commission is not binding on the authority. The consultation with the Public Service Commission is mandatory before passing the orders of dismissal of both the respondents though the opinion of Public Service Commission is not binding on the authority.

Bangladesh =VS= Md. Bellal Hossain Mollik, (Civil), 2016-[1 LM (AD) 86]

Premises Rent Control Act [III of 1991]

Section 10

Salami money– In absence of any stipulation in the agreement for lease it is difficult to accept the contention of the tenant that the defaulted rent was liable to be adjusted from the salami money, if the same was at all paid.

Imam Ahamed =VS= Abdul Mannan & another, (Civil), 2016-[1 LM (AD) 427]

Public Servants (Retirement) Act 1974

The subsequent amendment to the Public Servants (Retirement) Act 1974 will not be automatically incorporated in the Service Regulations of the Bank, until and unless the Bank chooses to adopt the same by amending the relevant Service Regulations.

Pubali Bank Ltd =VS= Abdur Rashid Miah & others, (Civil), 2016-[1 LM (AD) 420]

There was no finding that the petitioners had any such legal right to have their period of service extended up to 59 years of their age. Indeed, in our view the Bank giving such benefits to its employees by means of a circular post dates the writ petitioners’ superannuation and is, therefore, not applicable in their case.

Pubali Bank Ltd =VS= Abdur Rashid Miah & others, (Civil), 2016-[1 LM (AD) 420]

The Public Employees Discipline (Punctual Attendance) Ordinance, 1982

Section 5 read with

h¡wm¡­cn ®m¡L fËn¡pe fË¢nrZ ®L¾cÐ Hl LjÑQ¡l£ Q¡L¥l£ fË¢hd¡ej¡m¡, 1992z

Regulation 36(1)(B)(R) read with

The Constitution of Bangladesh.

Article 27

We appreciate the decision of the Board of Governors of the BPATC in its 57th meeting to withdraw the appeals in question, it would have been perpetuating a discriminatory treatment towards the petitioners (respondents in the appeals) in clear violation of their fundamental rights of equality before law and equal protection of law as guaranteed in article 27 of the Constitution of the People’s Republic of Bangladesh.               

Bangladesh & others =VS= Hamento Kumar Barmon (Civil), 2016-[1 LM (AD) 429]

Preamble of a statute– The preamble cannot control the meaning and expression when the meaning of the expression is clear and ambiguous. The aid of the preamble can be taken if the meanings of the words to be interpreted are not clear and ambiguous.

S. N. Kabir =VS= Fatema Begum & others, (Civil), 2016-[1 LM (AD) 401]

Pre-emption– No address of the purchaser was known to the plaintiff at the relevant time and as such, the question of serving letter demanding pre-emption by post upon the purchaser did not arise– The Appellate Division observed that the High Court Division came to a finding that by a power of attorney dated 28.10.1995, D.W.1 was appointed as the tadbirkar of defendant No.1 and that the disputed kabala was registered on 26.09.1994 and that the demand was made on 16.01.1995 and that the suit was filed on 05.03.1995 which showed that D.W.1 was not the tadbirkar of defendant No.1 when the demand was made on 16.01.1995. The High Court Division further found that the mother of defendant No.1 who disclosed for the first time about the disputed sale was the competent person before whom the demand of pre-emption was made by the plaintiff and that the finding of the appellate Court in this regard was without any material on record. The High Court Division noted that no address of the purchaser was known to the plaintiff at the relevant time and as such, the question of serving letter demanding pre-emption by post upon the purchaser did not arise. Having gone through the impugned judgment, Appellate Division finds that the High Court Division on meticulous consideration of the evidence on record reversed the findings of the appellate Court and restored the judgment of the trial Court. Accordingly, petition is dismissed.

Farid Ahmed =VS= Tofazzal Ahmed & others, (Civil), 2016-[1 LM (AD) 184]

‘Prescribed’ means– ‘Prescribed’ would mean prescribed by law. In the facts of the instant case the ‘prescribed rate’ was amended more than once since 01.04.2004.

M/S. Rajib Traders =VS= Artha Rin Adalat & another, (Civil), 2016-[1 LM (AD) 186]

Production of Additional Evidence– This is an exclusionary provision restricting the production of additional evidence with the exceptions as mentioned in clauses (a) and (b) of rule 27 (1). In the facts of the instant  case, in the absence of any order of the appellate Court requiring production of any evidence, any party may, by permission of the appellate Court, produce the deed in question "for any other substantial cause", as provided in Rule 27 (1) (b).

Harunur Rashid & others =VS= Mosammat Yarun Nissa & others, (Civil), 2016-[1 LM (AD) 385]

Appellate Division view that the reasons stated by the High Court Division for allowing the production of the purchase deed dated 01.03.1971 of the added plaintiff is justified.

Harunur Rashid & others =VS= Mosammat Yarun Nissa & others, (Civil), 2016-[1 LM (AD) 385]

The plaintiff-bank is always at liberty to file the suit for recovery of the loan amount against the principal borrower as well as the guarantor who mortgaged property as security of the loan at the same time–  The Appellate Division held that the High Court Division erroneously came to a finding that the plaintiff-bank must take step to recover the decretal amount from the principal-debtor, namely, the loanee-company, and in case, the principal debtor failed to satisfy the decretal amount, the decretal amount should be recovered by selling the property of the principal debtor or encashing the FDR pledged to the plaintiff-bank. The plaintiff-bank is always at liberty to file the suit for recovery of the loan amount against the principal borrower as well as the guarantor who mortgaged her property as security of the loan at the same time.

Agrani Bank  =VS= Mrs.  Hosne  Ara  Begum & another, (Civil), 2016-[1 LM (AD) 334]

Promotion–It appears from the impugned memo that it was issued from the Police Headquarters in the form of directives, of them, directive No.5 contains an embargo upon the promotion prospect in respect of those who have landed with three major punishments. In paragraph 6, it has been mentioned that the officers who have received less than three major punishments shall not be eligible for consideration for promotion before expiry of 3 years from the date of punishment. These are policy matters relating to the terms and conditions of service of a police officer and this power has not been given to the Inspector-General of Police by the Police Act or the Bengal Police Regulation or any other law.

Bangladesh & others =VS= Md. Abdus Satter & others, (Civil), 2016-[1 LM (AD) 379]

The High Court Division has also directed to lift the curtain for enabling the writ petitioners to be considered for promotion. This cannot be done or declared by the court for, it is the police administration which shall consider as to whether or not under the prevailing laws the writ petitioners are eligible to be considered for promotion to the next higher post.

Bangladesh & others =VS= Md. Abdus Satter & others, (Civil), 2016-[1 LM (AD) 379]

R

Registration Act (XVI of 1908)

Section 17

A deed of dissolution of partnership is not required to be registered–

A deed of dissolution of partnership is not required to be registered under section 17 of the Registration Act because the share of a partner in a partnership is essentially moveable property notwithstanding that a part of the partnership property may be immovable.

Dine Ara & others =VS= Bangladesh Rubber Industries & others, (Civil), 2016-[1 LM (AD) 91]

Registration Act [V of 1908]

Sections 22 and 55 (3)

Appellate Court being the last Court of fact, comes to any finding based on the evidence on record, the power of the revisional Court to interference  with such finding is limited– Appellate Division held that when the lower appellate Court, being the last Court of fact, comes to any finding based on the evidence on record, the power of the revisional Court to interfere with such finding is limited to cases where the finding of the appellate Court is perverse, or based on wrong appreciation of the evidence.

Haji Nayeb Ali =VS= Amir Hossain & others, (Civil), 2016-[1 LM (AD) 423]

Registration Act [V of 1908]

When the plaintiff’s witnesses admitted possession of the defendant a suit for declaration of title simpliciter is not maintainable– The Appellate Division held that unless the original Volume containing the full text of the deed is produced, the certified copy being secondary evidence, the presumption of genuineness only goes to the extent of the genuineness of the certified copy, but not to the genuineness of the original document. Moreover, the Appellate Division finds from the evidence of C.W.1 that the certified copy did not contain the seal of the Registrar’s Office nor did it bear the genuine signature of A. Rashid, who was the then Sub-Registrar and as such the presumption of the genuineness of the 30 years old deed only goes to the extent of the genuineness of the certified copy, but not to the genuineness of the original document.

