Head Note

The Law Messenger

Volume– IV

2018 (1)

 

 (CIVIL & CRIMINAL JURISDICTION)


A

The Acquisition and Requisition of Immovable Property Ordinance, 1982

Section 3 & 4

Public interest– The public purpose and public interest have not been defined in the Ordinance. The ratio is that the public purpose includes a purpose in which the general interest of the community as opposed to the interest of an individual is directly or indirectly involved. The public purpose is not static concept, but is flexible and is capable of expansion to meet conditions of the complex society. A public purpose has for its objective the promotion of the public health, safety, morals, security, prosperity, contentment and the general welfare of the residents. It includes any purpose wherein even a fraction of the community may be interested or by which it may be benefited. Since it has been decided to acquire the property, in question, not for the purpose of any interest of the individual rather for the interest of the community at large, we are of the view that the decision of acquisition of the property in question was taken for public purpose. In view of the aforesaid facts and circumstances, we do not find any wrong in the judgment and order of the High Court Division which calls for any interference by this Division. Mrinalendu Paul =VS= Divisional Commissioner, Chittagong Division, (Civil), 2018 (1) [4 LM (AD) 277]

The Arbitration Act 1940

Section 14(2) read with

The Limitation Act

Article 181

The award to be filed in Court should be made within 3(three) years from the date when right to apply accrues– Knowledge of the filing of the award acquired otherwise than in the way prescribed by section 14(2) should be distinguished from the service of notice under section 14(2) of the Act, and that if no notice envisaged by that section is served, direction to cause the award to be filed in Court should be made within 3(three) years from the date when right to apply accrues according to the residuary provision of Article 181 of the Limitation Act. Gomati Water Development Division, Comilla=VS=Md. Shah Alam, (Civil), 2018 (1) [4 LM (AD) 121]

The Arbitration and Conciliation Act, 1996

Section 31(5) & Section 34(3)

As rightly observed by the High Court, Anilkumar Patel has gone to the extent of even disputing his signature in the award dated 07.07.1996 by drafting choreographed petition. Having accepted the award through Anilkumar Patel, being the head of the family, appellant Nos. 1(a) to 1(d) and respondent No.10 cannot turn round and contend that they had not received the copy of the award. The High Court rightly held that "....Receiving the copy by Anilkumar on behalf of himself and respondent nos. 2 to 6, under an acknowledgment, is in terms of compliance of Section 31(5) of the Act and Section 34(3) thereof....." and that the application filed under Section 34 of the Act by Anilkumar Patel and appellant Nos. 1(a) to 1(d) and respondent No.10 was barred by limitation. We do not find any good ground to interfere with the impugned judgment. Anilkumar Jinabhai Patel =VS= Pravinchandra Jinabhai Patel, (Civil), 2018 (1) [4 LM (SC) 7]

The Arbitration and Conciliation Act, 1996

Arbitration– The arbitration clause in the main contract states that the disputes which are to be referred to the committee of three arbitrators under Clause 67.3 are disputes in regard to which the decision of the Engineer (“Engineer” refers to person appointed by the State of Kerala to act as Engineer for the purpose of the contract between the PW Department and the respondent) has not become final and binding pursuant to Clause 67.1 or disputes in regard to which amicable settlement has not been reached between the State of Kerala and the respondent within the period stated in Clause 67.2. Obviously neither Clause 67.1 nor 67.2 will apply as the question of “Engineer” issuing any decision in a dispute between the contractor and the sub-contractor, or any negotiations being held with the Engineer in regard to the disputes between the contractor and the subcontractor does not arise. The position would have been quite different if the arbitration clause had used the words “all disputes arising between the parties” or “all disputes arising under this contract”. Secondly, the arbitration clause contemplates a committee of three arbitrators, one each to be appointed by the State of Kerala and the respondent and the third (Chairman) to be nominated by the Director General, Road Development, Ministry of Surface Transport, Roads Wing, Government of India. There is no question of such nomination in the case of a dispute between the contractor and the sub-contractor.” M/S. Elite Engineering & Construction (Hyd.) Pvt. Ltd.=VS=M/S. Techtrans Construction, (Civil), 2018 (1) [4 LM (SC) 66]

The Arbitration and Conciliation Act, 1996

Appointed as the Arbitrator– The purchase order was issued by the Appellant in which it was categorically mentioned that the supply would be as per the terms mentioned therein and in the attached standard terms and conditions. The Respondent by his letter dated 15.12.2012 confirmed its acceptance of the terms and conditions mentioned in the purchase order except delivery period. The dispute arose after the delivery of the goods. No doubt, there is nothing forthcoming from the pleadings or the submissions made by the parties that the standard form attached to the purchase order is of a trade association or a professional body. However, the Respondent was aware of the standard terms and conditions which were attached to the purchase order. The purchase order is a single contract and general reference to the standard form even if it is not by a trade association or a professional body is sufficient for incorporation of the arbitration clause. The appeal is allowed and the judgment of the High Court is set aside. Justice Sushil Harkauli is appointed as the Arbitrator to adjudicate the dispute between the parties. M/S. Inox Wind Ltd. =VS= M/S Thermocables Ltd., (Civil), 2018 (1) [4 LM (SC) 73]

The Artha  Rin Adalat Ain, 2003

Section 19 (2)(3) & (4)

Ex parte decree– Sub-sections (2)(3) and (4) of section 19 of the Ain is that if a proper application is made by the defendant for setting aside an ex parte decree in accordance with law a right accrues to the defendant to have the ex parte decree set aside. In the present case the only point in issue is whether or not the defendant filed the application for setting aside the ex parte decree within the time stipulated by law. Admittedly miscellaneous case was not filed within 30 days from the date of the decree. Whether or not it was filed within 30 days from the date of knowledge of the ex parte decree is a matter to be decided with the help of evidence, adduced by the parties. It is our considered view that the view taken by the High Court Division that the appellant had knowledge through her constituted attorney is absolutely misconceived since knowledge of any party to the suit is a matter personal to that party. Knowledge can only be ascertained upon taking evidence. There is no evidence on record to indicate that even the attorney was examined to ascertain whether or not this defendant had received notices of the suit. The judgement and order of the High Court Division is hereby set aside. The artha rin miscellaneous case is sent back to the Artha Rin Adalat, First Court, Chittagong, where the appellant (defendant No.8) is to be given an opportunity to prove her knowledge as contemplated in section 19(2)of the Ain by adducing evidence. The Artha Rin Adalat is directed to dispose of the miscellaneous case within four months of receipt of this judgement. Dilruba Morshed (Mrs.) =VS= Artha Rin Adalat, (Civil), 2018 (1) [4 LM (AD) 104]

Artha Rin Adalat Ain, 2003

Section 33(7)

Judgment-debtor can always settle the matter with the decree- holder Bank arranging the payment of the decretal amount– The impugned order of the High Court Division and those of the executing Court dated 31-5-2006 and 26-2-2008 are set aside. The executing Court is directed to hold fresh auction of the property in question in accordance with law. The decree-holder is directed to take positive step in the matter in that regard. It does not require any direction/order by this Court, because the judgment-debtor can always settle the matter with the decree- holder Bank arranging the payment of the decretal amount. Ellal Textile Mills Limited =VS= Artha Rin Adalat, (Civil), 2018 (1) [4 LM (AD) 110]

The Artha Rin Adalat Ain, 2003

Section 60(3)

In discharging the Rule, the High Court Division held that when the execution case was pending  in the Artha Rin Adalat constituted under the Artha Rin Adalat Ain of 1990,the 2003 Act of the same nomenclature came into force, by virtue of section 60(3) of which all proceedings, including execution cases, pending in Artha Rin Adalats created by the repealed Act of 1990, stood transferred to the Artha Rin Adalats created by the Act of 2003, and hence there was no lack of jurisdiction. We are left in no doubt that the legislators meant to have all proceedings pending under the 1990 Ain to be transferred intact to the Adalats constituted under the Ain of 2003. Shahidul Islam =VS= Artha Rin Adalat, (Civil), 2018 (1) [4 LM (AD) 329]

The Artha Rin Adalat Ain, 1990

Section 6(ka), 5(4) & (5) read with

The Code of Civil Procedure

Section 56

Section 5(4) and (5) of the Artha Rin Adalat Ain, 1990 has clothed the Artha Rin Adalat with the power to exercise its jurisdiction as a Civil Court following the provisions of the Code of Civil Procedure in so far as it is not inconsistent with any provision of the Artha Rin Adalat Ain, the legislature was required to make express provision in section 6(Ka) to exclude the operation of section 56 of the Code of Civil Procedure, but it was not done so. Section 6(Ka) of the Artha Rin Adalat Ain, 1990 can not, therefore, be construed to exclude the operation of section 56 of the Code of Civil Procedure in matters of execution of any decree passed by the Artha Rin Adalat. Hazera Begum =VS= Artha Rin Adalat, (Civil), 2018 (1) [4 LM (AD) 225]

Amendment of the plaint– The amendment seeks to enhance the amount claimed in the plaint. At the end of the trial of the suit, the plaintiff will be entitled to a decree only if he is able to satisfy the Court in respect of his claim and will recover the amount which he is able to prove by adducing satisfactory evidence. The defendants will have every opportunity to disprove or minimise the claim of the plaintiff. Bangladesh Chemical Industries Corporation =VS= M. V. THOR NEXUS, (Civil), 2018 (1) [4 LM (AD) 72]

Appellate Court as the last Court of facts– We find that the appellate Court as the last court of facts has meticulously discussed the evidence on record and rightly reversed the findings of the trial Court. The observation of the High Court Division that the appellate Court did not reverse the findings of the trial Court is not correct. The appellate Court has elaborately dealt with the points raised by the trial Court. The impugned judgement and order of the High Court Division is not sustainable. Hence, the appeal is allowed, without however, any order as to costs. Fatema Khatun(Mst.) =VS= Towhida Begum(Mst.), (Civil), 2018 (1) [4 LM (AD) 113]

Appellate Court is the final Court of fact– The High Court Division erred in failing to appreciate that the appellate Court was the final Court of fact, and the revisional Court could only interfere if there was misreading or non-consideration of evidence or misconception of law. No such infirmities were identified in this case. Government of Bangladesh =VS= Md. Sadek Ali, (Civil), 2018 (1) [4 LM (AD) 141]

Any opinion given by the Supreme Court regarding the terms and conditions of service of any judicial officer should be respected by the Executive– The opinion of the Supreme Court regarding the terms and conditions of the service of the lower judicial officers would prevail– Any opinion given by the Supreme Court regarding the terms and conditions of service of any judicial officer should be respected by the Executive and its opinion cannot be ignored. There cannot be any dual administration in the administration of justice and the same will not be healthy for the administration of justice. If the views taken by the High Court Division is accepted, there will be chaos and confusion in the administration of justice. If Appellate Division looks at the scheme of the constitution, there will be no doubt that the opinion of the Supreme Court regarding the terms and conditions of the service of the lower judicial officers would prevail. There is no doubt about it. Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143]

An alienation by a Hindu widow with justifying necessity is valid transfer– The contents of the kabala deed dated 28.10.1944 executed by Shushila in favour of Jagobandhu and ‘angikarnama’ dated 28.10.1944 executed by Jagobandhu in favour of Shushila it would be apparent that Shushila transferred the suit land to Jagobandhu for her maintenance. Accordingly, S.A. Record of right was prepared in the name of Jogabondhu. An alienation by a Hindu widow with justifying necessity is valid transfer. In the “Angikarnama” Jagobondhu made promise stating, Ò.....`wjj MÖwnZv‡K RxweZ _vKv ch©šÍ Avwg †LvivK, †cvlvK, jvjb I fiY‡cvlY Kwie| hw` bv Kwi Z‡e gvwmK †gvmev gs 15 UvKv wnmv‡e w`e|Ó The plaintiff himself as P.W.1 admitted in his evidence that, Ò Avgvi wcZvi m‡½ 9 bs weev`xwbi GB g‡g© wjwLZ `wjjc‡Î 28/10/44Bs Pzw³ nq †h, Avgvi wcZv 9bs weev`x‡K †Lvi‡cvl I gv‡mv nviv eve` cÖwZ gv‡m 15/- UvKv w`‡e|Ó It is true that the recitals in the deed regarding the legal necessity do not by themselves prove the legal necessity but the weight to be attached to such recitals. When the transaction took place many years ago, so that the original parties and the witnesses are not available to prove the circumstances in which alienation was made the alienation would be justified by legal necessity, particularly, when parties to the deed so recited. In view of such circumstances, it appears to us that Shushila transferred .90 acre of land to Jogobondhu on 28.10.1944 for her legal necessity. Paresh Chandra Shil =VS= Kali Bala Shil, (Civil), 2018 (1) [4 LM (AD) 295]

Appointed as daily wager– Appointed as daily wager on 01.04.1986 by the Water Resources Department of the State. The services of the appellant were regularized on work charge establishment to the post of Pump Operator by order dated 06.05.2008. After attaining the age of superannuation, the appellant retired on 30.07.2011. The appellant was, however, not paid the gratuity amount by the State which, according to him, was payable to him after his retirement. Netram Sahu =VS= State of Chhattisgarh, (Civil), 2018 (1) [4 LM (SC) 86]

Any person in the service of Republic or any statutory authority cannot seek judicial review in respect of terms and conditions of service or action taken relating to him as a person to such service including transfer, promotion, and pension rights, except : 

a) in matters relating to challenging the vires of the law; 

b) infringement of fundamental rights in which case also, there must be sufficient pleadings of such violation keeping in mind that such plea also can be taken in the tribunal because the constitution being the supreme law of the Country, it can be taken in aid by any Court/tribunal

2) The Administrative Tribunal shall be competent to deal with those matters and in appropriate cases of emergency; it can also pass interim order of injunction/stay subject to compliance of certain formalities.

