The Law Messenger

Volume– III

2017 (2)

 

HEAD NOTE

(CIVIL & CRIMINAL JURISDICTION)


A

The Acquisition and Requisition of Immovable Property Ordinance, 1982

Section 3– We issue a writ and direct that the decision of the respondent Nos.1-3 in revoking the order of acquisition of land located at East Pahartali appertaining to B.S. Plot Nos.152 and 153 under police station Khulshi, Chittagong by memo dated 31st May, 2006 and the memos dated 22nd December, 2005 and 18th May, 2006 are declared to have been issued without lawful authority and of no legal effect. The respondent Nos.1-3 are hereby directed to proceed with the acquisition proceedings in accordance with law. However, we would like to observe that the acquisition notice should be issued upon the USTC which has already purchased the disputed land in question and is entitled to the compensation. Mohammad Zafar Iqbal =VS= Ministry of Liberation War Affairs, (Civil), 2017 (2)– [3 LM (AD) 402]

(Central)  Administrative Tribunal Ernakulam

Promotion– The Tribunal allowed the said applications and held  that  the appellants herein were not treated as qualified for promotion i.e.  eligible on the ground that they had not put in five years’  service  in  the  Kerala region of EPFO, having relied on the words in the above  quoted  Rule  which requires five years’ regular service “in the respective regions”. These  appeals  against  the  impugned common judgment and order dated  10.8.2011  passed  by  the  High  Court  of Kerala in O.P.(CAT) Nos.2518 and  2525  of  2011,  whereby  the  High  Court affirmed the order dated 19.7.2011  passed  by  the  Central  Administrative Tribunal Ernakulam. We allow these appeals, set aside  the  impugned  judgment  and order passed by the  High  court  as  also  the  aforesaid  order/s  of  the Tribunal insofar as these  appellants  are  concerned,  and  hold  that  the appellants are  entitled  to  be  treated  as  eligible  and  qualified  for promotion in the Kerala region for  the  post  of  EO/AO  in  the  Employees Provident Fund Organisation. M.M. Thomas =VS= Union of India, (Civil), 2017 (2)– [3 LM (SC) 30]

Anti-Corruption Commission Act, 2004

Section 38(2)– Sub-section (2) saved all actions undertaken by the Bureau of Anti-Corruption in exercise of powers under the Anti-Corruption Act. Though the Ain of 2004 came into force of 9th April, 2004, the Commission was constituted on 21st November, 2004. The sanction letter was accorded on 25th October, 2004, before the constitution of the Commission. Therefore, the sanction can be taken as has been accorded in accordance with sub-section (2) of section 38. More so, after the constitution of the Commission, the latter has accorded sanction of the charge sheet by letter under memo dated 21st November, 2004. Even if it is assumed that the previous sanction was not made in accordance with law, by reason of the according sanction of the charge-sheet by the Commission, there is no legal bar in prosecuting with the respondent in accordance with the Ain, 2004. Sayed Liaquat Hossain =VS= Barrister Md Rafiqul Islam Mia, (Civil), 2017 (2)– [3 LM (AD) 440]

The Arbitration Act, 2001

The High Court Division noted that the Arbitrator considered each and every item separately and individually and that in some items the Arbitrator did not pass any award as mentioned by first-party. The High Court Division came to a finding that it could not be said that the Arbitrator whimsically, erroneously, capriciously, passed the award in total non-consideration of materials on record. BWDB =VS= M/S. United Builders, (Civil), 2017 (2)– [3 LM (AD) 162]

Artha Rin Adalat Ain

Section 6(5)

Third party– A third party is neither a necessary nor a proper party in a suit for realisation of ‘FY’ against debtors. Therefore, neither section 19 nor section 41 has provided any provision to redress the grievances of a third party in respect of a mortgaged property. If someone takes loan from a bank by mortgaging another’s property by way of deceitful means or by resorting to forgery or collusion or by misrepresentation, the Adalat cannot adjudicate the issue. Sub-section (5) of section 6 has specifically provided the parties against whom a suit under the Ain can be filed. Other than those persons, there is no scope under the Ain to implead any person to add as defendant in the suit. Sekandar (Md.) =VS= Janata Bank Ltd., (Civil), 2017 (2)– [3 LM (AD) 448]

Artha Rin Adalat Ain

Section 32– The High Court Division held that if it could be shown that the decree was obtained by practicing fraud, the aggrieved party had its remedy under the Artha Rin Adalat Ain under section 32 by depositing 10% of the decreetal amount and that an independent suit is not maintainable. Sekandar (Md.) =VS= Janata Bank Ltd., (Civil), 2017 (2)– [3 LM (AD) 448]

Agreement for sale of Property– The judgment and decree passed by the trial Court is restored with modification of the amount of compensation which will now be Tk. two crores. The respondent is directed to execute and register the sale deed in question on receipt of this amount from the appellant within three months from date, failing which, the appellant will be at liberty to get the kabala deed executed and registered through Court on deposit of the said amount in Court. If the Purchaser fails to pay the amount ordered by us within the time allowed by us, then the agreement for sale in question shall stand cancelled and the Vendor will be entitled to regain vacant possession of the suit property within one month thereafter. Mahua Khair =VS= Amena Begum Ali Ispahani, (Civil), 2017 (2)– [3 LM (AD) 246]

50 lacs  as damage and compensation penalising the bank– The High Court Division found that the exigencies demanded an expeditious disposal of the proposal made by the plaintiff company for sale of some of the land mortgaged with the bank with a view to salvaging the plaintiff Mills, and hence, since the bank did not act promptly, it should be made liable to pay Tk. 50 lacs to the plaintiff company. The High Court Division felt that had the bank taken prompt action with regard to the proposed sale of the land then the bank’s loan could have been managed preventing litigation between the parties. W. Rahman Jute Mills Ltd. =VS= Rupali Bank Ltd., (Civil), 2017 (2)– [3 LM (AD) 499]

Appointment– It clear that in case any of the teachers has been  working elsewhere or has been working in a  different  capacity  in  the  Institute, such  teachers  shall  not  be  entitled  to  the  benefit  of   the   above declaration. Their further fate will depend on  the  fresh  decision  to  be taken by the appellant. Indian Institute of IT =VS= Dr. Anurika Vaish, (Civil), 2017 (2)– [3 LM (SC) 20]

The appellate court being the last court of facts, it can not be disturbed in the revisional jurisdiction– The burden of proof lies upon him who claims the same. I have also examined that the signature appearing over the dakhila in Bangali (sic, it would be Bangla), does not tally with the admitted signature Shafiuddin over the plaint and the vokalatnama filed before the court. I do not find any English signature of Shafiuddin in the record and as such I do not find any misreading of evidence and misinterpretation of evidence on record by the Appellate Court.          Reazuddin Mondal =VS= Md. Shafiuddin, (Civil), 2017 (2)– [3 LM (AD) 436]

There was no clause in the agreement– We find from the judgment of the trial Court that the learned Judge noted that there was no clause in the agreement that it would be cancelled for non-performance of any of the terms and that time was not of the essence of the contract and cancelling the agreement was illegal. The suit for specific performance of contract was barred by limitation was therefore, not accepted. Purchaser did not perform her part in obtaining Income Tax Clearance Certificate. Mahua Khair =VS= Amena Begum Ali Ispahani, (Civil), 2017 (2)– [3 LM (AD) 246]

See also:

*Artha Rin Adalat Ain, Section 32(1) [3 LM (AD) 448]

*2nd Appeal [3 LM (SC) 47]

*Accused [3 LM (AD) 274]

*Amended assessment [3 LM (SC) 86]

*Adverse possession [3 LM (SC) 14]

*Adopted son [3 LM (SC) 14]

B

Bangladesh Water Development Board (Employees) Service Rules, 1982

Rule 143– In Rule 143 of Bangladesh Water Development Board (Employees) Service Rules,1982 is directory and not that of mandatory because there is no provision in the Bangladesh Water Development Board (Employees) Service Rules,1982 that the proceedings drawn up would be treated as invalid or unlawful if the proceedings cannot be completed within the time schedule mentioned in it. BWDB =VS= G.A. Faiyaz Haider, (Civil), 2017 (2)– [3 LM (AD) 164]

Bangladesh Water Development Board (Employees) Service Rules, 1982

Rule 143(4)– The proviso to sub-rule(4) of rule 143 provides that the proceeding shall be completed within three months and no consequence is not provided for not completing the proceeding within three months. Therefore, the time frame given in the proviso is also directory. BWDB =VS= G.A. Faiyaz Haider, (Civil), 2017 (2)– [3 LM (AD) 164]

The Bar Council shall prescribe/give guide lines to all the universities and colleges teaching on law subjects and conferring law degrees to the students– If a person holding judicial office is permitted to practice directly in the High Court Division after retirement, why not a professor of law of a university who had taught law students or a high ranking government servant having law degree, who held judicial office (Magistracy) and quashi judicial in his career should not be allowed to practice in the High Court Division in the similar manner of a retired judicial officer. We hope that the Bar Council shall look into the matter and if such categories of persons are permitted, the Bar will be enriched and enlightened. We hope that the Bar Council shall prescribe/give guide lines to all the universities and colleges teaching on law subjects and conferring law degrees to the students. It should compel them to follow the syllabus on subjects to be taught, which should be uniform and in case of violation, it would not recognise the law degree of such institute. If it can restrict the recognition of those students, who have obtained law degree from the universities and colleges which do not teach basic law subjects and have no permanent qualified teachers on all subjects of law, the standard of law graduates will be improved. Bangladesh Bar Council =VS= A.K.M. Fazlul Kamir, (Civil), 2017 (2)– [3 LM (AD) 132]

Black-listed for failure to perform in contract– There was no provision for the company to claim damages or compensation for breach of contract. Equally there was no provision for terminating or rescinding the contract for any reason other than breach of the contract. From the facts and circumstances before us we find that the instant contract was rescinded due to the fact that the company had been black-listed for failure to perform in another contract. There is no term in the present contract that it (the contract) can be rescinded or terminated for the reason that the company is/may be black-listed for its non-performance in respect of another contract. Hence, we are of the view that the rescission in the way and for the reason that it was done, was not lawful, such action being beyond the terms and conditions of the contract. The appellant company is entitled to receive the full contractual amount of Tk.85,98,775.50/- with deduction only of Tk. 22,02,856/-,which was received as part bills. Hence, the respondent is directed to pay Tk. 63,95,919.50 to the appellant company. The appellant company shall be reimbursed by the respondent the actual amount of the  earnest money and security deposit, if any, which they claim to have paid at the time of entering into the contract. A. Latif & Co. Ltd =VS= Executive Engineer, LGED Rangpur, (Civil), 2017 (2)– [3 LM (AD) 26]

See also:

*The Bangladesh legal practitioners and Bar Council Rules, 1972, Rule 65A [3 LM (AD) 132]

*Burden of proof [3 LM (AD) 274]

C

The  Central Excise Rules, 1944

Rule  173-C– We  are  of the considered opinion that the Tribunal erred in  reducing  the  amount  of penalty from Rs.2,06,000/- to Rs.50,000/-.  Indeed,  the  Tribunal,  in  our opinion, failed to take into consideration the law laid down in the case  of  Dharamendra Textile Processors (supra) which  the  Tribunal  was  bound  to take while deciding the appeal  and  instead  the  Tribunal  wrongly  placed reliance on its own decision in the case of Escorts JCB  Ltd.  vs  CCE  2000 (118)  ELT  650  (Tribunal).  We  also  find  that  the  Tribunal  gave   no justifiable legal reasons for reducing the penalty amount. Commissioner of Central Excise, Chandigarh =VS= M/s Stesalit Ltd., (Civil), 2017 (2)– [3 LM (SC) 11]

The Chittagong Hill Tracts Regulation, 1900

Section 17 read with

The Land Appeal Board Ain, 1989

The Deputy Commissioner of the district has been given power to revise any order passed by a Deputy Magistrate or Deputy Collector or a Sub-Deputy Magistrate or Sub-Deputy Collector and a Divisional Commissioner may revise any order made under the Regulation by the Deputy Commissioner and the Government may revise any order made by the Commissioner. Under this provision, no power has been given upon the Land Appeal Board to revise any order passed by the Divisional Commissioner. The Land Appeal Board Ain, 1989 has been empowered to exercise such powers as may be given by the government or by any other law. There is a provision for appeal to the government from the decision of the Board and the said decision of the appellate authority shall be final. Subsequently, by circular under memo dated May 23, 1989, the following powers of the Board has been given from the decision of the Deputy Commissioner, Additional Deputy Commissioner (Revenue) and the Divisional Commissioner for its disposal: (K) f~wg msµvšÍ gvgjv, (L) bvgRvix I LvwiR gvgjv, (M) cwiZ¨³, Awc©Z I wewbgq m¤úwË welqK gvgjv, (N) mvqivZ I Rjgnj msµvšÍ gvgjv, (O) f~wg †iKW© m¤úwK©Z gvgjv, (P) f~wg Dbœqb Ki, mvwU©wd‡KU gvgjv, (Q) IqvKd/‡`‡evËi m¤úwË msµvšÍ gvgjv, (R) LvmRwg e‡›`ve¯Í msµvšÍ gvgjv| Wagachara Tea Estate Ltd =VS= Muhammad Abu Taher, (Civil), 2017 (2)– [3 LM (AD) 478]

The Chittagong Hill Tracts Regulation, 1900

Section 17(3)– On a plain reading of the Regulation of 1900, one may arrive at the conclusion that this Regulation was promulgated with the object of giving a special privilege to the indigenous people of the three hill districts to protect and safeguard their culture, traditional practices and customs, and they should not fall prey to the tactics of unscrupulous people. A privilege is a special right reserved to an individual person or a limited class of persons, bodies or institutions. Its grant is generally attended by some degree of formality in the form of letters patent or some other document. Privileges would occupy a small circle within a much larger circle of rights. Every privilege is a right but not every right is a privilege. Wagachara Tea Estate Ltd =VS= Muhammad Abu Taher, (Civil), 2017 (2)– [3 LM (AD) 478]

The Code of Civil Procedure, 1908

Section 100

2nd Appeal– Remanded to the High  Court for deciding the appeal on merits– Relief  of  partition  by meets and bounds of the suit property and, in consequence, also claimed  her separate possession in the suit property. The appeal and  remand  the case to the High Court for deciding the second appeal afresh  on  merits  in accordance with law. The case is now remanded to the High  Court for deciding the appeal on merits in accordance with law. We, however, request the High Court to admit the second appeal,  frame appropriate substantial questions of law as required under  Section  100  of the Code, keeping in view the pleadings, findings of the  two  courts  below and the documents (exhibits). Efforts  should  be  made  to settle the dispute amicably.  Indeed, it was also stated by learned  counsel for the appeal preferably within six months. Sk. Bhikan =VS= Mehamoodabee, (Civil), 2017 (2)– [3 LM (SC) 47]

The Code of Civil Procedure, 1908

Section 115(1)

Permanent Injunction– It is a well settled legal proposition that the Appellate Court is the last Court of fact and if the Appellate Court comes to a finding of fact on consideration of the evidence on record that cannot be disturbed or reversed by the High Court Division in exercising jurisdiction under section 115(1) of the Code of Civil Procedure, unless it can be shown that the finding of the Appellate Court is perverse or contrary to the evidence on record or based on misreading of the evidence on record or on misconception of law. It is also a settled legal principle that in a suit for permanent injunction title can be looked into incidentally and the prime consideration is whether the plaintiff has got exclusive possession in the suit land. Keeping in view the above settled legal propositions, let us see whether the High Court Division rightly interfered with the judgment and decree of the Appellate Court. Karim Khan =VS= Kala Chand, (Civil), 2017 (2)– [3 LM (AD) 236]

The Code of Civil Procedure, 1908

Section 115(1)

The revision is sent back to the High Court Division for hearing afresh– This Court is 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. Accordingly the petition is disposed of in the following terms:

The impugned Judgment and order of the High Court Division is set aside. The revision is sent back to the High Court Division for hearing afresh and dispose of the same in accordance with the law on the evidence on record. In no case, the High Court Division shall the matter back to either of the Court below. Momtaz Ahmed Sowdagar =VS= Iddgaon Bus Station Jame Masjid, (Civil), 2017 (2)– [3 LM (AD) 414]

The Code of Civil Procedure, 1908

Section 115(1)

Revision back to the High Court Division for afresh hearing– How a learned Judge after recalling the order making a matter out of list hear the same on that the very date and dispose the same, in the absence of the petitioner. The High Court Division Rules permits a particular Judge to recall the unsigned order, but that must be done with notice to the parties. We find no other alternative but to send the revision back to the High Court Division for hearing afresh and for disposal of the same in accordance with law on the evidence on record. Moulavi Abdul Wahab =VS= Nur Ahmed, (Civil), 2017 (2)– [3 LM (AD) 418]

The Code of Civil Procedure, 1908

Section 144– Provisions of section 144 of the Code which clearly entitles a party to pray for restoration of possession even if the possession is delivered pursuant a decree passed in a suit. Masum Billah(Md.) =VS= Md. Saidur Rahman, (Civil), 2017 (2)– [3 LM (AD) 268]

The Code of Civil Procedure, 1908

Order XLI Rule 19

Section 151– To invoke the amended Rule 19A, the application for such re-admission is to be filed within 30 days of the date of dismissal of the appeal for default and the application is to be supported by an affidavit. If these two requirements, as provided in the proviso, are met only then Rule 19A could be applied to avoid delay and expedite disposal providing the court to directly re-admit the appeal without requiring to adduce evidence as required under Rule 19. Bangladesh =VS= Abdul Barek Bepari, (Civil), 2017 (2)– [3 LM (AD) 93]

The Code of Civil Procedure, 1908

Section 151– The plaintiff having claimed that he had a dwelling house in the suit land and has been possessing the same “after purchase of the suit land”, until the matter is investigated and adjudicated properly against the person in possession of the property and the subsequent suit is disposed of... the Court can pass an order under its inherent jurisdiction, for staying the execution case started in a suit wherein the plaintiff was not a party. Zainab Banu =VS= Md. Nisar Uddin, (Civil), 2017 (2)– [3 LM (AD) 503]

The Code of Civil Procedure, 1908

Order VII, Rule 3– It is clear that the plaintiff mentioned the number of the C.S. and the S.A. Khatians and also the plot numbers of the lands in the suit and thus there was full compliance with the previsions of Order VII, rule 3 of the Code. And since no fraction or portion of the lands of the two plots was claimed, there was no necessity of giving any chauhaddi or boundary of the suit plots. Karim Khan =VS= Kala Chand, (Civil), 2017 (2)– [3 LM (AD) 236]

The Code of Civil Procedure, 1908

Order VII, rule 11

Mandatory injunction – A Court of law can give mandatory injunction if it is necessary to compel the performance of certain acts which the Court is capable of enforcing and also to compel performance of the requisite acts to prevent the breach of an obligation by the defendant(s) and to get a relief in a suit, the plaintiff must satisfy the Court by producing evidence that the defendants had an obligation to him which they were breaching. Comprehensive Holdings Ltd.=VS=MH Khan Monju, (Civil), 2017 (2)– [3 LM (AD) 198]

The Code of Civil Procedure, 1908

Order VII Rule 11(a)

Enquiry can be taken up at any stage– It appears, the High Court committed a mistake in the present case, since four out of the six issues settled were taken as the preliminary issues. Two such issues actually are relatable only to Order  VII  Rule  11  of  the Code,  in  the  sense  those  issues  pertained  to  the  rejection  at  the institution stage for lack of material facts and for not disclosing a  cause of action. Merely because it is a trial on preliminary issues at the stage of Order XIV, the scope does not change or expand. The stage at which such an enquiry is undertaken by the court makes no difference since an enquiry under Order VII Rule 11(a) of the Code can be taken up at any stage. Kuldeep Singh Pathania =VS= Bikram Singh Jaryal, (Civil), 2017 (2)– [3 LM (SC) 26]

The Code of Civil Procedure, 1908

Order  VII  Rule  11(a)– The  court  has to read the entire plaint as a whole to find  out  whether  it  discloses  a cause of action and if it does, then the plaint cannot be  rejected  by  the court exercising the powers under Order 7 Rule 11 of the Code. The High Court, in our  considered  opinion,  stepped  into  prohibited area of considering correctness of allegations and evidence  in  support  of averments  by  entering  into  the  merits  of  the  case  which  would   be permissible only at the stage of trial of the election petition and  not  at the stage of consideration whether the election  petition  was  maintainable and dismissed the petition. The said action, therefore, cannot be upheld and the order deserves to be set aside.” We have been taken through the averments in the election petition and we are satisfied that the petition has disclosed a cause of action, it is not necessary to remit the petition for a fresh enquiry in that regard. The appeal is however allowed, the impugned  order  is  set  aside  and  the election petition is remitted  to  the  High  Court  to  try  it  on  merits expeditiously, and being one filed in the year  2013,  preferably  within  a period of four months. We make it clear that we have not expressed any opinion on the merits of the case. Kuldeep Singh Pathania =VS= Bikram Singh Jaryal, (Civil), 2017 (2)– [3 LM (SC) 26]

The Code of Civil Procedure, 1908

Order XIV Rule 2– The High Court dealt with the violations referred to above extensively so as to find out whether a cause of action is made out, but committed a  grave error by considering the explanations offered in the replies  filed  by  the respondents. All the three violations have been discussed meticulously by the High Court with reference to the replies furnished by the respondents and the court came to the conclusion that the petition did not disclose any cause of action since it lacked material facts.   The  High  Court  ventured into such an elaborate  enquiry  in  the  light  of  the  pleadings  in  the replies, to see whether the result  of  the  election  has  been  materially affected, apparently or rather mistakenly, under Order XIV Rule 2. Kuldeep Singh Pathania =VS= Bikram Singh Jaryal, (Civil), 2017 (2)– [3 LM (SC) 26]

The Code of Civil Procedure, 1908

Order XXI, rule 29– It is by now a well settled legal principle that a stranger to a decree cannot invoke the provisions of Order XXI, rule 29 of the Code for staying the proceedings of an execution case and for ready reference. Zainab Banu =VS= Md. Nisar Uddin, (Civil), 2017 (2)– [3 LM (AD) 503]

The Code of Civil Procedure, 1908

Order 21, Rule 103 read with

Artha Rin Adalat Ain

Section 32(1)