Haji Nayeb Ali =VS= Amir Hossain & others, (Civil), 2016-[1 LM (AD) 423]

Representation of the Peoples Order-1972

Article 49(1) with Section 2(ii)

The most significant thing is that for the purpose of filing an election petition under article 49(1) of the RPO only the phraseology “candidate” has been used. In other words, a proposed “candidate” has been given the locus standi to file an application raising an election dispute. Admittedly the candidature of the election-petitioner was rejected by the Election Commission on the ground of being a defaulter, he is surely a person who was proposed as a candidate for election as a member of the Parliament of the Constituency in question. But the High Court Division failed to comprehend the proper meaning of “candidate” given in section 2(ii) of the RPO vis-à-vis article 49(1) thereof in observing that “the petitioner being a candidate of the 10th National Parliamentary Election did not act rather he was an intending candidate and wanted to become a candidate.” And we hold that the petitioner being a proposed “candidate” for election as a Member of the Parliament for the Constituency in question, he had every locus standi to file the election petitions and those were maintainable in law.

Major Gen. Abdus Salam (Rtd) =VS= Bangladesh Election Commission & another, (Civil), 2016-[1 LM (AD) 192]

The Rule of Law– The rule of law is the foundation of a democratic society, our Constitution has given due importance to it in several articles, and it has been accepted as one of the basic structures of the Constitution. Every citizen, whatever his rank or status, is subject to the laws of the land and to the jurisdiction of the courts. Without rule of law there would be anarchy.

The State =VS= Adv. Md. Qamrul Islam, M.P & another, (Civil), 2016-[1 LM (AD) 29]

Rule of law– Rule of law is the basic rule of governance of any civilized society. The scheme of our Constitution is based upon the concept of rule of law. To achieve the rule of law the Constitution has assigned an onerous task upon the judiciary and it is through the courts, the rule of law unfolds its contents. One of the important concept of the rule of law is legal certainty. Judicial review of administrative action is an essential part of rule of law and so is the independence of judiciary.

BLAST & others =VS= Bangladesh & others, (Civil), 2016-[1 LM (AD) 287]

Receive rents from him by opening a separate khatian– Writ-petitioner-respondent has obtained a decree declaring his title in the suit land from a competent court of law and that decree still stands. The government leave-petitioners though filed a suit challenging the said decree but that suit has already been dismissed. In the circumstances so long the decree declaring the plaintiff’s title in the land in question stands the writ-respondents are bound to mutate the land in question in the name of the writ-petitioner and also to accept rent from him. If these leave-petitioners ultimately succeed in getting the decree declaring the plaintiff’s title in the suit land declared collusive, fraudulent etc. by the appellate court or the higher courts they will be able to cancel the mutation of the land in question in the name of the writ-petitioner.   

Bangladesh & others =VS= Md. Abu Hasan Raju (Civil), 2016-[1 LM (AD) 437]

S

State Acquisition and Tenancy Act–1951

Section 96(10)(c)

The Appellate Division  finds that the two registered deeds were executed on 31.07.2001 by opposite party No. 2 Saiful Islam who is the 2nd party in the divorce agreement. The total quantum of land is 66 decimals which is the quantum of land mentioned in the divorce agreement executed and signed by the parties on 31.07.2001. Thus the nexus between the registered land deeds and the divorce agreement is obvious on the face of the record. The claim of respondent No. 1 that the transfer of land was in lieu of dower is clearly established.

Md. Shahidul Islam =VS= Sobejan Khatun & others, (Civil), 2016-[1 LM (AD) 75]

State Acquisition and Tenancy Act–1951

Section 95A

The kabala under pre-emption was not an out and out sale deed but a kot kabala and as such, the same was not pre-emptable–

The Appellate Division observed that the High Court Division held that in a case with 'an agreement for re-conveyance with a deed of out sale as contemplated under section 95A of the State Acquisition and Tenancy Act is not required to be compulsorily registered as is required under section 95(2) of the Act.

Dadan Biswas =VS= Abdul Barek Bepari, (Civil), 2016-[1 LM (AD) 128]

State Acquisition and Tenancy Act–1951

Section-96 read with

The Civil Procedure Code

Section-115(2), 115(4)

Pre-emption– Preemptor filed an application under Section 96 of the State Acquisition and tenancy Act in the Court of Assistant Judge, 9th Court Dhaka giving rise to preemption Miscellaneous Case being No.69 of 2006. The case is being contested by the pre-emptee-petitioners by filing written objection. the pre-emptees filed an application for rejection of the pre—emption application on grounds (1) all necessary parties were not impleaded in the preemption application and (ii) in filing the pre-emption application, the preemptor did not comply with the provisions of Section 96 (3) of the State Acquisition and Tenancy - Act as amended in 2006.

Alhaj Md. Maruf Hasan Swapan & another =VS= Kohinur Aziz & others, (Civil), 2016-[1 LM (AD) 273]

Succession Act (XXXIX OF 1925),

Section  276

Objection at the belated stage– The Appellate Division observed that after examination of 4 witnesses, Ganendra Roy filed a fresh written objection which was accepted by the learned District Judge on 09.04.1997. Against the said order dated 09.04.1997, the petitioner filed the aforesaid appeal.The High Court Division by the impugned judgment and order dismissed the appeal. Then the plaintiff-petitioners filed this petition before Appellate Division from the judgment and order of the High Court Division, it appears that it held that the plaintiff had not been prejudiced due to the acceptance of the written objection. It is the discretion of the learned District Judge either to allow the written objection or to reject it. Since the petitioner had not been prejudiced any way, that is, the discretion had been exercised judicially, Appellate Division does not find anything to interfere with the judgment and order of the High Court Division.                

Pollob Kumer Dev =VS= Ganendra Nath Roy, (Civil), 2016-[1 LM (AD) 189]

Service of Summons– The High Court Division was not also factually correct in finding that summons of the suit was not served upon defendant No.3, as report of the process server clearly showed that summons of the suit was served upon defendant No.3 by hanging and he gave report to that effect. Merely because the fact of service of summons upon defendant No.3 was not recorded in the order sheet, it may be through inadvertence which did not make the report of the process server as regards service of summons upon defendant No.3 ineffective or nonest.

Rasheda Begum & others =VS= Abul Hashem & others, (Civil), 2016-[1 LM (AD) 168]

Statutory deposit along with an additional 8% as interest was not made. The High Court Division rejected the contention and discharged the Rule. It appears to us that the point raised by the pre-emptees also requires determination of facts. Since the hearing of the case has already commenced, the point raised by the pre-emptees can very well be agitated before the trial Court along with the other issues. And if such a point is agitated, whatever observations and findings have been given in the impugned judgment and order by the High Court Division on the said point shall not be binding upon the trial Court in deciding the same afresh. The trial Court shall dispose of the same along with the other issues in accordance with law.

Alhaj Md. Maruf Hasan Swapan & another =VS= Kohinur Aziz & others, (Civil), 2016-[1 LM (AD) 274]

Service Rules do not provide any provision of promotion– The Appellate Division held that since the service Rules do not provide any provision of promotion as Assistant Foreman from the driver who has been working as work charged employee, rather the  Rules provides that the post of Assistant Foreman should be filled up by way of promotion from Mechanics/Electrician having 5 years service experience in the feeder post, the High Court Division has committed error of law in making the Rule absolute.

Ministry of Communication & others =VS= Md.Iqbal Hossain (Civil), 2016-[1 LM (AD) 347]

See also: Specific Relief Act (I OF 1877), Section 42, [1 LM (AD) 253]

See also: Safe Blood Transfusion Act (Act XII of 2002), Section 27 (1) , [1 LM (AD) 408]

See also: Safe Blood Transfusion Rules 2008, Rules 20 and 21, [1 LM (AD) 408]

See also:The Supreme Court of Bangladesh, (Appellate Division) Rules 1988, Rule 1 of order XXVI, [1 LM (AD) 170]

T

Town Improvement Act [XIII of 1953]

Section 93A (5)

If the concerned authority of the appellants find that full compensation of the acquired property was not paid in accordance with sub-section (5) section 93A, final assessment has to be made of the acquired land according to sub-section (5) of section 93A– The Appellate Division finds that full compensation of the requisitioned property is not paid under that section. The learned Deputy Attorney General for the appellants could not produce any paper to show that compensation was paid to the respondent according to the provision of sub-section (5) of section 93A of the Town Improvement Act. Therefore, the appellants are directed to inquire into whether full compensation has been paid as per provision of sub-section (5) of section 93A or whether compensation has been paid on the basis of a provisional estimate prepared on rough and ready calculation as per section 93B. If the concerned authority of the appellants find that full compensation of the acquired property was not paid in accordance with sub-section (5) section 93A, final assessment has to be made of the acquired land according to sub-section (5) of section 93A.