3) The views taken in Mujibur Rahman 44 DLR (AD) 111 have been overruled. 
4) If the action of the authority or order complained of in relation to the above matters are found to be coram non judice or without jurisdiction or is found malafide, judicial review is not available and the administrative tribunal can deal with these issues also. On this point, the decisions in Shaheda Khatun V. Administrative Appellate Tribunal, 3 BLC (AD) 155, Ehtesham Uddin V. Bangladesh, 33 DLR(AD) 154, Ismail Hoque V. Bangladesh, 34 DLR(AD) 125, Mostaque Ahmed V. Bangladesh, 34 DLR(AD)222 and Helal Uddin Ahmed V. Bangladesh, 45 DLR(AD)1 have also been overruled. Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143]

See also:

Allowance/Bhaata [4 LM (AD) 76]

Appointed a Nikah Registrar [4 LM (AD) 273]

Appointed sajjadanashin [4 LM (SC) 123]

B

The Bangladesh Biman Corporation Employees (service) Regulation, 1979

Regulation 11A(2)

This court in Yousuf Haroon (supra) has rightly held that this regulation 11A(2) was added on 05.02.1984 after the decision in Dr. Nurul Islam (supra). It further held that since there is principle or guidelines for retiring an employee after 25 years of service, it cannot be said that regulation 11A(2) does not give any guideline or that there is scope for arbitrary exercise of power by the Corporation. It further held that an employee of Biman can be given compulsory retirement by the Corporation in exercise of powers under rule 5 of Bangladesh Biman Corporation Employees (Pension and Gratuity) Rules, 1988 as well as regulation 11A(2). The authority before making the order of compulsory retirement was satisfied that for the interest of Corporation he was given compulsory retirement and that there was nothing on record to show that the order of compulsory retirement was made arbitrarily or malafide. Under the unamended provision, there was scope for arbitrary exercise of discretion from among persons similarly situated and holding similar job, but under the present provision there is no scope to exercise arbitrary power. We fully endorse to the views taken in Yousuf Haroon (supra). Bangladesh Biman Airlines Ltd. =VS= Captain Mir Mazharul Huq, (Civil), 2018 (1) [4 LM (AD) 66]

Bangladesh Muktijoddha  Kallayan Trust Regulation 1984

Section 17(1) of P.O.94 of 1972

Allowance/Bhaata– We are of the view that the High court Division did not commit any illegality in passing the impugned judgment and order and as such the submissions of the learned Advocate for the appellant has no basis. Since the writ petitioner respondents have admittedly been found to be genuine wounded/disabled freedom fighters, (whatever might be their category/class) and since they have been enlisted as recipients of such state allowance/Bhaata as disabled freedom fighters and since the rate of such allowance/Bhaata has been enhanced from time to time we are of the view that the writ petitioners, in all the cases, are entitled to get their allowances/Bhaatas at the rate which has been enhanced from time to time. Bangladesh Muktijoddha Kallayan Trust =VS= Md. Golam Sarwar, (Civil), 2018 (1) [4 LM (AD) 76]

The Bangladesh Petroleum Act, 1974

Section 2(e), 4

Imported high speed diesel– Once the Petroleum product is found inside the country on import at the instance of any one except the Government or the Bangladesh Petroleum Corporation, Petroleum agreement is a condition precedent to dealing with such product. In the absence of any restriction imposed either in the Imports and Exports Control Act or in the Import Policy Order, the Customs or the National Board of Revenue would not be competent to refuse clearance of any imported high speed diesel. Government of Bangladesh =VS= Q.C. Petroleum Ltd., (Civil), 2018 (1) [4 LM (AD) 206]

h¡wm¡­cn AiÉ¿¹l£Z ®e± f¢lhqe LaѪfr Hl LjÑQ¡l£ Q¡L¥l£ fË¢hd¡ej¡m¡, 1990

Regulation 10(1) & 10(2)

The seniority of the writ petitioner would be counted from the date of joining– While disposing of the leave petition considering the submissions of the learned Counsel for the parties and the relevant law came to the decision that since in the instant case there is no merit list on record filed in a proper manner, the seniority of the writ petitioner would be counted from the date of joining. Review petition is dismissed. Bangladesh Inland Water Transport Authority=VS=Md. Sadiqul Islam, (Civil), 2018 (1) [4 LM (AD) 74]

C

Cantonment Land Administration Rules, 1937 read with

The Cantonment Board Act, 1924

All the private educational institutions i.e. schools, colleges, etc. constructed in the Cantonments and all the commercial buildings erected in residential areas of Cantonments– Copy of this judgment be sent to the Attorney General for Pakistan and Secretary Defence who shall ensure that all the private educational institutions i.e. schools, colleges, etc. constructed in the Cantonments and all the commercial buildings erected in residential areas of Cantonments throughout Pakistan shall be removed gradually, having been constructed in violation of the law and rules as well as bylaws and the master plan and their original shape be restored. Periodical reports in this regard be submitted to the Court for our perusal in Chambers, until the process is completed otherwise this Court would be constrained to issue notice to the Secretary Defence, D.G. Cantonments as to why action under the law and rules shall not be taken against them. Yawar Azhar Waheed (Mst.) =VS= Khalid Hussain, (Civil), 2018 (1) [4 LM (SC) 170]

The Carriage by Air (International Convention) Act, 1966

Rule 29(first schedule) Read with

The Limitation Act

Section 29

The High Court Division committed an error of law in holding that the date on which carriage stopped was the date on which the carrier defendants admitted its failure to deliver its goods finally and offered payment of compensation in lieu of the goods. The time for limitation began to run from the expiry of 7 days after the date on which the goods ought to have arrived, that is, on 22.01.1999. Since the suit was filed on 24.05.2001 apparently the same was barred by limitation in view of special limitation provided in Rule 29 of the first schedule of the Carriage by Air (International Convention) Act, 1966 read with section 29 of the Limitation Act. Biman Bangladesh Airlines =VS= Al Rojoni Enterprise, (Civil), 2018 (1) [4 LM (AD) 95]

The Code of Civil Procedure, 1908

Sections 144/151 read with

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

Order XXVI

Review– The civil court can exercise its inherent power under section 151 of the CPC– for declaration of their right of permanent tenancy in the suit land with a further declaration that notice bearing No. ALC/681/76 dated 29.12.1976 issued by the petitioner No.1 namely Military Estate Officer, Dhaka Cantonment for removing the structures from the suit land is illegal, void and not binding upon them. After hearing the learned Subordinate Judge by judgment and decree dated 22.8.1989 dismissed the suit. Thereafter First Appeal Nos. 99 and 100 of 1989 were filed and a Division Bench of the High Court Division by judgment and decree dated 8.8.1993 allowed the appeal declaring that the notice dated 29.12.1976 is illegal and of no legal effect and that possession of the suit land from the plaintiff respondents cannot be recovered except in due process of law. But in the meantime, taking advantage of judgment and decree dated 22.8.1989 dismissing the suit, the contesting defendants dispossessed the plaintiffs from the suit land on 26.8.1989. After disposal of the appeal by the High Court Division decreeing the suit, the plaintiffs filed an application under sections 144/151 of the Code of Civil Procedure for restitution of the suit land.The High Court Division it appears though found that section 144 of the Code is applicable but even if it is found that this provision is not applicable as submitted by the learned Additional Attorney General but when the plaintiffs were dispossessed on the basis of a notice which was found to be illegal by the High Court Division the civil court can exercise its inherent power under section 151 of the Code in such a case and in the present case this discretionary exercise of power has not run counter to the interest of justice.In review petition there is no scope of re-hearing appeal which the petitioner is seeking. The review petition is dismissed. Military Estate Officer =VS= Sk. Mohammad Ali, (Civil), 2018 (1) [4 LM (AD) 270]

The Code of Civil Procedure, 1908

Section 151

Local Investigation– We have arrived at the conclusion that there are authorities to support the view that in a case of delivery of property beyond the decree, an application for local investigation can be allowed, treating the same as an application under section 151 of the Code of Civil Procedure. Shahabuddin Ahmed =VS= Md. Hossain Ali, (Civil), 2018 (1) [4 LM (AD) 331]

The Code of Civil Procedure, 1908

Order 1 Rule 10(2)

Ejectment Suit– Any finding whether directly or indirectly, if recorded by the Trial Court touching the question of title over the suit property, would not be binding on respondent No.1 regardless of the outcome of the suit and respondent No. 1 would be free to file an independent civil suit against the appellants for a declaration of his right, title and interest in the suit premises and in any other properties, if so, and claim partition and separate possession of his share by metes and bounds in all such properties. The application filed by respondent No. 1 under Order 1 Rule 10(2) of the Code in the aforementioned ejectment suit is dismissed. Kanaklata Das =VS= Naba Kumar Das, (Civil), 2018 (1) [4 LM (SC) 48]

The Code of Civil Procedure, 1908

Order VI Rule 17

Praying for declaration of title to the property described in ‘A’ scheduled of the plaint and also for delivery of khas possession of the property described in schedule ‘B’ of the plaint upon eviction of the defendants and/or persons claiming through them and also for permanent injunction restraining the defendants from making any construction and/or changing the nature and character of the land. Praying for amendment of the plaint stating, inter alia, that due to over sight at the time of filing of the suit the learned lawyer of the plaintiff made some mistakes and as such the plaint should be amended. S.K. Khalilur Rahman =VS= Mrs. Meherun Nesa, (Civil), 2018 (1) [4 LM (AD) 340]

The Code of Civil Procedure, 1908

Order 7 Rule 14 read with Order 6 Rule 17

The two applications filed by the appellant (plaintiff), i.e., one filed under Order 7 Rule 14 and the other under Order 6 Rule 17 of the Code are allowed, however, subject to the appellant paying a cost of Rs.10,000/- to the respondents. Let the cost be paid by the appellant to the respondents within one month. The appellant(plaintiff) is also allowed to file the additional documents, as prayed by him. The respondent(defendant) is also granted an opportunity to file additional documents in rebuttal, if they so desire. N.C.Bansal =VS= Uttar Pradesh Financial Corporation, (Civil), 2018 (1) [4 LM (SC) 89]

The Code of Civil Procedure, 1908

Order 9 Rule 13 read with

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

Order XXVI

Review– Civil Petition for Leave to Appeal was dismissed on the ground that Miscellaneous Case No.40 of 1997 under Order 9 Rule 13 of the Code of Civil Procedure was filed about 6 years after passing of the ex-parte decree dated 27.08.1991 in Title Suit No.347 of 1982 without any application under section 5 of the Limitation Act for condonation of delay as such an application is to be filed within 30 days from the date of ex-parte decree or within 30 days from the date of knowledge of the ex-parte decree in question. The Miscellaneous Case was filed after a lapse of 11(eleven) months from the alleged date of knowledge without any application for condonation of delay and the same was accordingly held to be barred by limitation. We do not find any cogent reason to review the impugned judgment. RAJUK =VS= Momtaz Hasan Chowdhury, (Civil), 2018 (1) [4 LM (AD) 319]

The Code of Civil Procedure, 1908

Order 9 Rule 13

Remand of the case to the Trial Court for fresh adjudication– In our considered opinion, after the suit was restored at the instance of defendant Nos. 3 and 4, the Trial Court committed another error inasmuch as it again did not issue fresh notice of the suit to defendant Nos. 1 and 2. In other words, defendant Nos. 1 and 2 were entitled for a fresh notice of the suit once restored despite their non-appearance in the first round of trial in the suit and in Order 9 Rule 13 proceedings. We are inclined to uphold the remand order, but that we do so on the basis of aforementioned two grounds noticed by us in the proceedings in the suit and in Order 9 Rule 13 proceedings. The two legal infirmities noticed by us in the proceedings call for remand of the case to the Trial Court for fresh adjudication of the civil suit on merits in accordance with law. Jayaprakash =VS= T.S. David, (Civil), 2018 (1) [4 LM (SC) 41]

The Code of Civil Procedure, 1908

Order XVIII, Rules: 1 and 2(1)

The defendant did not admit the case of the plaintiff and filed written statement denying the plaintiff’s claim that the suit property was an abandoned property, so it was the plaintiff who had the right to begin the hearing of the suit as per provision of rule 1 of order XVIII of the Code. Rule 2(1) of the Code has clearly provided that on the day fixed for hearing of the suit the party having the right to begin shall state his case and produce evidence in support of the issues which he is bound to prove, the other party shall then state his cause and produce his evidence (if any) and may then address the Court generally on the whole case. Therefore, there was no scope on the part of the plaintiff to avoid examination of witness and state the facts of the plaint at the hearing of the suit. Government of Bangladesh =VS= Md. Mizanur Rahman, (Civil), 2018 (1) [4 LM (AD) 138]

The Code of Civil Procedure, 1908

Order 41 Rule 23

Remand– The order of remand made by the High Court Division is not covered by Order 41 Rule 23 of the Code of Civil Procedure. We do not approve of remanding a suit on such flimsy grounds. The appeal is allowed and the impugned judgment delivered by the High Court Division is set aside. The matter is remanded to the High Court Division and the Division Bench presided by Farid Ahmed, J. shall dispose of the appeal on merit within 3 (three) months from the date of receipt of a copy of the judgment. Lutfur Rahman =VS= Abdul Malek Gazi, (Civil), 2018 (1) [4 LM (AD) 268]