Third party to file a suit to establish his right– The High Court Division has totally overlooked the applicability of Order 21 rule 103 of Code of Civil Procedure so far as it relates to the right of a third party in the property sold. Sub-section (1) of section 32 of the Ain does not debar the applicability of the provisions of the Code of Civil Procedure, if a third party makes an application for setting aside the sale. He can file objection against the sale in accordance with the provisions of the Code, but the scope of investigation being limited, we find no cogent ground to debar a third party to file a suit to establish his right or title if his right is fringed by reason of sale in view of order 21 rule 103. We hold the view that a suit for establishment of right, title and interest in respect of the mortgaged property by a third party is maintainable because there is no specific bar either expressly or impliedly in the Ain to file such suit. Sekandar (Md.) =VS= Janata Bank Ltd., (Civil), 2017 (2)– [3 LM (AD) 448]

The Code of Civil Procedure, 1908

Order XLI Rule 19– It should be kept in mind that re-admission of appeal under Rule 19 is a discretionary power of the court and the settled principle of law is discretion is to be exercised in a judicious manner having regard to the facts and circumstances of the case. Bangladesh =VS= Abdul Barek Bepari, (Civil), 2017 (2)– [3 LM (AD) 93]

The Code of Criminal Procedure, 1898

Sections 54, 167

Recommendation to amend sections 54, 167– On a close look into the judgment of the High Court Division it cannot be said that it has directed the government to legislate and/or amend the existing sections 54, 167, 176, 202 of the Code and some other provisions of the Penal Code. It noticed that the police officers taking the advantage of the language used in section 54 are arresting innocent citizens rampantly without any complaint being filed or making any investigation on the basis of complaint if filed and thereby the fundamental rights guaranteed to a citizen under articles 27, 30, 31, 32, 33 and 35 of the constitution are violated. It has observed that no person shall be subjected to torture or to cruel, inhuman, dignity or degrading punishment or treatment. So, if an offender is taken in the police custody for the purpose of interrogation for extortion of information from him the law does not give any authority to the law enforcing agencies to torture him or behave him in degradation of his human value. It further observed that it is the basic human rights that whenever a person is arrested he must know the reasons for his arrest. The constitution provides that a person arrested by the police shall be informed of the grounds of his arrest and also that the person arrested shall not be denied of his right to consult or defend himself/herself by a legal practitioner of his/her choice. But it is seen that these rights are always denied and the police officers do not inform the nearest or close relations of the arrested persons and as a result, there is violation of fundamental rights guaranteed in the constitution. Accordingly, the High Court Division made some recommendations to amend sections 54, 167 of the Code and other provisions. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Code of Criminal Procedure, 1898

Sections 54 and 167– The first question to be considered is whether the High Court Division has illegally presumed the misuse of power by the police while using the power under sections 54 and 167 of the Code. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Code of Criminal Procedure, 1898

Section-54, 60, 61, 167 and 176– Sections 54, 60, 61, 167 and 176 of the Code are relevant for our consideration which read as follows:

“54.(1) Any police-officer may, without an order from a Magistrate and without a warrant, arrest-
firstly , any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned;

secondly, any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house breaking;

thirdly, any person who has been proclaimed as an offender either under this Code or by order of the Government;

fourthly, any person in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing;

fifthly, any person who obstructs a police-officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody;

sixthly, any person reasonably suspected of being a deserter from the armed forces of Bangladesh; 
seventhly , any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in, any act committed at any place out of Bangladesh, which, if committed in Bangladesh, would have been punishable as an offence, and for which he is, under any law relating to extradition or under the Fugitive Offenders Act, 1881, or otherwise, liable to be apprehended or detained in custody in Bangladesh;

eighthly , any released convict committing a breach of any rule made under section 565, sub-section (3);

ninthly, any person for whose arrest a requisition has been received from another police-officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Code of Criminal Procedure, 1898

Section 60 of the Code– Section 60 of the Code states that a police-officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police-station. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Code of Criminal Procedure, 1898

Section 61 of the Code– Section 61 of the Code states that no police-officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Code of Criminal Procedure, 1898

Section 161– “Heads (iii) and (iv) shall be noted regarding the particulars of the house searched made with the names of witnesses in whose presence search was made (section 103 of the Code) by whom, at what hour, and in what place arrests were made; in what place property was found, and of what description; the facts ascertained; on what points further evidence is necessary, and what further steps are being taken with a view to completing the investigation. The diary shall mention every clue obtained even though at the time it seems unprofitable, and every step taken by the investigating officer, but it shall be as concise as possible. It shall also contain the statements of witnesses recorded under section 161 of the Code.”

“264.(a) Case diaries (B.P. Form No. 38) shall be written up as the enquiry progresses, and not at the end of each day. The hour of each entry and name of place at which written shall be given in the column on the extreme left. A note shall be made at the end of each diary of the place from, the hour at, and the means by which, it is dispatched. The place where the investigation officer halts for the night shall also be mentioned.

(b) A case diary shall be submitted in every case investigated. The diary relating to two or more days shall never be written on one sheet or dispatched together. Two or more cases should never be reported in one diary; a separate diary shall be submitted in each case daily until the enquiry is completed. But it is not necessary to send one on any day on which the investigation, though pending, is not proceeded with. 

(c) The diary shall be written in duplicate with carbon paper and at the close of the day the carbon copy, along with copies of any statement which may have been recorded under section 161 Code of Criminal Procedure and the list of property recovered under section 103 or 165 of that Code, shall be sent to the Circle Inspector. ....... When an investigation is controlled by an Inspector of the Criminal Investigation Department, the investigating officers shall forward the Circle Inspector‘s copy of the case diary through that officer who shall stamp or write on the diary the date of receipt by him and, after perusal, forward it to the Circle Inspector. 

(d) In special report cases an extra carbon copy shall be prepared of the diaries, statements of witnesses recorded and lists of property recovered and sent direct to the Superintendent and a further carbon copy to the (Sub-divisional) Police Officer where there is one. 

(e) Each form shall have a separate printed number running consecutively throughout the book so that no two forms shall bear the same number. On the conclusion of an investigation the sheets of the original diary shall be removed from the book and filed together. Every file shall be docketed with the number, month and year of the first information report, the final form submitted and the name of the complainant, the accused and the investigating officer. The orders regarding preservation and destruction of these papers shall also be noted. 

(f) When sending charge-sheet to the Court Officer, the investigating officer shall send all his original case diaries which shall be returned by the Court Officer on the case being finally disposed of (vide regulation 772).  

(g) Case diaries shall be written in English by those officers competent to do so. Other officers shall write either diaries in the vernacular. Statements recorded under section 161 of the Code of Criminal Procedure, shall, however, always be recorded in the language of the witness. In the investigation officer is unable to do so, he should write it in English. 

(h) Instructions for the custody and dispatch of case diaries are given in regulation 68. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Code of Criminal Procedure, 1898

Section 167(1)– Section 167(1) of the Code provides that whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 61, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police-station or the police-officer making the investigation if he is not below the rank of sub-inspector shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no jurisdiction to try the case from time to time authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has no jurisdiction to try the case or send it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that no Magistrate of the third class, and no Magistrate of the second class not specially empowered in this behalf by the Government shall authorize detention in the custody of the police.

(3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.

 (4) If such order is given by a Magistrate other than the Chief Metropolitan Magistrate or the Chief Judicial Magistrate, he shall forward a copy of his order, with his reasons for making it to the Chief Metropolitan Magistrate or to the Chief Judicial Magistrate to whom he is subordinate.

(4A) If such order is given by a Chief Metropolitan Magistrate or a Chief Judicial Magistrate, he shall forward a copy of his order, with reasons for making it to the Chief Metropolitan Sessions Judge or to the Sessions Judge to whom he is subordinate.

(5) If the investigation is not concluded within one hundred and twenty days from the date of receipt of the information relating to the commission of the offence or the order of the Magistrate for such investigation-

(a) the Magistrate empowered to take cognizance of such offence or making the order for investigation may, if the offence to which the investigation relates is not punishable with death, imprisonment for life or imprisonment exceeding ten years, release the accused on bail to the satisfaction of such Magistrate; and

(b) the Court of Session may, if the offence to which the investigation relates is punishable with death, imprisonment for life or imprisonment exceeding ten years, release the accused on bail to the satisfaction of such Court:

Provided that if an accused is not released on bail under this sub-section, the Magistrate or, as the case may be, the Court of Session shall record the reasons for it:

Provided further that in cases in which sanction of appropriate authority is required to be obtained under the provisions of the relevant law for prosecution of the accused, the time taken for obtaining such sanction shall be excluded from the period specified in this sub-section.

Explanation-The time taken for obtaining sanction shall commence from the day the case, with all necessary documents, is submitted for consideration of the appropriate authority and be deemed to end on the day of the receipt of the sanction order of the authority.]

(6)-(7A) [Omitted by section 2 of the Criminal Procedure (Second Amendment) Act, 1992 (Act No. XLII of 1992).]

(8) The provisions of sub-section (5) shall not apply to the investigation of an offence under section 400 or section 401 of the Penal Code, 1860 (Act XLV of 1860).]. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Code of Criminal Procedure, 1898

Section 167, 169, 170 and 173

Accused– The word “accused” used in section 167 and in sections 169, 170 and 173 of the Code denote the suspected offender who has not yet come under the cognizance of court. It does not rest in the discretion of the Police-officer to keep such person in custody where and as long as he pleases. Under no circumstances, can he be retained for more than 24 hours without the special leave of the Magistrate under this section. Any longer detention is absolutely unlawful. The accused should actually be sent before the Magistrate; the police cannot have the accused in their custody and merely write for and obtain the special leave under this section for such detention. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Code of Criminal Procedure, 1898

Section 167– The Magistrate exercising his jurisdiction under section 167 performs judicial functions and not executive power, and therefore, the Magistrate should not make any order on the asking of the police officer. The object of requiring an accused to be produced before a Magistrate is to enable him to see that a police remand or a judicial remand is necessary and also to enable the accused to make a representation he may wish to make. Since a remand order is judicial order, the Magistrate has to exercise this power in accordance with the well settled norms of making a judicial order. The norms are that he is to see as to whether there is report of cognizable offence and whether there are allegations constituting the offence which is cognizable. Non-disclosure of the grounds of satisfaction by a police officer should not be accepted. Whenever, a person is arrested by a police during investigation he is required to ascertain his complicity in respect of an cognizable offence. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Code of Criminal Procedure, 1898

Section 167 is supplementary to section 61 of the Code – Section 167 is supplementary to section 61 of the Code. These provisions have been provided with the object to see that the arrested person is brought before a Magistrate within least possible delay in order to enable him to judge if such person has to be kept further in the police custody and also to enable such person to make representation in the matter. The section refers to the transmission of the case diary to the Magistrate along with the arrested person. The object of the production of the arrested person with a copy of the diary before a Magistrate within 24 hours fixed by section 61 when investigation cannot be completed within such period so that the Magistrate can take further course of action as contemplated under sub-section (2) of section 167. Secondly, the Magistrate is to see whether or not the arrest of the accused person has been made on the basis of a reasonable complaint or credible information has been received or a reasonable suspicion exist of the arrested persons having been concerned in any cognizable offence. Therefore, while making an order under sub-section (2) the Magistrate must be satisfied with the requirements of sections 54 and 61 have been complied with otherwise the Magistrate is not bound to forward the accused either in the judicial custody or in the police custody. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Code of Criminal Procedure, 1898

Sections 167(1)/(2) & 54 read with

The Special Powers Act, 1974

Section 3

Guide lines for the Law Enforcement Agencies–

(i) A member law enforcement officer making the arrest of any person shall prepare a memorandum of arrest immediately after the arrest and such officer shall obtain the signature of the arrestee with the date and time of arrest in the said memorandum.

(ii) A member law enforcement officer who arrests a person must intimate to a nearest relative of the arrestee and in the absence of his relative, to a friend to be suggested by the arrestee, as soon as practicable but not later than 12(twelve) hours of such arrest notifying the time and place of arrest and the place in custody.

(iii) An entry must be made in the diary as to the ground of arrest and name of the person who informed the law enforcing officer to arrest the person or made the complaint along with his address and shall also disclose the names and particulars of the relative or the friend, as the case may be, to whom information is given about the arrest and the particulars of the law enforcing officer in whose custody the arrestee is staying.

(iv)Registration of a case against the arrested person is sine-qua-non for seeking the detention of the arrestee either to the law enforcing officer’s custody or in the judicial custody under section 167(2) of the Code.

(v) No law enforcing officer shall arrest a person under section 54 of the Code for the purpose of detaining him under section 3 of the Special Powers Act, 1974.

(vi) A law enforcing officer shall disclose his identity and if demanded, shall show his identity card to the person arrested and to the persons present at the time of arrest.

(vii) If the law enforcing officer find, any marks of injury on the person arrested, he shall record the reasons for such injury and shall take the person to the nearest hospital for treatment and shall obtain a certificate from the attending doctor.

(viii) If the person is not arrested from his residence or place of business, the law enforcing officer shall inform the nearest relation of the person in writing within 12 (twelve) hours of bringing the arrestee in the police station.

(ix) The law enforcing officer shall allow the person arrested to consult a lawyer of his choice if he so desires or to meet any of his nearest relation.

(x) When any person is produced before the nearest Magistrate under section 61 of the Code, the law enforcing officer shall state in his forwarding letter under section 167(1) of the Code as to why the investigation cannot be completed within twenty four hours, why he considers that the accusation or the information against that person is well founded. He shall also transmit copy of the relevant entries in the case diary B.P.Form 38 to the Magistrate. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Code of Criminal Procedure, 1898

Sections 167(2) and 169

Guidelines to the Magistrates, Judges and Tribunals having power to take cognizance of an offence–

(a)If a person is produced by the law enforcing agency with a prayer for his detention in any custody, without producing a copy of the entries in the diary as per section 167(2) of the Code, the Magistrate or the Court, Tribunal, as the case may be, shall release him in accordance with section 169 of the Code on taking a bond from him.

(b)If a law enforcing officer seeks an arrested person to be shown arrested in a particular case, who is already in custody, such Magistrate or Judge or Tribunal shall not allow such prayer unless the accused/arrestee is produced before him with a copy of the entries in the diary relating to such case and if that the prayer for shown arrested is not well founded and baseless, he shall reject the prayer.

(c)On the fulfillment of the above conditions, if the investigation of the case cannot be concluded within 15 days of the detention of the arrested person as required under section 167(2) and if the case is exclusively triable by a court of Sessions or Tribunal, the Magistrate may send such accused person on remand under section 344 of the Code for a term not exceeding 15 days at a time.

(d)If the Magistrate is satisfied on consideration of the reasons stated in the forwarding letter and the case diary that the accusation or the information is well founded and that there are materials in the case diary for detaining the person in custody, the Magistrate shall pass an order for further detention in such custody as he deems fit and proper, until legislative measure is taken as mentioned above.

(e)The Magistrate shall not make an order of detention of a person in the judicial custody if the police forwarding report disclose that the arrest has been made for the purpose of putting the arrestee in the preventive detention.

(f)It shall be the duty of the Magistrate/Tribunal, before whom the accused person is produced, to satisfy that these requirements have been complied with before making any order relating to such accused person under section 167 of the Code.

(g)If the Magistrate has reason to believe that any member of law enforcing agency or any officer who has legal authority to commit a person in confinement has acted contrary to law the Magistrate shall proceed against such officer under section 220 of the Penal Code.

(h)Whenever a law enforcing officer takes an accused person in his custody on remand, it is his responsibility to produce such accused person in court upon expiry of the period of remand and if it is found from the police report or otherwise that the arrested person is dead, the Magistrate shall direct for the examination of the victim by a medical board, and in the event of burial of the victim, he shall direct exhumation of the dead body for fresh medical examination by a medical board, and if the report of the board reveals that the death is homicidal in nature, he shall take cognizance of the offence punishable under section 15 of Hefajate Mrittu (Nibaran) Ain, 2013 against such officer and the officer in-charge of the respective police station or commanding officer of such officer in whose custody the death of the accused person took place.

(i)If there are materials or information to a Magistrate that a person has been subjected to ‘Nirjatan’ or died in custody within the meaning of section 2 of the Nirjatan and Hefajate Mrittu (Nibaran) Ain, 2013, shall refer the victim to the nearest doctor in case of ‘Nirjatan’ and to a medical board in case of death for ascertaining the injury or the cause of death, as the case may be, and if the medical evidence reveals that the person detained has been tortured or died due to torture, the Magistrate shall take cognizance of the offence suo-moto under section 190(1)(c) of the Code without awaiting the filing of a case under sections 4 and 5 and proceed in accordance with law. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Code of Criminal Procedure, 1898

Section 167(3)– Sub-section (3) of section 167 requires that when the Magistrate authorises detention in police custody, he should record his reasons for so doing. The object of this provision is to see that the Magistrate takes the trouble to study the police diaries and to ascertain the actual conditions under  which such detention is asked for. The law is jealous of the liberty of the subject and does not allow detention unless there is a legal sanction for it. So in every case where a detention in police custody is ordered the Magistrate should state his reasons clearly. He should satisfy himself (a) that the accusation is well-founded, and (b) that the presence of the accused is necessary while the police investigation is being held. The mere fact that the police state that the presence of the accused is necessary to finish the investigation, is not sufficient to order detention. To order a detention of the accused in order to get from him a confessional statement or that he may be forced to give a clue to stolen property is not justified. Similarly it is improper to order detention in police custody on a mere expectation that time will show his guilt or for the reason that the accused promised to tell the truth or for verifying a confession recorded under section 164 or for the reason that though repeatedly asked the accused will not give any clue to the property. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Code of Criminal Procedure, 1898

Section 169– The entries in the diary afford to the Magistrate the information upon which he can decide whether or not he should authorise the detention of the accused person in custody or upon which he can form an opinion as to whether or not further detention is necessary. The longest period for which an accused can be ordered to be detained in police custody by one or more such orders is only 15 days. Where even within the 15 days time allowed under this section the investigation is not completed, the police may release the accused under section 169. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Code of Criminal Procedure, 1898

Section-172 read with

Police Regulations of Bengal

Regulation-68

Diary– The ‘diary’ referred to in sub-section (1) is a special diary referred to in section 172 of the Code read with regulation 68 of Police Regulations, Bengal. Regulation 68 provides the custody of case diary as under:

 “68. Custody of case diaries.

(a) Only the following police officers may see case diaries:—

(i)  the investigating officer;

(ii) the officer in-charge of the police-station:

(iii) any police officer superior to such officer in-charge;

(iv) the Court officer;

(v) the officer or clerk in the Superintendent‘s office specially authorized to deal with such diaries; and

(vi) any other officer authorized by the Superintendent.

 (b) The Superintendent may authorize any person other than a police officer to see a case diary.

(c) Every police officer is responsible for the safe custody of any case diary which is in his possession.

(d) Every case diary shall be treated as confidential until the final disposal of the case, including the appeal, if any, or until the expiry of the appeal period.

(e) A case diary shall be kept under lock and key, and, when sent by one officer to another, whether by post or otherwise, shall be sent in a closed cover directed to the addressee by name and superscripted ―Case diary. A case diary sent to the Court office shall be addressed to the senior Court officer by name.

 (f) A cover containing a case diary shall be opened only by the officer to whom it is addressed, except as prescribed in clauses (g) and (h) if such officer is absent, the date of receipt shall be stamped upon the cover by the officer left in charge during his absence and the cover shall be kept till his return or forwarded to him.

(g) Covers containing case diaries received in the Superintendent‘s office shall be opened as prescribed in regulation 1073, and made over directly to the officer or clerk specially authorized to deal with case diaries. Such officer or clerk shall take action under clause (i) and personally place the diaries before the Superintendent or other officer dealing with the case.

 (h) Covers containing case diaries received in the Court office may be opened by any officer specially authorized in writing by the Court officer or by a superior officer.

(i) When an officer opens a cover containing a case diary, he shall stamp or write on the diary the date, if any, which has been stamped on the cover under clause (f) or, if there is no such date on the cover, the date on which he received it, and shall, after perusing the diary, file it with any other diaries relating to the same case which are in his possession.

A Circle Inspector and a Court officer shall stamp or write such date on every page of the diary and on every enclosure received with it, such as statements recorded under section 161, Code of Criminal Procedure, maps and the brief.