Ministry of Land =VS= Haji Ashraf Ali & others, (Civil), 2016-[1 LM (AD) 153]

Town Improvement Act [XIII of 1953]

In spite of repeal of sections 93A and 93B of the Town Improvement Act the pending acquisition of disputed land shall be continued under the aforesaid provision as if those have not been repealed.

Ministry of Land =VS= Haji Ashraf Ali & others, (Civil), 2016-[1 LM (AD) 154]

Transfer of Property Act

Section-116

For declaration of title and recovery of khas possession– The provisions of section 116 of the Transfer of Property Act are applicable where the tenant remains in possession of the lease-hold property after determination of the lease granted to the tenant and his continuing possession is assented to by the landlord. A tenant, who surrendered possession, does not come within the meaning of the words "remains in possession" of this section.

Israil Kha & others  =VS= Syed Anwar Hossain & others, (Civil), 2016-[1 LM (AD) 277]

Temporary employee should not be replaced by another ad-hoc or temporary employee–

An adhoc or temporary employee should not be replaced by another ad-hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.

Dr. Khairun Nahar & others =VS= Prof. M. Iqbal Arslan & others, (Civil), 2016-[1 LM (AD) 63]

Third party right to file an appeal– Even a third party can file an appeal in case he is affected by a decree passed in a suit.

Rasheda Begum & others =VS= Abul Hashem & others, (Civil), 2016-[1 LM (AD) 168]

Title Suit No. 27 of 1983 decreeing the suit for a decree of permanent injunction restraining the defendants form disturbing their peaceful possession in the suit land.

Leave is granted on the ground which is quoted below:–

"I. Because the High Court Division overlooked the very important aspect of the case that out of 8 defendants only one defendant- the defendant No. 6 has denied the compromise petition which is a weighty piece of evidence in favour of plaintiffs' title and possession in the suit land; that the records of right along with rent receipts showing payment of rent for a long period also gave a presumption of possession in favour of the plaintiffs, but the High Court Division did not consider these valuable evidence also and consequently came to the wrong findings and decision and as such the impugned judgment and order passed by the High Court Division is liable to be set aside."

The parties are directed to maintain status quo in respect of the suit land till disposal of the appeal.

Upendra Lal Saha &others =VS= Sheikh Sujai & others, (Civil), 2016-[1 LM (AD) 323]

See also: Transfer of Property Act [IV OF 1882], Section 118, [1 LM (AD) 434]

V

Value Added Tax Act, 1991,

Section 9(2ka)/42:

The High Court Division observed– “The present writ petition without preferring any objection/appeal under section 9(2ka)/42 of the VAT Act is not also maintainable.” We find no reason to interfere with the impugned judgment of the High Court Division.

Aftab Auto. Ltd =VS= Customs, Excise & VAT, Tejgaon Circle-1, (Civil), 2016-[1 LM (AD) 177]

VAT Rule

Section-3 (3)

Price declaration– Objection within 10 days (now 15 days) of receipt of the price declaration, it shall be deemed that the VAT authorities has no objection regarding the price declaration according to sub-rule (3) of rule 3 of the VAT Rules and the appellant is entitled to pay as per price declaration made by it.

Farzana Steel Mills Ltd =VS= Custom, Excise and VAT & others, (Civil), 2016-[1 LM (AD) 250]

Voluntary retirement scheme is a method used to reduce surplus staffs. Participation in the voluntary retirement plan is voluntary. It has to result in an overall reduction in the existing strength of employees. Accordingly, we are not inclined to accept the observation of the High Court Division that the respondents had been terminated in the grab of voluntary retirement. Moreover, the respondents have filed writ petitioners after about 8 years of the acceptance of their prayers and after receiving retirement benefits.

BADC & others =VS= Md. Abdur Rashid & others, (Civil), 2016-[1 LM (AD) 388]

 

(CRIMINAL JURISDICTION)

THE

LAW MESSENGER

VOLUME–I

2016

 

INDEX

 

APPELLATE DIVISION

SUPREME COURT OF BANGLADESH

 (CRIMINAL JURISDICTION)


A

Arms Act [XI of 1878]

Section 19A read with

Evidence Act [I of 1872]

Section 27

Whether on the admitted facts the High Court Division is justified in maintaining the appellant’s conviction under section 19A of the Arms Act– The Appellate Division held that whatever allegations made in the FIR and the statements made by P.Ws.1-4 are the result of the investigation and therefore, those statements are hit by section 162 of the Code. The appellant was not an accused on 13.12.2004 and the recovery of fire arm as per his statement is a doubtful story to believe on. After recovery of the fire arm, the police officer in course of investigation found that the appellant planted the fire arm in the hayrick of Abdul Hoque. This statement is not admissible under section 27 of the Evidence Act. The High Court Division has totally misconstrued section 27 of the Evidence Act and illegally held that the recovery of the fire arm was on the basis of the statement made by the appellant with a sketch map ‘pointing to an arm which is sufficient to have a knowledge, possession and control by himself and nobody else, even not Abdul Hoque’. This conclusion arrived at is based on misconception of law. There is no legal evidence to prove the recovery of he firearm from the exclusive control or knowledge of the appellant.

Md. Tofajjal Hussain =VS= The State, (Criminal), 2016-[1 LM (AD) 483]

Arms Act (X of 1878)

Section 19(f)

Seizure list witnesses were not examined as such alleged recovery of seized ammunitions from the possession of the accused-appellant not proved– The Appellate Division observed that the High CourtDivision pointed out that the person-who prepared the seizure list was not examined before the court although he was cited as a witness in the charge   sheet and that both the seizure list witnesses were declared hostile. the place wherefrom the seized ammunitions were allegedly recovered was a shop in public place located besides the road and was accessible to the public at large and that in that situation it could not be said that the accused-appellants had exclusive control and possession over the place of occurrence. The High Court Division commented also that in that circumstances the possibility of false implication by business rival, as has been suggested by the learned Counsel for the accused-appellants, could not be brushed aside.

The State =VS= Asif Khan Riyad & another, (Criminal), 2016-[1 LM (AD) 535]

See also: Ad interim bail, [1 LM (AD) 477]

See also: Abetment of suicide, [1 LM (AD) 467]

B

See also: Bail, [1 LM (AD) 490]

C

Code of Criminal Procedure (V of 1898)

Section 340(3)

Expunged Evidence–

It is provided in section 340(3) of the Code of Criminal Procedure that any accused person before a criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charge made against him or any person charged together with him at the same trial. A witness is transposed into the category of the accused person, the prosecution probably cannot use his evidence against him because it will tantamount to self implication. Their evidence may be considered by the defence as well.      

Durnity Daman Commission=VS=Md Gias Uddin-al-Mamun & another, (Criminal), 2016-[1 LM (AD) 437]

Code of Criminal Procedure (v of 1898)

Section 498 read with

Penal Code (XLV of 1860)

Sections 161 and 165A

In respect of bailable offence, the Court cannot exercise any discretionary power not to enlarge an accused person on bail–

The petitioner has been charged with for offences punishable under sections 161/165(A) of the Penal Code which are bailable offences. In respect of bailable offence, the Court cannot exercise any discretionary power not to enlarge an accused person on bail because the Code of Criminal Procedure does not give the Court any discretionary power not to enlarge an accused person in respect of bailable offence on bail. But it does not confer a Court the power to refuse the prayer for bail since the statute has given power upon the Court to exercise in favour of the accused person. The judgment of the High Court Division is set-aside. Be enlarged on bail to the satisfaction of the Special Judge, Court No. 3, Dhaka pending trial of the case.

Mia Nuruddin (Apu) =VS= State & another, (Criminal), 2016-[1 LM (AD) 474]

Code of Criminal Procedure (V of 1898)

Section 498 read with

Prevention of Corruption Act (11 of 1947)

Section 5(1)(c)(d)

Ad interim bail–Interfering with the administration of justice by the doctor’s false reports–

These reports the trial of a sensational murder case is being delayed and thereby, they have been interfering with the administration of justice. By sending him to Ibrahim Cardiac Hospital instead of sending him to BSMMU, the doctors of the Central Jail. Hospital, who are public servants have misused their power and position for which, exemplary actions should be taken against them.

State =VS= Mahtab Uddin Ahmed Chowdhury, (Criminal), 2016-[1 LM (AD) 477]

The ad interim bail granted to the accused respondent is cancelled. The Central Jail Authority is directed to send the accused Mahtab uddin Ahmed Chowdhury (Minar) to Feni District jail for facing trial in the case. This petition is disposed of with the above observations and direction.