The Code of Civil Procedure, 1908

Order XLVII, rule 1 read with

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

Order XXVI

Review– Admittedly, it is not a case of discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the defendant-petitioner or could not be produced by him at the time when the judgment sought to be reviewed was passed. In the review application as many as 7(seven) grounds have been taken and all grounds relate to the factual aspect of the case. It is clear that the leave petition was dismissed considering the factual aspect of the case which was found against the defendant by all Courts and as already stated hereinbefore, the petitioner failed to pin point any ground for review within the meaning of Order XLVII, rule 1 of the Code of Civil Procedure in the review application and as such, we find no reason to review the judgment and order passed by this Division dismissing the leave petition. Mozzammel Haque(Md.) =VS= Md. Abdus Salam, (Civil), 2018 (1) [4 LM (AD) 275]

The Code of Civil Procedure, 1908

Order 47, rule 1 read with

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

Order XXVI

Review– No ground at all for reviewing– It appears that both the Administrative Tribunal and the Administrative Appellate Tribunal found that the original Administrative Tribunal case was filed beyond the statutory period of limitation and as such was not maintainable. This Division also considered this point of limitation and found that the Administrative Tribunal case was barred by limitation.  So we find no ground at all for reviewing the judgment and order of this Division. There is no mistake or error apparent on the face of record nor any other grounds mentioned in Order 47, rule 1 of the Code of Civil Procedure for reviewing the judgment and order sought to be reviewed. This review petition is dismissed. Juhaque Ali (Md.) =VS= Government of Bangladesh, (Civil), 2018 (1) [4 LM (AD) 266]

The Code of Civil Procedure, 1908

Order XLVII rule 1 read with

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

Order XXVI

Review– The learned Advocate for the review petitioners though has made submissions trying to point out some error in the judgment under review but could not make out any ground for review of the said judgment and order. The grounds for review of any judgment and order has been enumerated in Order XLVII rule 1 of the Code of Civil Procedure. The learned Advocate for the leave petitioners could not establish any of these grounds for review of the judgment and order in question. The pleas of the defendant-petitioners- that the High Court Division and also this Division did not consider at all the facts that the plaintiffs’ case that Kabir Ahmed died in the year 1970 has not been proved and that the plaintiffs could not prove the genuineness of their alleged title deeds- are not correct at all. This Division and also the High Court Division have considered both these defence pleas meticulously and come to a definite finding. There is no ground for review of the judgment and order in question and hence this review petition is dismissed. Jalalabad Co-operative Housing  Society Ltd.=VS=Mst. Roushan Jahan, (Civil), 2018 (1) [4 LM (AD) 261]

The Code of Civil Procedure, 1908

Order 47 read with

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

Order XXVI

Review– We do not find any new point or ground, as contemplated under order 47 of the Code of Civil Procedure, which could not be found earlier by the petitioner and could not be placed before this Division at the time of dismissal of the leave petition. Abdul Wadud Mia (Md.) =VS= Najibunnessa, (Civil), 2018 (1) [4 LM (AD) 11]

The Code of Civil Procedure, 1908

Order 47, Rule 1 read with

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

Order 26

Review– Review matters are governed and regulated by the provisions of Order 47, Rule 1 of the Code of Civil Procedure and Order 26 of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988. As a matter of practice and rules this court proceeds to review a judgment pronounced earlier by it upon an application for review by an aggrieved party. Prior to hearing a review petition the court has to be satisfied that grounds for review as mentioned in Order 26 of the said Supreme Court Rules exists. Reference may be made in this regard to the case of Mahbubur Rahman Sikder Vs. Mojibur Rahman Sikder, 37 DLR(AD)145. Grounds taken for review are not new and these grounds were agitated earlier by the respondent before this court and the same were answered while dismissing the leave petition. The respondent by filing the review petition merely sought for rehearing of the matter which is not permissible in law. We are of the view that this court upon correct assessment of the materials on record arrived at a correct decision. There is therefore no warrant in law to interfere with the same. GM,Postal Insurance Eastern Region =VS= A.B.M. Abu Taher, (Civil), 2018 (1) [4 LM (AD) 118]

The Companies Act, 1956

Section 58

The matter is remitted to the Company Law Board, now the National Company Law Tribunal for consideration afresh of the appeal filed under Section 58 of the Companies Act, 1956. We make it clear that the Tribunal shall pass orders afresh uninfluenced by any of the observations and findings in the order dated 16.09.2015 of the Company Law Board, orders of the High Court or of this Court. We direct the Tribunal to pass orders expeditiously since the appeal is of the year 2014. The appeals are disposed of accordingly. Mackintosh Burn Ltd. =VS= Sarkar & Chowdhury Enterprises Pvt. Ltd., (Civil), 2018 (1) [4 LM (SC) 51]

The Constitution of Bangladesh

Articles 18(1), 31 and 32:

No one has any right to endanger the life of the people which includes their health and normal longevity of an ordinary healthy person. Articles 31 and 32 of the Constitution not only means protection of life and limbs necessary for full enjoyment of life but also includes amongst others protection of health and normal longevity of an ordinary human being. It is the obligation of the State to discourage smoking and consumption of tobacco materials and the improvement of public health by preventing advertisement of tobacco made products. Though the obligation under Article 18(1) of the Constitution cannot be enforced, State is bound to protect the health and longevity of the people living in the country as right to life guaranteed under Articles 31 and 32 of the Constitution includes protection of health and longevity of a man free from threats of man-made hazards. Right to life under the aforesaid Articles of the Constitution being fundamental right it can be enforced by this Court to remove any unjustified threat to health and longevity of the people as the same are included in the right to life. Government of Bangladesh =VS= Professor Nurul Islam, (Civil), 2018 (1) [4 LM (AD) 125]

The Constitution of Bangladesh

Articles 31 and 32

Right to life– Right to life is not only limited to protection of life and limbs but also extends to the protection of health, enjoyment of pollution free water and air, bare necessaries of life, facilities for education, maternity benefit, maintenance and improvement of public health by creating and sustaining conditions congenial to good health and ensuring quality of life consistent to human dignity. Government of Bangladesh =VS= Professor Nurul Islam, (Civil), 2018 (1) [4 LM (AD) 125]

The Constitution of Pakistan, 1973

Articles 62, 63 and 63-A read with

The Election Act, 2017

Sections 203 and 232

Business of the Parliament is conducted by persons of probity, integrity and high moral character–It is declared that any person who suffers from lack of qualification under Article 62 or disqualification under Article 63 of the Constitution is debarred from holding the position of ‘Party Head’ by whatever name called and prohibited from exercising any of the powers provided in Article 63-A of the Constitution, as ‘Party Head’ or any other power in the said capacity under any law, rule, regulation, statute, instrument or document of any political party. Such bar and prohibition shall commence from the date of disqualification and continue till such time that the lack of qualification/disqualification of such person continues in terms of the provisions of Articles 62 and 63 of the Constitution. The Election Commission of Pakistan is accordingly directed to remove the name of Respondent No.4 (Mian Muhammad Nawaz Sharif) as President/Party Head of Respondent No.3 (Pakistan Muslim League (N) from all relevant record(s). Zulfiqar Ahmed Bhutta =VS= Federation of Pakistan, (Civil), 2018 (1) [4 LM (SC) 174]

The Constitution of Pakistan

Article 62(1)(f)

Article 62(1)(f) of the Constitution also imposes Islamic ethical conditions for eligibility of a candidate for election to Parliament but these are made applicable to both Muslim as well as non-Muslim candidates for Parliamentary membership. One reason that the conditions of Article 62(1)(f) are made a criterion of eligibility of all candidates for election is the universality of their ethical prescription. Their content constitutes a basic norm in all progressive democratic societies that are governed by the rule of law. It is a matter of fact that in Pakistan the members of Parliament occupy leadership roles for the people of Pakistan and constitute the political and ruling elite in society. According to the Preamble of the Constitution, these persons are representatives of the people of Pakistan to whom the former are ultimately responsible as fiduciaries. Sami Ullah Baloch =VS= Abdul Karim Nousherwani, (Civil), 2018 (1) [4 LM (SC) 142]

The Constitution of Pakistan

Article 62(1)(f) read with

The Holy Qur’an

Surah Al-Ahzab Ayat 21 (33:21)

Surah Al-Ahzab Ayat 21 (33:21) in the Holy Qur’an as follows:

 

“Indeed in the Messenger of Allah (Muhammad SAW) you have a good example to follow for him who hopes in (the Meeting with) Allah and the Last Day and remembers Allah much.” The qualities of sagacity, righteousness, honesty and trustworthinesslaid down in Article 62(1)(f) of the Constitution as qualifications formembership to the elected Houses are actually derived from theSunnah of the Holy Prophet Muhammad (PBUH). Sami Ullah Baloch =VS= Abdul Karim Nousherwani, (Civil), 2018 (1) [4 LM (SC) 142]

The Constitution of Pakistan

Article 62(1)(f)

The restriction imposed by Article 62(1)(f) of the Constitution for the eligibility of a candidate for election to Parliament serves the public need and public interest for honest, upright, truthful, trustworthy and prudent elected representatives. The judicial mechanism in Article 62(1)(f) of the Constitution grants a fair opportunity and adequate remedy for relief to a candidate under challenge to vindicate himself. Therefore, the permanent incapacity of a candidate for election under Article 62(1)(f) of the Constitution is not an arbitrary, excessive or unreasonable curtailment of his fundamental right under Article 17(2) of the Constitution. We are inclined to hold that the incapacity created for failing to meet the qualifications under Article 62(1)(f) of the Constitution imposes a permanent bar which remains in effect so long as the declaratory judgment supporting the conclusion of one of the delinquent kinds of conduct under Article 62(1)(f) of the Constitution remains in effect. Sami Ullah Baloch =VS= Abdul Karim Nousherwani, (Civil), 2018 (1) [4 LM (SC) 142]

The Constitution of Pakistan

Article 62(1)(f)

Qualified to be a Member of Majlis-e-Shoora (Parliament)– However, Article 62(1)(f) of the Constitution is required to be interpreted as it stands today. A plain reading of Article 62(1)(f) of the Constitution reveals that in order to be a Member of Majlis-e-Shoora (Parliament), the person must be, inter alia, sagacious, righteous, non-profligate, honest, and ameen. However, if there is a declaration by a Court of Law to the contrary i.e. he is not sagacious or righteous or non-profligate, honest, and ameen then such person shall not be qualified to be a Member of Majlis-e-Shoora (Parliament). (Sh. Azmat Saeed, J) Sami Ullah Baloch =VS= Abdul Karim Nousherwani, (Civil), 2018 (1) [4 LM (SC) 142]

The Constitution of Pakistan

Article 63(1)(h)

Disqualified to be a Member of Majlis-e-Shoora (Parliament)– Permanent ineligibility under Article 62(1)(f) of the Constitution reference has been made to the constitutional disqualification to contest an election to a seat in Parliament on account of a conviction and sentence for commission of any offence involving moral turpitude. The provisions of Article 63(1)(h) of the Constitution lay down this disqualification in the following terms:

“63. (1) A person shall be disqualified from being elected or chosen as, and from being, a member of the Majlis-e- Shoora (Parliament), if −

(a) …

(b) …

(c) …

(d) …

(e) …

(f) …

(g) …

(h) he has been, on conviction for any offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; or …” [emphasis supplied] Sami Ullah Baloch =VS= Abdul Karim Nousherwani, (Civil), 2018 (1) [4 LM (SC) 142]

The Constitution of Pakistan

Pakistan Supreme Court is empowered to interpret the Constitution but not to amend it– No doubt the period of disqualification in certain sub-Articles of Article 63 of the Constitution has been provided but such a sunset clause is not found in Article 62(1)(f) of the Constitution. The framers of the Constitution chose not to do so. This Court is empowered to interpret the Constitution but not to amend it. It is an equally elemental principle of interpretation of the Constitution that nothing can be added thereto. (Sh. Azmat Saeed, J) Sami Ullah Baloch =VS= Abdul Karim Nousherwani, (Civil), 2018 (1) [4 LM (SC) 142]

The Constitution of Bangladesh

Article 65

It is the Supreme Court alone which is empowered to examine whether or not any law is inconsistent with the constitution. The Parliament has given the legislative power under article 65 to promulgate law but this power is circumscribed by limitations and if it exercises any power which is inconsistent with the constitution, it is the Supreme Court which being the custodian of the constitution and is manned by the Judges who are oath bound to protect the law to examine in this regards. The Supreme Court is the only organ of the State to see that any law is in consonance with the constitution. So, where the constitution confers the power upon the Supreme Court to strike down laws, if found inconsistent, such power cannot be delegated to a Tribunal created under subordinate legislation. In the alternative, the Supreme Court cannot delegate its power of judicial review of legislative action to a Tribunal. It is only on the principle that the donee of a limited power cannot, by the exercise of that very power, convert the limited power into an unlimited one or in the alternative a delegatee cannot exercise same or more power than the delegator. Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143]

The Constitution of Bangladesh

Article 96(4)

Code of Conduct of the Judges– The Supreme Judicial Council enjoins the power as per provision of clause (4) of Article 96 to prescribe the ‘Code of Conduct’ of the Judges– There is no Rules providing the procedure to be followed for removal of a Judge of the highest Court. The Supreme Judicial Council enjoins the power as per provision of clause (4) of Article 96 to prescribe the ‘Code of Conduct’ of the Judges. Similarly for the purpose of inquiry also, there is no Rules or Regulations framed by the government. It is left with the discretion of the Council to follow the procedure. The Council on following conduct rules and after affording Mr. Syed Shahidur Rahman sufficient opportunity to explain his conduct and upon hearing the parties held that Mr. Syed Shahidur Rahman should not remain in the judiciary because of his conduct. This opinion having been made by the highest body authorized by the constitution and the President having taken the decision relying upon the recommendation of the Council, the judicial review is not permissible against such decision. Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, (Civil), 2018 (1) [4 LM (AD) 231]