(j) Every Investigating Officer shall be provided with a deed box, and every Circle Inspector, Sub-divisional Police Officer and Court officer with a suitable receptacle, in which to keep case diaries under lock and key. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Code of Criminal Procedure, 1898

Section 172 of the Code – The object of use of special diary under section 172 of the Code has been well explained by Edge,CJ. in Mannu, ILR 19 All 390 “the early stages of investigation which follows on the commission of a crime must necessarily in the vast majority of cases to be left to the police and until the honesty, the capacity, the discretion and the judgment of the police can be thoroughly trusted, it is necessary for the protection of the public against criminals for the vindication of the law and for the protection of those who are charged with having committed a criminal offence that the Magistrate or Judge before whom the case is for investigation or for trial should have the means of ascertaining what was the information, true, false or misleading, which was obtained from day to day by the police officer who investigating the case and what were the lines of investigation upon which the police officer acted.’ Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Code of Criminal Procedure, 1898

Section 172– Section 172 relates to the police diary made in respect of a case under inquiry or trial by the court which calls for it. It is incumbent upon a police officer who investigates the case under Chapter XIV to keep a diary as provided by section 172 and the omission to keep the diary deprives the court of the very valuable assistance which such diary can give. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Code of Criminal Procedure, 1898

Section-172

Diary without any apparent failure – In most cases, the police officers have developed a bad habit of writing case diary long after conclusion of investigation or after a few days of the investigation. It is not at all a promising approach when the police officers follow such procedure. This is a compulsory requirement for an investigation officer to record the case diary without any apparent failure. The case diary must refer to the proceedings in investigation of an alleged offence. Section 172 of the Code clearly states:-

“Every police officer making an investigation under this chapter shall day by day enter his proceedings in the investigation in a diary........”. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Code of Criminal Procedure, 1898

Section 172(1) of the Code – Every detail in connection with the investigation into the offence must clearly be recorded without fail. It is to be noted that in section 172(1) of the Code the word “Shall” has been used which definitely indicates “mandatory”. So, a case diary must be recorded and all the details as mentioned in the section 172(1) of the Code must be recorded without any failure by the police officer in charge of investigation of an offence. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Code of Criminal Procedure, 1898

Section 176 of the Code – Section 176 of the Code enables a Magistrate to hold inquiry into a suspicious death. The language used in this section does not depend merely upon the opinion of the police officer but that there should be a further check by a Magistrate to hold an independent inquiry. The object of holding inquiry is to elucidate the facts of unnatural death before there is any reasonable suspicion of the commission of any offence and when such grounds exist, the inquiry comes under Ain of 2013. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]   

The Code of Criminal Procedure, 1898

Section 480– Section 480 of the Code of Criminal Procedure provides the procedure. This section reads as under: -

When any such offence as is described in section 175, section 178, section 179, section 180 or section 228 or the Penal Code is committed in the view or presence of any Civil, Criminal Or Revenue Court, the Court may cause the offender to be detained in custody and at any time before the rising of the Court on the same day may, if it thinks fit, take cognizance of the offence and sentence the offender to fine not exceeding two hundred taka, and in default of payment, to simple imprisonment for a term which may extend to one month, unless such fine be sooner paid. Bangladesh =VS= Naznin Begum(Most.), (Civil), 2017 (2)– [3 LM (AD) 66]

The Code of Criminal Procedure, 1898

Police officer is bound to transmit to the nearest Magistrate – The Code clearly provides that the police officer is bound to transmit to the nearest Magistrate a copy of the entries in the diary in relation to the case, whenever, any person is arrested and detained in custody and produce before a Magistrate within a period of 24 hours. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Constitution of Bangladesh, 1972

Articles 32, 33 and 35(5)– It was argued on behalf of the respondent that this court has a duty to uphold the rule of law and the constitutional safeguards on arrest and prevention of torture and ill-treatment of the suspected offenders. In this connection our attention has been drawn to articles 32, 33 and 35(5) of the constitution. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Constitution of Bangladesh, 1972

Article 32– Article 32 is couched in the similar language of article 21 of the Indian Constitution. Article 22 of the Indian Constitution relates to protection of arrest and detention in certain cases. The Supreme Court of India dealing with a petition by a victim who has been detained in police custody and his whereabouts could not be located, subsequently it was detected that he was detained by the police without producing before the Magistrate. The Supreme Court relying upon some previous decisions on the subject and on construction of articles 21 and 22 of the constitution held in Jagindra Kumar v. State of U.P., (1994) 4 SCC 260 that the police officer must justify the arrest and detention in police lockup of a person and no arrest can be made in a routine manner on a mere allegation of commission of an offence. It would be prudent, it was observed, for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. Accordingly, for effective enforcement of fundamental rights it issued the following requirements to be complied with whenever accused is arrested:

“1. An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.

2. The police officer shall inform the arrested person when he is brought to the police station of this right.

3. An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.” Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Constitution of Bangladesh, 1972

Article 33–These provisions of the above two sections have been reproduced in article 33 of the constitution.  The framers were conscious that despite such safeguards are ensured, this provision should be retained as integral part of fundamental rights. So the police officers must not deprive of the fundamental rights recognised to a citizen. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Constitution of Bangladesh, 1972

Article 40

Right to livelihood–Admittedly the writ petitioner-respondent after getting the work order started his work as per schedule and continued the same till he was suddenly directed to stop all works without assigning any reason as it appears from the impugned suspension orders as well as from the subsequent show cause notice. It is also admitted that his entire bill has not been paid even on repeated demands instead he was debarred from participating in any of the REB's bids without assigning any reason. Such action of the present appellant appears to be arbitrary, malafide and beyond the principle of natural justice. Chief Engineer, REB =VS= Biswajit Ganguly, (Civil), 2017 (2)– [3 LM (AD) 192]

The Constitution of Bangladesh, 1972

Article 42 read with

The State Acquisition of Tenancy Act, 1950

Section 97 read with

The Chittgaong Hill Tracts Regulation, 1900

Rule 34 read with

The Rangamati, Bandarban, Khagrachori Zilla Parishad Ains, 1989

Section 64(a), (b), (c), (d), (e), (f) and (g)

The restrictions mentioned in Article 42 will be available in section 97 of the State Acquisition of Tenancy Act, 1950, Rule 34 of the Rules for the administration of the Chittgaong Hill Tracts and section 64 of the Rangamati, Bandarban, Khagrachori Zilla Parishad Ains, 1989. Section 97 of the Act of 1950 provides ‘Restriction of alienation of land by aboriginals’. Under this provision if an aboriginal raiyat desires to transfer holding or any portion thereof by private sale, gift or will to any person who is not such as aboriginal, he may apply to the Revenue Officer for permission in that behalf and the Revenue Officer may pass such order on the application as he thinks fit. There are also restrictions for mortgage of land of aboriginals. Rule 34 of the Rules promulgated in exercise of powers under Chittgaong Hill Tracts Regulation, 1900 which restricts “Settlement and Government khas land, Transfer, Partition and Subletting”. It is provided that no ‘settlement of Government Khas Land shall be made in the district of Chittagong Hill Tracts except in the manner specified in clauses (a), (b), (c), (d), (e), (f) and (g). Section 64 of the Ains of 1989 prohibits sale, lease, settlement or otherwise transfer of lands of three hill districts without prior permission of the Hill District Parishads. Wagachara Tea Estate Ltd =VS= Muhammad Abu Taher, (Civil), 2017 (2)– [3 LM (AD) 478]

The Constitution of Bangladesh, 1972

Article 83 & 152(1)– The meaning of the word ‘tax’ has been used in a comprehensive sense to mean and include all money raised by taxation and includes those known as ‘rates’ or other charges levied by local authorities under statutory powers. (Gouse v. Kerala, AIR 1980 SC 271). A tax cannot be levied or collected merely by an executive fiat or action without there being a law to support the same. (Kerala v. Joseph, AIR 1958 SC 296). Article 83 contains in clear terms that “by or under the authority of an Act of Parliament”. Therefore, no tax can be levied without any sanction of law. Under this article not only levy but also collection of tax must be sanctioned by or under the authority of an Act of Parliament. The expression ‘levy’ includes creation of liability or fixation of its quantum and the expression ‘collect’ refers to physical realization of tax. (Somaiya Organics v. UP, AIR 2001 SC 1723). ‘It is the States which were protected as a result of the declaration for otherwise on the conclusion that the impugned Acts lacked legislative competence the result would have been that any tax collected would have become refundable as no state could retain the same because levy would be without the authority of law and contrary to Article 265 of the Constitution’, the court observed. Article 265 is couched in similar language of article 83 of our Constitution. Moreover, under the revenue laws, there are provisions for collecting revenue at a given rate fixed by Finance Act and also for collecting fine for non-payment of revenue. But there is no scope for collecting any lump sum amount. Bangladesh Bank=VS=East West Property Developments (Pvt.) Ltd., (Civil), 2017 (2)– [3 LM (AD) 106]

The Constitution of Bangladesh, 1972

Article 83– Not only tax must be levied validly, its collection must also be made in accordance with an Act of Parliament. When an Act of Parliament provides that a tax shall be collected in such manner as may be prescribed by rule, no tax can be collected until rules are made. (Khurai Municipality v. Kamal Kumar, AIR 1965 SC 1321). Article 83 gives protection against arbitrary collection of tax. When an assessment is made in an arbitrary manner there is no collection of tax in accordance with law. The language of article 83 clearly implies that the procedure for imposing the liability to pay a tax has to be strictly complied with. Where it is not complied with the liability to pay the tax cannot be said to be according to law. Bangladesh Bank=VS=East West Property Developments (Pvt.) Ltd., (Civil), 2017 (2)– [3 LM (AD) 106]

The Constitution of Bangladesh, 1972

Article 83– As per constitution or law, no officer of DGFI or any officer of intelligence forces has/had any right or authority to recover such money as tax or VAT. Article 83 totally prohibits in such process of realising any money otherwise than Act of Parliament. Bangladesh Bank=VS=East West Property Developments (Pvt.) Ltd., (Civil), 2017 (2)– [3 LM (AD) 106]

The Constitution of Bangladesh, 1972

Article 84, 85, 87 & 90– Article 88 has no manner of application, inasmuch as, article 88 speaks about expenditure to be charged upon Consolidated Fund. The expression expenditure has been used in article 87. It says that in every financial year there shall be laid, a statement of the estimated receipts and expenditure of the government for that year before the Parliament. The amount received by the government must be against revenues, loan etc. and not otherwise. As observed above, public expenditures are classified in two categories, expenditure charged on Consolidated Fund and the charges granted by Parliament on an annual basis. The expenditure mentioned in article 88 should be read with article 87. This expenditure is public expenditure. If the money recovered and deposited with the Bangladesh Bank are not part of Consolidated Fund, no Act of Parliament is necessary for returning the said money under articles 85 or 90 of the Constitution, inasmuch as, the same were illegally extorted from the writ petitioners without any sanction of law. Bangladesh Bank=VS=East West Property Developments (Pvt.) Ltd., (Civil), 2017 (2)– [3 LM (AD) 106]

The Constitution of Bangladesh, 1972

Article 84(1) & 144– Sometimes it happens that all the money required for the public expenditures cannot be raised by taxation and the government has to resort to borrowing. Article 144 gives authority to the executive to enter into contract and the government can borrow money for which sanction of Parliament is not necessary. All borrowings in a financial year are shown in the budget and in approving the budget the Parliament approves the borrowings. All borrowings do form part of the Consolidated Fund (article 84(1)) and Parliament’s authorization is necessary for expenditure from the Consolidated Fund. Bangladesh Bank=VS=East West Property Developments (Pvt.) Ltd., (Civil), 2017 (2)– [3 LM (AD) 106]

The Constitution of Bangladesh, 1972

Article 102(2)– Appellate Division held that there is no scope for quashing a criminal proceeding under the writ jurisdiction unless the vires of the law involved is challenged. Begum Khaleda Zia =VS= Anti-Corruption Commission, (Civil), 2017 (2)– [3 LM (AD) 177]

The Constitution of Bangladesh, 1972

Article 102(2)– All writ petitioners had absconded before they moved the High Court Division. There is no positive statement as to whether they appeared before the Special Judge before moving the petitions. In presence of alternative remedy, a writ petition for quashing the proceeding is not maintainable. This court cannot take different view. The accused if feel aggrieved by the initiation of the proceedings, must surrender to the jurisdiction of the court before seeking any remedy. Anti-Corruption Commission =VS= Tasmima Hossain, (Civil), 2017 (2)– [3 LM (AD) 9]

The Constitution of Bangladesh, 1972

Article 102(2)– This court has taken a consistent view that no writ petition is maintainable for quasninerit of a criminal preceding and secondly, a fugitive from justice cannot get any relief from court. The High Court Division has acted illegally in quashing the proceedings. Anti-Corruption Commission =VS= Tasmima Hossain, (Civil), 2017 (2)– [3 LM (AD) 9]

The Constitution of Bangladesh, 1972

Article 102(2)– Judicial review is not available for quashing a criminal proceeding in presence of alternative remedy. The High Court Division has totally ignored that aspect of the matter. The judgment of the High Court Division is set aside. Anti-Corruption Commission =VS= Tasmima Hossain, (Civil), 2017 (2)– [3 LM (AD) 9]

The Constitution of Bangladesh, 1972

Article 102(2)

Arbitration clause being available in the agreement but invoking write jurisdiction under the circumstances environment may judicial review even there is an alternative remedy available– The arbitration clause being available in the agreement, invoking writ jurisdiction by the respondent company under the present circumstances as stated above is not a bar as any action which is arbitrary, malafide and beyond the principle of natural justice can be the subject matter of the judicial review even there is an alternative remedy available as decided in a good number of cases by the Appellate Division. Chief Engineer, REB =VS= Biswajit Ganguly, (Civil), 2017 (2)– [3 LM (AD) 192]

The Constitution of Bangladesh, 1972

Article 105

Review— Modification of the ordering portion of the judgment– To secure the ends of justice, the ordering portion of judgment of this Court is modified adding the words "as described in the schedule to the plaint quoted hereinbefore" after the words "in the suit plot" and if there is any excess land in the suit plot, ie more than 612 square yards and 6 sft as claimed by the plaintiffs, they shall have no claim therein. It is the RAJUK to decide whether defendant No. 1-petitioner would get the excess land in the suit plot, if there be any, if so advised, the petitioner may approach the RAJUK to ventilate his grievance. But we make it very clear that RAJUK shall not in any way encroach upon the land of the plaintiffs as described in the schedule to the plaint. Modification of the ordering portion of the judgment sought to be reviewed. Anwarul Huq =VS= Iqbal Ahmed, (Civil), 2017 (2)– [3 LM (AD) 13]

The Constitution of Bangladesh, 1972

Article 105– The facts and circumstances and new papers produced in this Court which were not produced and considered by this Court earlier and that from the new materials produced in this Court it appears that in those papers the University authority and the writ petitioner approved the decision for confirmation of services of the appellants, we are of the view that the appellants are entitled to get relief because error has crept in earlier decision. Dr. Khairun Nahar =VS= Professor Dr. Iqbal Arshalan, (Civil), 2017 (2)– [3 LM (AD) 215]

The Constitution of Bangladesh, 1972

Article 105

Review– No new and relevant materials have been produced to substantiate the claim for review. The review petition is dismissed. Lancaster Export Service Ltd =VS= Forseti Group Inc. (Civil), 2017 (2)– [3 LM (AD) 240]

The Constitution of Bangladesh, 1972

Article 105

Review– The defendant-petitioner got ample opportunity to agitate this ground before the courts below and also before this Division at the time of hearing of civil petition for leave to appeal, but he did not do so.  Considering the above facts and circumstances we do not find any sufficient ground to review the judgment and order in question and hence this civil petition for review be dismissed. Mominul Islam(Md.) =VS= Md. Aminul Islam, (Civil), 2017 (2)– [3 LM (AD) 412]

The Constitution of Bangladesh, 1972

Article 145(2)– The official liquidator executed the agreement on behalf of the government in exercise of the executive authority of the Republic under article 145(2) of the constitution. Even if Durnity Daman Commission finds irregularity in the process of transfer of the mills, the writ petitioner’s right cannot be affected, inasmuch as, the government has accepted two installments towards the consideration and handed over possession of the mills and that the government has not taken any disciplinary action against the officials who were involved in the process of transfer of the mills. Bangladesh =VS= Refat Garments Limited, (Civil), 2017 (2)– [3 LM (AD) 104]

The Constitution of India

Article 142 read with

Gratuity Act, 1972

Gratuity payable to an officer– This is a fit case to invoke our jurisdiction under Article 142 of the Constitution of India.  We, therefore,  direct  that  the  appellants  Banks shall pay an amount of Rs. 2,00,000/- (Rupees Two Lakhs) in full  and  final settlement of all their  claims  including  the  expenses  which  they  have incurred for litigation for more than two decades.  The  amount,  as  above, shall be paid within eight weeks from today. Central Bank of India =VS= M. Sethumadhavan, (Civil), 2017 (2)– [3 LM (SC) 7]

The Contempt of Courts Act, 1971

Section 2(b)

The Court is bound to explain as to why the apology should not be accepted– Apology becomes relevant. The appellant has tendered an unconditional apology for bona fide exercise of his powers as an Investigating Officer. Apology is one of the defences in the case of a civil contempt and the Court is bound to explain as to why the apology should not be accepted. The facts and circumstances of the case, we are of the view that the apology tendered by the appellant has to be accepted. Satwant Singh =VS= Malkeet Singh, (Civil), 2017 (2)– [3 LM (SC) 41]

The Contempt of Courts Act, 1926

Section 2(3)– This section provides for certain cases of contempt of lawful authority of a court of justice committed in presence of the court. It is a direct contempt of court and empowers all courts including a court of Magistrate or an Assistant Judge to punish an offender be he a lawyer or anyone else summarily in respect of the offences mentioned therein. The subordinate courts can sufficiently vindicate their dignity by proceeding against the offenders under this provision. Legislature has deemed it proper to exclude such cases from the jurisdiction of the High Court Division under section 2(3) of the Contempt of Courts Act, 1926. Bangladesh =VS= Naznin Begum(Most.), (Civil), 2017 (2)– [3 LM (AD) 66]

The Contract Act, 1872

Section 55– Section 55 of the Contract Act, if it was the intention of the parties that the time should not be of the essence then the contract does not become voidable, but the promisee becomes entitled to receive compensation. Hence, it is our view that the Vendor is only entitled to receive compensation for the delay in performance of the agreement by the Purchaser. Mahua Khair =VS= Amena Begum Ali Ispahani, (Civil), 2017 (2)– [3 LM (AD) 246]

The Contract Act, 1872

Consultancy fees– Consultancy fees for the second power plant, the High Court Division concluded that this contract was signed long after the consultancy agreement and was not resultant from the said consultancy. We also find that the plaintiff admitted in his cross-examination that the second contract was signed six years after 03.05.1998. We, therefore, do not find any illegality in the reasoning given by the High Court Division that the plaintiff is not entitled to receive any consultancy fees for the second contract. Muhammad Iqbal Hussain=VS=Westmont Power (BD) Ltd., (Civil), 2017 (2)– [3 LM (AD) 422]

The Customs Act, 1969

Section 31 & 131 Sections 31 and 131 of the Act, the only relevant factor is that of delivery of the goods declaration. This appeal is partly allowed. It is dismissed to the extent that where the goods declarations were filed before the date of the notification, i.e. 13.3.2010, no regulatory duty was payable by the respondent. However, where the goods declarations were filed on or after such date, the respondent was liable to pay regulatory duty as envisaged by the notification and to this extent, the appeal is allowed. Collector of Customs (Export) =VS= Saifuddin, (Civil), 2017 (2)– [3 LM (SC) 82]

Case diary– Keeping case diary under safe custody is an important task – Keeping case diary under safe custody is an important task. The case diary is the picture of the entire result of the investigation and other particulars regarding the topography of the place of occurrence, the probability of approach of the offender to the scene and the direction of retreating and the location of the probable witnesses etc. The activities of the police investigation officer can very well be looked after by the senior police officers going through the records of the case diary. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The case diary must include entries of necessary information for each of the days – The language used is day by day and therefore, it is mandatory duty for such officer to record every day’s progress of the investigation. The case diary must include entries of necessary information for each of the days when investigation is in progress. Sometimes the investigation officers neglect the examination of the witnesses on the first day of the visit of the place of occurrence and after consuming days together record the statements in a single day. This process is totally unauthorised. In every case the investigation officers must record the statements of the witnesses present expeditiously on the first day or the following day if the FIR discloses the names of the witnesses who are acquainted with the facts of the case. Section 157 of the Evidence Act in an unambiguous language stated that the admissibility of a previous statement that should have been made before an authority legally competent to the fact ‘at or about the time’, when the fact to which the statement relates took place. The object of this section is to admit statements made at a time when the mind of the witness is still so connected with the events as to make it probable that his description of them is accurate. But if time for reflection passes between the event and the subsequent statement it not only can be of little value but may be actually dangerous and as such statement can be easily brought into being. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

A complaint of a cognizable offence– A complaint of a cognizable offence recorded by a Magistrate and sent by him to the police for investigation and report is sufficient information justifying arrest under section 54 of the Code.  Similarly, information that a warrant of arrest has been issued against a person in respect of a cognizable offence, may justify action being taken under the said section. Where, from a report of a Chowkider that certain persons were dacoits the police officer called them to surrender, but the latter resisted and fired shots at the officer, the latter was justified in arresting those persons. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

Confidential document – It is however, to be noted that the case diary is a confidential document. So, it may not be claimed by the accused person at any time for the purpose of assessing and scrutinizing its entries. A criminal court is free to ask for the case diary at any stage of the proceedings. But, the case diary cannot be used as evidence in the trial.  Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

Credible information– There was no provision in the Codes of 1861 and 1872, enabling an arrest without warrant on credible information as to the person to be arrested being concerned in a cognizable offence. Such a provision was introduced for the first time in the Code of 1882. The words “credible information” include any information which, in the judgment of the officer to whom it is given appears entitled to credit in the particular instance. It need not be sworn information. The words “credible” and “reasonable” have reference to the mind of the person receiving the information. A bare assertion without anything more cannot form the material for the exercise of an independent judgment and will not therefore amount to “credible information”. The “reasonable suspicion” and “credible information” must relate to definite averments which must be considered by the police officer himself before he arrests a person under this section. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

Custody of Minor– Considering the facts and circumstances- especially the facts that minor S.A.M.M. Zohaibuddin has already attained the age of almost 7 years and he is now residing along with his ailing elder brother in his father’s house and is being taken good care of by his father, grandfather and grandmother, we are inclined to allow the prayer of the leavepetitioner to retain the custody of his minor son S.A.M.M. Zohaibuddin till disposal of Family Suit.  S.A.M.M. Mahbubuddin =VS= Laila Fatema, (Civil), 2017 (2)– [3 LM (AD) 468]

See also:

*Challenging the acquisition proceedings [3 LM (SC) 23]

*The Chittagong Hill Tracts Regulation, 1900 [3 LM (AD) 478]

*Case diary [3 LM (AD) 274]

*The Contract Act, Section 23 [3 LM (AD) 46]

*The Contract Act, 1872 [3 LM (AD) 198]

D

Dhaka University Order, 1973

Article 4 & 25 read with

The Medical and Dental Council Ain, 2010

Section 43

Admission of Student decision involving policy–It is now settled that the court will not interfere with policy decision merely because it feels that another policy decision could have been fairer or wiser or more scientific or logical (Balco Employees Union V. India, 2002 (2) SCC 3330). This court accepted the views taken in that case and we find no cogent reason to differ from the same. Same principle is applicable in case of admission of students, inasmuch as, it is the policy decision of the University authority. Every organ of the State should be allowed to perform its onerous responsibility in accordance with their respective laws. If the court interferes with their internal administration and the eligibility of admission of students in any University, this will tantamount to exercise of a power not vested in law. The court should refrain itself from interfering with the internal administration of an authority if such authority does not contravene the law. VC, University of Dhaka =VS= A.K.M. Muid, (Civil), 2017 (2)– [3 LM (AD) 470]

Disciplinary enquiry-Natural justice-Non application of mind– The  writ  court  will certainly interfere  with  disciplinary  enquiry  or  the  resultant  orders passed by the competent authority on that basis if the  enquiry  itself  was vitiated on account of violation of principles of  natural  justice,  as  is alleged to be the position in the present case.    Non-application  of  mind by the Enquiry Officer  or  the  Disciplinary  Authority,  non-recording  of reasons in support of the conclusion arrived at by them are also grounds  on which the writ courts are  justified  in  interfering  with  the  orders  of punishment. Allahabad Bank =VS= Krishna Narayan Tewari, (Civil), 2017 (2)– [3 LM (SC) 1]