State =VS= Mahtab Uddin Ahmed Chowdhury, (Criminal), 2016-[1 LM (AD) 477]

Code of Criminal Procedure (v of 1898)

Section 561A

High Court Division cannot exercise its extraordinary power to quash the proceedings under 561A of Cr.PC– It appears that the High Court Division has quashed the FIR filed by the Durnity Daman Commission against the respondent. It is our consistent view that until and unless the Court takes cognizance of the offence there is no legal proceedings pending before any Court of law and therefore, the High Court Division cannot exercise its extraordinary power to quash the proceedings. That the High Court Division erred in law in quashing the proceedings of the case. We find merit in the submission of the learned Counsel. The judgment of High Court Division is set-aside. The Durnity Daman Commission is directed to proceed with the ease in accordance with law.

Durnity Daman Commission Vs. Engineer Mosharrf Hossen & 2 another, (Criminal), 2016-[1 LM (AD) 480]

Code of Criminal Procedure [V of 1898]

Section 162

Section 162 of the Code of Criminal Procedure states that no statement made by any person to a police officer in course of investigation under Chapter XIV shall be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when such statement was made whether it was signed by the person making it or it was reduced into writing.

The Appellate Division observed that there is clear bar to taking into consideration any statement made by any person accused of an offence to a police officer in course of investigation as evidence against him. Any statement made to a police officer can be used for the purpose of corroboration or contradiction of the maker of the statement.

Md. Tofajjal Hussain =VS= The State, (Criminal), 2016-[1 LM (AD) 484]

Code of Criminal Procedure (V of 1898)

Section 497(1), read with section 173

Bail– A bail should not be withheld as a measure of punishment. On consideration of the age of the appellant and the health condition as available with the record, we are of the view that the appellant should get the privilege of bail as per proviso to sub section (1) of section 497 of the Code of Criminal Procedure.

We have given our anxious consideration to the facts and circumstances of the case. Since the case is under investigation, we are not inclined to make any observation touching on the merit of the case.

Shafik Rahman =VS= State, (Criminal), 2016-[1 LM (AD) 490]

Code of Criminal Procedure[V of 1898]

Section 561A read with

Penal Code [XLV of 1860]

Sections 420/406/468

A criminal proceeding could only be quashed if it was found that the allegations made in the petition of complaint, even if, taken to be true in its entirety did not disclose any prima facie offence against the accused– The Appellate Division observed that High Court Division came to finding that no charge was framed in this case as yet and that there was scope for the petitioners to agitate the grievances at the time of framing of charge under section 241A of the Code of Criminal Procedure and that if the contentions of the petitioners were found to be correct they might get relief. The High Court Division noted that a criminal proceeding could only be quashed if it was found that the allegations made in the petition of complaint, even if, taken to be true in its entirety did not disclose any prima facie offence against the accused. The High Court Division came to a finding that in the instant case, the aforesaid requirements are absent inasmuch as from a bare reading of the petition of complaint (Annexure-A) it appeared that the allegations made therein clearly constituted prima facie offence under sections 420/406/468 and 109 of the Penal Code.

Md. Rafiqul Islam & others =VS= Md. Fakruddin & others, (Criminal), 2016-[1 LM (AD) 503]

Code of Criminal Procedure [V of 1898]

Section 561A read with

Prevention of Corruption Act[II of 1947]

Section 5(2)

Taking into consideration the facts and circumstances of the case, including the fact that the criminal proceedings against all the other co-accused, including the borrowers who are alleged to have been given loan by the bank, upon connivance of other bank officials and the appellant, having been quashed the Appellate Division is of the view that further proceedings against the appellant will be a futile exercise. Moreover, the occurrence having taken place more than 25 years ago, proceeding against the appellant is liable to result in time and expense leading to nought.

Md.Shafiuddin =VS= The State, (Criminal), 2016-[1 LM (AD) 527]

Code of Criminal Procedure (V of 1898)

Section 561A read with

Penal Code, 1860 (XLV of 1860)

Sections 323, 325, 326 and 307

Considering the facts and circumstances we do not find that the learned Additional Metropolitan Sessions Judge, 2nd Court, Dhaka has committed any wrong or illegality in setting aside the impugned order dated 29.07.1999 passed by the learned C.M.M., Dhaka dismissing the case and as such the High Court Division also did not commit any wrong or illegality in upholding this judgment and order passed in Criminal Revision No.906 of 1999.

Md. Shahidul Islam =VS= Shopon Bepari & another, (Criminal), 2016-[1 LM (AD) 530]

Code of Criminal Procedure (V of 1898)

Section 173

Re-investigation or a further investigation is a matter of semantics–

Appellate Division helds that there is no gainsaying that the Code of Criminal Procedure does not provide for reinvestigation of any case. Whether or not the investigation done in any case subsequent to the submission of a charge sheet after the initial investigation is completed, is the result of a “reinvestigation” or a “further investigation” is a matter of semantics. The question that may be posed is whether or not there would be any prejudice if instead of calling it “reinvestigation”, the second investigation was termed “further investigation”, which is allowed by the law. Under normal circumstances, if on the basis of fresh evidence a supplementary charge sheet is submitted, for example by adding names of accused person(s) who had not been included in the initial charge sheet, there would be no questioning the legality of the supplementary charge sheet. That clearly is the purpose of section 173 (3B) of the Code.

Abul Bashar Chowkidar  =VS= Abdul Mannan & others, (Criminal), 2016-[1 LM (AD) 541]

Code of Criminal Procedure (V of 1898)

Section 374

The appellant has been in death cell since 12.08.2002 and by the judgment he suffered the agony of death for the last 9(nine) years, 6(six) months and 9(nine) days. In the facts of the case, justice would be best served if the sentence of death awarded to the appellant is altered into one for imprisonment for life with fine, of taka 10,000.00 only, in default, to suffer rigorous imprisonment for 6(six) months.

Momtaj Ali @ Babul  =VS= The State, (Criminal), 2016-[1 LM (AD) 557]

Code of Criminal Procedure (V of 1898)

Section 103

If the seizure list witnesses do not corroborate the police officers, and the tribunal is satisfied that the seizure of the contraband goods has been made following the procedures prescribed in section 103 of the Code of Criminal Procedure, a conviction can be given relying upon them. The conviction of the accused person in such circumstances cannot be said to be illegal.   

Md. Akram =VS= The State, (Criminal), 2016-[1 LM (AD) 582]

Code of Criminal Procedure (V of 1898)

Section-164

The victim made a statement under section 164 of the Code of Criminal Procedure admitting that she voluntarily eloped with the accused Anowar and married him, her consent carries no value, inasmuch as, she was a minor girl. The High Court Division was correct in holding such view. A minor's consent is no con-sent in the eye of law. Since the victim was found minor on the day of occurrence, even if it is taken that she eloped with the accused Anowar.

Hannan & others =VS= The State, (Criminal), 2016-[1 LM (AD) 585]

See also: Cr. P. C, Section-561A[1 LM (AD) 467]

See also: Children Act, 1974 , [1 LM (AD) 520]

See also: Commuted death sentences to imprisonment for life, [1 LM (AD) 501]

See also: Circumstantial evidence, [1 LM (AD) 505]

D

Difference between cheating and breach of contract– In every case of cheating there is implicit agreement between the parties. The vital factor to be considered is whether at the time of agreement there was intention to carry out the terms of the contract or not. If there is nothing to show that there was no intention at the time of agreement which was arrived at, but the failure to fulfill the terms of the agreement was the subsequent event, the offence of cheating cannot be said to have been committed. It would only be a case of breach of contract.

Prof. Dr. Motior Rahman =VS= The State & another, (Criminal), 2016-[1 LM (AD) 587]

See also: Dying declaration, [1 LM (AD) 511]

See also: Dishonoured due to insufficient fund, [1 LM (AD) 591]

E

Evidence Act [I of 1872]

Section 32

Dying declaration– A conviction can be based upon a dying declaration if it is found true, voluntary and free from being tutored or influenced by others.

The persons who record the dying declaration must take care in recording the statement of the declarant/victim. A dying declaration is recorded when the attending doctor suspects that there is little chance of survival of the victim and intimates the near ones about his condition or the investigating officer so that the investigation officer can arrange for recording the dying declaration. If the dying man is capable of making a statement, any person may record his statement in the language of the maker. There is no hard and first rule in recording the such statement. It may be recorded by the investigation officer himself or by the attending doctor or by any relation of the victim. The court can act upon the dying declaration without being recorded by a Magistrate if the statement of the witness who proves the recording is found to be true and voluntary.