The Constitution of Bangladesh

Article 96(5)

The High Court Division cannot sit over the judgment of the Council. As per provisions of the constitution after the recommendation of the Supreme Judicial Council the President is left with no discretion other than to accord the recommendation. It is not correct to hold the view that the Council’s opinion is expressly beyond the scope of article 96(5) of the constitution– The High Court Division cannot sit over the judgment of the Council. It has totally ignored that aspect of the matter and opined that the President did not apply his judicial mind in passing the order of removal of Mr. Syed Shahidur Rahman. As per provisions of the constitution after the recommendation of the Supreme Judicial Council the President is left with no discretion other than to accord the recommendation. It is not correct to hold the view that the Council’s opinion is expressly beyond the scope of article 96(5) of the constitution, and that such portion of the opinion contained in the report is without jurisdiction, inasmuch as, in the absence of proof of alleged payment of money to the writ petitioner by Ms. Kona the allegations against the writ petitioner is baseless. This view of the High Court Division is totally misconceived one. The High Court Division has exceeded its jurisdiction in making such observation. As observed above, even if the payment of Tk.50,000/- has not been proved, that does not disprove the allegations made by Ms. Kona. Mr. Syed Shahidur Rahman being a sitting Judge could not entertain Ms. Kona with two of her relations at his residence for fixation of a bail matter and also he could not maintain liasion with his previous junior Ms. Jesmin Akther Keya relating to conducting cases. Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, (Civil), 2018 (1) [4 LM (AD) 231]

The Constitution of Bangladesh

Articles 102 and 44

The right of judicial review under article 102(1) is a guaranteed one which is embodied in the constitution itself, but if that right is not guaranteed, even if a citizen’s fundamental right is infringed, he will be left with no remedy at all. True, article 102(1) has not been retained in the fundamental rights chapter as has been kept in India but in view of article 44(1), it is akin to fundamental right. Similarly the observation that the enforcement of fundamental right is available only when ‘no other equally efficacious remedy is provided by law’ is also not a correct view, inasmuch as, whenever there is infringement of fundamental rights, any person can move the High Court Division for judicial review of the administrative action under Article 102(1). The question of equally efficacious remedy arises only when it will exercise power under article 102(2) i.e. writ of certiorari and other writs mentioned in sub-clauses (a) and (b) of clause (2). If there is an alternative remedy, the High Court Division’s power is debarred. It is only in exceptional cases, it can exercise this power. Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143]

The Constitution of Bangladesh

Article 102

Whether, the High Court Division in exercise of its jurisdiction under Article 102 of the Constitution is empowered to award monetary compensation or compensatory cost to a victim in a case of the violation of fundamental rights–

The paramount object and purpose for which Article 102 has been enacted and the relevant factor and provision on which the interpretation of the Article 102 has been linked, the High Court Division in exercise of its jurisdiction under Article 102 of the Constitution, which is an instrumentality and a mechanism, containing both substantive and procedural provisions “ to realise the objectives, purposes, polices, rights and duties which [the people] have set out for themselves and which they have strewn over the fabric of the Constitution,” can award monetary compensation or compensatory cost mostly in appropriate cases for violation of fundamental rights which must be gross and patent i.e. incontrovertible and ex-facie glaring  or that violation should appear unjust, unduly harsh or oppressive on account of the victims disability or personal circumstance but As no prayer was made regarding exemplary monetary costs or monetary compensations in the writ petitions and related affidavits, the High Court Division erred in law in fully relying on the submissions of the learned Senior Advocate for the writ petitioners in passing the orders for monetary compensation or compensatory costs and as such they said orders have been made without lawful authority and are liable to be set aside. Government of Bangladesh =VS=Nurul Amin, (Civil), 2018 (1) [4 LM (AD) 526]

The Constitution of Bangladesh

Article 102(5) read with article 117(2)

Clause (5) of article 102 read with article 117(2) of the Constitution: Except on the limited scope challenging the vires of law or if there is violation of fundamental rights, the power of the High Court Division is totally ousted under clause (5) of article 102 read with article 117(2). If a public servant or an employee of statutory corporation wants to invoke his fundamental rights in connection with his terms and conditions of service, he must lay foundation in the petition of the violation of the fundamental rights by sufficient pleadings in support of the claim. It will not suffice if he makes evasive statement of violation of his fundamental rights or that by making stray statements that the order is discriminatory or malafide. Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143]

The Constitution of Bangladesh

Article 102

The High Court Division cannot sit over the opinion of the Council as an appellate forum– Judicial review against such removal is not available in this particular case in the facts of the given case, inasmuch as, judicial review is available against such order on limited grounds. The High Court Division cannot sit over the opinion of the Council as an appellate forum or from the Order of the President pursuant to the recommendation of the Council. The High Court Division has apparently equated a proceedings taken by a sitting Additional Judge against an order of removal on the ground of misconduct with an ordinary litigant which seeks judicial review against an administrative action. There is no doubt that judicial review is a basic feature of our constitution so also the rule of law but that does not mean that the same doctrine will be applicable in all cases. Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, (Civil), 2018 (1) [4 LM (AD) 231]

The Constitution of Bangladesh, 1972

Article 102 read with

State Acquisition and Tenancy Act, 1950

Section 92

We maintain the judgment and order passed by the High Court Division so far as it relates to the nature of the land in question and we further hold that the nature of the land in question shall have nothing to do with the title of the parties therein. Government of Bangladesh =VS= Md. Abdul Malek, (Civil), 2018 (1) [4 LM (AD) 216]

The Constitution of Bangladesh

Articles 102 read with 27, 28, 29 and 31

Discrimination– So whenever any person being on the same footing is not treated equally in accordance with law, such action of the authority can clearly be termed to be discriminatory  and/or arbitrary which is not sustainable in law. Sher-E-Bangla Agricultural University =VS= Asia Rahman Shova, (Civil), 2018 (1) [4 LM (AD) 333]

The Constitution of Bangladesh, 1972

Article 102(2)

Writ petition exparte and disposed of the same on merit cannot be sustained– The facts are otherwise; the writ petitioners did not turn up when the writ petition was taken up for hearing, yet the learned Judges heard the writ petition exparte and disposed of the same on merit in the manner as stated hereinbefore on the verbal submissions of the learned Attorney General. We conclude that the High Court Division acted illegally in disposing of the writ petition exparte on merit by the impugned judgment and order in the absence of the writ petitioners and, as such, the same cannot be sustained. The impugned judgment and order of the High Court Division is set aside. The writ petition is sent back to the High Court Division for hearing afresh and for disposal in accordance with the law. Mujibar Rahman (Md) =VS= Government of Bangladesh, (Civil), 2018 (1) [4 LM (AD) 280]

The Constitution of Bangladesh

Article 102(1)

Except challenging the vires of law or violation of fundamental rights, judicial review of a decision of authority relating to the terms and conditions of service under article 102(1) is not permissible. Appellate Division observed that except challenging the vires of law or violation of fundamental rights, judicial review of a decision of authority relating to the terms and conditions of service under article 102(1) is not permissible. None of the above conditions is available in this case and therefore, the writ petition is not maintainable. In respect of Abul Bashar, the writ petition was summarily rejected on the ground that the order impugned in writ petition cannot be said to be malafide or passed for collateral purpose and that no discrimination has taken place at all. In respect of case no.3 of 2000 since no inquiry report is available with the record, we direct the concerned Ministry to appoint an inquiry officer with the consultation of the G.A. Committee and complete the inquiry proceedings within two months from date, since the case is very old one. So this decision does not have any help for the respondent. Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143]

The Constitution of Bangladesh

Article 102 read with

The Foreign Exchange Regulation Act, 1947

Section 3(2)(iii)

Principle of natural justice– We are of the view that the High Court Division has correctly decided that in the facts and circumstances of this case the principle of justice has not been violated. Clearly, the petitioner did not feel sufficiently aggrieved by the lack of opportunity given him by way of show cause notice or opportunity of being heard. He did not immediately rush to the High Court Division challenging the violation of the principle of natural justice. On the contrary, he took the decision to make himself be heard by the authority concerned by making representations and by supplying other supporting evidence. Amzad Hussain =VS= Bangladesh Bank, (Civil), 2018 (1) [4 LM (AD) 33]

The Constitution of Bangladesh

Article 102

Warrant of Precedence being arbitrary, irrational, whimsical and capricious is subjectto judicial review– The High Court Division having considered the respective status and positions of different constitutional functionaries and the persons in service of the Republic rightly held that though impugned Warrant of Precedence is a policy decision of the Government yet “in the absence of evidence of any discernible guidelines, objective standards, criteria or yardsticks upon-which the impugned Warrant of Precedence is ought to be predicated, we feel constrained to hold that the said Warrant of Precedence cannot shrug off the disqualification of being arbitrary, irrational, whimsical and capricious and is, therefore, subject to judicial review under Article 102 of the Constitution.” Bangladesh =VS= Md. Ataur Rahman, (Civil), 2018 (1) [4 LM (AD) 40]

The Constitution of Bangladesh, 1972

Article 102(2)

Where a person has an equally efficacious remedy, the High Court Division would not interfere with criminal proceeding in exercising extra-ordinary jurisdiction– In proceedings under Article 102 of the Constitution it is not open to the High Court Division to hold an elaborate enquiry into disputed and complicated questions of fact. The High Court Division would only interfere with the proceeding of a criminal court if it is found that such proceeding is without jurisdiction and if there is no other efficacious relief provided in law against such proceeding or the vires of the law basing on which the proceeding initiated is challenged. Where a person has an equally efficacious remedy, the High Court Division would not interfere with criminal proceeding in exercising extra-ordinary jurisdiction. Such powers are to be exercised in rare and exceptional cases. It is true that existence of alternative remedy is not an absolute bar to entertain writ petition by the High Court Division but to declare a criminal proceeding illegal it is to be established that the Court acted without jurisdiction or the vires of the law is in question. In this case no such strong ground has been made out. Begum Khaleda Zia =VS= Anti-Corruption Commission, (Civil), 2018 (1) [4 LM (AD) 89]

The Constitution of Bangladesh, 1972

Article 103

Since we are of the view that writ petitions were not maintainable the second submission of the petitioner does not deserve any consideration. Begum Khaleda Zia =VS= Anti-Corruption Commission, (Civil), 2018 (1) [4 LM (AD) 89]

The Constitution of Bangladesh

Articles 109, 116 and 116A

The superintendence and control of the officers of the lower Judiciary remains with the Supreme Court– The superintendence and control over all courts and tribunals subordinate to it is upon the High Court Division as per article 109 of the constitution. The Supreme Court has its own system and machinery to evaluate the conduct, discipline, performance of all judicial officers working in the subordinate courts and tribunals. Firstly, through the judgments pronounced by them which ultimately come to the High Court Division for judicial review. Secondly, from the annual confidential reports being prepared in accordance with Rules. Finally, through inspections made from time to time by the Judges of the High Court Division as per direction of the Chief Justice. This system is being followed right from 1861 when the High Courts were established in this sub-continent under the High Courts Act, 1861. Whenever, any recommendation, proposal or opinion regarding the terms and conditions of service of any judicial officer is made by the Supreme Court, this recommendation is being honoured by the Executive government without further inquiry because the Executive does not have such machinery or system to evaluate the conduct and performance of the judicial officers. If the superintendence and control of the subordinate judiciary is left in the hands of Executive, the independence of judiciary will be in question. From the time of the separation of the judiciary from the Executive, it is the Supreme Court under whose supervision the subordinate judicial officers are working and it supervises its administration and controls the conduct of judicial officers. There cannot be any doubt about it. The lower judiciary cannot be independent if its superintendence and control over the judicial officers remains with the Executive. The Executive is also conscious about that, and all the time it represents that it does not interfere with the administration of justice. If articles 116, 116A are read along with article 109, it will be manifest that it is the Supreme Court which has the exclusive power to supervise and control the terms and conditions of service of the subordinate judicial officers. Article 116 does not control article 109, rather if these two provisions are placed in juxtaposition, it will be clear that the superintendence and control of the officers of the lower judiciary remains with the Supreme Court. Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143]

The Constitution of Bangladesh

Article 116A

Members of the judicial service are not holders of the constitutional posts but they being public servants are in the service of the Republic– Ends of justice would be best served if the District Judges and equivalent judicial officers are placed in the same table of the Warrant of Precedence along with the Secretaries and equivalent public servants. There is no denying that members of the judicial service (i.e., the subordinate judiciary) are not holders of the constitutional posts but they being public servants are in the service of the Republic and the nature of their service is totally different from the civil administrative executives. District Judges and holders of the equivalent judicial posts are the highest posts in the subordinate judiciary. In view of the provisions of the Article 116A of the Constitution all persons employed in the judicial service and all magistrates exercising judicial functions shall be independent in the exercise of their judicial functions, so it is immaterial to say that members of judicial service or the subordinate judiciary are above the senior administrative and defence executives. Bangladesh =VS= Md. Ataur Rahman, (Civil), 2018 (1) [4 LM (AD) 40]

The Constitution of Bangladesh

Article 117(2)

There is common question of law  involve for the consideration of the following points:

(i) whether a disciplinary action taken against an officer of the Judicial Service of the Republic can seek judicial review against such action.

(ii) whether the General Administration Committee (G. A. Committee) can ignore a recommendation of the Executive Government to exonerate an officer of the lower judiciary and direct the concerned Ministry to take penal action.

(iii) whether an employee in the service of the Republic can claim higher status and grade without challenging his service Rules in comparison with his counterpart serving at different departments under the similar nomenclature i.e. post.

(iv) whether the Administrative Tribunal established under article 117(2) of the constitution can strike down an administrative order for infringement of fundamental rights guaranteed by the constitution. 