Donation– We direct the M.H. Samarita Medical College, 117 Tejgaon, Love Road, Dhaka to pay Tk.75,00,000/- to the Children Heart Foundation & Research, Dhaka having office at center point concord, space: 5/B, 14/A & 31/A Tejkunipara Tejgaon, Dhaka and Tk.25,00,000/- to the National Liver Foundation of Bangladesh totaling Tk.1,00,00,000/- within  7(seven)  days from the date of receipt of the order and  submit  the receipts of donation before the Registrar General, Supreme Court  of  Bangladesh,  Dhaka. Pursuant to deposit of donation for charitable purposes, the Dhaka University shall accord registration and issue registration cards to the writ petitioners in Writ Petition Nos.13572 of 2016 and 13272 of 2016 in the first year BDS and MBBS examinations respectively. In case to failure to make the donation, M.H. Samarita Medical College and Dental unit shall be debarred from admitting students for the academic sessions 2017-2018. The rules issued by the High Court Division are discharged. These petitions are accordingly disposed of. Registrar, University of Dhaka =VS= Tanjina Akter, (Civil), 2017 (2)– [3 LM (AD) 438]

See also:

*Diary [3 LM (AD) 274]

*Durnity Daman Commission Ain, 2004, Section-38 [3 LM (AD) 440]

*Divorce [3 LM (SC) 33]

*Declaration of title with khas possession [3 LM (AD) 181]

*Declaration of title [3 LM (AD) 3]

E

The Evidence Act, 1872

Section-44

Fraud vitiates a decree–The real owner’s title will not be extinguished in any manner in a mortgaged property, even after passing a decree, if it is found that the mortgagors have no right, title and interest in the property mortgaged. Therefore, whatever decree the mortgagee will get, such the decree is subject to the mortgagor’s title in the said property. Fraud vitiates a decree and the real owner can also ignore the decree under section 44 of the Evidence Act. Sekandar (Md.) =VS= Janata Bank Ltd., (Civil), 2017 (2)– [3 LM (AD) 448]

The Evidence Act, 1872

Sections 106 or 114

Burden of proof – In most criminal matters, the burden of proof lies upon the prosecution to prove a charge against an offender, but in respect of spouse killing case, it has been established that the burden shifts upon the accused person. It is the responsibility of the accused to explain the cause for the death of his/her spouse if it is found that he or she died while in his/her custody or that they were staying jointly before the death. The High Court Division is of the view that with a view to giving legal safeguard in respect of such offences, sections 106 or 114 of the Evidence Act may be amended. Since the law is settled on the said issue, there is no reason for any amendment of the law. On the doctrine stare decisis if a decision has been followed for a long period of time, and has been acted upon by persons in the formation of contracts or in the disposition of their property, or in the general conduct of affairs, or in legal procedure or in other ways, will generally be followed by courts. This doctrine is explained in Corpus Juris Secundum: ‘Under the stare decisis rule, a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed on similar cases. This rule is based on expediency and public policy, and, although generally it should be strictly adhered to by the courts it is not universally applicable.’ So, there is no need for amendment to section 106 or 114 of the Evidence Act. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

Entitled to continuity of service till the  date  of  his superannuation with  all  service  benefits – Filed by the respondent has been allowed and an order  dated 29th July, 2005 passed by the Disciplinary  Authority  and  that  dated  directing  removal  of  the respondent from the service of the appellant-bank quashed.  The  High  Court has as a result directed the appellant bank to provide  all  service/retiral benefits to the petitioner within ninety days of the order.   The  challenge mounted by the appellant arises in the following circumstances:

We assume that the High Court’s direction  for release of service benefits would include the release of his  salaries  also for the period mentioned above.  We are, however, of the opinion that  while proceedings need not be remanded for  a  fresh  start  from  the  beginning, grant of full salary for the period between the date of  dismissal  and  the date of superannuation would not also be justified.   We,  therefore,  allow this appeal but only in part and to the extent that while orders  passed  by the Disciplinary Authority and the Appellate Authority shall stand  quashed, and the respondent entitled to continuity of service till the  date  of  his superannuation with  all  service  benefits  on  that  basis,  he  shall  be entitled to only 50% of the salary for the period between the  date  of  his removal from service till  the  date  of  superannuation. Allahabad Bank =VS= Krishna Narayan Tewari, (Civil), 2017 (2)– [3 LM (SC) 1]

Evicting from the Suit premises – Defendant was rightly found to be a defaulter– Monthly rent could not be defrayed from the unpaid amount of the loan.  The plaintiff would repay the loan from his income from whatever source. We are of the view that the defendant was rightly found to be a defaulter. The claim of the defendant against the plaintiff for money given by way of loan is still pending. That matter is separate and distinct from the present case before us. We find no merit in the instant civil petition for leave to appeal. A.K.M. Mahbubul Haque =VS= Chowdhury Motinul Haque, (Civil), 2017 (2)– [3 LM (AD) 33]

See also:

*The Emergency Powers Rules, 2007, Rule 19Ka [3 LM (AD) 7]

*Eviction in the suit shop [3 LM (SC) 50]

F

The  Finance  Act, 2005

Section  65(23)  read  with 105(zr)

Pay service tax– We  are  of  the view that prior to the amendment made  by  the  Finance  Act  of  2005  with effect from 16.06.2005, the appellant would not be  liable  to  pay  service tax on the service rendered by it in  terms  of  Section  65(23)  read  with Section 105(zr) of the Act. Signode India Ltd. =VS= Commr.Of Cen. Excise & Customs-II, (Civil), 2017 (2)– [3 LM (SC) 42]

See also: Fraud vitiates a decree [3 LM (AD) 448]

G

The General Clauses Act

Section 6 read with

Durnity Daman Commission Ain, 2004

Section 38

The action taken under the repealed Act shall continue as if it has not been repealed­– By reason of abolition of Bureau of Anti-Corruption, no offender can claim any right of non-prosecution under the new Ain. More so, in view of section 6 of the General Clauses Act, proceedings of the case shall be continued from the stage the old law was repealed unless different intention appears in the repealing enactment. There is nothing in the new enactment restricting the continuation of the pending proceedings, rather it saved those proceedings. We have, already settled the point in controversy in an unreported case in Civil Petition No. 1321 of 2013' disposed of along with CP Nos.235-237 of 2016. This court held that 'even if the Commission is not constituted under the Ain, the actions taken under the repealed Act shall continue as if it has not been repealed. There cannot be any doubt to infer that the activities of the defunct Bureau will be suspended by reason of the abolition of the Bureau, rather all activities will continue ' Sayed Liaquat Hossain =VS= Barrister Md Rafiqul Islam Mia, (Civil), 2017 (2)– [3 LM (AD) 440]

Guide lines to be followed law enforcing– The responsibilities of the law enforcing agencies in case of arrest and detention of a person out of suspicion who is or has been suspected to have involved in a cognizable offence.  Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

See also:

*Gratuity Act, 1972 [3 LM (SC) 7]

*General Clauses Act (X of 1897) [3 LM (AD) 7]

H

Hindu Law

Marriage declaration under Hindu Law– The High Court Division considered that defendant No. 1 was an educated person, and being a doctor, he maintained a Chamber which was frequently visited by the plaintiff and they developed a love affair and, thereafter, went through a wedding at a temple, namely Bazalia Panchanan Sheba Sangha Mondir. They lived together as husband and wife and the plaintiff gave birth to a female child. The High Court Division observed that the Court of appeal being the last Court of fact discussed the evidence on record and decreed the suit and declined to interfere with the judgement and decree. We do not find any illegality or infirmity in the judgement of the High Court Division. We find no merit in the civil petition for leave to appeal, which is dismissed. Dr. Shimul Kanti Sushil =VS= Neli Rudra, (Civil), 2017 (2)– [3 LM (AD) 220]

The Hindu Marriage Act 1955

Section 13

Divorce– The wife filed a suit praying  for  injunction that the husband should not be permitted to enter the matrimonial home. We direct that the husband shall pay  to  the  wife  a  sum  of  Rs.50,00,000/- (Rupees Fifty Lakhs only) as one time permanent alimony  and  she  will  not claim any further amount at any later stage. The petition for divorce filed by the husband under Section 13  of  the  Act  is decreed and  the  marriage  of  the  parties  solemnized  on  13.04.1989  is dissolved by a decree of divorce.  The wife shall be entitled  to  permanent alimony of Rs. 50,00,000/- (Rupees Fifty Lakhs Only) and a residential  flat of the value of up to Rs.1,00,00,000/- (Rupees One Crore Only), as  directed hereinabove.  Pending application(s), if any, stand(s) disposed of. Raj Talreja =VS= Kavita Talreja, (Civil), 2017 (2)– [3 LM (SC) 33]

I

The  Income  Tax   Act,   1961

Section 50 (2)

Assessee  does not fall within the four corners– In our considered opinion, the case of the respondent (assessee)  does not fall within the four corners of Section 50 (2) of the  Act.  Section  50(2) applies to a case where any block  of  assets  are  transferred  by  the assessee but where the entire running business with assets  and  liabilities is sold by the assessee in one  go,  such  sale,  in  our  view,  cannot  be considered as “short-term capital assets”. In other  words,  the  provisions of Section 50 (2) of the Act would  apply  to  a  case  where  the  assessee transfers one or more block of assets, which he was using in running of  his business.  Such is not the case here because  in  this  case,  the  assessee sold the entire business as a running concern. We find no merit in  the  appeal which fails and is accordingly dismissed. Commissioner of Income Tax =VS= Equinox Solution Pvt. Ltd., (Civil), 2017 (2)– [3 LM (SC) 9]

The  Income  Tax   Act,   1961

Section  260A– The  High  Court  dismissed  the  Revenue’s appeal on the ground that  the  appeal  does  not  involve  any  substantial question  of  law  under  Section  260-A  of  the  Income  Tax   Act,   1961. Filed appeal before the Income Tax Appellate Tribunal. By order dated  27.06.2002, the Tribunal concurred with the reasoning and the conclusion arrived  at  by the Commissioner of Appeal and accordingly dismissed the Revenue's appeal. The High Court dismissed  the  appeal  holding  that  the appeal does not involve any substantial question of law within  the  meaning of Section 260-A of the Act. Commissioner of Income Tax =VS= Equinox Solution Pvt. Ltd., (Civil), 2017 (2)– [3 LM (SC) 9]

The Income Tax Ordinance, 1984

Section-92

Recover taxes– Both the appeals are disposed of and the impugned judgment delivered by the High Court Division is set aside and the proceedings of the Special Cases pending before the Special Judge, Dhaka abated and the appellant is at liberty to recover taxes from the heirs of respondent No. 1 of both the appeals as per section 92 of the ordinance. AC of Taxes =VS= BM Baker Hossain, (Civil), 2017 (2)– [3 LM (AD) 22]

The Income Tax Ordinance, 1984

Section 92– We are of the view that the legal representatives shall be liable to pay tax or other sum payable under Ordinance but the liabilities of the legal representatives under this Ordinance shall be limited to the extent to which the estate of the deceased is capable of meeting the liability. AC of Taxes =VS= BM Baker Hossain, (Civil), 2017 (2)– [3 LM (AD) 22]

The Income Tax Ordinance, 2001

Section 176

Amended assessment– SNGPL and OGRA are bodies that are competent to divulge such information with absolute correctness as one is the supplier of natural gas and the other fixes the retail price of CNG in the country. To the information so procured, which on the face of it fall within the ambit of ‘definite information’, the tax authorities applied OGRA’s conversion formula to ascertain the quantum of CNG produced from the natural gas consumed in each of the tax years in question. It then transpired that the sale of CNG has been under-reported, which led to issuance of amended assessment order. We find no legal infirmity in the manner in which the tax authorities ascertained the quantum of CNG produced from the volume of natural gas consumed in the process of conversion. Allow these appeals, set-aside the impugned judgment passed in all connected cases and restore the amended assessment orders issued to the respondents. Commissioner Inland Revenue =VS= M/s Khan CNG Filling Station, (Civil), 2017 (2)– [3 LM (SC) 86]

Investigation officers – The investigation officers do not have any discretion to take decision as to whether he will or will not record the events during investigation in the case diary. This is a compulsory statutory duty for every officer to record all the events in the case diary. This is the duty of the Officer-in-Charge to make sure that officers subordinate to him shall record necessary entries in the case diary properly. A case diary is an indicator how good and intellectual a police officer is. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

L

The Land  Acquisition  Act, 2013 read with

The  Land Acquisition Act, 1894

Sections  4, 6 & 18

Challenging the acquisition proceedings– It is  seen  from  the above resume of the proceedings that the appellants were  paid  compensation and possession was duly taken.  The appellants also preferred  reference  on which higher compensation was awarded  and  matter  attained  finality  upto this Court.  The appellants thereafter filed  a  writ  petition  challenging the acquisition proceedings which was held to barred by  delay  and  latches against which SLP was dismissed by this Court.  Of  course,  an  observation was made that the appellants could prefer appropriate proceedings  based  on their grievance under the 2013 Act. Jasveer Singh =VS= State of Uttar Pradesh, (Civil), 2017 (2)– [3 LM (SC) 23]

The   Land Acquisition Act, 1894

Section 4, 5A & 6(1)– The acquiring authority can  always  issue  a  fresh  notification  for acquisition of the land in the event  of  the  impugned  notification  being quashed. The consequence of this will only  be  that  keeping  in  view  the rising trend in prices of land, the amount of compensation  payable  to  the landowners may be more. Spl Agricultural Produce Market Committee =VS= N. Krishnappa, (Civil), 2017 (2)– [3 LM (SC) 45]

The Land Appeal Board Ain, 1989 read with

The Chittagong Hill Tracts Regulation, 1900

The Land Appeal Board constituted under the provisions of the Land Appeal Board Ain, 1989 has jurisdiction to hear disputes arising out of judgment and order passed by the Deputy Commissioner and Divisional Commissioner in civil suits in exercise of powers under the Chittagong Hill Tracts Regulation, 1900 (Regulation of 1900). Wagachara Tea Estate Ltd =VS= Muhammad Abu Taher, (Civil), 2017 (2)– [3 LM (AD) 478]

The Limitation Act, 1908

Section 12(2)– The Limitation Act provides filing of appeal or any application challenging any decree or order, whatsoever, of the court upon obtaining the certified copy of the same and section 12(2) of the Limitation Act provides that the time consumed in obtaining such copy shall be excluded. In the instant case, it appears that neither there is any statement as to delay or there is any prayer for condonation of delay nor there is any such finding by the court of appeal below. As such it can be safely construed that the application was filed within time. So there was no bar in allowing the application. As such Rule 19 is very much applicable in the present case. Hence we hold that the High Court Division committed error of law in not taking the above facts into consideration and as such came an erroneous finding that the re-admission was made without complying with the provision of law. Bangladesh =VS= Abdul Barek Bepari, (Civil), 2017 (2)– [3 LM (AD) 93]

The Limitation Act, 1963

Section 27 read with article 64, 65

Adverse possession– The plea of adverse possession being essentially a  plea  based on facts, it was required to be proved by the party raising it on the  basis of proper pleadings and  evidence.  The  burden  to  prove  such  plea  was, therefore, on the defendant who had raised it. It was, therefore,  necessary for him to have discharged the burden that laid on him  in  accordance  with law. Dagadabai =VS= Abbas, (Civil), 2017 (2)– [3 LM (SC) 14]

The Local Government (City Corp.) Act, 2009

Sections 9 & 13– The writ-petitioner may be a person wanted in a criminal case by virtue of the order dated 7-3-2016 passed in GR No.4477 of 2012. Because at the time of issuance of Rule Nisi, he was not a fugitive and the subsequent development of the criminal case or any other criminal proceeding would not be a bar to entertaining his case in writ jurisdiction unless it is found that he has become disqualified to hold the office as a specified in section 9 or 13 of Ain, 2009. Ministry of LGRD =VS= Mosaddek Hossain, (Civil), 2017 (2)– [3 LM (AD) 399]

See also:

*Land Appeal Board Ain, 1989 [3 LM (AD) 478]

*Limitation Act, 1908, Section 29 [3 LM (AD) 45]

M

Mulla  Principles  of Mahomedan Law, [20th Ed.]

Section  347

Adopted son– It is a settled principle of Mohammadan Law  that  Mohammadan Law does not recognize adoption (see-Section  347  of  Mulla  Principles  of Mahomedan Law, 20th Edition page 430). Dagadabai =VS= Abbas, (Civil), 2017 (2)– [3 LM (SC) 14]

The Magistrate is not bound to accept the police report – On perusal of the recommendations it is to be noted that most of the recommendations are in conformity with Part III of the constitution but some of the recommendations are redundant, some of them are not practically viable and some of them are exaggeration. As for example, a Magistrate cannot decide any case relying upon the post-mortem report of a victim. It is only if a case is filed whether it is a UD case or complaint, the police find that the death is unnatural, it can send the dead-body to the morgue for ascertaining the cause of death. In respect of UD case, a police officer compulsorily sends the dead body to the morgue for ascertaining the cause of death with an inquest report. After receipt of the report, if the police officer finds that the death is homicidal in nature, the police officer is under obligation to register a regular case. Even if after investigation the police officer does not find any complicity of accused person, the Magistrate is not bound to accept the police report. It may direct further inquiry or further investigation over the death of the victim if he finds that the death is homicidal in nature. The power of the Magistrate is not circumscribed by any condition. The Magistrate is not bound to accept the police report. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

Monthly Pay Order (MPO) (government portion of the salary– The High Court Division directed the leave-petitioners to settle the index number of the writ-petitioner’s Monthly Pay Order (MPO)and to pay the writ-petitioner’s earlier MPO with effect from 14.10.2004 within 3 (three) months from the date of receipt of a copy of the judgment and order of the High Court Division. 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. Accordingly, this civil petition is dismissed. Ministry of Education =VS= Md. Zahurul Haque, (Civil), 2017 (2)– [3 LM (AD) 272]

See also: The Medical and Dental Council Ain, 2010, Section 43 [3 LM (AD) 470]

N

The National Sports Council Act, 1974

Article 11.1 & 26

Power to BCB to amend it’s Constitution– We are of the view that the BCB is at liberty to amend its Constitution at any time as per provision of Article 11.1 and Article 26 of its Constitution so that the requirements of International Cricket Council is met subject to the approval of NSC. Secretary, NSC =VS= Yousuf Jamil Banu, (Civil), 2017 (2)– [3 LM (AD) 443]

The Non-Agricultural Tenancy Act

Section 24

Pre-emption– The trial Court dismissed the pre-emption case mainly on the ground that the preemptor could not prove his date of knowledge about the disputed deed of transfer of the case land and found that the case was barred by limitation. The appellate Court, on the other hand, noted that the pre-emptees were in possession of the case property as tenant and, therefore, it was natural that the pre-emptor would not know about the sale of the property. The appellate Court accepted the explanation given by the pre-emptor about his knowledge regarding the sale and transfer of the case property.  The High Court Division faced with judgement of reversal of the appellate Court considered the evidence on record and noted that the pre-emptor did not name the person from whom he came to know about the case kabala either in the application for pre-emption or in his evidence. We do not find any illegality or impropriety in the impugned judgement, which in our opinion does not call for any interference. Petitioner for leave to appeal is dismissed. Promotto Das =VS= Sudip Kumar Ghosh, (Civil), 2017 (2)– [3 LM (AD) 432]

No work no pay– They crossed the maximum age for joining government service. The guidelines of the decision reported in 17 BLC (AD) 91. The respondents are further directed to consider the case of the petitioners for appointment in permanent posts of the Republic subject to their having requisite qualifications by disregarding their  age. Bangladesh =VS= Hassan Ahmed Khan, (Civil), 2017 (2)– [3 LM (AD) 89]

See also: The Non-Agricultural and Tenancy Act, Section 24 [3 LM (AD) 459]

P

The Partition Act, 1893

Section 4– We find from the judgement and decree of the trial Court that the plaintiff was found to be member of an undivided family and that the defendants were strangers. It was also found that the earlier title suit No. 42 of 1998 did not create any bar upon the plaintiff in establishing her right under section 4 of the Partition Act– The Appellate Division observed that although the discussion by the trial Court and appellate Court was rather scanty, we find from the impugned judgement that the High Court Division has discussed the matters arising in great detail. The High Court Division, referring to Title Suit No. 42 of 1998, observed that that case was instituted by Lutfa Begum, who is the daughter of the plaintiff, against her brother for specific performance of contract, and that that suit had no connection with the present suit. Appellate Division finds that after elaborate discussion of the law and facts the High Court Division upheld the judgement and decree of the appellate Court. We find no reason to interfere with the impugned judgement and order of the High Court Division. Accordingly, the civil petition for leave to appeal is dismissed. Mozibur Rahman(Md.) =VS= Shafia Khatoon, (Civil), 2017 (2)– [3 LM (AD) 419]

The Penal Code, 1860

Section 109– Since the principal offender has been acquitted of the charge, if the respondent appears and files an application for discharge, the Special Judge shall dispose of the matter in the light of the views taken by this court in Moyna Miah vs State, 1985 BLD (AD) 99 to the effect that after the acquittal or discharge of the principal offender, no fruitful purpose will be served if the trial of the case proceeds against the abettor. Anti-Corruption Commission =VS= Tasmima Hossain, (Civil), 2017 (2)– [3 LM (AD) 9]

The Penal Code, 1860

Section 109 read with

Prevention of Corruption Act (II of 1947)

Section 5(1), 5(2)

The High Court Division has come to a finding that it appeared from the confession of co-accused that bribe was given to the then Sate Minister for Energy and Mineral Resources, AKM Mosarraf Hossain, Selim Bhuiyan and Gias uddin Al Mamun to ensure that the `JVA' is to be finalized and singed which clearly comes within the ambit of definition of criminal misconduct given in section 5(1) of the Prevention of Corruption Act, 1947. The High Court Division has held that in the instant case, the issue is determination of criminal liability of the writ-petitioner in respect of the alleged offence under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947, that is, criminal breach of trust by public servant and abetment of the offence that took place in the process of executing the `JVA' . The High Court Division has noted that abetment under section 109 of the Penal Code is such an offence which can be inferred from the conduct of the accused and attending circumstances of the case. Begum Khaleda Zia =VS= Anti-Corruption Commission, (Civil), 2017 (2)– [3 LM (AD) 177]

The Police Regulations of Bengal

Case diary– Learned Attorney General submits that the High Court Division has not considered the Police Regulations of Bengal while making observations relating to case diary and submits that under the Police Regulations of Bengal the court or any other person is not authorized to look into the case diary in view of G.O. No.P.8C-5/60(III) 34PI, dated 16th January, 1961. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Police Regulations, Bengal

Regulation No.68(b)– It has been said in PRB No.68(b) that a person not being a Police-Officer can also go through the case diary on being empowered by the Superintendent of Police Every Police Officer shall keep his case-diary in proper care and custody and shall consider it a very secret and confidential document till final disposal of an appeal or a revision pending before Courts. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Police Regulations of Bengal

Regulation 68– A perusal of regulation 68 makes it clear that the diary should contain full unabridged statement of persons examined by the police so as to give the Magistrate a satisfactory and complete source of information which would enable him to decide whether or not the accused person should be detained in custody. Section 167(1) requires that copies of entries of the diary should be sent to the Magistrate with the object to prevent any abuse of power by the police officer. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Police Act, 1861

Section 44– Section 44 of the Police Act and regulations Nos.263 and 264 of the Police Regulations of Bengal are relevant for our consideration which read as follows:

“263. (a) section 172, Code of Criminal Procedure, prescribes the case diary which an investigating officer is bound by law to keep of his proceedings in connection with the investigation of each case. The law requires the diary to show—

 (i) the time at which the information reached him; 

(ii) the time at which he began and closed his investigation;

(iii) the place or places visited by him. 