Tofayel Ahmed =VS= The State, (Criminal), 2016-[1 LM (AD) 511]

Evidence Act [I of 1872]

Section 32

Non disclosure of the appellant name of the name at the initial stage and the disclosure after 9 days of the occurrence itself is a good ground to disbelieve it–

The Appellate Division observed that the High Court Division ought to have considered the non-disclosure of the appellant  name at the initial stage and the disclosure after 9 days of the occurrence itself is a good ground to disbelieve it so far the appellant is concerned particularly when there is admitted enmity between the parties.

Tofayel Ahmed =VS= The State, (Criminal), 2016-[1 LM (AD) 512]

Evidence Act, 1872(I OF 1872)

Section 106

Section 106 No independent witness was examined by the Investigating Officer nor cited as witness in this case, thus creating doubt.

The Appellate Division finds that it is true that a case where section 106 of the Evidence Act is applicable, i.e. when the victim was last seen with the alleged accused, the accused has a duty to explain how the victim died. However, in the instant case there is no independent corroborative witness with regard to the deceased being in the company of the accused in spite of the fact that the houses of the victim’s father and that of her husband are near to each other and they are surrounded by many other houses of persons who would be independent witnesses, but no independent witness was cited in the charge sheet or examined by the prosecution in support of the prosecution case. Moreover, the allegation of the victim having been killed by her husband on account of non-payment of dowry is belied by the fact that the victim was apparently killed after having been gang raped as indicted in the post mortem report and supported by the inquest report. The defence suggestion that the victim went out of her father’s house to watch a show at the local school or that she may have been taken out of her father’s house and raped and killed thereafter cannot be overlooked in view of the finding of the post mortem examination that the victim was gang raped. The fact of the victim having been gang raped is not commensurate with the prosecution claim that the accused, being the husband, killed his wife for dowry. The Appellate Division also note from the cross examination of P.W. 3 Md. Mofazzel Hossain, who is a brother of the informant that he stated ""Bj¡l ®j­u­L A‘¡a ®m¡®L doÑZ L­l j¡¢lu¡­R  B¢j hm­a f¡¢lh e¡z''(emphasis added) which is clearly prevarication, particularly in view of the fact that the post mortem examination report clearly indicates gang rape prior to murder. Accordingly, the criminal petition for leave to appeal is dismissed.

The State =VS= Md. Akinur Rahman, (Criminal), 2016-[1 LM (AD) 537]

See also: Evidence Act [I of 1872], Section 27, [1 LM (AD) 483]

See also: Expunged Evidence, [1 LM (AD) 437]

See also: Emergency Power Rules, 2007, Rule 194 T (1) and 19 T (5) , [1 LM (AD) 548]

F

Foreign Exchange Regulation Act [VII of 1947]

Section 23 read with

Emergency Power Rules, 2007

Rule 194T (1) and 19 T (5)

The Appellate Division observed that for contravention of any of the provisions of the Foreign Exchange Regulation Act, 1947 proceedings are to be initiated on presentation of complainant by a person duly authorized either by the Government or by the Bangladesh Bank. The F.I.R. on the basis of which the case was started and the court took cognizance of the case was filed by a police officer who was not at all authorized either by the Government or by the Bangladesh Bank to lodge that F.I.R. and in the circumstances the whole proceeding was illegal, hence it is dismissed.

The State =VS= Ahmed Akbar, (Criminal), 2016-[1 LM (AD) 548]

M

Madok Drabba Niontran Ain, 1990

Section 22 (Ga)

We have gone through the judgments of both the trial court and the appellate court below and found that both the courts, on careful examination and consideration of evidence adduced by the prosecution found the charge against both the accused-persons proved beyond all reasonable doubt. We find no wrong in these concurrent findings and decision of the trial court and the appellate court below. Rather we, in agreement with the trial court and the appellate court below, find that the charges framed against both these accused-petitioners were proved beyond all reasonable doubt by sufficient convincing evidence and in the circumstances this criminal petition for leave to appeal has no merit.

Md. Hosen Ali & another =VS= The State, (Criminal), 2016-[1 LM (AD) 481]

Modesty– Modesty is the attribute of female sex and she possesses it irrespective of her age. The question of infringing the modesty of a woman is depended upon the customs and habit of the people. Acts which are outrageous to morality would be outrageous to modesty of women. Modesty is defined as the quality of being modest and in relation to woman, womanly propriety of behavior, scrupulous chastity of thought, speech and conduct. It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions.

"Modesty" of a women is intimately connect with feminity including her sex.  

Dr APM Sohrab-uz-zaman =VS=State, (Criminal), 2016-[1 LM (AD) 467]

Meticulous examination–The Appellate Division opined that the High Court Division, on thorough and meticulous examination and consideration of the evidence on record and also other facts and circumstances rightly acquitted both the accused-respondents by the impugned judgment and order. In the circumstances this criminal petition for leave to appeal be dismissed.

The State =VS= Asif Khan Riyad & another, (Criminal), 2016-[1 LM (AD) 535]

See also: Meaning of life sentence, [1 LM (AD) 571]

N

Nari-O-Shishu Nirjatan Daman Ain [VIII of 2000]

Section 9Ka

The imperative ingredients of 9Ka of the Ain are that there must be an act of abetment of committing suicide of a female (bvixi AvZ¥nZ¨v Kwi‡Z cÖ‡ivwPZ Kwievi....Ó) that there must be a wilful act of the accused Ò[e¨w³i B”QvK…Z (wilful) ‡Kvb Kvh©]Ó;  that the said wilful act is done without the consent of the victim or against her will [...bvixi m¤§wZ Qvov ev B”Qvi weiæ‡×]  that the said wilful act violates her modesty [...Kvh© Øviv m¤£gnvbx] and that violation of her modesty is the direct cause of her to instigate suicide by his aforesaid act Ò m¤£gnvbx nBevi cÖZ¨ÿ Kvi‡Y †Kvb bvix AvZ¥nZ¨v Kwi‡j D³ e¨w³ bvix‡K Abyiƒc Kvh© Øviv AvZ¥nZ¨v Kwi‡Z cÖ‡ivwPZ Kwievi]

Dr APM Sohrab-uz-zaman =VS=State, (Criminal), 2016-[1 LM (AD) 466]

Nari-O-Shishu Nirjatan Daman Ain [VIII of 2000]

Section 9(Ka) read with

The Code of Criminal Procedure

Section-561A

Quashment–

Abetment of suicide– Considering the facts and circumstances as revealed from the prosecution papers our considered view is that there was no direct incitement or mensrea on the part of the appellant which comes within the definition of abetment of suicide. In this case, the materials on record, prima-facie, do not disclose an offence under section 9Ka of the Ain and therefore the accused appellant ought not to be tried upon the charge.

The judgment and order of the High Court Division is set aside and the proceeding is quashed.

Dr APM Sohrab-uz-zaman =VS=State, (Criminal), 2016-[1 LM (AD) 467]

Nari-O-Shishu Nirjatan Daman Ain [VIII of 2000]

Section 9(2)

Charge framing date is the relevant date for considering the age of the accused under the Children Act, 1974 – The Appellate Division has given our anxious thought to the age of the victim who was 20 years old at the time of the occurrence and the fact that he has been in the condemned cell suffering the pangs of death for more than 10 years. The Appellate Division is inclined to commute the sentence of death to one of imprisonment of life. Accordingly, the criminal appeal is dismissed and the sentence of death is modified to one of imprisonment for life.

Manik =VS= The State, (Criminal), 2016-[1 LM (AD) 520]

Nari-O-Shishu Nirjatan Daman Ain [VIII OF 2000]

Section 10 read with

Penal Code [XLV OF 1860]

Sections 143/448/385 and 506

A case which is not proved due to lack of evidence does not necessarily mean that it was false.

The Appellate Division observed that it must be realized that there is an ocean of difference between a case being false and a one being not proved due to lack of evidence. A case which is not proved due to lack of evidence does not necessarily mean that it was false. Moreover, the High Court Division has observed that on the selfsame matter the complainant petitioner obtained a money decree by way of compensation and there was no reason or satisfactory ground to admit the complainant’s appeal and, accordingly, dismissed the appeal summarily. Appellate Division does not find any reason to interfere with the decision of the High Court Division. Accordingly, petition is dismissed.

Md. Shibli =VS= Salma Sultana Hashi & another, (Criminal), 2016-[1 LM (AD) 545]

Nari-O-Shishu Nirjatan Daman Ain [VIII of 2000]

Sections 11(Kha) and 30

Merely signing the salishnama does not necessarily imply that the complainant admitted the allegation brought against her–

The Appellate Division directed that the following paragraph be expunged from the judgement and order of the High Court Division: The trial court should have taken into consideration that the victim was not a person of good character particularly exhibit-X shows that she had an illicit connection with her brother-in-law (বড় ভগ্নিপতি) which had been admitted by herself in putting her signature in a salishnama, accordingly petition was dismissed.