(v) whether judicial review in the High Court Division is available in respect of the terms and conditions of service of an employee in the service of the Republic.

(iv) whether the Administrative Tribunal is competent to examine the constitutional validity of a statutory provision. 

(vii) whether the Administrative Tribunal can pass interim order so as not to frustrating the proceedings pending before it. Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143]

The Constitution of Bangladesh

Article 152

There are set of customs and usages which are being followed by the Judges in this subcontinent for over a century and those customs and usages have the force of law. Thus, if a Judge violates any of the established conduct, usage or custom, he will not only commit gross-misconduct but also violates his oath, the Constitution and the law. Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, (Civil), 2018 (1) [4 LM (AD) 231]

The Constitution of Bangladesh

Part III

To invoke the fundamental rights conferred by Part III of the constitution, any person aggrieved by the order, action or direction of any person performing the functions in connection with the affairs of the Republic, the forum is preserved to the High Court Division. The conferment of this power cannot be curtailed by any subordinate legislation - it being the inalienable right of a citizen. This power cannot be conferred upon any Tribunal by the Parliament in exercise of legislative power or by the High Court Division or the Appellate Division in exercise of its power of judicial review. Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143]

The Constitution of Bangladesh

Chapter II of Part VI

The High Court Division as well as the Appellate Division is competent enough to give necessary directions to follow the mandate of the Constitution– When there is a deviation from the constitutional arrangements or constitutional arrangements have been interfered with or altered by the Government or when the Government fails to implement the provisions of Chapter II of Part VI of the Constitution and instead follow a different course not sanctioned by the Constitution, the High Court Division as well as the Appellate Division is competent enough to give necessary directions to follow the mandate of the Constitution. This means the Apex Court of the Country is competent to issue directions upon the authorities concerned to perform their obligatory duties whenever there is a failure on their part to discharge their duties.  Bangladesh =VS= Md. Ataur Rahman, (Civil), 2018 (1) [4 LM (AD) 40]

The Customs Act

Section 19, 25(7)

In the present case SRO dated 18.6.1987 was in existence at the time of opening of the letter of credit but this SRO was not issued under section 25(7) fixing tariff value or under section 19 exempting customs duty. Subsequently SRO dated 16.8.1988 fixing tariff value for the goods imported by the importer in this case was issued and this SRO was in force when the goods in question arrived at the port and bill of entry was submitted by the importer. Since no vested right can be acquired by the importer in matters of tariff value as held in the aforesaid case of Mizanur Rahman the importer is liable to pay customs duty and sales tax on the basis of tariff value as per SRO dated 16.8.1988 and not SRO dated 18.6.1987 which was in existence at the time of opening the letter of credit in the present case. The impugned judgment is therefore set aside and the appellants are not liable to refund any amount realised by them from the respondent importer. Collector of Customs =VS= M/S. Sumi Enterprise, (Civil), 2018 (1) [4 LM (AD) 98]

The Customs Act

Section 196 read with

The VAT Act, 1991

Section 42

Admittedly an alternative remedy in the form of appeal was available to the writ petitioner– In violation of Section 31 of the Act passed the impugned order dated 01.08.2006 directing the Company to pay an amount of Tk. 2,53,36,161/- as evaded / unpaid VAT and Tk. 3,00,00,000/- as fine i.e. a total amount of Tk. 5,53,36,169/- only under section 37(2) of the Act. Hence, was the writ petition. The Customs and VAT authority has jurisdiction to consider the computer print-out of the monthly statements of sale obtained from the office computer of the Company duly singed by the Deputy Managing Director of the Company as information/evidence for deciding VAT. The Mushak chalans were also placed before the Customs Authority. It was also found that admittedly an alternative remedy in the form of appeal was available to the writ petitioner under Section 196 of the Customs Act read with Section 42 of the VAT Act before the Appellate Tribunal which the writ petitioner did not avail of. Could not place before us any new ground or discover any new evidence for review of our earlier decision. The review petition is dismissed. Sagar Chemical & Paint Industries Ltd. =VS= Bangladesh, (Civil), 2018 (1) [4 LM (AD) 325]

Coram non JudiceIf an order is said to be without jurisdiction or is contrary to law, the appropriate course open to the applicant is to plead to the Tribunal with such plea and ask for vacating the order or action. It is altogether within the tenor of the Tribunal. Coram non Judice is a Latin phrase which means ‘not in the presence of a judge’. It is a legal term typically used to indicate a legal proceeding held without a judge, with improper venue such as before a court which lacks the authority to hear and decide a case in question, or without proper jurisdiction. Appellate Division find no cogent ground why the Tribunal cannot deal with these issues for the reasons assigned above. Mere superficial pleadings on the point of fundamental rights will not confer any power on the High Court Division in respect of the terms and conditions of service. Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143]

Cancellation of appointment letter– the authority is always at liberty to take action against any individual who either suppressed any material information and/or took recourse to fraud or forgery in obtaining the appointment. We are fully in agreement with such observation and would not wish to condone any fraudulent or illegal activity on the part of the writ petitioners in obtaining their appointment. However, the authority is bound to identify any wrong doing on the part of any individual and to seek his explanation before cancelling his appointment letter. Government of Bangladesh =VS= Md. Babul Howlader, (Civil), 2018 (1) [4 LM (AD) 213]

See also:

The Code of Civil Procedure, Section 56 [4 LM (AD) 225]

The Code of Civil Procedure, 1908, Section 151 and Order VI Rule 16, Order VII Rule 11 [4 LM (SC) 1]

The Code of Civil Procedure, Order 9, Rule 4 [4 LM (AD) 101]

Cancellation of appointment letter [4 LM (AD) 213]

Claimant compensation a motor accident [4 LM (SC) 29]

Compensation [4 LM (SC) 60]

Coram non Judice [4 LM (AD) 143]

D

Declaration of title– Appellate Court misread the evidence in finding that the suit land is cultivable land– Part of the suit plot was halot. In this regard we find from the khatian that plot No. 51 is recorded as halot whereas plot No. 102 is recorded as beel. The appellate Court has therefore misread the evidence in finding that the suit land is cultivable land. A proper scrutiny of Ext.1 would show that in C.S. Khatian No.3 plot No.51 is a “halot” and plot No.102 is a “beel”. Thus, clearly the suit land is a waterbody and not cultivable land. Hence, the claim of the plaintiffs of possession in land of plot No.102 was rightly rejected by the trial Court. Hajee Abdul Majid =VS= Jahir Uddin, (Civil), 2018 (1) [4 LM (AD) 217]

Despite the absence of any provision empowering the Tribunal to pass any interim order– Despite the absence of any provision empowering the Tribunal to pass any interim order, the Tribunal is not powerless since it has all the powers of a civil court and in proper cases, it may invoke its inherent power and pass interim order with a view to preventing abuse of the process of court or the mischief being caused to the applicant affecting his right to promotion or other benefit. But the Tribunal shall not pass any such interim order without affording the opposite party affected by the order an opportunity of being heard. However, in cases of emergency, which requires an interim order in order to prevent the abuse of the process and in the event of not passing such order preventing such loss, which cannot be compensated by money, the Tribunal can pass interim order as an exceptional measure for a limited period not exceeding fifteen days from the date of the order unless the said requirements have been complied with before the expiry of the period, and the Tribunal shall pass any further order upon hearing the parties. Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143]

See also:

Defaulted in paying Telephone bill [4 LM (AD) 15]

Discrimination [4 LM (AD) 333]

E

The East Bengal State Acquisition and Tenancy Act

Section 20(5)

Revisional Court– Records of right do not create or extinguish any title. Therefore, there could have been no valid transfer by proforma defendants. It is well settled that a revisional Court cannot, ordinarily transgress upon facts as found by the trial or appellate Court, which is the last forum of fact. But it is settled equally well, that a revisional Court can see whether the Courts of fact property evaluated an important piece of evidence, or not or whether an evidence was misconstrued. Sharaswati Rani Dutta =VS= Sree Sree Radha Gobinda Jew Debota, (Civil), 2018 (1) [4 LM (AD) 327]

The Election Rules

Rule 4

To hold election as per voter list published including those 672 voters of Uttar Kistakathi– We would like to add that if the Ministry of Local Government, Rural Development and Co-operatives, the respondent No.2, can publish gazette notification in accordance with Pourashava Election Rules including Uttar Kistakathi within the Jhalokathi Pourashava in the intervening period of publication of gazette notification declaring election schedule as per direction of the High Court Division, there would be no bar to hold election as per voter list published including those 672 voters of Uttar Kistakathi.  Abdul Jalil Khan =VS= Bangladesh, (Civil), 2018 (1) [4 LM (AD) 1]

The Electricity Act, 2003

Section 126 or/and 135

Monetary & criminal liability– We find that Section 126 of the Act deals with assessment of electricity charges payable by such person (consumer) for unauthorized use of electricity whereas Section 135 deals with the cases of theft of electricity. The Board is at liberty to take recourse to the provisions of Section 126 or/and 135 of the Act against such person/consumer as provided therein in accordance with law. In these circumstances, if the Board initiates any action against any person/consumer, then such action must be brought to its logical end in accordance with the procedure prescribed under the Act after affording an opportunity to such person/consumer. Maharashtra State Electricity Distribution Co.Ltd.=VS=Appellate Authority, (Civil), 2018 (1) [4 LM (SC) 57]

Emergency Requisition of Property Act, 1948

Section 5(7)

This court noticed that the government initially requisitioned the land and thereafter acquisitioned the same by publishing a notice in the Official Gazette under section 5(7) of the Emergency Requisition of Property Act, 1948 and held that once the property is acquired and gazette notification is published under section 5(7) of the Emergency Requisition of Property Act, 1948, the right, title and interest if any of the owners are extinguished and preparation of Khatian or payment of rent does not improve the position of the original owners in respect of the acquired land. In the background of the case it was held by this court while dismissing the leave petition that mere non-use of the land for years will not give any right to the writ petitioner to have it released in his favour. In the case Bangladesh Vs. Nawab Abdul Malik Jute Mills, 12 MLR(AD) 183, the writ petitioner filed writ petition stating that the government acquired their land along with other land for the construction of Kanchpur Bridge along with approach road but a vast tract of land remained unulilized after construction of the bridge was complete and accordingly they were entitled to get back the unutilized land claiming that the same was liable to be derequisitioned in their favour. In Abul Bashar Vs. Bangladesh, 50 DLR(AD)11 the writ petitioners filed writ petition to get back their unutilized land challenging the requisition and subsequent acquisition of their land for creating residential plots by the Chittagong Development Authority (CDA). Government of Bangladesh =VS= M.A. Razzaque, (Civil), 2018 (1) [4 LM (AD) 196]

The Emergency Requisition and Acquisition of the Property Act, 1948

Section 5(7)

The contractor requested appellant No.3 to requisition the land for bricks manufacturing and thus the land was requisitioned in L.A. Case No.49/61-62 and it was handed over to the contractor. Thereafter, the Government acquired the land in 1967 but the contractor requested the appellants to transfer the acquired land in his favour and moved the appellants from time to time but to no avail. Being aggrieved, the respondents herein, Md. Iqbal Kamla and others, filed a writ petition before the High Court Division for direction upon the appellants herein to execute a deed and transfer the land acquired in L.A. Case No.49 of 1961-1962 in favour of the respondents herein. The relief sought in the writ petition can only be given by a competent civil Court in a suit for specific performance of contract and there is no scope for giving such a relief under the writ jurisdiction. Government of Bangladesh =VS= Iqbal Kamal, (Civil), 2018 (1) [4 LM (AD) 199]

The Employment of Labour (Standing Orders) Act, 1965

Section 25(c) & (d) read with

The Code of Civil Procedure, 1908

Order 9, Rule 4

Restoration– The Employment of Labour (Standing Orders) Act, 1965 is a special law and the Labour Court not being a civil court can not take recourse to and apply the provisions under Order 9, Rule 4 of the Code of Civil Procedure for restoration of any proceeding before it in terms of the said Order and Rule if the proceeding before it is dismissed for default. But it (Labour Court) can certainly, in a just and appropriate case, interfere with its own order of dismissal for default in following the provisions of the said law in substance to prevent any miscarriage of justice. Crescent Jute Mills Co. Ltd =VS= Chairman, Labour Court, (Civil), 2018 (1) [4 LM (AD) 101]

Evidence Act (I of 1872)
Sections 45-51

District Registrar could be regarded as an expert within the meaning of sections 45-51 of the Evidence Act– The High Court Division was also wrong in relying upon the opinion of the so-called expert, i.e. the District Registrar, Dhaka by just making some query to him regarding the deed in question when he appeared before it. We brought the records of the civil revision from the High Court Division to see whether any statement of the so-called expert was reduced to writing, but we found nothing. The procedure adopted by the High Court Division does not have also any legal backing and by no means, the District Registrar could be regarded as an expert within the meaning of sections 45-51 of the Evidence Act. Mr. Bhuiyan also failed to point out any provision either from the Code of Civil Procedure or the Evidence Act to support the procedure adopted by the High Court Division. Whether the kabala in question was antedated nor not, in other words, genuine or not, is a question of fact and that had to be decided on the evidence adduced in the suit. But the High Court Division without considering the evidence on record took an unusual course to come to a fact as stated hereinbefore and thereby committed a serious error of law in passing the impugned judgment and order and as such, the same cannot be sustained in law and must be set aside. Zainal Abedin =VS= Mohammad Kala Miah, (Civil), 2018 (1) [4 LM (AD) 348]