(iv) a statement of the circumstances ascertained through his investigation.  Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Premises Rent Control Ordinance, 1963

Section 10 read with

The Premises of Rent Control Act, 1991

Section 10

Section 10 of the Premises Rent Control Ordinance, 1963 prohibits acceptance of premium, salami or any money more than one month’s rent by the landlord. Similar provision is also provided in the Premises of Rent Control Act, 1991. It says:

“10 Premium, salami or fine not to be claimed, received or asked for or advance or more than one month’s rent not to be claimed or received- No person shall, in consideration of the grant, renewal or continuance of a tenancy of any premises- (a) claim, receive or invite offers or ask for payment of any pre-mium, salami, fine or any other like sum in addition to the rent; or (b) except with the previous written consent of the Controller, claim or receive the payment of any sum exceeding one month’s rent of such premises as rent in advance.” Banichitra Pratisthan Ltd. =VS= Bilkis Begum, (Civil), 2017 (2)– [3 LM (AD) 46]

The Premises of Rent Control Act, 1991

Section 11– The landlords are claiming advance as security money from the tenants even in case of letting out premises for a limited period. This is totally unauthorised. Banichitra Pratisthan Ltd. =VS= Bilkis Begum, (Civil), 2017 (2)– [3 LM (AD) 46]

The property was left in uncared condition just immediately after the independence of the country and it was rightly declared as abandoned property– There is no cause of action in the suit and it is also not clear whether Hakim Syed Abdul All or his brother is still alive or not. The property was left in uncared condition just immediately after the independence of the country and it was rightly declared as abandoned property. The judgments of the trial court, the appellate court, the High Court Division and this court are also based upon forged and false evidence. These judgments are set aside. Bangladesh =VS= Naznin Begum(Most.), (Civil), 2017 (2)– [3 LM (AD) 66]

The President’s Order.46 of 1972

Article 27(1)(i)/ (d) & 40(2)(t) read with

The Bangladesh legal practitioners and Bar Council Rules, 1972

Rule 65A

Appellate Division opinion is as under:

(a)    A profession of law being founded on great traditions that it is not a business but a part of a scheme of a welfare State where all segments of public reposed faith in them to protect their fundamental rights, they are answerable to the social conscience of the society and have moderate obligation towards them who are unable to protect their interest.

(b)   Lawyers are duty bound to contribute in building social order so that the fruits of the social economic justice reach to the poor segment of people of the country, and therefore, a lawyer owes a duty to be fair not only to his client but also to the society.

(c)    Bangladesh Bar Council is rendering public utility service and law cast on this Body in the national hope that the members of legal profession will serve society and keep the cannons of ethics defeating an honourable order.

(d)   The Bar Council shall frame Rules with approval of the government to monitor the standard of legal education to be observed by universities and law colleges in Bangladesh and the inspection of the universities and colleges for that purpose in accordance with article 40(2)(t) of P.O.46 of 1972.

(e)    The Bar Council shall publish a syllabus to be taught by the universities and law colleges compulsorily which will award LLB honours and pass course degree certificates and that no person shall be allowed to be enrolled as an advocate unless he/she obtains a graduation certificate on law on those subjects in accordance with article 27(1)(i) and (d) of P.O. 46 of 1972.

(f)    The Bar Council has exclusive power to recognize a decree in law obtained by any person from any university or college and it has power to curtail/exonerate the power to practice of any person either in the district courts or in the High Court Division.

(g)    No private university shall issue Bachelor of Law degree unless such person undergoes four years education in law course and this direction shall have prospective effect. No public or private university shall admit students in bachelor of law course more than 50 (fifty) students in a semester.

(h)   The Bar Council has power not to recognize any degree in respect of any student for being enrolled as an advocate who has not studied four years horours course in law along with other subjects in any private university.

(i)     No public or private university or law college shall issue any law degree certificate to a student which does not have sufficient number of teachers to teach the law subject, as may be prescribed by the Bangladesh Bar Council.

(j)     The Bar Council may limit/increase the age limit of a person to be enrolled as an advocate either in the district courts or the High Court Division by framing rules.

(k)   Rule 65A of the Bangladesh legal practitioners and Bar Council Rules, 1972 intravires the constitution and P.O. 46 of 1972.

(l)     The Bar Council shall complete the enrolment process of the applicants to be enrolled as advocates in the district courts each calendar year. Bangladesh Bar Council =VS= A.K.M. Fazlul Kamir, (Civil), 2017 (2)– [3 LM (AD) 132]

The Prevention of Corruption Act, 1947

Section 5(2) read with

The Emergency Powers Rules, 2007

Rule 19Ka read with

General Clauses Act (X of 1897)

Possession of the leasing out the Railway’s property– We are of the view that the High Court Division's judgment will not stand on the way if the Ministry of Railway after holding proper inquiry finds that the allotment and/or leasing out of the said property has been made by Nazmul Huda by misuse of power, it can cancel the lease and/or allotment of the property in favour of evsjv‡`k gvbevwaKvi ev¯Íevqb ms¯’v, and to take possession of the said property, if it has not been taken over in the mean time. Anti-Corruption Commission =VS= Nazmul Huda, (Civil), 2017 (2)– [3 LM (AD) 7]

‡emiKvix wkÿK wbeÜb I cÖZ¨qb KZ©„cÿ AvBb (2005 m‡bi 1 bs AvBb)

Section 10(2)– A reading of the Ain of 2005, in general, and section 10 thereof, in particular, the High Court Division found that the proviso to sub-section (2) of section 10 has waived one category of teachers from such mandatory requirement of registration, certification and enlistment under the new law. The High Court Division found that if the above two criteria are met by a particular teacher on the commencement of the said Ain of 2005, that is, on 20.03.2005, he would not require to be certified, registered and enlistment as per the previsions of the said Ain. The High Court Division noted that since no body disputed the validity of the appointment of the writ-petitioner, there was no reason as to how the department through the impugned memo mentioned the absence of those requirements mentioned above. Ministry of Education =VS= Md. Zahurul Haque, (Civil), 2017 (2)– [3 LM (AD) 272]

wbh©vZb Ges †ndvR‡Z g„Zz¨ (wbeviY) AvBb, 2013

Person dies in police custody or jail Authority– The High Court Division also directed to add a new section after section 44 of the Police Act. It observed that if a person dies in police custody or jail the police officer who has arrested the person or the police officer who has taken him in custody for the purpose of interrogation or the jail authority in which jail the death took place shall explain the reasons for death and shall prove the relevant facts to substantiate their explanation. Accordingly, it observed that in case of such incidents there is no provision for maintaining any diary for recording reason for arrest of any person without any warrant and other necessary particulars. As observed above, the government has promulgated a law covering the field namely ¢ekÑ¡ae Hhw ®qg¡S­a jªa¤É (¢eh¡lZ) BCe, 2013. In the preamble it is stated that as the Bangladesh is a signatory of the New York’s Declaration on 10th December, 1984 towards cruel, inhuman, disgraceful behaviour; and as Bangladesh is a partner in the Treatise signed on 5th October, 1998; as in article 35(5) of the constitution prohibits torture and cruel, inhuman, degrading treatment and punishment; and as in articles 2(1) and 3 of the United Nations charter demanded to promulgate a law by the countries which signed the charter treating the torture, cruel, inhuman and degrading treatment of a citizen is an offence; and therefore, in order to implement the charter the law has been promulgated. This piece of legislation covers all the above inhuman acts. In presence of specific legislation, we find it not necessary to add any provision in other laws in this regard. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

Permanent injunction– Remitted to the trial court permanent injunction– Defendants to institute independent proceedings to establish their right by filing an appropriate suit.  In our view, as  both  parties  claim  right  to  the  suit  property through VHBC Society by virtue of sale  deeds  in  their  favour,  the  High Court rather than relegating  the  appellants/defendants  to  file  a  fresh suit, it would have been in order if the  High  Court  remitted  the  matter back to the trial court to resolve the dispute after trial.   The  High  Court  erred  in  dismissing  the  appeal  and   relegating   the appellants/defendants to file  a  fresh  suit.   As both the parties are claiming right to the registered sale deed originating from VHBC Society. The impugned judgment of the High Court as well as the trial court is set aside and the matter is remitted to the trial court for consideration of the matter afresh. The appellants/defendants  are  directed to file their written statement within four weeks from today and  the  trial court is directed to afford sufficient opportunity to both  the  parties  to adduce their evidence and proceed with the matter in  accordance  with  law. We make it clear that we have not expressed any opinion on the merits of the matter. Ravish =VS= Smt. R. Bharathi, (Civil), 2017 (2)– [3 LM (SC) 36]

The police wide powers of arresting persons without warrant–This section gives the police wide powers of arresting persons without warrant. It is however not a matter of caprice, limited only by the police officers’ own view as to what persons they may arrest without warrant. Their powers are strictly defined by the Code, and being an encroachment on the liberty of the subject, an arrest purporting to be under the section would be illegal unless the circumstances specified in the various clauses of the section exist. Where a police officer purported to act under a warrant which was found to be invalid and there was nothing to show that he proceeded under this section and the arrest could not be supported under this section. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

A police officer’s power to arrest under this section is discretionary– A police officer’s power to arrest under this section is discretionary and notwithstanding the existence of the conditions specified in the section, it may be desirable in the circumstances of the particular case to simply make a report to the Magistrate instead of arresting the suspected persons. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

Political rivalry – Nothing which does not fall under one of the above heads need be entered, but all assistance rendered by members of Union Parishads shall be noted. When the information given by a member of a Union Parishad is of  a confidential nature, his name shall not be entered in the case diary, but  the investigating officer shall communicate his name and the same time note briefly in the case diary that this has been done.  This is an obsolete provision and in the present circumstances, the assistance as mentioned above is redundant because of political rivalry. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

The Police Culture– The “culture” of a police department reflects what that department believes in as an organization. These beliefs are reflected in the department’s recruiting and selection practices, policies and procedures, training and development, and ultimately, in the actions of its officers in law enforcement situations. Clearly, all police departments have a culture. The key question is whether that culture has been carefully developed or simply allowed to develop without benefit of thought or guidance. There are police agencies, for example, where police use of force is viewed as abnormal. Thus, when it is used, the event receives a great deal of administrative attention. Such a response reflects the culture of that department: the use of force is viewed and responded to as an atypical occurrence. Contrast such a department with one which does not view the use of force as abnormal. And, most importantly, the culture of the department is such that officers come to view the use of force as an acceptable way of resolving conflict. It is clear that the culture of a police department, to a large degree, determines the organization’s effectiveness. That culture determines the way officers view not only their role, but also the people they serve. The key concern is the nature of that culture and whether it reflects a system of beliefs conducive to the nonviolent resolution of conflict. It is also important to recognize that the culture of a police department, once established, is difficult to change. Organizational change within a police agency does not occur in a revolutionary fashion. Rather, it is evolutionary. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

Possession of the suit land so the plaintiff having not made any prayer for recovery of possession of the suit land– All the three courts below committed wrong and illegality in dismissing the suit of the plaintiff holding to the effect that the plaintiff’s suit is not maintainable without prayer for setting aside the judgment and decree passed in title Suit No.107 of 1968 and without prayer for recovery of khas possession. The plaintiff acquired valid right, title and interest in the suit land by virtue of purchase by a registered kabala of the year 1963, the exhibit-7 and he has also proved his possession in the suit land. In the circumstances the plaintiff is entitled to get the decree as prayed for. Masud Alam =VS= Abdul Khaleque Miah, (Civil), 2017 (2)– [3 LM (AD) 261]

No break in respect of the possession of the petitioner– There was no break in respect of the possession of the petitioner in the case land, made the Rule absolute declaring that the impugned order of eviction was issued without lawful authority and is of no legal effect. Moreso, since the Government having granted lease to the petitioner at a subsequent stage, and the lease never having been cancelled by the Government, the petitioner acquired valid and lawful right in respect of the land in question and this right, interest and possession of the lease hold property cannot be disturbed at the instance of a stranger. Nurul Amin(Md.) =VS= Dullah Miah, (Civil), 2017 (2)– [3 LM (AD) 428]

See also:

*Permanent Injunction [3 LM (AD) 236]

*Police Regulations of Bengal, Regulation-68 [3 LM (AD) 274]

*Pre-emption [3 LM (AD) 432], [3 LM (AD) 459], [3 LM (AD) 466]

R

The Registration Act, 1908

Section 17A read with

The Specific Relief Act, 1877

Section 21A read with

The Contract Act, 1872

In a contract for sale of immovable property, a time, to be effective from the date of registration, shall be mentioned for execution and registration of the instrument of sale and if no time is mentioned, six months shall be deemed to be the time.

17A. Registration of contract for sale etc:

(1) Notwithstanding anything to the contrary contained in this Act or any other law for the time being in force, a contract for sale of any immovable property shall be in writing, executed by the parties thereto and registered.

(2) A contract for sale referred-to in sub-section (1) shall be presented for registration within thirty days from the date of execution of the contract and the provisions regarding registration of instruments shall apply.

21A. Unregistered contract for sale not specifically enforceable—Notwithstanding any thing to the contrary contained in this Act or any other law for the time being in force, no contract for sale of any immovable property can be specifically enforced unless—

(a) the contract is in writing and registered under the Registration Act-1908, whether or not the transferee has taken possession of the property or any part thereof; and

(b) the balance amount of the consideration of the contract is deposited in the court at the time of filing the suit for specific performance of contract." Comprehensive Holdings Ltd. =VS= MH Khan Monju, (Civil), 2017 (2)– [3 LM (AD) 198]

Regulations for the Appointment of Faculty Professorial Staff/ Examiners/Principals/ Deans/Administrative Staff in Undergraduate & Postgraduate Medical & Dental Institutions of Pakistan, 2011

Regulation 19

Eligibility for appointment in the subspecialities like cardiology, Psychiatry, Cardiac Surgery, Orthopedic Surgery etc– In view of the clear and obvious import of the Regulations of 2011 more particularly Regulation 19, Dr. Farhat Abbas was duly qualified to be promoted as an Associate Professor of Cardiology and the Office Order of his appointment as an Associate Professor of Cardiology was valid in law and could not be set aside by the learned High Court. Dr. Farhat Abbas =VS= Dr. Mehmoodul-Hassan, (Civil), 2017 (2)– [3 LM (SC) 94]

The  Rent  Controller, Delhi

Order I Rule 10

Power under Order I, Rule 10 suo motu  invoked– Power under Order I, Rule 10 suo motu  invoked  by  us, it is not necessary for the parties to file separate application,  since  we have ourselves impleaded the firm and the partners in the  proceedings.   We direct all the parties to appear before the Rent Controller, Delhi on 1.3.2017.  Within two weeks from today, the respondents  will  file an amended memo of parties before  the  Rent  Controller.  The  additionally impleaded respondents, if they chose to file written  statement,  will  file it either jointly or individually, within  a  period  of  thirty  days  from today. Richard Lee =VS= Girish Soni, (Civil), 2017 (2)– [3 LM (SC) 38]

The (Delhi) Rent Control Act, 1958

Section 14(1)(e)

Eviction in the suit shop– The appellants are directed to deposit  the  entire  arrears  of  rent payable from the date of application filed  by  respondent  No.1  for  their eviction and continue to deposit the monthly rent on or before 15th of  each month at the rate determined by the High Court till final orders are  passed by  the  Rent  Controlling  Authority.   Failure  to  deposit  the   arrears including monthly rent, as directed  herein,  would  result  in  refusal  to contest the eviction proceedings. Vijay Kumar Ahluwalia =VS= Bishan Chand Maheshwari, (Civil), 2017 (2)– [3 LM (SC) 50]

The Representation of the People Order, 1972

Articles 49 & 65– In the facts of the instant case the question which needs to be answered is whether or not the appellant had any other avenue open to him to redress his perceived grievance; more precisely, whether he could have availed the Election Tribunal forum. The Election Tribunal has jurisdiction to hear all election matters so long as the applicant qualifies under provisions of the Representation of the People Order, 1972 (R.P.O. 1972) It has been held by this Division that the election process starts from the notification issued by the competent authority declaring the election schedule and culminates in the declaration of result of the election by a gazette notification. We are of the view that the appellant has remedy under the R.P.O. 1972. which would be available to him after the election takes place. Hence, Appellate Division does not find any illegality or infirmity in the impugned judgment and order of the High Court Division, and accordingly, the appeal is dismissed, without however, any order as to costs. Bangobir Kader Siddiqui =VS= Chief Election Commissioner, (Civil), 2017 (2)– [3 LM (AD) 169]

The Representation of the People Act, 1976

Section 55

Precise statement of facts should be stated in the election petition with all material particulars with regard to the corrupt and illegal practices– In order to prove a plea of rigging there has to be material on record to establish corrupt practices committed on behalf of the returned candidate. Section 55 of the Representation of the People Act, 1976, therefore, requires that precise statement of facts should be stated in the election petition with all material particulars with regard to the corrupt and illegal practices. In the present case however, only general allegations as to rigging were made. The evidence that was led was so deficient that it was not enough to establish prevalence of corrupt or illegal practices. We, therefore, do not find any legal error in the impugned judgment, which could warrant interference by this Court. This appeal is dismissed with no order as to costs. Mir Saleem Ahmed Khosa =VS= Zafarullah Khan Jamali, (Civil), 2017 (2)– [3 LM (SC) 97]

The Representation of the People Act, 1951

Section 83(1)(a)– Appellant is aggrieved since his petition has been dismissed, based  on  the findings on the preliminary issues that  the  election  petition  lacked  in material facts as required under Section 83(1)(a) of the  1951  Act  and  as such, did not disclose any cause of action. Kuldeep Singh Pathania =VS= Bikram Singh Jaryal, (Civil), 2017 (2)– [3 LM (SC) 26]

The (Emergency) Requisition of Property Act, 1948

Section 5 (7)– It is an admitted fact that the suit land was acquired in L.A. Case No. 06 of 1948-49 and although steps have been taken for release of the land from acquisition, the applicants have not succeeded in getting the land released. According to section 5 (7) of the (Emergency) Requisition of Property Act, 1948 the land having been duly acquired and compensation paid, it vests absolutely in the Government free from all encumbrances. Hence, the title in the property is no longer with the petitioner. We note from the plaint that the petitioner has not included any prayer for declaration of title and hence, in any event, the prayer for temporary injunction is not sustainable. Imtiaz Faruque(Md.) =VS= Afsarunnessa Khatun, (Civil), 2017 (2)– [3 LM (AD) 232]

Reasonable complaint or suspicion must depend upon the circumstances of each particular case– Where a police officer suspecting that certain pieces of cloth which a man was carrying early morning, was stolen property, went to him and questioned him and having  received unsatisfactory answers, arrested him, he was entitled to arrest him because reasonable suspicion exists of his being concerned of a cognizable offence. Where a person was found armed lurking at midnight in a village inhabited by persons well known to the police as professional dacoits, there was a reasonable suspicion against the person of his being concerned in a cognizable offence. But this does not mean that the police are limited only by their own discretion as to what persons they may arrest without warrant. Their powers in this respect are strictly defined by the Code. In order to act under the first clause, there must be a reasonable complaint or reasonable suspicion of the person to be arrested having been concerned in a cognizable offence. What is a ‘reasonable’ complaint or suspicion must depend upon the circumstances of each particular case; but it should be at least founded on some definite fact tending to throw suspicion on the person arrested, and not on a mere vague surmise. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

Record the case diary – A case diary is written as the investigation progresses. It is, therefore, obligatory to record the case diary every day when investigation is taken place. The writing up of the case diary must not be held up at the end of the day. It is always wise to write up the case diary in the place where investigation is conducted. The quick and immediate writing up of case diary helps recording every little detail of the investigation properly. This sort of case diary truly reflects the nitty-gritty of the police investigation. The case diary needs to be recorded as the case advances during the course of investigation. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

A registered document carries presumption of correctness of the endorsement– The lower Courts as well as the High Court Division rightly observed that the heirs of Syed Ahmed have not challenged the deed in question. Moreover, when defendant No. 1 claims that the executant of the deed was insane at the time of the execution and registration of the deed, then the burden squarely upon him to prove such contention. We find that the defendant did not take any step to prove that when the deed was executed and registered, Syed Ahmed suffered from mental illness. Sultan Ahmed =VS= Md. Shajahan, (Civil), 2017 (2)– [3 LM (AD) 463]

Registered sale deed are not binding on the plaintiff– It transpires that the High Court Division upheld the concurrent findings of the Courts below. Clearly when the deeds under challenge contain in the recital that the earlier deed No.4995 dated 23.11.1988 was executed and registered only for the purpose of resolving the dispute through the intervention of defendant No.1, who was the Chairman of the Union Parishad that deed was not a sale deed. Hence, the deeds executed by the Chairman are equally not deeds of sale but simply return of the property. When he failed, he returned the land. the Courts below rightly held that the deeds in question were not deeds of sale and no money changed hands. Accordingly, the deeds were not binding on the plaintiffs. Ashek Ahmed =VS= Samsunnahar, (Civil), 2017 (2)– [3 LM (AD) 18]

The rent receipts as proof of title– Both the trial Court and the High Court Division appear to have accepted the rent receipts as proof of title of the plaintiffs. We also note that the rent receipts were not legally proved and no attempt was made to call for the counterfoils of the rent receipts, which, according to P.W.2, would be kept at the office of the Zaminder. Also, we note that the High Court Division mentioned a deed of 1310 in support of the plaintiffs’ title. However, we do not find any reference to this deed in the judgement of the trial Court or how it helps the plaintiffs to prove their title. The High Court Division has not based its decision on any cogent reason in reversing the decision of the appellate Court. On the contrary, there is evident misreading of the materials on record. The impugned judgement and order of the High Court Division is hereby set aside. Executive Engineer, Roads & Highways =VS= Abirun Begum, (Civil), 2017 (2)– [3 LM (AD) 223]

Responsibilities of Law Enforcing Agencies–

(I) Law enforcement agencies shall at all times fulfill the duty imposed upon them by law, by serving the community and by protecting all persons against illegal acts, consistent with the high degree of responsibility required by their profession.