The State =VS= Md. Rofizal Haque, (Criminal), 2016-[1 LM (AD) 550]

Nari-O-Shishu Nirjatan Daman Ain

In the facts of the instant case, a 13 year old house maid has undoubtedly been raped and there is no reason why the victim, who suffered the trauma and the stigma that goes with it, should not be believed. She has put herself in an invidious situation where she will be shunned and marginalised for the rest of her life and yet she has been disbelieved. This is clearly a travesty of justice. (Minority View)

The State =VS= Mostafizur Rahman & another, (Criminal), 2016-[1 LM (AD) 562]

In facts, the story of rape itself gives rise to a grave suspicion implicating the accused, respondent; as such it will be fully within the domain of the appellate court to acquit the accused. Moreover, the reason of delay in lodging FIR even after the release of the victim from the clutch of the accused has not been properly described; so it is very difficult to consider the evidence of prosecutrix, P.W.2 as beyond any reasonable doubt which is the fundament requirement of conviction of an accused person(Majority View)

The State =VS= Mostafizur Rahman & another, (Criminal), 2016-[1 LM (AD) 562]

Nari-O-Shishu Nirjatan Daman Ain [VIII of 2000]

Section 9(1)/30

Granting bail to the accused-respondent for a period of 6(six) months. The accused-respondent was convicted under section 9(1)/30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and sentenced to suffer imprisonment for life and to pay a fine of Tk. 5,000/—, in default, to suffer rigorous imprisonment for 4(four) months more.

We find that the High Court Division was not justified at all to grant this accused-respondent bail during pendency of the appeal. In the circumstances we set aside the impugned order of the High Court Division granting bail to the accused-respondent.

The State =VS= Hafej Bakaul, (Criminal), 2016-[1 LM (AD) 594]

Nari-O-Shishu Nirjatan Daman Ain [VIII of 2000]

Section 11(Ka)

Sentenced him to death– The High Court Division also directed the trial judge to conclude the trial expeditiously and to keep the accused in custody till conclusion of the trial. The learned advocate, however, could not deny the fact that both the trial court and also the High Court Division have found that this accused-petitioner murdered his wife. We direct the trial court concerned to conclude the trail of the case against this  accused-petitioner within 6(six) months from the date of receipt of the copy of this order.

Lokman Sarder =VS= The State, (Criminal), 2016-[1 LM (AD) 579]

Negotiable Instrument Act

Sec-138

Dishonoured due to insufficient fund– We also find it difficult to accept that if the petitioner had in fact paid the money owed to the complainant in the year 2011, as alleged by him, that he did not take any steps to stop payment of the cheque issued by him earlier, especially when he himself states that the complainant told him that the cheque was lost, keeping in mind that anyone could attempt to encash that cheque. From 24.7.2011, when the petitioner apparently paid Tk.10 lac by Pay Order, till 18.09.2012 when the complaint was lodged, the petitioner did nothing to retrieve the cheque or to stop payment of the cheque. He admitted in his cross examination that he did not file any G.D. in respect of the non-return of the cheque. Moreover, we find from the deposition of the petitioner (D.W.1) that he admitted in cross examination of other transactions between himself and the complainant with regard to sale of land by the complainant and his wife and the payment of money in 2011.

M.A. Azam Chowdhury =VS= A.B.M. Asaduzzamn & another, (Criminal), 2016-[1 LM (AD) 591]

Normally Supreme Court does not reassess of the evidence– Normally Appellate Division does not interfere with the judgment of the High Court Division on appeal if it is found that the judgment is based on proper appreciation of the evidence. It cannot reassess the evidence afresh as a court of appeal to examine whether or not the High Court Division has properly appreciated the evidence.

Md. Akram =VS= The State, (Criminal), 2016-[1 LM (AD) 581]

P

Penal Code [XLV of 1860]

Sections 406/407 and 408

Value of statement of who was not examined in the case as a witness in accordance with law– The Appellate Division observed that the High Court Division set aside concurrent findings of fact by placing reliance on the statement of a witnesses, who was not examined in the case as a witness in accordance with law, in disregard and derogation of the evidence on record and as a result, there has been a grave failure of justice.

Md. Abdul Awal =VS= Md. Abdul Barek & another, (Criminal), 2016-[1 LM (AD) 492]

Penal Code [XLV of 1860]

Part I of section 304

The Appellate Division is of the view that the offence attracts section 304 of the Penal Code, which contains two parts. The evidence on record proved that the appellant intentionally inflicted the injury/injuries with a pistol aiming the abdomen and chest either to cause death or to cause such bodily injury which is likely to cause death and therefore, his act attracts Part I of section 304 of the Penal Code. Since the appellant used a pistol and shot at chest, he deserves the maximum sentence provided in Part I of Section 304 and shall also liable to fine.

Tofayel Ahmed =VS= The State, (Criminal), 2016-[1 LM (AD) 512]

Penal Code, 1860

Section 406/420:

It appears from the petition of complaint that the respondent sent taka 6,00,000/- to the appellant through Bank with an understanding that he would supply the cloths at a reduced rate during Eid period. Though the appellant admitted that he had received the said amount but without supplying clothes he had repaid his loan by the said money, thereby, misappropriated the same. Lastly, he denied repaying the said money to the complainant. From the aforesaid facts and circumstances, it is difficult to accept that prima-facie ingredients of section 406/420 of the Penal Code had not been established against the appellant.

Sree Gopal Chandra Barman =VS= Md. Nasirul Hoque, (Criminal), 2016-[1 LM (AD) 495]

Penal Code, 1860

Section 302/34

In the facts of the case before us, where there is some inkling of a doubt as to which of the shots from the firearms of the accused caused the death, or conversely which one of the three accused who fired the shots missed his target, the application of sections 302/34 of the Penal Code was correct, but the question remains as to whether the death sentence would be appropriate. We are inclined towards the view that where the conviction is not under section 302 of the Penal Code simpliciter, and where the complicity of the accused is proved by the aid of section 34 of the Penal Code, then the sentence of death would not be appropriate.

Sohel Dewan =VS= The State & another, (Criminal), 2016-[1 LM (AD) 497]

The Penal Code

Sections 302/34

Commuted death sentences to imprisonment for life– Druto Bichar Tribunal Case No.22 of 2005 convicting the accused -respondents herein and others under sections 302/34 of the Penal Code and sentencing them there under to death. The High Court Division reason commuted their death sentences to imprisonment for life.  The High Court Division has clearly stated the reason of commuting the death sentences to imprisonment for life. The High Court Division has stated to the effect that since the age of the appellants (the convicted respondents herein) were not that much and they had just attained the age of majority they (the learned Judges) found it justified to commute the sentences of death to imprisonment for life. We find no reason to interfere with the above observation and decision of the High Court Division.

The State =VS= Saifullah Al-Mahmood Tanvir & others, (Criminal), 2016-[1 LM (AD) 501]

Penal Code

Sectoin-302/201/34

Circumstantial evidence– It is settled principles that where the inference of guilt of an accused is to be drawn from circumstantial evidence only, those circumstances must, in the first place, be cogently established. Further, those circumstances should be of a definite tendency pointing towards the guilt of the accused, and in their totality, must unerringly lead to the conclusion that within all human probability, the offence was committed by the accused excluding any other hypotheses. Such circumstances are totally absent in this case, particularly when the story of administering poisons is found to be doubtful.                        

Haji Mahmud Ali Londoni =VS= The State, (Criminal), 2016-[1 LM (AD) 505]

Penal Code (XLV OF 1860)

Sections 302 & 109

In view of the evidence the Appellate Division held that the appellant could not be solely saddled with the "short gun fire injury on the deceased, Abdur Rakib" resulting in his death, particularly when the other accused had also guns and they fired from their guns as well. In view of the matter, the High Court Division took the right decision in affirming the sentence of death awarded to the appellant. Appellate Division is of the view that justice would be best served if the sentence of death awarded against the appellant is altered into one for imprisonment for life with fine.