The Evidence Act, 1872

Section 68

Will– This suit was for a declaration that the compromise decree dated 25.01.1997 passed in OS No.7266 of 1996 is not binding on her; that she is the lawful owner of the properties specified in the schedule on the basis of the Will dated 12.03.1980 executed by Ramaiah in her favour. The High Court held that the plaintiff was able to prove the Will dated 12.03.1980 in accordance with law with the evidence adduced by her and hence she was entitled for a declaration as claimed by her in the suit relating to the suit properties. Plaintiff was not a party to the compromise decree dated 25.01.1997 passed in OS No.7266 of 1996, it was not binding on her. Lastly, once the Will dated 12.03.1980 is held proved, in accordance with law, the plaintiff becomes entitled to claim a declaration in her favour that she is the owner of the properties bequeathed to her by the testator as specified in the Will. H.V. Nirmala =VS= R. Sharmila, (Civil), 2018 (1) [4 LM (SC) 26]

See also:

Ejectment Suit [4 LM (SC) 48]

The Election Act, 2017, Sections 203 and 232 [4 LM (SC) 174]

Election is a technical one [4 LM (SC) 1]

Ex parte decree [4 LM (AD) 104]

F

The Family Courts Act, 1984

Section 9

The court also has to involve itself in the process of conciliation/mediation between the parties for assisting them not only to settle the disputes but also to secure speedy settlement of disputes– The Court has a duty to make an endeavour to assist and persuade the parties in arriving at a settlement. Unlike many other legislations, the Legislature has cast a duty on the Court in that regard. The jurisdiction is not just to decide a dispute, on the contrary, the court also has to involve itself in the process of conciliation/mediation between the parties for assisting them not only to settle the disputes but also to secure speedy settlement of disputes. Such timely intervention of the court will not only resolve the disputes and settle the parties peacefully but also prevent sporadic litigations between the parties. Anu Bhandari =VS= Pradip Bhandari, (Civil), 2018 (1) [4 LM (SC) 14]

The Financial Institutions (Recovery of Finances) Ordinance, 2001

Section 16

In the instant matter, the order dated 16.4.2013 dismissing the first application filed by the respondent seeking sale of the goods did not adjudicate on merits, rather the Banking Court specifically termed the said application premature. This clearly leaves the matter to be decided at a later stage. Further, the subsequent application filed by the respondent seeking sale of the goods indicates a development in that the keys of the godown where the goods were located were no longer with the muccadam of the bank, hence their apprehension that the appellant might misappropriate the goods, which circumstances did not prevail at the time of the first application. We are of the view that the argument by the learned counsel for the appellant that the second application was barred by the principle of res judicata is misconceived. The order for sale of the goods in question passed by the learned Single Judge-in-Chambers and the order upholding such order of sale in appeal passed by the learned Division Bench of the Banking Court are illegal, being in violation of the provisions of Section 16 of the Ordinance. Therefore, this appeal is allowed and the impugned order is set aside. Gulistan Textile Mills Ltd. =VS= Soneri Bank Ltd., (Civil), 2018 (1) [4 LM (SC) 130]

See also:

The Foreign Exchange Regulation Act, 1947, Section 3(2)(iii) [4 LM (AD) 33]

G

General Average Bond and General Average Guarantee– We are of the view that before delivery of the cargo, the interest of the vessel is required to be protected by way of some security. We are of the view that ends of justice would be sufficiently met if the plaintiff, respondent No. 1 herein, is directed to furnish appropriate General Average Bond and General Average Guarantee in the sum of US$ 180,000.00 as assessed by Albatross Adjusters Limited (annexed in the additional paper book dated 26.02.2018). On furnishing the aforesaid General Average Bond and General Average Guarantee in favour of the ship owners, the petitioner herein, shall discharge the cargo as directed by the Admiralty Court. Bene Maritime Inc =VS= Aman Feed Limited, (Civil), 2018 (1) [4 LM (AD) 93]

See also:

The General Clauses Act, Section 21 [4 LM (SC) 33]

H

The High Court Division Rules

Rule 3(d)

The High Court Division observed that a departmental proceedings was initiated against the respondent which has been taken without approval of the G.A. committee, and the same was a mandatory provision of law and that the Chief Justice without taking the matter to the G.A. Committee had accorded the approval. On perusal of the record the High Court Division noticed that there was an endorsement at the bottom of the note-sheet with a note of the Chief Justice ‘yes’ and this proved that the Chief Justice accorded the approval violating rule 3(d) of the High Court Division Rules. This court perused the record and found that this observation was correct but that itself is not a ground for interference. It should be borne in mind that in urgent matters, sometimes the Chief Justice gives approval in respect of some proposals without placing the matter before the G.A. committee, because the calling such meeting takes time and in urgent matters the Chief Justice accords permission subject to the approval of the committee later on. In this case inadvertently the matter has not been placed before the G.A. Committee. In order to avoid more harm to the judiciary, the Chief Justice takes such decision. The Chief Justice being the head of the judiciary is respected by the Judges and his opinion with regard to the superintendence and control over the lower judiciary has primacy and is being honoured by the Judges of the committee. This is a practice being followed by this Court and non-approval of the decision of the Chief Justice was merely an irregularity and not an illegality and this will not vitiate the decision. Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143]

The HinduSuccession Act, 1956

Section 6

Partition– Suit for partition was filed in the year 2002. However, during the pendency of this suit, Section 6 of the Act was amended as the decree was passed by the trial court only in the year 2007. Thus, the rights of the appellants got crystallised in the year 2005 and this event should have been kept in mind by the trial court as well as by the High Court. This Court in Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr. [(2011) 9 SCC 788]  held that the rights of daughters in coparcenary property as per the amended S. 6 are not lost merely because a preliminary decree has been passed in a partition suit. So far as partition suits are concerned, the partition becomes final only on the passing of a final decree. Where such situation arises, the preliminary decree would have to be amended taking into account the change in the law by the amendment of 2005. There is no dispute that the property which was the subject matter of partition suit belongs to joint family and Gurulingappa Savadi was propositus of the said joint family property. In view of our aforesaid discussion, in the said partition suit, share will devolve upon the appellants as well. Since, Savadi died leaving behind two sons, two daughters and a widow, both the appellants would be entitled to 1/5th share each in the said property. Plaintiff (respondent No.1) is son of Arun Kumar (defendant No.1). Since, Arun Kumar will have 1/5th share, it would be divided into five shares on partition i.e. between defendant No.1 Arun Kumar, his wife defendant No.2, his two daughters defendant Nos.3 and 4 and son/plaintiff (respondent No.1). In this manner, the plaintiff/respondent No.1 would be entitled to 1/25th share in the property. Danamma @ Suman Surpur =VS= Amar, (Civil), 2018 (1) [4 LM (SC) 17]

The HinduSuccession Act, 1956

The daughter would hold property to which she isentitled as a coparcenary property– Joint Hindu family governed by the Mitakshara law. A daughter would be acoparcener from her birth, and would have the same rights and liabilitiesas that of a son. The daughter would hold property to which she isentitled as a coparcenary property. The fundamental changes brought forward about in the HinduSuccession Act, 1956 by amending it in 2005, are perhaps a realizationof the immortal words of Roscoe Pound as appearing in his celebratedtreaties. Danamma @ Suman Surpur =VS= Amar, (Civil), 2018 (1) [4 LM (SC) 17]

High Court Division was not empowered or authorized to set aside those findings without any specific finding– The High Court Division was not empowered or authorized to set aside those findings without any specific finding that the Court of appeal either misread or failed to consider in interfering any material evidence and thus erred in law with the judgment and decree of the Appellate Court. We ourselves have gone through the evidence any material we have not found any misreading or non-consideration of evidence by the Court of appeal. The judgment and order passed by the High Court Division in Civil Revision No. 2148 of 1999 is hereby set aside and those of the Appellate Court dismissing the suit is restored. Abdus Sobhan =VS= Md. Afzal Mia, (Civil), 2018 (1) [4 LM (AD) 12]

See also:

The Holy Qur’an, Surah Al-Ahzab Ayat 21 (33:21) [4 LM (SC) 142]

I

The Income Tax Act, 1961

Section 12AA(3) read with

The General Clauses Act

Section 21

The CIT had no jurisdiction to cancel the registration certificate once granted by him under Section 12A till– High Courts after examining the issue, in the light of the object of Section 12A of the Act and Section 21 of the General Clauses Act held that the order of the CIT passed under Section 12A is quasi judicial in nature. Second, there was no express provision in the Act vesting the CIT with power of cancellation of registration till 01.10.2004; and lastly, Section 21of the General Clauses Act has no application to the order passed by the CIT under Section 12A because the order is quasi judicial in nature and it is for all these reasons the CIT had no jurisdiction to cancel the registration certificate once granted by him under Section 12A till the power was expressly conferred on the CIT by Section 12AA(3) of the Act w.e.f. 01.10.2004. Industrial Infrastructure Development Corporation (Gwalior) Ltd.=VS= Commi-ssioner of Income Tax, Gwalior, (Civil), 2018 (1) [4 LM (SC) 33]

The Income Tax Act, 1961

Section 260-UC

No objection certificate– There is nothing to indicate the nature of the “no objection certificate” that the vendors were required to obtain and who were the authorities from whom the “no objection certificate” was required, nor is there any indication of the purpose for which the “no objection certificate” was required. Similarly, there is no indication about the nature of the income tax clearance certificate required and for what purpose. This clause appears to have been inserted in the agreement to sell without any application of mind and it is quite possible, as alleged by the vendors that the agreement to sell was ante-dated after the introduction of Section 260-UC in the Income Tax Act, 1961. However, we need not go into this possibility in view of the vague nature of the clause. Kalawati =VS= Rakesh Kumar, (Civil), 2018 (1) [4 LM (SC) 44]

The Income Tax Ordinance, 1979

Section 23

The expense in dispute while computing business income– The expense in dispute neither falls under Section 23(xviii) of the 1979 Ordinance nor any other category of allowances or deductibles listed in rest of the provisions of Section 23, so as to justify its deduction while computing respondent’s income. The High Court of Sindh allowed its adjustment simply on the ground that sports and social activities boost mental and physical health of a person by answering the question of law in the affirmative. This may be so but that ipso facto cannot be regarded as a type of allowance that can be directly co-related to any category of allowances and deductibles listed in Section 23 of the 1979 Ordinance with the business activity of the respondent, which is rendering of operational and maintenance services to a power generating company. The conclusion of the High Court being totally misconceived and not based on any provision of Section 23 is not sustainable in law. The expenditure in question, therefore, cannot be taken into consideration while computing business income of the respondent. Commissioner of Income Tax =VS= International Power Global Developments Limited, (Civil), 2018 (1) [4 LM (SC) 128]

If an order is said to be without jurisdiction the appropriate course open to the applicant is to plead to the Tribunal– If an order is said to be without jurisdiction or is contrary to law, the appropriate course open to the applicant is to plead to the Tribunal with such plea and ask for vacating the order or action. It is altogether within the tenor of the Tribunal. Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143]

See also:

Invalid documents [4 LM (AD) 285]

J

A Judge’s official and personal conduct be free from impropriety– A Judge’s official and personal conduct be free from impropriety; the same must be in tune with the highest standard of propriety and probity. The standard of conduct is higher than that expected of a layman and also higher than that expected of an advocate. In fact, even his private life must adhere to high standards of probity and propriety, higher than those deemed acceptable for others. Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, (Civil), 2018 (1) [4 LM (AD) 231]

A Judge should dispose of promptly In no case a judgment shall be signed not later than six months– A Judge should dispose of promptly the business of the court including avoiding inordinate delay in delivering judgments/orders. In no case a judgment shall be signed not later than six months of the date of delivery of judgment in exceptional cases.Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, (Civil), 2018 (1) [4 LM (AD) 231]

L

The Land Acquisition Act, 1894

Compensation– In the facts and circumstances of the present case and considering that the exemplar dated 26.05.1983 was for a small extent of land and that the acquired land has to be developed for construction of warehouse, we deem it appropriate to apply one-third deduction and deducting one-third that is Rs.2,21,629/- from Rs.6,64,887/-, the compensation to be awarded is arrived at Rs.4,43,258/- per acre. The impugned judgment is modified and the appellants/ claimants are entitled to get enhanced compensation of Rs.4,43,258/- payable with all statutory benefits. The appeals are partly allowed. It is made clear that the appellants/claimants shall not be entitled to claim interest for the period of delay in preferring the appeals from the review.            Maya Devi =VS= State of Haryana, (Civil), 2018 (1) [4 LM (SC) 60]

The Limitation Act

Section 5

In our considered opinion, having regard to the totality of the facts and circumstances of the case and the cause shown by the appellant, which is duly proved by the documents, we are inclined to hold that the cause shown by the appellant for condoning the delay in filing the appeal before the High Court was/is a sufficient cause within the meaning of Section 5 of the Limitation Act and, therefore, the application filed by the appellant for condonation of delay of 554 days in filing the appeal deserves to be condoned. It is accordingly condoned but it is subject to the condition that the appellant shall pay cost of Rs.10,000/- to respondent No. 1. Foregoing discussion, the appeals succeed and are accordingly allowed. Impugned order is set aside. The appeal (Misc. Appeal No.653/2016) is held to have been filed within limitation. It is accordingly restored to its original number. The High Court will now decide the appeal on merits expeditiously in accordance with law. Ummer =VS= Pottengal Subida, (Civil), 2018 (1) [4 LM (SC) 94]