(II)In the performance of their duty, law enforcement agencies shall respect and protect human dignity and maintain and uphold the human rights of all persons.

(III) Law enforcement agencies may use force only when strictly necessary and to the extent required for the performance of their duty.

(IV) No law enforcement agencies shall inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor shall any law enforcement agencies invoke superior orders or exceptional circumstances such as a state of war or a threat of war, a threat to national security, internal political instability or any other public emergency as a justification of torture or other cruel, inhuman or degrading treatment or punishment.

(V) The law enforcing agencies must not only respect but also protect the rights guaranteed to each citizen by the constitution.

(VI) Human life being the most precious resource, the law enforcing agencies will place its highest priority on the protection of human life and dignity.

(VII) The Primary mission of the law enforcing agencies being the prevention of crime, it is better to prevent a crime than to the resources into motion after a crime has been committed.  Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

Responsibility of Directorate General of Forces Intelligence (DGFI)– An officer of DGFI who has sworn affidavit has also admitted impliedly that the money have been extorted by an officer of DGFI, but according to him, he has acted access of power for which the DGFI shall not take any responsibility. This statement belies the documents submitted by Bangladesh Bank. This force cannot deny its responsibility in view of the fact that after collection of the pay orders the officer communicated his action to its chief. It is claimed by the writ petitioners and also by the learned Counsel that the businessmen have been compelled to attend at a specified office under its control. They were kept sitting from dawn to dusk for days together and sometimes detained there without furnishing any information to their near ones. It was not possible to act as such on the part of one officer without knowledge and concurrence of the authority on consideration of the fact that it was not an isolated incident, rather the arrest, detention and torture both physically and mentally were carried out for days together against dignified and resourceful persons. It was a concerted effort on the part of this agency is beyond reprehensible. Those actions were taken openly and freely, and the same need not be proved. Bangladesh Bank=VS=East West Property Developments (Pvt.) Ltd., (Civil), 2017 (2)– [3 LM (AD) 106]

See also:

*The Rangamati, Bandarban, Khagrachori Zilla Parishad Ains, 1989, Section 64(a), (b), (c), (d), (e), (f) and (g) [3 LM (AD) 478]

*Review [3 LM (AD) 13], [3 LM (AD) 240], [3 LM (AD) 412]

*Recover taxes [3 LM (AD) 22]

*The Registration Act, Sections 17 and 49 [3 LM (AD) 46]

S

The Securities & Exchange Ordinance, 1969

Section 20A read with

The Securities and Exchange Commission (Mutual Fund) Rules, 2001

Rule 50(Kha)

Section 20A of the Securities and Exchange Ordinance, 1969 before adding the non-obstante clause by amendment shall prevail over Rule 50(Kha) of the Securities and Exchange Commission (Mutual Fund) Rules, 2001 on the analogy that the power given in the Ordinance shall prevail over the subordinate legislation, that is, the Securities and Exchange Commission (Mutual Fund) Rules, 2001 when there is a conflict in between the power conferred under the Ordinance and the subordinate legislation. The provisions of the Ordinance shall prevail over the subordinate legislation. Chairman, SEC =VS= Md Ali Zaman, (Civil), 2017 (2)– [3 LM (AD) 184]

Securities and Exchange Commission (Mutual Fund) Rules, 2012

Rule 50(Kha)– Rule 50 'Kha' provides that at the time of a creation of fund for fixed period under a scheme, the duration and the amount of the scheme is to be mentioned unless it is an Open-end scheme. At least one year before the end of the scheme period, three-fourths unit-holders by votes may extend the scheme for another such period. Chairman, SEC =VS= Md Ali Zaman, (Civil), 2017 (2)– [3 LM (AD) 184]

Securities and Exchange Commission (Mutual Fund) Rules, 2012

Rule 50(Kha)– In exercise of its power under section 20A (before amendment) the Securities and Exchange Commission ordered that the tenure of Closed-end Mutual Funds shall not be more than 10 years and that the Closed-end Mutual Funds whose tenure of 10 years has already expired shall be deemed to have been extinguished. Chairman, SEC =VS= Md Ali Zaman, (Civil), 2017 (2)– [3 LM (AD) 184]

The Securities and Exchange Commission (Mutual Fund) Rules, 2001

Rules 51-54– Over and above,(1) BRAC Bank Limited, (2) BRAC Stock Brokerage Limited, (3) United Commercial Bank Limited, (4) VIPB Asset Management Company and (5)IDLC Investment Limited have been holding more than 50% of the units and they are not willing to continue with the mutual fund. They are to take back their investment. When the majority of the unit-holders are not willing to continue either by extension of the closed-end mutual fund or by conversion into open-end mutual fund, we are of the view that the instant Close-end Mutual Fund should not continue any further. Chairman, SEC =VS= Md Ali Zaman, (Civil), 2017 (2)– [3 LM (AD) 184]

Specific Relief Act, 1877

Sections 12, 21A and 42– By no imagination, the declaration can be treated or construed as one for specific performance of contract and such declaration clearly attracts the provisions of section 42 of the Act. So far as the first declaration is concerned, it appears to us a bit debatable, i.e. straightway, it cannot be said either it comes within the periphery of a suit for specific performance of contract as provided in section 12 of the Act or attracts the mischief of section 42 thereof and this debate can only be resolved on a full scale hearing of the suit and on assessment of the evidence to be produced by the parties at the trial.  Comprehensive Holdings Ltd.=VS=MH Khan Monju, (Civil), 2017 (2)– [3 LM (AD) 198]

The Specific Relief Act

Section 42 read with

The State Acquisition and Tenancy Act

Section 143A

Appellate Court being the last Court of facts– The appellate Court being the last Court of facts, found that the plaintiffs were eight annas owners of the suit property including houses which may be standing thereon. We find that the evidence and materials on record fully support such finding. The view taken by the High Court Division, is in our view erroneous and, hence, the impugned judgement is not sustainable. The impugned judgement and order of the High Court Division is set aside. Hena Begum(Most.) =VS= Abdul Kader, (Civil), 2017 (2)– [3 LM (AD) 229]

The Specific Relief Act, 1877

Section-42

Declaration of title with khas possession– We find no wrong, illegality or infirmity in the impugned judgment of the High Court Division. Rather, we find that the High Court Division was quite correct and justified in restoring the judgment and decree of the trial Court setting aside the judgment and decree of the appellate Court. Bishow Ram Chawhan =VS= Rabeya Bari Chowdhury, (Civil), 2017 (2)– [3 LM (AD) 181]

The Specific Relief Act, 1877

Section 42

Declaration of title– The High Court Division has totally ignored that aspect and illegally interfered with the judgments keeping those finding intact. Thus it has exercised power not vested by law, inasmuch as, it cannot interfere with the findings of fact arrived at by the final court of fact in the absence of any misreading or non-consideration of the evidence on record. ADC (Rev), Rangpur =VS= Amir Hossain, (Civil), 2017 (2)– [3 LM (AD) 3]

The Specific Relief Act, 1963

Specific  performance of contract against the defendants in relation to the suit land– By judgment/decree dated 29.08.1980, the  Trial  Court  dismissed  the suit insofar as it pertained to grant of relief of specific performance   of contract was concerned but decreed the suit by  granting  money  decree  for Rs.7000/- in plaintiff's favour. In this way, the suit was partly decreed and partly dismissed. The plaintiff-Gurbachan Kaur alone filed the first appeal in the Court of District Judge.   So far as the defendants are concerned, they did not file any appeal against the money decree suffered by them. By judgment/decree date 06.11.1984, the first Appellate Court dismissed the appeal. Felt aggrieved, the  plaintiff-  Gurbachan  Kaur  carried  the  matter further and filed Second Appeal  before  the  High  Court.  The appeal was admitted for final hearing on substantial questions of law framed by the High Court. Gurnam Singh(respondent-defendant No.4) also died on 19.04.2002.  Legal representatives on record to enable them to prosecute the lis involved in the appeal. On 18.05.2010, the High Court allowed the  second  appeal,  set  aside the judgment/decree of the two Courts  below  and  decreed  the  plaintiff's suit for specific performance of the  contract  against  the  defendants  in relation to the suit land. It  is  against  this  judgment  of  the  High   Court,   the   legal representatives  of  defendant  No.2(Late  Joginder  Singh)  and   defendant No.4(Late Gurnam Singh) filed the present appeal by  way  of  special  leave petition  and sought permission to question its legality and correctness. It is a settled principle of law that the decree passed by a Court for or against a dead person is a “nullity”. In our view, the objection, therefore, we allow the appeal and set aside the impugned judgment/decree. Gurnam Singh =VS=  Gurbachan Kaur, (Civil), 2017 (2)– [3 LM (SC) 17]

Specific performance of contract– As regards, the argument of the learned Attorney General that the plaintiff had no cause of action to file the suit, we are of the view that since the original lessee entered into an agreement with the plaintiff to sell the suit property and in part performance of the contract, he was put into the possession of the suit property and admittedly he is in possession thereof and he paid good amount of money being taka 15,90,000.00 in 1978 and after the death of Syed Salamat Ali, his heirs did not execute and register the sale deed, he had every right to file the suit to pray for specific performance of contract. Bangladesh =VS= Hamid Ali Chowdhury, (Civil), 2017 (2)– [3 LM (AD) 97]

The State Acquisition & Tenancy Act, 1950

Section 20, 90 & 86

Appellate Division sum up as under:

(i) Land of a holding or a portion thereof is lost by diluvion prior to 4th November, 1972, the rent of the holding shall on application by the tenant would abate by such amount as would be considered by the Revenue Officer to be fair and equitable.

(ii) The right, title and interest of the tenant shall be extinguished if such land were lost by diluvion or the process of diluvion takes place before or after the date of coming into force of section 86 substituted by P.O.135 of 1972.

(iii) If the diluvited land or a portion thereof re-appeared after the commencement of P.O.135 of 1972 but in respect of which the right of the original tenant or his successor-in-interest whose land was so lost, to re-possession was not recognized or declared by the competent authority or the court, all land so lost, which may reappear on or after 4th November, 1972, shall vest absolutely in the Government.

(iv) In making settlement of the said land, notwithstanding anything provided in paragraphs (ii) and (iii) above, the preference shall be given to the tenant or his successor-in-interest whose interest was lost by diluvion subject to the condition that such land or a portion thereof re-appeared within twenty years of such loss subject to the condition that the total area of land possessed by the tenant or his family does not exceed the ceiling prescribed by sections 20 or 90 of the Act of 1950.

(v) The rights which had already accrued to the tenant or his successor-in-interest on the day of coming into force of section 86 by P.O.135 of 1972 had not been affected but such rights were affected only prospectively.

(vi) If the land or a portion thereof is diluviated after 13th July, 1994, the rent or the land development tax of the holding of the tenant or his successor-in-interest be abated on his application, such amount as may be considered by the Revenue Officer and the act of such loss by diluvion shall be recorded by such Revenue Officer.

(vii) The right, title and interest of the tenant or his successor-in-interest shall subsist of a holding or a portion thereof during the period of loss by diluvion from 15th July, 1994, if such land re-appear in situ within thirty years of loss.

(viii) The Collector, either on his own motion or on the basis of application of the tenant or his successor-in-interest shall exercise the right of immediate possession of the land so re-appeared and shall give public notice of the said fact, prepare a map, make survey of the land and after forty five days of completion of survey, allot the land to the tenant or his successor-in-interest such quantity of land which together with the land already held by him shall not exceed sixty standard bighas.

(ix) Section 86 substituted by the State Acquisition and Tenancy (Amendment) Act, 1994 (Act XV of 1994) shall have prospective operation. Bangladesh =VS= Md. Kazemuddin Miah, (Civil), 2017 (2)– [3 LM (AD) 74]

The State Acquisition and Tenancy (Amendment) Act (Act XV of 1994)

Section 86– Section 86 by Act XV of 1994 would be prospective in operation and that the new provision would not be applicable in respect of those land which were diluviated and alluviated prior to that date, that is to say, the said land would be treated as khas land of the Government in accordance with the old provision. Bangladesh =VS= Md. Kazemuddin Miah, (Civil), 2017 (2)– [3 LM (AD) 74]

The State Acquisition & Tenancy Act, 1950

Section 86– The amendment is prospective in operation and the High Court Division is not correct in giving retrospective operation of the substituted provision of sub-section (2) of section 86 of the Act of 1950. Bangladesh =VS= Md. Kazemuddin Miah, (Civil), 2017 (2)– [3 LM (AD) 74]

The State Acquisition & Tenancy Act, 1950

Section 96– The prayers for preemption of the original preemptor and the co-preemptor of the case land are allowed in equal share. The original preemptor shall be entitled to withdraw the money deposited by him in excess of his proportion. Masum Ali (Md) =VS= Laynur Begum, (Civil), 2017 (2)– [3 LM (AD) 266]

The State Acquisition and Tenancy Act

Section 96 read with

The Non-Agricultural and Tenancy Act

Section 24

Pre-emption– The preemptor-petitioner while deposing before court, though denied this alleged fact that he obtained the certified copy of the case kabala in the year 1982 for the opposite party No.2, but he did not deny the fact that he was the engaged lawyer of the opposite party No.2. The opposite party No.2 filed Other Suit No.70 of 1982 challenging the genuineness of the impugned kabala. In the circumstances it is not believable at all that the preemptor-petitioner could not know about the case kabala before his alleged date of knowledge. From the facts and circumstances stated above it is rather proved beyond any doubt that the preemptor-petitioner knew about the case transfer in the year 1982. Shantipada Shil =VS= Sunil Kumar Sarker, (Civil), 2017 (2)– [3 LM (AD) 459]

State Acquisition & Tenancy Act [28 of 1951]

Section 96

Pre-emptionWe state the law that no application for pre-emption under section 96 of the Act, 1950 can be rejected on the ground of long lapse of time, if the same is found to have been filed within the statutory period of limitation, making the statutory deposit and impleading all the necessary parties and of course subject to the fulfillment of other requirements of law as regards the right of pre-emption of the pre-emptors. So, the impugned judgment and order cannot be sustained and that must be interfered with. The impugned judgment and order of the High Court Division is set aside and those of the Courts below are restored. Syed Emdad Hussain =VS= Muzahar Ali Mallick, (Civil), 2017 (2)– [3 LM (AD) 466]

The State Acquisition & Tenancy Act, 1950

Section 148 read with

The Limitation Act, 1908

Section 29

The main ground on which the order of the Additional Deputy Commissioner (Revenue), Dhaka was challenged was that the limitation for filing an appeal under section 147 of the State Acquisition and Tenancy Act, 1950(the Act, 1950), as provided in section 148 thereof was 30 days, but the appeal was filed beyond 30 days with an application for condonation of delay. Therefore, the order passed by the Additional Deputy Commissioner (Revenue) admitting the appeal condoning the delay was without jurisdiction. From the impugned judgment and order, it appears that the High Court Division accepted the said contention of the writ-petitioner and made the Rule Nisi absolute. We find nothing wrong with the view taken by the High Court Division inasmuch as limitation provided in the Act, 1950 was a special limitation. A.T.M. Nasiruddin =VS= Shirin Ahmed Chy., (Civil), 2017 (2)– [3 LM (AD) 45]

The State Bank of Pakistan Act, 1956

Section 54 read with

The State Bank of Pakistan Officers (Pension-cum-Gratuity) Regulations, 1980

The appellants are retired employees of the State Bank of Pakistan (SBP). Following the direction of the Federal Government issued on 30.11.1977, SBP introduced a pension scheme for its employees vide letter dated10.1.1978. Thereafter, the Central Board of Directors of SBP (Board), in exercise of its powers under Section 54 of the State Bank of Pakistan Act, 1956 (the Act), framed the Regulations with the approval of the Federal Government. The appellants, being aggrieved of SBP’s failure to grant them periodical increases in pension in line with those granted by the Federal Government since 1997, filed representations before SBP but to no avail. The petitioners then filed a constitutional petition before the learned High Court which (petition) was dismissed vide impugned judgment. A perusal of the Regulations suggests that they relate to pension and gratuity matters of the employees of SBP and therefore it can be said that the ambit of such Regulations is not broader but narrower than the parent statute, i.e. the Act. Thus the conclusion of the above discussion is that the Regulations are basically instructions for the internal control or management of SBP and are therefore non-statutory. Hence the appellants could not invoke the constitutional jurisdiction of the learned High Court which was correct in dismissing their writ petition. Muhammad Zaman =VS= Pakistan, (Civil), 2017 (2)– [3 LM (SC) 100]

Secondary and Higher Secondary Education Board cannot review its own decision– Appellate Division held that there is any provision which authorises the there Board to review its own decision as well as the decision of Appeal and Arbitration Committee after directing to implement the decision of the committee. Mothertek A. Aziz H. S. School =VS= Md. Atiqur Rahman, (Civil), 2017 (2)– [3 LM (AD) 416]

Sent back to the High Court Division for hearing afresh– The High Court Division also failed to consider that mere passing of a final decree and its execution thereof shall not debar a defendant to file an application under Order IX, rule 13 of the Code if, in fact, summons was not served upon him and he was affected by the very preliminary decree. The High Court Division was also wrong in relying upon the principle of law laid down.

We find no other alternative but to send the revision back to the High Court Division for hearing afresh and for disposal in accordance with law on the basis of the evidence on record. Accordingly, this petition is disposed of in the following terms: The impugned judgment and order of the High Court Division is set aside. The revision is sent back to the High Court Division for hearing afresh and for disposal on merit in accordance with law considering the evidence. Masum Billah(Md.) =VS= Md. Saidur Rahman, (Civil), 2017 (2)– [3 LM (AD) 268]

Sent back to the High Court Division for hearing afresh– The impugned judgment and order of the High Court Division is set aside. The revision is sent back to the High Court Division for hearing afresh and for disposal in accordance with law on the evidence on record. If so advised, the defendants may file the documents which were exhibited before the trial Court and were taken back by them. The High Court Division shall consider those documents, if filed, along with the evidence on record. But in no case the High Court Division shall send the case back to either of the Courts below. Abul Hossain =VS= Jiban Nessa, (Civil), 2017 (2)– [3 LM (AD) 1]

Solatium to the defendant– We are inclined to give a solatium to the defendants, the heirs of Anu Mia. Considering all aspects we fix the solatium at Tk.1,60,000/- (one lac sixty thousand) to be paid by the plaintiffs to the defendants, the heirs of Anu Mia. A. K. M. Abdul Ali =VS= Rafiqul Islam, (Civil), 2017 (2)– [3 LM (AD) 37]

See also:

*The Special Powers Act, 1974, Section 3 [3 LM (AD) 274]

*The State Acquisition of Tenancy Act, 1950, Section 97 [3 LM (AD) 478]

*The Specific Relief Act, 1877, Section 21A [3 LM (AD) 198]

T

The Trade Marks Act, 1940

Section 21– Praying for a decree for permanent injunction. We are of the view justice would be best served if the order of stay passed by this Court is continued till disposal of the suit with direction upon the trial Court to dispose the suit within a time frame. The appeal is disposed of in the following terms:

The impugned judgment and order of the High Court Division stands modified to the effect that the order of stay passed by this Court shall continue till disposal of. the suit. The trial Court is directed to dispose the suit within 3(three) months from the date of receipt of this judgment positively. Alam Soap Factory Ltd. =VS= Kazi Abu Hena Shamim Ahsan, (Civil), 2017 (2)– [3 LM (AD) 5]

The Transfer of Property Act

Section 53A– Where an agreement to lease is evidenced and the lessee is put in possession, there has been acceptance of salami and/or acknowledgment of receipt of money towards sale of possession, section 53A will be used as shield against the owner to oust the tenant. The lessee could defend the suit for ejectment. Banichitra Pratisthan Ltd. =VS= Bilkis Begum, (Civil), 2017 (2)– [3 LM (AD) 46]

The Transfer of Property Act

Section 53A, 54 read with

The Registration Act

Sections 17 and 49 read with

The Contract Act, 1872

Section 23

The documents clearly show that a substantial amount of money was received on the plea for selling the possession of the space for shop premises. The tenants have given the right of transfer of possession subject to payment of transfer fee. This sale of possession is hit by section 54 of the Transfer of Property Act, sections 17 and 49 of the Registration Act, and section 23 of the Contract Act, but this does not mean that the tenants can be evicted treating them as ejectable tenant. They have acquired interests in the premises by reason of payment of money towards sale of possession and their interest is protected under section 53A. Banichitra Pratisthan Ltd. =VS= Bilkis Begum, (Civil), 2017 (2)– [3 LM (AD) 46]

The tenants cannot be taken to be monthly ejectable tenants in the eye of law– Accordingly this court holds that no landlord or house owner can take any money on the plea of selling possession without executing any registered instrument from any person/tenant. This mode of such transaction is prohibited by law, but it is being practised by the landlords from time immemorial. But despite non-registration of the deeds, the tenants cannot be evicted as ejectable tenants as the landlords have parted with their interest. The manner of receipt of such money is tantamount to proportionate selling of the ownership of the land and building but without any legal basis. The tenants cannot be taken to be monthly ejectable tenants in the eye of law, inasmuch as, they have acquired an interest in their respective premises. The landlords are defrauding the tenants by resorting to illegal practices by receiving sale price of possession of the shops from the tenants without executing registered deeds. Landlords can recover possession from them on repayment of the advance money with compensation from the date of receipt of the money and the compensation can only be assessed by a court of law. Banichitra Pratisthan Ltd. =VS= Bilkis Begum, (Civil), 2017 (2)– [3 LM (AD) 46]