Momtaj Ali @ Babul  =VS= The State, (Criminal), 2016-[1 LM (AD) 557]

Penal Code

Section 45 & 57

Meaning of life sentence– The way it has been interpreted, the word “life” does not bear its normal linguistic meaning. In other words, a person sentenced to imprisonment for life does not necessarily spend his life in prison, although section 45 of the Penal Code defines “Life” as the life of a human being unless the contrary appears from the context. The given interpretation has been arrived at with the aid of section 57 of the Penal Code, which provides that in calculating fraction of terms of punishment, imprisonment for life shall be reckoned as equivalent to rigorous imprisonment for 30 (thirty) years. This last mentioned section read with relevant provision of the Jail Code effectively means that a person sentenced to imprisonment for life will be released after spending a maximum of 22.5 years in prison. Under section 35A of the Code of Criminal Procedure the period of time spent by the accused in custody during pendency of the trial would be deducted from his total sentence. Thus we find that in many serious murder cases, where the trial lasts for many years, the accused who is found guilty and sentenced to imprisonment for life gets released after serving a total of 22½ years including the period spent in custody during trial.           

Rokia Begum =VS= The State, (Criminal), 2016-[1 LM (AD) 571]

Penal Code, 1860

Section 39 and 491:

Section 39 of the Penal Code defines the term voluntary, means a willful omission to attend on the employer. Such willful omission must arise from something more than mere careless or negligence. It must be an omission of which the employee is conscious though he may not advert to the consequence. The legal contract must take shape of service for the helpless master or employer, for example, a curator of a lunatic, or a doctor and a nurse employed in the hospital, who may render himself liable to the penalty under this section if he agreeing to look after the patient, voluntarily deserts the patient or omits to attend the patient.

The complainant was not the one who is neither a lunatic nor a bodily incapable person or has been suffering from a disease for which he has entered into a contract with the appellant to take care of him and in that view of the matter, the offence alleged in the complaint does not attract section 491 of the Penal Code.

Prof. Dr. Motior Rahman =VS= The State & another, (Criminal), 2016-[1 LM (AD) 587]

The Penal Code

Sections 302/34

The evidence of the prosecution witnesses have been corroborated fully by the own confessional statements of these condemned prisoners which have been found voluntary and true by both the trial court and the appellate court.

Shahid Ullah & others =VS= The State, (Criminal), 2016-[1 LM (AD) 595]

The offence which these two condemned prisoners committed is most heinous and brutal. These two condemned prisoners along with other accused Mir Hossain, with cool brain, made a plan to hijack a baby taxi by killing the driver and according to that pre- plan they hired the C.N.G. baby taxi of the deceased as passengers and took the baby taxi to a lonely place and thereafter they murdered the baby taxi driver brutally. This type of crime is on the increase in our society. For hijacking a baby taxi or any other vehicle the hijackers do not hesitate for a moment to take the life of the innocent driver of the vehicle which is very much precious for the near and dear ones of that poor driver. This type of killers/murderers cannot and should not get any mercy from the court of law.

Shahid Ullah & others =VS= The State, (Criminal), 2016-[1 LM (AD) 595]

Prevention of the Corruption Act [II of 1947]

Section 2

Trustee is a public servant– The petitioner prayed for set aside the charge leveled against her on the ground that she purchased  the property not as Prime Minister but as trustee of Shahid Ziaur Rahman trust, the Appellate Division  helds that as per provision of Section 2 of the Prevention of the Corruption Act, 1947 trustee is also a public servant.

Khaleda Zia =VS= The State & another, (Criminal), 2016-[1 LM (AD) 553]

See also: Penal Code (XLV of 1860), Sections 161 and 165A, [1 LM (AD) 474]

See also: Penal Code (XLV of 1860), Sections 161 and 165A, [1 LM (AD) 477]

See also: Penal Code [XLV of 1860], Sections 420/406/468, [1 LM (AD) 503]

See also: Prevention of Corruption Act[II of 1947], Section 5(2) , [1 LM (AD) 527]

See also:Penal Code, 1860(XLV of 1860), Sections 323, 325, 326 and 307, [1 LM (AD) 530]

See also: Penal Code [XLV OF 1860], Sections 143/448/385 and 506, [1 LM (AD) 545]

Q

See also: Quashment, [1 LM (AD) 467]

R

See also: Re-investigation, [1 LM (AD) 541]

S

Special Powers Act (XIV of 1974)

Section 25B (2)

Neither in the FIR nor in the evidence of P.W.1 or in the evidence of other witnesses, there is any allegation that the petitioner has kept or carried one bottle of phensedylfor the purpose of sale. It is the consistent case that the phensedyl bottle was recovered from his possession while the petitioner was approaching towards Dupchanchia. Only possession of contraband goods does not constitute an offence of smuggling within the meaning of section 25B (2). It is only if any person keeps in his possession for the purpose of sale of the contraband goods the bringing of which is prohibited by law, an offence of the second category of smuggling will be attracted.

Md. Akram =VS= The State, (Criminal), 2016-[1 LM (AD) 581]

Second charge sheet is not one contemplated under the law and hence it is illegal– Appellate Division is of the view that the second charge sheet is not one contemplated under the law and hence it is illegal. No trial can take place against accused Ayatun Nahar, on the basis of such illegal and palpably motivated charge sheet. Accordingly the impugned judgement and order passed by the High Court Division is modified. The direction of the High Court Division so far as it relates to Ayatun Nahar is set aside.

Abul Bashar Chowkidar  =VS= Abdul Mannan & others, (Criminal), 2016-[1 LM (AD) 541]

See also: Sentenced him to death, [1 LM (AD) 579]

T

See also: Trustee is a public servant, [1 LM (AD) 553]


 

THE LAW MESSENGER

VOLUME–I (2016)

INDEX

 

SUPREME COURT OF INDIA

(CIVIL & CRIMINAL JURISDICTION)


The Constitution of India

 

Articles-32 & 226

 

Extraordinary power of the Constitutional Court–

 

It  is  well  settled  that  the  extraordinary  power  of  the constitutional courts in directing C.B.I.  to  conduct  investigation  in  a case must be exercised  rarely  in  exceptional  circumstances,  especially, when there is lack of confidence in  the  investigating  agency  or  in  the national  interest  and  for  doing  complete  justice  in  the  matter. Despite wide powers conferred by Articles 32 and 226  of  the  Constitution, while passing any order, the Courts, must bear in mind certain  self-imposed limitations on the  exercise  of  these  constitutional  powers.

 

Sujatha Ravi Kiran =VS= State of Kerala (Civil), 2016-[1 LM (SC) 619]

 

The  Dowry  Prohibition Act  1961

 

Section-6 read with

 

Cr.P.C

 

Section -482

 

Quashment

 

In the absence of  specific  allegations  of entrustment of the dowry amount and articles to appellants 2 to  6,  in  our view, continuation of the criminal proceeding against appellants 2 to  6  is not just and proper and the same is liable to be quashed.

 

Bobbili Ramakrishna Raju =VS= State of Andhra Pradesh (Criminal), 2016-[1 LM (SC) 610]

 

IPC

 

Section-34

 

Common intention–

 

Section 34 IPC, it must be established that the criminal  act  was  done  by more than one person in furtherance of common intention  of  all.  It  must, therefore, be proved that:- (i) there was common intention on the  part   of several persons to  commit  a  particular  crime  and  (ii)  the  crime  was actually committed by them in furtherance of that common  intention.  Common intention implies pre-arranged plan. Under Section 34 IPC.

 

Sudip KR. Sen =VS= State of West Bengal (Criminal), 2016-[1 LM (SC) 606]

 

The Negotiable Instruments Act, 1881

 

Section-138

 

The  cheques issued by him were not ornamental but were meant  to  be  presented  if  the amount in question was not paid within the extended period–

 

The  trial  court  found  the  Respondent guilty and accordingly  convicted  him  for  the  offence  punishable  under Section 138 of the Negotiable Instruments Act, 1881  and  sentenced  him  to undergo simple imprisonment for a period  of  one  year. In  addition,  the trial court awarded compensation to the Complainant/Appellant in  a  sum  of Rs.12,00,000/- to be paid within a period of three months.

 

The Respondent  preferred  Criminal  Appeal  No.9  of  2010  before   Additional Sessions Judge, Kamrup at Guwahati, who, while upholding the  conviction  of the Respondent modified the sentence awarded to him to payment of a fine  of Rs.2,000/-  (Rupees  Two  Thousand  only)  and,  a   default   sentence   of imprisonment for a period of  one  month,  in  addition  to  the  amount  of compensation awarded by the trial court.

 

The  High  Court  has, as seen earlier, set aside the conviction  of  the  Respondent  and  allowed Criminal Revision No.41 of 2012.