Low price selling the property on auction vitiated by fraud– The property was sold at Tk.7,30,00,000/- on 01.12.2014 despite the assessment of the valuation at Tk.40,7,90,862/- on 25.03.2014. This shows that the petitioner’s tannery was sold at a shockingly low price. Selling of property at a shockingly low price which is evident on the face of the record is a material irregularity in conducting the sale and if the court is satisfied that the price was shockingly inadequate, it may interfere with the sale. The sale of the property hurriedly ignoring the valuation assessed by an engineer and the conduct of the receiver proved beyond doubt that the sale was vitiated by fraud. There was deliberate collusion between the receiver, the auction purchaser and the officials of the court in conducting the sale at a shockingly low price. Therefore, we are not persuaded to maintain the sale. We direct the petitioner Jamila Tannery Limited to deposit Tk.7,30,00,000/- plus TK.75,00,000/- as compensation for payment to the auction purchaser and Tk.25,00,000/- to the bank as cost of the litigation plus receiver’s remuneration by 26.10.1917 with the Bankruptcy Court, failing which, the auction sale shall stand. The pay order/bank draft deposited by the petitioner be released forthwith subject to payment of money as mentioned above. This petition is disposed of with the above observations and directions. Jamila Tannery Limited =VS= Bangladesh, (Civil), 2018 (1) [4 LM (AD) 264]

See also:

The Limitation Act, Section 29 [4 LM (AD) 95]

The Limitation Act, Article 181 [4 LM (AD) 121]

Local Investigation [4 LM (AD) 331]

M

The Motor Vehicles Act 1988

Section 166

The High Court computed the yearly income of the deceased at Rs 4,80,000; enhanced the income by 50% on the ground of future prospects to Rs 7,20,000, deducted a sum of Rs 3,60,000 towards personal expenses and on the basis of a multiplier of 7 arrived at a total compensation of Rs 25,20,000. The amount payable to each of the two claimants for loss of love and affection was enhanced to Rs 50,000 and funeral expenses of Rs 25,000 were allowed. The High Court has, accordingly, awarded a total compensation of Rs 26,45,000 together with interest @ 9% p.a. We will have to proceed on the basis of the income as accepted by the High Court. The finding of fact in regard to the income of the deceased would not be challenged in the present appeal, at the behest of the insurer in view of the above background. The total compensation would stand quantified at Rs 61,20,000/-. After making an addition on account of conventional heads, the total compensation would stand computed at Rs 61,90,000/-. The aforesaid amount shall carry interest @ 9% p.a. from the date of the filing of the claim petition. Ramrao Lala Borse =VS= New India Assurance Company Ltd., (Civil), 2018 (1) [4 LM (SC) 92]

The Motor Vehicles Act

Claimant compensation a motor accident– We find merit in the contention that the claim for compensation on the basis that the disability was permanent was clearly not established. There was no basis to award an amount of Rs. 20,75,700/-. The Tribunal has awarded an amount of Rs. 2,09,622/- towards medical expenses. We accept the figure of an annual loss of income of Rs. 79,877/-. The disability being of a temporary nature, we award compensation of Rs. 5 lakhs towards loss of income. We allow compensation of Rs. 2 lakhs towards trauma, pain and suffering. In addition, the claimant is entitled to medical expenses of Rs. 2,09,622. We are of the view that the ends of justice would be met by directing a payment of Rs. 9,10,000/- . The claimant shall be entitled to interest at the rate of 9 per cent per annum from the date of the filing of the petition. The insurer shall deposit the compensation along with interest before the Tribunal within twelve weeks which shall be disbursed to the claimant on proper identification. ICICI Lombard General Insurance Co. Ltd.=VS=Ajay Kumar Mohanty, (Civil), 2018 (1) [4 LM (SC) 29]

The Motor Vehicles Act

Appellant was injured in a motor accident filing of the claim of compensation– The Tribunal has noted that the appellant is unable to even eat or to attend to a visit to the toilet without the assistance of an attendant. In this background, it would be a denial of justice to compute the disability at 90 per cent. The disability is indeed total. Having regard to the age of the appellant, the Tribunal applied a multiplier of 18. In the circumstances, the compensation payable to the appellant on account of the loss of income, including future prospects, would be Rs. 18,14,400/-. In addition to this amount, the appellant should be granted an amount of Rs. 2 lakhs on account of pain, suffering and loss of amenities. The amount awarded by the Tribunal towards medical expenses (Rs. 98,908/-); for extra nourishment (Rs. 25,000/-) and for attendant’s expenses (Rs. 1 lakh) is maintained. The Tribunal has declined to award any amount towards future treatment. The appellant should be allowed an amount of Rs. 3 lakhs towards future medical expenses. The appellant is thus awarded a total sum of Rs. 25,38,308/-by way of compensation. The appellant would be entitled to interest at the rate of 9 per cent per annum on the compensation from the date of the filing of the claim petition. The liability to pay compensation has been fastened by the Tribunal and by the High Court on the insurer, owner and driver jointly and severally whichis affirmed. The amount shall be deposited before the Tribunal within a period of 6 weeks from today and shall be paid over to the appellant upon proper identification.Jagdish =VS= Mohan, (Civil), 2018 (1) [4 LM (SC) 37]

The Motor Vehicles Act

A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation– In assessing the compensation payable the settled principles need to be borne in mind. A victim who suffers a permanent or temporary disability occasioned by an accident is entitled to the award of compensation. The award of compensation must cover among others, the following aspects:

(i)Pain, suffering and trauma resulting from the accident;

(ii)   Loss of income including future income;

(iii)  The inability of the victim to lead a normal life together with its amenities;

(iv) Medical expenses including those that the victim may be required to undertake in future; and

(v) Loss of expectation of life. Jagdish =VS= Mohan, (Civil), 2018 (1) [4 LM (SC) 37]

The Muslim Marriages and Divorces (Registration) Act, 1974

Section 4

Appointed a Nikah Registrar– Appointed him as such and has power to issue the memo dated 9.9.1997 contained in Annexure-A to this writ petition and as such acted within its jurisdiction. No notice is required to be issued. High Court Division did not commit any error of law while making the rule absolute. Under section 4 of the Muslim Marriages and Divorces (Registration) Act, 1974 the Government has unfettered right to extend, curtail or otherwise alter the limit of any such area. Moulana Mohd. Ruhul Amin =VS= Md. Motiur Rahman Chowdhury, (Civil), 2018 (1) [4 LM (AD) 273]

MULLA’s Principles of Mahomedan Law

Mohamedan Law of Bequest– Bequest by a Mohamedan to his heir of any quantum of property requires the consent of his other heirs after his death to be valid. But a bequest by a Mohamedan to any stranger (other than his heir) upto one-third of the surplus of his property which remains after payment of his funeral expenses and debts is valid and does not require consent of the heirs of the testator. Bequest to a stranger over and above one-third of the property of the testator which remains after payment of funeral expenses and debts of the testator requires the consent of the heirs of the testator after his death to be valid. Rabeya Khatoon(Most.) =VS= Jahanara alias Shefali Bewa, (Civil), 2018 (1) [4 LM (AD) 298]

No member of his family, who is a member of the Bar, shall be permitted to use the residence the Judge– No member of his family, who is a member of the Bar, shall be permitted to use the residence in which the Judge actually resides or other facilities for professional work. Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, (Civil), 2018 (1) [4 LM (AD) 231]

See also:Monetary & criminal liability [4 LM (SC) 57]

O

An ordinary offender and a Judge cannot be equated at par while finding them guilty of the charges– The question is whether the conclusion arrived at by the Council in forming the opinion by the President to remove Mr. Syed Shahidur Rahman from the office of a Judge on the ground of gross misconduct was in conformity with the provisions of the constitution. The conclusion of the Council is that the materials on record are sufficient to come to the conclusion that the allegations made against Mr. Syed Shahidur Rahman have substance. It merely disbelieved the receipt of Tk.50,000/- in the absence of corroborative evidence but it has totally believed the entire episode. What more else is required to prove about the misconduct of a sitting Judge of the highest Court by a woman? These findings and observations are sufficient to come to the conclusion that the Judge had not only violated the ‘Code of Conduct’ but also judicial ethics and norms which are sufficient to remove him from the office of a Judge. It is to be borne in mind that in adjudicating a disciplinary proceeding against a Judge of the highest court and holding trial of an offender in a criminal case, one cannot claim similar principle to be followed. For proving an offence against an offender, the prosecution must prove the offence against him beyond reasonable doubt but this doctrine cannot be applicable in respect of a Judge while hearing a disciplinary proceeding for removal of a Judge on the ground of gross misconduct. In the alternative, it may be said that an ordinary offender and a Judge cannot be equated at par while finding them guilty of the charges. Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, (Civil), 2018 (1) [4 LM (AD) 231]

Overrule the Appellate Division– An overruled point of law cannot be ignored by this court and when a proposition of law has been settled, which is binding on all courts and though it is not binding on this court, it can overrule the said decision. A decision of a court overlooking a decision, or if it is contrary to law, constitutes an error apparent on the face of the record justifying its review. It is immaterial whether such error occurred by reason of lawyer’s mistake or oversight on the part of the court. The appeal is allowed without any order as to cost and the leave petitions are disposed of. The judgment in the appeal shall govern the leave petitions. Bangladesh Biman Airlines Ltd. =VS= Captain Mir Mazharul Huq, (Civil), 2018 (1) [4 LM (AD) 66]

See also:No objection certificate [4 LM (SC) 44]

P

The Payment of Gratuity Act, 1972

The payment of gratuity amount– In view of the foregoing discussion, we cannot agree with the reasoning and the conclusion arrived at by the High Court which is legally unsustainable. It is really unfortunate that the genuine claim of the appellant was being denied by the State at every stage of the proceedings up to this Court and dragged him in fruitless litigation for all these years. “Now, we have often had occasion to say that when the State deals with a citizen it should not ordinarily reply on technicalities, and if the State is satisfied that the case of the citizen is a just one, even though legal defences may be open to it, it must act, as has been said by eminent Judges, as an honest person.” Appellant was being opposed by the State on technical grounds. As a consequence, the appeal succeeds and is allowed. Impugned judgment/order passed by the High Court (Single Judge and Division Bench) are set aside and the orders of the Controlling Authority and Appellate Authority are restored with cost of Rs.25,000/- payable by the State to the appellant. Cost to be paid by the State along with the payment of gratuity amount. Netram Sahu =VS= State of Chhattisgarh, (Civil), 2018 (1) [4 LM (SC) 86]

The Premises Rent Control Ordinance

Section 18(5)

The petitioners, being defaulters, cannot get the protection of section 18(5) of the Premises Rent Control Ordinance – The High Court Division correctly found that the petitioners, being defaulters, cannot get the protection of section 18(5) of the Premises Rent Control Ordinance. We are of the view that by filing the review petitions the petitioners in fact are seeking rehearing which is not permissible in review. A.T.M. Nasiruddin =VS= Md. Abdul Khaleque, (Civil), 2018 (1) [4 LM (AD) 38]

The principles of Muhammadan’s Law by D.F. Mullah

Paragraph 220

Appointed sajjadanashin– Dewan Qutab-ud-Din had never appointed the appellant as sajjadanashin and it is also conceded by him that per the custom and also a history of over seven hundred years of the shrine, the nomination of the successor is always the absolute discretion of sajjadanashin holding the post. In the absence of any written evidence of the same and the fact that the respondent has successfully been able to prove his case through witness statements and documentary evidence produced, the express nomination by the late sajjadanashin Dewan Qutab-ud-Din is the only conclusive factor of determining the entitlement of sajjadanashinship of the shrine of Baba Farid (RA). We have considered the judgment of the learned High Court which is quite elaborate, each and every aspect of the matter has been taken into consideration and on the basis of proper reading and appreciation of the evidence: factual finding has been given by the learned High Court affirming the finding already given by the learned Appellate Court. Al-Haj Deewan Bakhtiyar Syed Muhammad =VS= Deewan Maudood Masood, (Civil), 2018 (1) [4 LM (SC) 123]

f¢l­hn pwlrZ BCe, 1995

Section 20 & 4

Legal action against the private plaintiffs want to convert the suit land into industrial plot by felling trees– There is no denying fact that almost entire plot or a portion thereof is covered by various plantations. As per provisions of section 20 of the ‘f¢l­hn pwlrZ BCe, 1995, the Director General has power under section 4 of the Ain to close down any industrial organisation if he is satisfied that such closure is necessary for conservation, preservation protection of environment. By felling the standing trees if a textile mill is set up in the suit land, the environment of the locality will be affected. The Forest Officer may take legal action against the plaintiffs through the Director General for the conservation of the environment if the private plaintiffs want to convert the suit land into industrial plot by felling trees. Government of Bangladesh =VS= Md. Shawkat Hossain, (Civil), 2018 (1) [4 LM (AD) 209]

Permanent injunction– We find that P.W.1 in his evidence, admitted that his father and uncle obtained compensation on account of acquisition on 25.10.1960. If no compensation was paid in respect of .34 acre of land as shown in the schedule to the plaint, the plaintiff can claim compensation from the Government but he cannot file a suit for permanent injunction against the appellant and others. As soon as gazette notification was published the suit land shall be deemed to have been vested absolutely in the Government free from all encumbrances and as such, the plaintiff is not entitled to file a suit for permanent injunction for restraining the appellant and others from dispossessing him from the suit land till payment of compensation and allotment of rehabilitation plot. We find substances in this appeal. Accordingly, this appeal is allowed and the impugned judgment passed by the High Court Division affirming the judgments and decrees of the Courts below are set aside and the suit is dismissed. Bangladesh Railway =VS= Md. Sujaruddin, (Civil), 2018 (1) [4 LM (AD) 81]

Pleading of the plaintiff is not evidence– As no witness was examined, no statement was made before the Court in relation to matters of fact under inquiry, that means, the facts stated in the plaint were not stated before the court on the date fixed for hearing of the suit and, in fact, it was only the pleading of the plaintiff and not the evidence which was before the Court. Therefore, in the absence of any evidence, the trial Court could not decree the suit. Government of Bangladesh =VS= Md. Mizanur Rahman, (Civil), 2018 (1) [4 LM (AD) 138]