The owners cannot dispossess the tenants before approval of plan by the RAJUK for constructing the multi-storey building on the plots– The owners cannot dispossess the tenants before approval of plan by the RAJUK for constructing the multi-storey building on the plots and till such date the shop keepers shall remain in possession of the shops. The construction must be completed within three years from the date of taking possession and in case of failure to handover possession within the above time, the landlords shall pay compensation to the tenants. Banichitra Pratisthan Ltd. =VS= Bilkis Begum, (Civil), 2017 (2)– [3 LM (AD) 46]

W

The Waqfs Ordinance, 1962

Section 56(3)– This sub-section provides that the transfer made by Mutawalli shall be declared void. For the word `Mutawalli', the words, "heirs of waqif' cannot be read in sub-section (3) of section 56 of the Waqfs Ordinance. If the transfer is made by Mutawalli such transfer shall be declared void and any transfer made by the heirs of waqif shall be void ab initio and is not required to be declared void by filing suit as is required for the transfer made by Mutawalli. It has already been stated above that there is no scope for reading the words, "heirs of the waqif' for the word "Mutawalli" as mentioned in sub-section (3) of section 56 of the Waqfs Ordinance. The transferees of the heirs of waqif shall be deemed to be trespassers if they are found in possession of the waqf property. Sub-section (3) of section 56 of the Ordinance is not applicable to the transferees from the heirs of the waqif. The High Court Division was wrong in holding that the suit having not been filed within 3 years from the date of knowledge or from the date of such transfer, as the case may be, was barred and contrary to the provision of sub-section (3) of section 56 of the Ordinance. DC, Gaibandha =VS= Shafinaz Choudhury(Mst.), (Civil), 2017 (2)– [3 LM (AD) 210]

The Waqfs Ordinance, 1962

Section 64– Waqfs Administrator but he has failed to discharge his statutory power as required by section 64 of the Ordinance. Such indifference of the Deputy Commissioner in carrying out the order of the Administrator of Waqfs is deplorable. DC, Gaibandha =VS= Shafinaz Choudhury(Mst.), (Civil), 2017 (2)– [3 LM (AD) 210]

The West Bengal Premises Tenancy Act, 1956

Section  17(2A)

It is the statutory  right  and entitlement of the landlord to get interest– The defendant is a defaulter  in  payment  of rent. Once the arrears are  permitted  to  be  paid  in installments, there is no  discretion  available  with  the  Court  to  deny interest.  It is not a discretionary relief; it is the statutory  right  and entitlement of the landlord to get interest. Bhagirath Agarwal =VS= M/S Simplex Concrete & Piles(I) Pvt.Ltd., (Civil), 2017 (2)– [3 LM (SC) 5]

Warrants of arrest– A police officer can act under clause one only when the offence for which a person is to be arrested is a cognizable offence. Such person, must, as a fact, have been concerned in such offence or there must have been a reasonable complaint made or credible information received that he has been so concerned. If the person arrested is a child under 9 years of age, who cannot under section 82 of the Penal Code commit an offence, the arrest is illegal. Where, a complaint is made to a police officer of the commission of a cognizable offence, but there are circumstances in the case which lead him to suspect the information, he should refrain from arresting persons of respectable position and leave the complainant to go to Magistrate and convince him that the information justifies the serious step of the issue of warrants of arrest. Ministry of Law, Justice & Parl. Afrs. =VS= BLAST, (Civil), 2017 (2)– [3 LM (AD) 274]

 

 

 

The Law Messenger

Volume– III

2017 (2)

 

HEAD NOTE

 

(CRIMINAL JURISDICTION)


A

The Anti-Corruption Commission Act, 2004

Sections 26 & 27– The offences punishable under sections 26 and 27 of the Ain, 2004 are distinct and that no notice is required to be served by the Commission for prosecution of an offender in respect of an offence punishable under section 27 of the said Ain. The High Court Division on misconstruction of law quashed the proceedings. The question has already been settled by this Division. Anti-Corruption Commission =VS= Mosaddek Ali Falu(Md), (Criminal), 2017 (2)– [3 LM (AD) 512]

The Anti-Terrorism Act, 1997

Section 7(a) read with

The Code of Criminal Procedure

Section 382-B read with

The Pakistan Penal Code

Section 302(b)

The benefit under section 382-B, Cr.P.C shall be extended to the appellant– appeal is dismissed to the extent of the appellant’s conviction for the offence under section 7(a) of the Anti-Terrorism Act, 1997, his sentence passed for the said offence is reduced from death to imprisonment for life and his conviction and sentence for the offence under section 302(b), PPC are set aside. The order passed by the trial court in respect of payment of fine by the appellant as well as the order passed in respect of imprisonment in default of payment of fine are, however, maintained. The benefit under section 382-B, Cr.P.C. shall be extended to the appellant. Dr. Irfan Iqbal =VS= The State, (Criminal), 2017 (2)– [3 LM (SC) 111]

The Anti-Terrorism Act, 1997

Section 7(a) read with

The Code of Criminal Procedure

Section 367 (2) & (3)

Compromise– Both the impugned judgments of the learned Courts below are set aside and the case is sent back to the learned Trial Court, who, after verifying the genuineness of the compromise to its satisfaction shall accept the same and acquit the appellants on the basis thereon. Irfan =VS= Muhammad Yousaf, (Criminal), 2017 (2)– [3 LM (SC) 114]

See also:

*Ad-interim anticipatory bail [3 LM (AD) 547]

*Arms Act, 1959, Section 25 [3 LM (SC) 71]

B

Bail– Modified judgment of the High Court Division granting bail– Direct the Jailors, Dhaka Central Jail and Kashempur Central Jail to allow the accused -respondents to hold meeting of the companies if necessary and to execute any document or documents, resolutions, deeds etc. as may be necessary for the purpose of selling 35 lac matured trees owned by Destiny Tree Plantation Limited. We also direct the Jail Authorities to allow Dr Md Shamsul Huq Bhuiyan, MP Chandpur-4 Constituency to meet the accused in Jail as and when necessary for consultation and obtaining necessary Signatures and instructions from them for the purpose of selling the trees. We also direct the Jail Authority to allow all sort of co-operation as may be necessary for the purpose of completing the transaction for sale of the trees and receiving sale proceeds for onward transmission to the Chairman, Durnity Daman Commission for distribution to the affected persons on the basis of list to be submitted by Dr Md, Shamsul Huq Bhuiyan, MP. Durnity Daman Commission =VS= Mohammad Hossain, (Criminal), 2017 (2)– [3 LM (AD) 549]

See also:

* Benefit of doubt [3 LM (SC) 105]

*The Bengal Jail Code, volume 1(Part I), Chapter XXI Rule 751 (f) [3 LM (AD) 513]

*Bail [3 LM (AD) 549]

C

The Code of Criminal Procedure, 1898

Sections 35A & 401 read with

Penal Code, 1860

Sections 53 & 54

It cannot be applicable in respect of an offence which is punishable with death– Section 35A of the Code of Criminal Procedure is not applicable in case of an offence punishable with death or imprisonment for life. An accused person cannot claim the deduction of the period in custody prior to the conviction as of right. It is a discretionary power of the court. It cannot be applicable in respect of an offence which is punishable with death. Though the word 'only' is used in section 35A, the legislature without considering section 401 of the Code of Criminal Procedure and section 53 of the Penal Code has inserted the word `only' but the use of word 'only' will not make any difference since under the scheme of the prevailing laws any remission/reduction of sentence has been reserved to the government only. Ataur Mridha =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 513]

The Code of Criminal Procedure, 1898

Section 190, 193– On reading section 190 along with section 193, there is no gainsaying that a Magistrate shall take cognizance of an offence as a court of original jurisdiction and unless he takes cognizance of the offence the accused cannot be committed to the court of session for trial. The word ‘committed’ has been deleted and in its place the word ‘send’ has been substituted. The object of the restriction imposed by section 193 is to secure the case of a person charged with a grave offence. The accused should have been given an opportunity to know the circumstances of the offence imputed to him and enabled him to make his defence. There was a provision for inquiry under Chapter XVIII of the Code and in such inquiry the accused could have taken his defence, but after the omission of the Chapter, no inquiry is held under the present provision of the Code. Even then the power of the Magistrate to take cognizance of the offence as a court of original jurisdiction has been retained. The Sessions Judge can take cognizance of any offence only after the case is sent to him for trial. Mufti Abdul Hannan Munshi =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 566]

The Code of Criminal Procedure, 1898

Section 193– Another point raised in the High Court Division is that the trial of the accused Mufti Abdun Hannan is vitiated by reason of not taking cognizance of the offence by the learned Sessions Judge. The High Court Division relying upon the case of Dharmatar V. State of Horyana, (2014) 3 SCC 306, RN Agarwal V. RC Bansal, (2015) 1 SCC 48, Haripada Biswas V. State, 6 BSCR 83 held that the trial of the accused has not been vitiated for this reason. Section 193 of the Code of Criminal Procedure provides that:

“Except as otherwise expressly provided by this Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been sent to it by a Magistrate duly empowered in that behalf. (2) Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the Government by general or special order may direct them to try or as the Session Judge of the division, by general or special order, may make over to them for trial.” Mufti Abdul Hannan Munshi =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 566]

The Code of Criminal Procedure, 1898

Section 205D– Under section 205D Cr.P.C. both the cases, one instituted on police report and the other on complaint on the self-same occurrence, shall be tried by the Magistrate in the same trial treating both the cases as if instituted on a police report. Enayet Chowdhury(Md.) =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 554]

The Code of Criminal Procedure, 1898

Section 247 read with section 403– Since the order passed under section 247 of the Code of Criminal Procedure is one of acquittal the second complaint on the same allegation is not maintainable. At whatever stage of the proceeding the acquittal order section 247 is ordered, such order will operate as a bar the fresh trial, in the same way as are acquittal after trial on merits. The judgment and order of the High Court Division is set aside. The proceeding of C.R. Case No.421 of 2006 is hereby quashed. Bo-Sun Park =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 544]

The Code of Criminal Procedure, 1898

Section 374, 376 & 537– Even if it is assumed that the Session Judge has not taken cognizance of the offence after the case was ‘sent’ by the Magistrate, the trial of the accused shall not be vitiated in view of section 537 of the Code which provides that ‘no finding, sentence, or order passed by the court of competent jurisdiction shall be reversed or altered under Chapter XXVII on appeal or revision of account ...’ Chapter XXVII contains sections 374-380. Section 374 provides the sentence of death to be submitted by a court of Sessions to the High Court Division for confirmation. Section 376 empowers the High Court Division to confirm a death sentence or annul a death sentence. So, whenever a death sentence is passed by a court of session, it is sent to the High Court Division for confirmation. The High Court Division has power to confirm the sentence or annul the sentence and by reason of any defect or error in the procedure, death sentence cannot be vitiated. So, the conviction of the accused cannot be set aside by reason of the alleged defect. Mufti Abdul Hannan Munshi =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 566]

The Code of Criminal Procedure, 1898

Section 382-B read with

The Pakistan Penal Code

Section 302(b)

Benefit of doubt– This appeal is partly allowed in the terms that the sentence of death of the appellant-Amjad Shah is altered to that of life imprisonment under Section 302(b) PPC. The remaining punishment of fine and imprisonment in case of default thereof shall remain intact. He shall also be entitled to the benefit of Section 382-B Cr.P.C. Amjad Shah =VS= The State, (Criminal), 2017 (2)– [3 LM (SC) 105]

The Code of Criminal Procedure, 1898

Section 417A– Section 417A empowers the complainant to prefer appeal to the appellate court against the sentence on the ground of its in adequacy. Sub-section (3) of Section 417A provides that when an appeal has been filed against sentence on the ground of its inadequacy, the appellate court shall not enhance the sentence except after giving to the accused reasonable opportunity of showing cause against such enhancement. Shahidur Rahman Khadem =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 600]

The Code of Criminal Procedure, 1898

Section 423– Section 423 relates to ‘Powers of Appellate Court in disposing of appeal’ and this power of the appellate Court may include a Court subordinate to the High Court Division. The appellate Court has power to enhance the sentence under section 423 (bb) in an appeal for enhancement of sentence. So this power can be exercised only when an appeal is filed by the state or the complainant, and in other cases initiated on a police report, if the state does not prefer appeal, the informant can file a revision petition, but in the absence of none, the appellate court has no power to enhance the sentence. If the appellate Court has no power to enhance the sentence without an appeal or revision being filed against the inadequacy of sentence, the High Court Division cannot exercise the power except in cases provided under section 439(6) of the Code. Shahidur Rahman Khadem =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 600]

The Code of Criminal Procedure, 1898

Section 439A– The complainant-respondent can file a criminal revision under section 439A of the Code of Criminal Procedure against the judgment and order dated 28.09.2002 passed by the learned Metropolitan Magistrate, Dhaka in G.R. No.495 of 2001 but inadvertently he filed an appeal. On the facts and in the circumstances of the case, we are of the view that the memo of appeal may be treated as a revision and the learned Sessions Judge or any other Court shall dispose of the revision in accordance with law. Enayet Chowdhury(Md.) =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 554]

The Code of Criminal Procedure, 1898

Section 498 read with

Nari-O-Shishu Nirjatan Daman Ain, 2000

Sections 7/30

Ad-interim anticipatory bail– Section 498 of the Code of Criminal Procedure for anticipatory bail before the High Court Division. After hearing the parties by the impugned order dated 22.04.2014 the High Court Division granted ad-interim anticipatory bail to the accused respondents. The Chief Judicial Magistrate, Sylhet is directed to secure appearance of the accused-respondents, namely (1) Ali Amzad, son of Abdul Mannan @ Monoi Miah of village Shirajpara, (2) Md. Nazim Uddin, son of late Ibrahim Ali of village Rarai, (3) Abdul Mannan and (4) Moinul Islam, both sons of late Junab Ali of No. 6 Sultanpur Union, all of Police Station-Jokigonj, District-Sylhet in connection with Criminal petition for leave to appeal No. 273 of 2014 filed against the order dated 22.4.2014 passed by the High Court Division in Criminal Miscellaneous Case No. 18030 of 2014 corresponding to G.R. No. 40 of 2014 arising out of Jokigonj Police Station Case No. 07 dated 10.03.2014 in the Court of Chief Judicial Magistrate, Sylhet immediately and enlarge them on bail to his own satisfaction. DC, Sylhet =VS= Md. Shahjahan, (Criminal), 2017 (2)– [3 LM (AD) 547]

The Constitution of Bangladesh, 1972

Article 49 read with

The Code of Criminal Procedure, 1898

Sections 35A & 401 read with

The Penal Code, 1860

Sections 45 ,53 , 57 & 302 read with

The Bengal Jail Code, volume 1(Part I)

Chapter XXI Rule 751 (f)

End of convicts life as the alternative to death sentence can only be exercised by the High Court Division and this court and not by any other inferior tribunal or the executive. Accordingly, we conclude our opinion as under:-

(1) A sentence of death awarded to an offender under section 302 of the Penal Code is the rule and life imprisonment is an exception. The court may commute death sentence to life imprisonment of a prisoner on extenuating circumstances and in that case it must assign reasons therefor.

(2) Life imprisonment within the meaning of section 53 read with section 45 of the Penal Code means imprisonment for rest of the life of the convict.

(3) If the High Court Division or this court commutes a sentence of death to imprisonment for life and direct that the prisoner shall have to suffer rest of his natural life, such type of cases would be beyond the application of remission.

(4) Section 57 of the Penal Code is only for the purpose of working out the fractions of the maximum sentence fixed for the principal offence, that is to say, if such provision is not made, it would have been impossible to work out the fractions of an indefinite term.

(5) Remission contained in Chapter XXI of the Bengal Jail Code, volume 1 (Part I) are administrative instructions regarding various remissions.

(6) If an offender pleads guilty at the initial stage of the trial of the case in respect of an offence punishable with death or imprisonment for life, the court/tribunal shall take lenient view on the question of awarding sentence, but in such cases, the court shall ascertain as to whether the offender pleading guilty upon understanding the offence charged with against him before accepting such plea. Provided however that the court is not bound to accept all pleas of guilty and award the minimum sentence.

(7) In exercise of power under article 49 of the constitution the President has power to grant pardon, reprieves and respite and to remit, suspend or commute any sentence even after the commutation of sentence by this court or the High Court Division. Ataur Mridha =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 513]

The Constitution of Bangladesh, 1972

Article–105

In a review matter cannot re-assess the evidence afresh and re-hearing– In the judgment the charges and evidence of the witnesses both oral and documentary have been meticulously considered and after evaluation of the same this court modified the conviction and commuted the sentence by majority as above. In a review matter this court cannot re-assess the evidence afresh and re-hear the matter. This court dispose of the points so far as it is relevant for the disposal of the matter. This court has discussed the evidence thoroughly in support of the Plea and disbelieved the defence plea. All points agitated by the learned counsel on behalf of the petitioner are not relevant for disposal of the review petition. The points raised by the learned counsel are reiteration of the points agitated at the time of hearing of the appeal. There is hardly any scope of rehearing of the matter afresh as a court of appeal in a review petition. The learned counsel fails to point out any error in the judgment apparent on the face of the record. Therefore, all the review petitions merit no consideration and accordingly they are dismissed. Bangladesh =VS= Allama Delwar Hossain Sayedee, (Criminal), 2017 (2)– [3 LM (AD) 538]

The Constitution of Bangladesh, 1972

Article 105 read with

The Penal Code, 1860

Sections 300, 302/109

Review– The learned counsel fails to point out any error of law in the judgment of this court. We find no merit in these petitions. Mufti Abdul Hannan Munshi =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 584]

The Criminal Law Amendment Act, 1958

Section 6(2)– The impugned order that Special Judge considering prosecution case and others materials on record allowed the prayer for tendering pardon and also allowed this respondent Nos. 3 and 4 as approvers. From the section 6 sub section 2 of the Criminal Law Amendment Act, 1958. Gias Uddin Al-Mamun (Md) =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 558]

The Criminal Law Amendment Act, 1958

Section 6(2)– The Special Judge, recording the reasons, accepted the prayer for tendering pardon. In such view of the matter, we do not find any wrong in the judgment of the High Court Division. However, the trial Court is directed to allow other accused to cross-examine the approvers as per provision law at the time of examining them as approvers of the case. Gias Uddin Al-Mamun (Md) =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 558]

Capital sentence– The Court is bound to award capital sentence– When it is found from the evidence that the death was intentional, the accused used deadly weapon, the incident of murder is gruesome, barbaric and motivated, and there is no extenuating circumstance to award the minimum sentence, the court is bound to award capital sentence. Besides, in the present incident nobody had the opportunity ever to remotely imagine the amount of such ghastly incident. Ataur Mridha =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 513]

Cognizance of offence by a courts of session– The Indian provision is a bit different from ours. The Indian provision reads as under:

“Cognizance of offence by a courts of session –Except as otherwise expressly provided by this court or by any other law for the time being enforce, no court of session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a magistrate under this court”. Mufti Abdul Hannan Munshi =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 566]

Confession is taken to be true, voluntary and inculpatory in nature, a conviction can be given against the maker– The confessions have been corroborated by circumstantial evidence proved by the witnesses. Even if there is no corroborating evidence, if a confession is taken to be true, voluntary and inculpatory in nature, a conviction can be given against the maker of the statement relying upon it subject to the conditions mentioned above. Mufti Abdul Hannan Munshi =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 566]

See also:

*The Code of Criminal Procedure, Section 382-B [3 LM (SC) 111]

*The Code of Criminal Procedure, Section 367 (2) & (3) [3 LM (SC) 114]

*Compromise [3 LM (SC) 114]

*Crossed cheque [3 LM (AD) 592]

*Code of Criminal Procedure, 1898, Section 561 [3 LM (AD) 605]

*Constitution of India, Article  136 [3 LM (SC) 58]

*The Code of Criminal Procedure, 1898, Section 561A [3 LM (AD) 509]

*Commute the sentence of death [3 LM (AD) 595]

* No common intention [3 LM (SC) 55]

*Code of Criminal Procedure [V of 1898], Sections 233 and 234 [3 LM (AD) 541]

*The Code of Criminal Procedure, Section 401 [3 LM (SC) 105]

D

Discharge cannot be taken as acquittal– The misappropriation is only Tk. 1,60,200/- committed about 34 years ago it will be difficult on the part of prosecution to prove the charge after splitting into ten cases. Therefore, we have taken a lenient view on the question of retrial of the petitioner on consideration of the fact that the petitioner has suffered in jail custody for sometime and he is not in service. Accordingly, we set aside the conviction of the petitioner and instead of remanding the matter, we discharge him of the case. This order of discharge cannot be taken as acquittal and the petitioner cannot claim reinstatement in his service on consideration of his conduct. Bashir Ahmed =VS= DC, Magura, (Criminal), 2017 (2)– [3 LM (AD) 541]

See also:

*Durnity Daman Commission Bidhimala, 2007, Rule 16 [3 LM (AD) 509]

*Dacoity [3 LM (SC) 109]

E

The (Indian) Evidence Act

Section 113A read with

The Indian Penal Code

Sections  498A & 306

In the facts of this case, it has been concurrently  found  that  the in-laws did harass her, but harassment is something of a lesser degree  than cruelty. Also,  we  find  on the facts, taken as a whole, that assuming  the presumption under Section 113A would apply, it has been fully rebutted,  for the reason that there is no link or  intention  on  the  part   of  the  in- laws to assist the victim to commit suicide. We find,  especially  in  view  of  the  fact that  the  appellants have been acquitted for the crime under Section 498 A of the Code, that abetment of suicide  under  Section  306  is not made out. In the circumstances, we set aside the impugned Judgment of  the  High Court. Heera Lal =VS= State of Rajasthan, (Criminal), 2017 (2)– [3 LM (SC) 65]

See also:

*The Evidence Act, Section 114 [Illustration  (a)] [3 LM (SC) 74]