 

A  negotiable  instrument  is  supported  by consideration there was no dispute that such a consideration existed  in  as much as the cheques were issued in connection  with  the  discharge  of  the outstanding liability against Nazimul Islam.  At  any rate  the  endorsement made by the respondent on the  promissory  note  that  the  cheques  can  be presented for encashment after 25-09-2007 clearly  shows  that  the  cheques issued by him were not ornamental but were meant  to  be  presented  if  the amount in question was not paid within the extended period.  The High  Court in our view fell in error  in  upsetting  the  conviction  recorded  by  the Courts below who had correctly analysed the factual  situation  and  applied the law applicable to the same.

 

Don Ayengia =VS= The State of Assam (Criminal), 2016-[1 LM (SC) 600]

 

The Penal code

 

Sections– 384, 511,  420 and 120B

 

Voice  sample for the purpose of comparison–

 

The  Appellants  demanded  a sum of money to refrain from telecasting programmes on a television  channel pertaining to the alleged involvement of a corporate entity  in  a  wrongful activity  pertaining  to  the  allocation  of  coal  blocks.  The  FIR   was registered against the Appellants for offences under Sections 384, 511,  420 and 120B of the Penal code.

 

Our directions ensure that the text which the Appellants  would  be  called upon to read out for the purpose of drawing their  voice  samples  will  not have sentences from the inculpatory text.  Similarly,  permitting  the  text to contain words  drawn  from  the  disputed  conversation  would  meet  the legitimate concern of  the  investigating  authorities  for  making  a  fair comparison.

 

Sudhir Chaudhary =VS= State (NCT of Delhi) (Criminal), 2016-[1 LM (SC) 615]

 

Posts  of  Legal  Advisors,  Law Officers and Law Instructors on contractual  basis,  the  tribunal and  the High Court ought not to have interfered with the  policy  decision of the Government– 

 

The Government Resolutions dated 21.08.2006 and 15.09.2006 and  also  the  terms of the agreement entered  into  by  the  respondents  with  the  government. Creation of posts was only for administrative purposes for sanction  of  the amount towards expenditure  incurred  but  merely  because  the  posts  were created, they cannot be held to be permanent in nature. When the  government has taken a policy decision to fill up 471  posts  of  Legal  Advisors,  Law Officers and Law Instructors on contractual  basis,  the  tribunal  and  the High Court ought not to have interfered with the  policy  decision  to  hold that the appointments are permanent in nature.

 

STATE OF MAHARASHTRA =VS= ANITA (Civil), 2016-[1 LM (SC) 632]

 

Recovery of excess payment–

 

In the present case, the  officer  to whom the payment was made in  the  first  instance  was  clearly  placed  on notice that any payment found to have been made in excess would be  required to be refunded. The officer furnished an undertaking while  opting  for  the revised pay scale.

 

High Court of Punjab & Haryana =VS= Jagdev Singh (Civil) [1 LM (SC), (2016) 623]

 

Dispose of the  complaint  within  six months–

 

The original  complaint  was  filed  in the year 2013, we direct the Board to dispose of the  complaint  within  six months from today.   We  also  grant  liberty  to  the  complainant,  if  so required, to make  an  application  before  the  Board  for  an  appropriate interim order after completion of the  pleadings  and  in  which  case,  the Board may dispose of the application within three months.

 

Gail (India) Ltd =VS= Petroleum and Natural Gas Regulatory Board (Civil), 2016-[1 LM (SC) 625]

 

The  Arbitration  and Conciliation  Act,  1996

 

Section-11 (5) read  with  Section  11  (9)

 

An arbitration agreement exists  between  the  parties–

 

When  an arbitration agreement exists  between  the  parties,  the  present  petition under Section 11 (5) read  with  Section  11  (9)  of  the  Arbitration  and Conciliation  Act,  1996,  shall  have  to  be  allowed   with   appropriate directions.

 

ETOILE CREATIONS =VS= SARL DANSET DECO (Civil), 2016-[1 LM (SC) 628]

 

 

THE LAW MESSENGER

VOLUME–I (2016)

INDEX

 

SUPREME COURT OF PAKISTAN

(CIVIL & CRIMINAL JURISDICTION)


The Anti-Terrorism Act, 1997

Section-6(1) (b) or (c) read with

PPC

Section-302/34

Mens rea–

A private offence committed in the privacy of a home with no design or purpose contemplated by section 6(1)(b) or (c) of the Anti-Terrorism Act, 1997. We have, thus, entertained no manner of doubt that the allegations leveled against the appellant and his co-accused in the present criminal case did not attract the jurisdiction of an Anti-Terrorism Court, the learned Sessions Judge, Mastung was not justified in transferring the case to an Anti-Terrorism Court and the High Court was also not legally correct in dismissing the appellant’s revision petition. This appeal is, therefore, allowed, the impugned orders passed by the learned Sessions Judge, Mastung as well as the High Court of Balochistan, Quetta are set aside and it is declared that the appellant’s case is to be tried by a court of ordinary jurisdiction.

Khuda-e-Noor =VS= The State (Criminal), 2016-[1 LM (SC) 650]

The Constitution of Pakistan

Article 212(3)

Up-gradation in distinct from the expression promotion–

The Service Tribunals have no jurisdiction to entertain any appeal involving the issue of upgradation, as it does not form part of the terms and conditions of service of the civil servants.

Income Tax Commissioner =VS= Syed Munawar Ali (Civil), 2016-[1 LM (SC) 643]

PPC

Section-302(b)

Dying declaration–

On the basis of a dying declaration the trial court for an offence under section 302(b), PPC and was sentenced to death and to pay compensation but on appeal his sentence of death was reduced by the High Court to imprisonment for life.

A dying declaration is an exception to the hearsay rule and, thus, the same is to be scrutinized with due care and caution, particularly in the backdrop of the observations made by different Courts about veracity of a dying declaration in the Province of the Punjab and a reference in this respect may be made to the cases of Bakhshish Singh alias Bakhshi and others v. Emperor (AIR 1925 Lahore 549), Tawaib Khan and another v. The State (PLD 1970 SC 13) and Usman Shah and others v. The State (1969 P.Cr.L.J. 317).

The prosecution had failed to prove its case against Riyat Khan appellant beyond reasonable doubt.

Respondent No. 1 namely Riyat Khan has been acquitted by this Court today upon acceptance of his Criminal Appeal No. 236 of 2010.

Muhammad Ameer =VS= Riyat Khan (Criminal), 2016-[1 LM (SC) 653]

Representation of the People Act, 1976

Section-52

Concealment of asset–

The Tribunal after framing issues and recording evidence of the parties, accepted the Election Petition on the ground of concealment of asset. Appellant’s election was declared void and fresh election in the constituency was ordered. Being aggrieved by such decision the appellant filed the present appeal.

Eventuality also he would have only claimed return of his investment plus damages and nothing more. So the question of concealment of ownership in Koh-e-Noor Textile Cotton Mills does not arise. The finding of the Election Tribunal in these circumstances is not sustainable in law.

Ch. Hamid Hameed =VS= Barrister Abdullah Mumtaz (Civil), 2016-[1 LM (SC) 637]

Second F.I.R–

Recording of second FIR depends upon the facts of each case and the matter is to be seen in the context of totality of the circumstances and allegations.

In the instant case due to onesided version disclosed in earlier FIR No.17/2010, the investigating agency never bothered to look into the crime from another angle as narrated in the other FIR dated 27.08.2015, which means that as per assertions of Respondent No.1, the alleged culprits could have otherwise escaped from their criminal liability successfully at the very initial stage without even being charged for the offence on the basis of misleading contents of earlier FIR.

Ali Muhammad =VS= Syed Bibi (Criminal), 2016-[1 LM (SC) 645]

Exemption of customs duty and sale tax On-Highway Truck/Off-Highway dump truck–

Plant mentioned in SRO 484(I)/92 dated 14.05.1992 bringing the Off- Highway dump trucks within its ambit.

On-Highway truck is meant for long hauls, it also has a bunk in its cabin for its use as driver’s sleeping area. In contrast to such utility, the Off-Highway dump truck, as decided by us in the case of Collector of Customs Vs. D.G. Khan Cement Company Limited is specifically designed for use in difficult terrains where the activities of mining, quarrying or construction of big buildings are carried out. Purely on account of the specific design and utility of Off-Highway dump trucks in the industrial process of cement production that the same were brought within the ambit of plant.

Respondent companies were not entitled to claim exemption under SRO 575(I)/2006 dated 5.6.2006 and SRO 530(I)/2005 dated 6.6.2005 on Volvo FM 400 trucks that were imported by them as the same were found to be On-Highway trucks and not Off-Highway dump trucks. The customs authorities shall recover the customs duties and Sales Tax on all eighteen Volvo FM 400 trucks imported.

Collector of Customs =VS= M/s Best Way Cement (Civil), 2016-[1 LM (SC) 639]

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