* Corroboratory evidence [3 LM (SC) 120]

I

Imprisonment for life– Five heads, namely, i) the motive  for  killing  the  deceased; ii) last seen theory; iii) recovery  of  the  dead  body  in  a  gunny  sack together with clothes and a  knife;  iv)  the  fact  that  the  two  accused persons, who were stated to be brothers, were absconding after the  incident and v) the fact that Accused No.2 gave false information. The Sessions Court, on a combination of the  aforesaid  five  factors, ultimately held the two accused guilty  of  murder  and  sentenced  them  to imprisonment for life. There  were  at  least  eight  factors which led this Court to set aside the judgment passed by the Division  Bench of the Andhra Pradesh High Court, on the ground that cumulatively all  eight factors would lead to the  conclusion  that  the  High  Court  judgment  was perverse. Parasa Koteswararao =VS= Eede Sree Hari, (Criminal), 2017 (2)– [3 LM (SC) 68]

See also: Imprisonment for life [3 LM (AD) 513]

M

Money Laundering Protirodh Ain (v of 2012)

Section 2(d)

Bail– There are allegations against the accused respondents of misappropriation of huge amount of money. The accused respondents do not deny about the collection of such huge amount of money from the shareholders. Only dispute which has been found as per submissions of the learned counsel are that according to the prosecution, the accused persons have misappropriated the money without investing in the projects but according to the accused respondents the money has been utilized in different projects. Since the accused persons made positive statements that Destiny Group own 35,00,000 saleable trees planted on more than thousand acres of land, which may be sold at Taka 28,00,00,00,000 crore approximately, this court finds that if the proposal of the accused persons is accepted the public money will be secured. Durnity Daman Commission =VS= Mohammad Hossain, (Criminal), 2017 (2)– [3 LM (AD) 549]

N

The Negotiable instrument Act, 1881

Sections  123A & 138

Crossed cheque– The legislative mandate as used in clause (a) of sub-section (2) of section 123A of the Act, 1881 that when a cheque is crossed "account payee" shall cease to be negotiable means it cannot be negotiated or encashed with any other person except the person in whose favour the same was issued. To make it clearer, a crossed cheque "account payee" must be enchased through the account of the holder in whose favour it was issued. So, by no means, a crossed cheque "account payee" loses its character as a negotiable one within the meaning of section 138 of the Act, 1881. Moreover, section 138 of Act, 1881 which has defined "Negotiable instrument" has not made any distinction between crossed cheque "account payee" or cheque of other kind such as bearer cheque we ordinarily mean. Thus, we find that section 123A of the Act, in no way, creates any bar in proceeding with a case under section 138 of the Act, 1881. In other words, we do not see any nexus of section 123A with the proceedings to be initiated under section 138 of the Act. Sahab Uddin(Md.) =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 592]

The Negotiable instrument Act, 1881

Section 138– The trial court has completed the cross examination of the P.W.1 on 13-03-2014 and thereafter, the case was fixed for examination of the accused under section 342 of Criminal Procedure Code. These facts prove that the respondent has been adopting dilatory tactics. The High Court Division did not apply its judicial mind in staying the proceeding. The rule itself is not maintainable. Accordingly, the rule is discharged. The trial court is directed to complete the trial within 1 (one) month from the date of receipt of the order. Borak Real Estate (Pvt.) Ltd. =VS= Arifur Rahman(Mr.), (Criminal), 2017 (2)– [3 LM (AD) 543]

The Negotiable Instrument Act, 1881

Section 138– The accused petitioner issued 60 post dated cheques in favour of complainant financial institution. As per provisions of Section 138 of the Negotiable Instrument Act, prima-facie case against the petitioner, had been made out. The High Court Division held that since there is no bar to get the loan amount realized by producing issued cheques for encashment, the instant proceedings were not liable to be quashed. Ehetasamul Haque =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 552]

The Negotiable Instruments Act, 1881

Section 138– An offence under section 138 of the Negotiable Instruments Act is not compoundable, it being a special law. However, in view of the submissions made by the learned Advocates on Record, we are of the opinion that the ends of Justice will be sufficiently met if the sentence of the petitioner is reduced to imprisonment for the period already undergone by him in prison, and the sentence of fine is set aside. We note that the complainant appeared before us to say that he has received his money in full satisfaction. The criminal petition for leave to appeal is dismissed. The conviction of the petitioner under section 138 of the Negotiable Instruments act is affirmed with modification of the sentence as mentioned above. Idris Chowkder (Md.) =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 560]

The Negotiable Instrument Act, 1881

Sections 138 and 141(b)

Criminal proceeding should not be stifled before trial, when there is a prima facie case for going to the trial– There was no violation of section 141(b) of the Negotiable Instrument Act. The High Court Division further found that the law is now settled on the point that a criminal proceeding should not be stifled before trial, when there is a prima facie case for going to the trial. M.K. Bazlur Rahman =VS= Md. Johurul Haque, (Criminal), 2017 (2)– [3 LM (AD) 586]

The Negotiable instrument Act, 1881

Section 138

The powers given to the Court is discretionary– Section 138(1) empowers the trial Court to punish with imprisonment for a maximum period of one year, or with fine which may extend to thrice the amount of the cheque or both. The powers given to the Court is discretionary. The language used in the section is not such that the Court must impose fine thrice the amount of the cheque. The legislature has left the matter to the discretion of the trial Court. Shahidur Rahman Khadem =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 600]

The Negotiable instrument Act, 1881

Section-138 read with

Code of Criminal Procedure, 1898

Section 561

The cheques were issued by the respondent which were returned with endorsement, "payment stopped by the drawer". Since the cheques were  returned by bank with the endorsement "payment stopped by the drawer" it is to be   presumed that  those were returned unpaid because the amount of money standing to the credit of that account was insufficient to honour of the cheque as envisaged in Section 138 of the Act. Of course this is a rebuttable presumption. The defence can be considered at the time of holding trial and not in an application under Section 561A of the Code of Criminal Procedure. The judgment and orders of the High Court Division are hereby set aside.  The concerned Courts are directed to proceed with the cases in accordance with law. S.M. Redwan =VS= Md. Rezaul Islam, (Criminal), 2017 (2)– [3 LM (AD) 605]

The Negotiable instrument Act, 1881

Section  138

Appellant is acquitted of the charge under section 138 of the N.I. Act subject to payment–  Filed a complaint  under  Section  138 of the Negotiable Instruments Act in C.C.  No.40274/2002  before  the  XVIII ACMM & XX ASCJ, Bangalore City. The Trial  Court  by  its  judgment  dated  27.04.2004  acquitted  the appellant/accused on the ground that the  complainant  has  not  proved  the case beyond reasonable doubt as the documentary and also the  oral  evidence adduced by the appellant/accused  substantiates.  Being aggrieved, the said complainant preferred appeal before  the High Court in Criminal Appeal No.895 of 2004,  in  and  by  which  the  High Court reversed the acquittal and convicted the  appellant  as  aforesaid  in paragraph (2).  Being aggrieved, the appellant/accused is before us in  this appeal by way of special leave. The Court of Small Causes and  ACMM,  Bangalore,  which has at an amicable settlement. A.T. Sivaperumal =VS= Mohammed Hyath, (Criminal), 2017 (2)– [3 LM (SC) 53]

The Negotiable instruments Act, 1881

Section 138 & 140

If a case is instituted against a company alone, excluding the persons who were responsible to the affairs of the company’s, it can be prosecuted and punished– The difference between sections 138 and 140 is that in respect of section 138 the offence is committed by human beings, that is to say, natural person and in section 140 though the expression “the person” is used which is qualified by a company which means “any body corporate and includes a firm or other association of individuals”  which is a juristic person or not. It can be prosecuted for the offence under section 138. Section 140 of the Act, we are of the view that for proper and effective adjudication of the cases, the complainant (s) / drawee (s) may add the company as one of the accused in the case but for not impleading the company, the case will not fail. Mohammad Eusof Babu =VS= Jhon Provanjon Chowdhury, (Criminal), 2017 (2)– [3 LM (AD) 562]

See also: The Nari-O-Shishu Nirjatan Daman Ain, 2000, Sections 7/30 [3 LM (AD) 547]

P

The  (Indian)  Penal  Code

Section 34 & 307 read with

The Constitution of India

Article  136

Undue  sympathy  leading  to  imposition  of   inadequate sentence would do more harm  to  the  justice  system  and  would  undermine public confidence in the efficacy of law– Prosecution  has to establish (i) the intention to commit murder; and (ii) the  act  done  by the accused.  The  burden  is  on  the  prosecution  that  the  accused  had attempted to commit the murder  of  the  prosecution  witness.  Whether  the accused person intended to commit murder  of  another  person  would  depend upon the facts and circumstances of  each  case.  To  justify  a  conviction under Section 307 IPC. Undue  sympathy  leading  to  imposition  of   inadequate sentence would do more harm  to  the  justice  system  and  would  undermine public confidence in the efficacy of law. The appellant appears to have got off lightly, we  see  no  reason to  interfere  in  the  concurrent  Judgments  under  Article  136  of   the Constitution of India. Chhanga =VS= State of M.P., (Criminal), 2017 (2)– [3 LM (SC) 58]

The Penal Code, 1860

Sections 45, 49, 53 & 57

Imprisonment for life– The word `imprisonment' has been substituted for the word 'transportation' by Ordinance No.XLI of 1985. When framing the Penal Code, the draftsmen undoubtly intended this sentence to remain as one whereby those on whom it was passed should be sent over seas. This can be inferred if the history of the sentence is examined that when the first enacted, `transportation' means transportation beyond seas, although in India it has been substituted in 1955. Section 45 defines the word 'life' means 'the life of a human being unless the contrary appears from the context'. So if no contrary appears from the context 'life' means the life of a human being. The meaning of the words 'year' and 'month' have been defined in section 49, which means 'the year or the month is to be reckoned according to this British calendar'. Here the expression 'reckoned' is used which will be very significant for resolving the issue, and in calculating the period of sentence, a 'year' means its length i.e. about 365 days, 5 hours, 48 minutes and 51.6 seconds. To do away with the odd hours, the new style of calendar has adopted the average length is about 365 days and every fourth year of 366 days (24 Geo.11.c25). A sentence for one calendar month does not imply imprisonment for a fixed number of days. It may vary according to the month in which the sentence is passed. If the imprisonment began on the 30th of a month it will expire at midnight of the 29th of the following month, if the following month is not February, in which case it will expire on its last day whatever be the total number of days served by the prisoner. Section 53 of the Penal Code sets out five different punishments to which offenders are liable to suffer under the provisions of the Penal Code. The first sentence is death; the second is imprisonment for life; the third was omitted by the criminal law (Extinction of Discriminatory Privileges) Act, 1949; the fourth is imprisonment of rigorous or simple, the fifth is forfeiture of property and the sixth is fine. In the explanation it is provided that in the punishment of 'imprisonment for life' the 'imprisonment shall be rigorous'. So all imprisonment for life shall be rigorous imprisonment whether it is mentioned in the judgment or not. Reading sections 45 and 53 conjointly there is no doubt that a sentence of life imprisonment means a sentence of rigorous imprisonment for the whole of the remaining period of the convicted person's natural life. Ataur Mridha =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 513]

The Penal Code, 1860

Sections 54– Government has power to commute the sentence of death imposed to a prisoner under section 54 of the Penal Code. It provides "In every case in which sentence of death shall have been passed, the Government may, without consent of the offender, commute the punishment for other punishment provided by this Code.' In case of a life sentence offender, the government reserves the right to 'commute the punishment for imprisonment of either description for a term not exceeding twenty years' (S.55). The word 'twenty' has been substituted for the word 'fourteen' by Ordinance No.XLI of 1985. Ataur Mridha =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 513]

The  (Indian)  Penal  Code

Section  148 & 307 read with 149

Motive  does  not  have  to  be established where there is direct evidence– The  High Court has not at all dealt with the direct evidence of PW-1  and  given  the fact that such evidence has stood the  test  of  cross-examination,  we  are constrained to observe that the view taken  by  the  High  Court  is  not  a possible view and we therefore set aside the acquittal of the  five  accused persons and restore the conviction and sentence imposed  upon  them  by  the Trial Court. The respondents are directed to surrender before the  concerned  Court within a period of two weeks from  today  to  serve  out  the  remainder  of sentence imposed by the Trial Court. Rajagopal =VS= Muthupandi, (Criminal), 2017 (2)– [3 LM (SC) 77]

The Penal Code, 1860

Section 161 read with

The Prevention of Corruption Act, 1947

Section 5(2) read with

The Code of Criminal Procedure, 1898

Section 561A read with

Durnity Daman Commission Bidhimala, 2007

Rule 16

A proceeding cannot be quashed depending on alleged procedural error in the method of collection of evidence to be adduced and used. The High Court Division failed to distinguish the allegations of demands, acceptance and attempts to accept gratifications and those with the procedure to collect evidence to substantiate allegations of acceptance and attempts to accept gratifications or demands, thereby, erroneously quashed the proceedings. Anti Corruption Commission =VS= Md. Rezaul Kabir, (Criminal), 2017 (2)– [3 LM (AD) 509]

The  (Indian)  Penal  Code

Section 182, 195

An  accused for an offence punishable under Section 182 IPC, it is mandatory  to  follow the procedure prescribed under Section 195 of the Code else such  action  is rendered void ab initio– Laid down by this Court in  the  case  of   Daulat  Ram  vs. State of Punjab, (AIR 1962 SC 1206) that in order to  prosecute  an  accused for an offence punishable under Section 182 IPC, it is mandatory  to  follow the procedure prescribed under Section 195 of the Code else such  action  is rendered void ab initio. The  prosecution  while initiating the action against the appellant did not  take  recourse  to  the procedure prescribed under Section 195 of the Code. It is for  this  reason, in our considered opinion, the action taken by the prosecution  against  the appellant insofar as it relates to the offence  under  Section  182  IPC  is concerned, is rendered void ab initio being against the  law  laid  down  in the case of  Daulat Ram (supra) quoted above. The  appeals  succeed  and  are allowed. Impugned orders stand set aside. Saloni Arora =VS= State of NCT of Delhi, (Criminal), 2017 (2)– [3 LM (SC) 80]

The Penal Code, 1860

Sections 300 & 304– A prisoner sentenced to imprisonment for life has no right to claim remissions, inasmuch as, the remissions are available to a prisoner in the nature of privilege. After conviction a prisoner cannot claim any right of remission other than a right of appeal and in the appeal he can claim acquittal or the alteration of the conviction or sentence which is permissible by law. In case of murder if the convict's case covers any of the exceptions enumerated in section 300, his conviction may be converted to part I or part II of section 304 or he may be acquitted. Except in those three circumstances, a convict undergoing life sentence cannot claim any other right. Ataur Mridha =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 513]

The Penal Code, 1860

Section 302/34– It is our opinion that the evidence of the two eye witnesses in respect of complicity of accused Kajal, son of Ansar Ali cannot be relied upon to sustain his conviction, and, accordingly, the appellant is liable to be acquitted. Palash =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 587]

The Penal Code, 1860

Section-302/34

Commute the sentence of death– The appellant Alam Sheikh of Criminal Appeal No.43 of 2012 has been in condemned-cell since 22.02.2005, that is, more than 11 years. The P.C. and P.R. of the appellant Alam Sheikh are nil and as such, he was not a habitual offender. Considering all aspects of the case, we are inclined to commute the sentence of death of  imprisonment for life. Salim =VS= The State, (Criminal), 2017 (2)– [3 LM (AD) 595]

The (Indian)  Penal  Code

Section 302/34 read with

The Arms Act, 1959

Section 25

The charge of offence not proved beyond reasonable doubt– We find that the trial  court  as  well as the High Court has erred in law in holding that the  charge  against  the two accused stood proved. We are  of  the  opinion that the prosecution has failed to prove the charge  of  offence  punishable under Section 302/34 IPC against the two accused.  We further hold that  the charge of offence punishable under Section 25 of the Arms Act, 1959  against accused Ajit @ Dara Singh  is  also  not  proved  beyond  reasonable  doubt. Pawan =VS= State of Haryana, (Criminal), 2017 (2)– [3 LM (SC) 71]

The  (Indian)  Penal  Code

Section  302 & 392 read with

The Evidence Act

Section 114 [Illustration  (a)]

The charge of murder cannot be brought home unless there  is  some  evidence to show that the robbery and the murder occurred at the same  time– The charge against the accused/appellant under Section 302 IPC can  be  held to be proved. The learned trial court as well as the High Court,  therefore, seems to be erred in holding  the  accused  guilty  for  the  said  offence. However, on the basis of the presumption permissible under Illustration  (a) of Section 114 of the Evidence Act, it has to be held  that  the  conviction of  the  accused  appellant  under  Section  392  IPC   is   well   founded. Consequently, we hold that the prosecution has  failed  to  bring  home  the charge under Section 302 IPC against the accused and he is acquitted of  the said offence. The conviction  under  Section  392  IPC  is  upheld. Raj Kumar =VS= State (NCT of Delhi), (Criminal), 2017 (2)– [3 LM (SC) 74]

The (Indian) Penal Code

Section 304B read with 34

No common intention– Both the courts below have  erred  in  law  in  holding  that  the charge under Section 304B read with Section 34 IPC stood proved  as  against the present appellants.  In our opinion, in view of the  evidence  discussed above, it cannot be said that it is proved beyond reasonable doubt that  the present  appellants,  who  are  sister-in-law  and  brother-in-law  of   the deceased, tortured the victim for any demand of dowry.  In our  opinion,  in the present case which is based on  circumstantial  evidence  it  cannot  be said that appellants had any  common  intention  with  the  husband  of  the deceased in commission of the crime. It is sufficiently shown on the  record that they used to live in a different village.  Therefore, we  are  inclined to allow the present appeal. Bibi Parwana Khatoon =VS= State of Bihar, (Criminal), 2017 (2)– [3 LM (SC) 55]

The (Indian) Penal Code

Section 304(Part-I), 307 & 323

Dispute between the  parties  regarding  land– The trial Court went on to state that,  after  going  through  the entire evidence, the incident itself was doubtful,  and  also  commented  on the fact that there was some  semi-digested  food  in  the  stomach  of  the deceased.  The medical evidence shows that  it was  2  to  3  hours  in  the stomach before the deceased  was  fired  upon,  and  this  showed  that  the incident could not have taken place at 6.00 a.m. at all, the trial Court acquitted all the three accused before it. In an appeal filed by the State,  the  High  Court  convicted  the accused No.3, the SLP petitioner before us under Section 304 Part-I  of  the Indian Penal Code for the  death  of  Umesh  Shukla;  Section  307  for  the unsuccessful murder attempt on Savitri  Devi  PW-3,  who  is  the  appellant before us under Section 323 and sentenced the accused to 10  years  rigorous imprisonment under Section 304 Part-I,  three  years  rigorous  imprisonment under Section 307 and six months rigorous  imprisonment  under  Section  323 together  with  fine.    The  other  two  accused,  with  whom  we  are  not concerned, were sentenced under Section 323 of the  Indian  Penal  Code  for six months. The appellant in Criminal Appeal No. 1159 of 2007 is on bail.  His bail bonds shall  stand  cancelled.   The  appellant  shall  be  taken  into custody forthwith to serve out the remaining sentence. Hari Shankar Shukla =VS= State of Uttar Pradesh, (Criminal), 2017 (2)– [3 LM (SC) 61]

The Penal Code, 1860

Sections 409/420467/468/471 read with

Prevention of Corruption Act [ II of 1947]

Section 5(2) read with

Code of Criminal Procedure, 1898

Sections 233 & 234

Section 233 clearly provides that every distinct offence there shall be tried separately and if there is violation of the said provision, the trial will be vitiated. The Appellate Division held that this section 234 provides that when a person accused of more offences than one for the same kind of offence committed within a space of 12(twelve) months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with and tried at one trial for any number of them not exceeding three. In the FIR there is specific allegation of misappropriation of money for a period of over 10(ten) years of ten different incidents of similar nature. Therefore, the misappropriation was made in respect of more offences of same kind beyond a space of twelve months. There cannot be any trial for more than 3(three) offences of similar nature against an accused person. Section 233 clearly provides that every distinct offence there shall be tried separately and if there is violation of the said provision, the trial will be vitiated. The language used in this section is obligatory and not directory. The exception does not cover the case of the petitioner and therefore, the trial is hit by misjoinder of charges. Bashir Ahmed =VS= DC, Magura, (Criminal), 2017 (2)– [3 LM (AD) 541]

The (Pakistan) Penal Code

Sections 460, 396 & 302(b) read with S.34

Dacoity– The prosecution had failed to prove its case against the appellants beyond reasonable doubt. These appeals are, therefore, allowed, the convictions and sentences of Azhar Mehmood, Muhammad Altaf, Azam Sher and Asad Ali appellants are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwith if not required to be detained in connection with any other case. Azhar Mehmood =VS= The State, (Criminal), 2017 (2)– [3 LM (SC) 109]

The Pakistan Prison Rules, 1978

Rule 216, 218 read with

The Pakistan Penal Code

Section 57 read with

The Code of Criminal Procedure

Section 401

It is rightly urged that although a sentence of life imprisonment under Section 57 PPC extends to 25 years, the same is liable to reduction through remissions granted by the Executive under Section 401 Cr.P.C. and also Rule 216 and Rule 218 of the Pakistan Prison Rules, 1978 (“Prison Rules”). By virtue of Rule 140 of the Prison Rules, every ‘lifer-prisoner’ must undergo a minimum of fifteen years substantive imprisonment. Notionally, the Executive authorities may on that basis remit in their discretion 10 years imprisonment from the statutory sentence of a lifer-prisoner. Such remission is granted lawfully in exercise of powers vested in the Provincial Government by the aforementioned provisions of law. Reference is made to Abdul Malik v. The State (PLD 2006 SC 365). Amjad Shah =VS= The State, (Criminal), 2017 (2)– [3 LM (SC) 105]

See also:

*The Pakistan Penal Code, Section 302(b) [3 LM (SC) 111], [3 LM (SC) 105]

* Penal Code, 1860, Sections 53 & 54 [3 LM (AD) 513]

*The Penal Code, 1860, Sections 45 ,53 , 57 and 302 [3 LM (AD) 513]

*The Penal Code, 1860, Sections 300, 302/109 [3 LM (AD) 584]

*The Indian Penal Code, Sections  498A & 306 [3 LM (SC) 65]

End.