Probate– The beneficiaries of the Will did not come forward to challenge the order of the probate case. Although the defendants alleged that the probate case was false, they did not adduce any evidence or produce any witness to substantiate their claim. Moreover, the claim of the defendants that they purchased the property is contradicted by the plaint of the suit which they filed earlier wherein they claimed to be tenants in the property. Their subsequent attempt to amend the plaint to establish their claim of proprietary right over the property failed. Hence, the trial Court and appellate Court rightly decreed the suit. We do not find any illegality or impropriety in the impugned judgement and order of the High Court Division. Ramesh Chandra Das =VS= Gopal Chandra Majumder, (Civil), 2018 (1) [4 LM (AD) 321]

See also:

Partition [4 LM (SC) 17]

Pre-emption [4 LM (AD) 6]

Principle of natural justice [4 LM (AD) 33]

Public interest [4 LM (AD) 277]

R

The Registration Act

Section 17

Invalid documents– Every document mentioned in Section 17 of Registration Act has to be presented for registration in the office of a Sub-Registrar within whose sub-district, the whole or some portion ( before amendment) of the property to which such document relates is situated. Where a document is registered by including a property which is non- existent merely on conferring jurisdiction on the Sub- Registrar where it is registered, such a document is invalid. Nazera Bibi (Most.) =VS= Abdul Mazid, (Civil), 2018 (1) [4 LM (AD) 285]

The Representation of People Order, 1972

Article 63(1) (b), (c) & 12(1) (n)

Defaulted in paying Telephone bill– The provisions of clause (b) of Article 63(1) attracts clause-(n) to the proviso of Article-12(1) of the RPO. Therefore, the High Court Division came to a correct finding that the appellant defaulted in paying telephone bill and that accordingly, the he was disqualified from being elected as per clause (n) of proviso to Article 12(1) of the RPO. It is important to note here that if the allegation brought by respondent No.1 was within the ambit of the provisions of clause- (c) to sub-article (1) of Article-63 then the High Court Division would be required to give a finding that because of corrupt or illegal practices committed by the returned candidate or his election agent or by any other person with the connivance of the candidate or his election agent, the result of the election has been materially affected. But in the case in hand such a finding in not necessary because sub-clause(b) is independent of clause(c)of Article 63(1) of the RPO. We do not find any substance to interfere with the impugned judgment because the ultimate decision of the High Court Division is correct. Accordingly the appeal is dismissed without any order as to costs. Abul Kashem(Md.) =VS= Mahmudul Hasan, (Civil), 2018 (1) [4 LM (AD) 15]

The Representation of People Act, 1950

Section 123(4) & 86 read with

The Code of Civil Procedure, 1908

Sec. 151 & Ord. VI Rule 16, Ord. VII Rule 11

Election is a technical one– The law relating to election is a technical one as it amounts to a challenge laid to the democratic process determining the will of the people. An eligible person whether a candidate or a voter coming to Court, seeking to set aside any election has to, thus, meet with the technical natures of the election petition and the provisions prescribed under the said Act as otherwise it would be fatal to the election petition at the threshold itself. It is in these circumstances that the principles have been succinctly set out in Mithilesh Kumar Pandey8. The observations in that case provide for clerical and typographical errors to be corrected. Thus, issues like mentioning of the correct number of annexures or tagging with the file, etc. would all fall within the said Section. [8 supra] Abdulrasakh =VS= K.P. Mohammed, (Civil), 2018 (1) [4 LM (SC) 1]

The Requisition and Acquisition of Immovable Property Ordinance, 1982

Additional compensation in respect of the Government khas land– High Court Division stayed operation of the impugned Memo dated 28.04.1999 so far as it relates to additional compensation of 50% of the market value in respect of the Government khas land of 1749.6810 acres out of total land of 2492.3573 acres on condition that the petitioner would furnish a Bank guarantee for the said total amount of additional compensation in respect of the government khas land.Writ petition (appellants herein) has therefore been fully satisfied and the Board of Governors of Bangladesh Export Processing Zone has decided in its 16th meeting to publish necessary gazette notification. Hence, the appeal has become infructuous and is liable to be dismissed.We are of the view that the appeal has become infructuous and accordingly, the appeal is dismissed. Government of Bangladesh =VS= Korean EPZ Corporation (BD) Ltd, (Civil), 2018 (1) [4 LM (AD) 194]

See also:

Remand [4 LM (AD) 268]

Removal from service [4 LM (AD) 85]

Restoration [4 LM (AD) 101]

Right to life [4 LM (AD) 125]

Review [4 LM (AD) 270], [4 LM (AD) 319], [4 LM (AD) 275], [4 LM (AD) 266], [4 LM (AD) 261], [4 LM (AD) 11], [4 LM (AD) 118], [4 LM (AD) 31], [4 LM (AD) 340]

Revisional Court [4 LM (AD) 327]

S

The Smoking and Tobacco Product Usage Control Act, 2005

Section 4 and 6

What we are observing daily is that the provisions of this Act and the Rules made thereunder are not being properly implemented particularly as regards prohibition of smoking in public places and selling of tobacco products to minors. We have also noticed that in public places, the facilities relating to smoking such as ashtrays, matches, lighters are kept. It has become necessary to save our posterity from the curse of tobacco addiction and to inform them about the Smoking and Tobacco Product Usage Control Act, 2005 as amended by the Smoking and Tobacco Usage (Control) Amended Act, 2013 and also the Rules made thereunder. Therefore, we are inclined to give four more directives in addition to the directives given by the High Court Division.

I. The law enforcing agencies are directed to implement the provision of section 4 of the Act, which provides that no person shall smoke in any public place and public transport and that if any person smokes in contravention of sub-section (1) shall be punishable with fine not exceeding three hundred taka and the penalty shall be doubled for each subsequent violation.

II. The law enforcing agencies are directed to ensure that no one can sell tobacco product to a minor as per sub-section (1) of section 6(a) and subsection (2) thereof provided if any person contravenes the provision of sub-section (1) he shall be punishable with fine which may extend to five thousand taka and if a person contravenes the provisions more than once, every time the amount of fine shall be doubled.

III. The owner, proprietor of a public place shall ensure that no person smokes in that place. Ashtrays, matches, lighters and other things designed to facilitate smoking are not to be provided in public place where smoking is prohibited altogether.

IV. The Ministry of Education, the Ministry of Primary and Mass Education and the National Curriculum Textbook Board (NCTB) are directed to incorporate a chapter in the curriculum of schools and intermediate colleges about the adverse effect of smoking and also about the latest law in this regard. Government of Bangladesh =VS= Professor Nurul Islam, (Civil), 2018 (1) [4 LM (AD) 125]

The Smoking and Tobacco Product Usage Control Act, 2005

The government shall take steps phase by phase to stop production of tobacco leaves– Government has taken any measure to implement directives (a) and (b) of the impugned judgments. Directives (a) and (b) are reproduced again as under:

“a) The government shall take steps phase by phase to stop production of tobacco leaves in tobacco growing Districts of Bangladesh, giving subsidy to the farmers, if possible and necessary to produce other agricultural products instead of tobacco and for rehabilitation of the tobacco workers engaged in tobacco production, if possible with alternative beneficial jobs.

b) The Government shall restrict issuance of license for setting up tobacco industry or Bidi factory and direct the existing tobacco and Bidi Companies to switch over to some other industry to prevent production of Cigarette, Bidi and other tobacco related products, specifying a reasonable period for the purpose.” Government of Bangladesh =VS= Professor Nurul Islam, (Civil), 2018 (1) [4 LM (AD) 125]

The Specific Relief Act

Section 42

The suit for declaration simpliciter was barred in view of the provision of Section 42 of the Specific Relief Act in the absence of any prayer for recovery of khas possession– The learned Judge of the High Court Division has resolved the points as regards title and possession of the suit land in favour of the plaintiff in accordance with law. In view of the conflicting evidence of the parties with regard to possession the possession should be found with the party having better title and when the possession is found in favour of the plaintiff, the suit for declaration simpliciter is maintainable. The appeal is accordingly dismissed without any order as to costs. Hemayet Uddin =VS= Md. Rustam Ali, (Civil), 2018 (1) [4 LM (AD) 228]

The Standing Orders (Administration and Service Rules)

Rules 11.3(a)iv, viii & xii read with rule 11.3(d)

Removal from service– The allegation was brought against the writ petitioner on 17.04.2006 and 142 working days had elapsed. In such circumstances, the High Court Division took the view that the impugned order of removal from service was illegal and violative of the provision of law. We do not find any explanation as to how the sum of money allegedly misappropriated increased from the initial claim of Tk. 1,64,000/-. Since the higher amount of money alleged to have been misappropriated was not the subject matter of the initial show cause notice nor of the inquiry, the writ petitioner could not lawfully be burdened with the subsequent increased amount of money alleged to have misappropriated. We note that in the affidavit-in-opposition the writ respondent did not raise any further issue with respect to the increased amount of money alleged to have been misappropriated. The writ petitioner having explained the amount initially alleged to have been misappropriated, the allegations against her appear to have been explained by her.We do not find any illegality in the decision taken by the High Court Division that the removal from service of the respondent was illegal and violative of the provision of law. Bangladesh Red Crescent Society =VS= Dr. Farida Yasmin Chowdhury, (Civil), 2018 (1) [4 LM (AD) 85]

The State Acquisition and Tenancy Act, 1950

Section 90

The suit land compromises 99 acres which is located in the coastal area. There is no doubt that the suit land is the government khas land. Therefore, the lease was made in violation of section 90 of the State Acquisition of Tenancy Act. We would like to observe here that the government cannot lease out any khas land to any person in violation of law. If the government wants to lease out the suit land such lease should be granted in due process of law keeping in mind the prevailing law of the land. Government of Bangladesh =VS= Messers Friends Industries Corporation, (Civil), 2018 (1) [4 LM (AD) 202]

The State Acquisition and Tenancy Act, 1950

Section 96

Pre-emption– It is true that the High Court Division in its revisional jurisdiction cannot reassess the evidence on record and should not readily reverse the concurrent findings of fact of the trial Court and the appellate Court which are both Courts of fact. However, it is within the jurisdiction of the High Court Division in its revisional jurisdiction to see whether the trial Court and the appellate Court have misread or left out of consideration any evidence on record. The High Court Division rightly held that the pre-emptor was not able to prove that the transaction was a sale. Hence, we are inclined to agree with the High Court Division that the deed in question is a deed of exchange and, therefore, the application for pre-emption was rightly rejected by reversing the decisions of the trial Court and appellate Court.     Abdul Mobin (Md.) =VS= Abdur Rab, (Civil), 2018 (1) [4 LM (AD) 6]

The State Acquisition and Tenancy Act, 1950

Section 117(1)(c)

The pre-emptor and the vendor being full brothers, the pre-emptor is entitled to prevent any stranger from entering into what was their joint family property– The evidence on record that the pre-emptor is the full brother of the vendor of the case land. One should not lose sight of the intention of the legislature behind the provisions of law for pre-emption. Essentially the provision exists to prevent any stranger from buying land which form a part and parcel of jointly owned property. The aim of the legislature is to give opportunity to the co-sharers to buy the case land thereby excluding incursion by strangers. In the facts of the instant case, clearly the pre-emptor and the vendor being full brothers, the pre-emptor is entitled to prevent any stranger from entering into what was their joint family property. It has been rightly held that separation of the Jama is not effective since the provisions of section 117(1)(c) of the Act have not been complied with; simply having a separate Municipal holding does not sever the joint ownership of the property unless the mutation takes place in accordance with the provisions of the Act. Harunur Rashid =VS= Afruza Khanam, (Civil), 2018 (1) [4 LM (AD) 221]

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

Order XXVI

Review– Removing unauthorized constructions from the periphery of Lalbagh Fort– Learned counsel appearing for the respondents submits that the respondents are ready to vacate the houses if they are paid sufficient compensation. Learned Attorney General was present at the hearing of the matter. Learned Attorney General finds it difficult to refute the claim of the respondents. Upon consideration of the facts and circumstances of the matter, we assess Tk.40,00,000/- (forty lacs) as compensation to be paid to the owners who are found to be in possession of the houses. We direct the Archeology Department to pay Tk.40,00,000/- (forty lacs) to the owners jointly within three months from the date receipt of the order and the owners shall apportion the said amount according to the area they are in possession. We direct the Archeology Department to evict the respondents on payment of such compensation forthwith. Adv. Manzill Murshid =VS= Haji Md. Abdul Hashem, (Civil), 2018 (1) [4 LM (AD) 31]

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

Order XXVI

Review– In a review petition there is no scope for rehearing–Prayer for plaint amendment was regularly allowed or not, which it the High Court Division duly answered that we do not find this brings any change in the plaint– The finding of the High Court Division to the effect that “we do not find this brings any change in the plaint inasmuch as in the original plaint also. In the civil petition the only issue raised was as to whether the prayer for amendment was regularly allowed or not, which it appears the High Court Division duly answered. Further the grounds as raised by the learned counsel of the petitioner may be agitated at the time of hearing of the suit. In a review petition there is no scope for rehearing. The review petition is dismissed.           S.K. Khalilur Rahman =VS= Mrs. Meherun Nesa, (Civil), 2018 (1) [4 LM (AD) 340]

Specific performance for contract– Legally entitled to set back the consideration money with solatium­–Both the parties came to an agreement that the defendant No.2 would pay a sum of tk.50,00,000/- (fifty lacs) to the plaintiff A.K.M. Zakir Hussain. In such circumstances, on 19.02.2018 we directed the defendant No.2 to pay the said amount. In view of the direction, the defendant No.2 paid a sum of tk.50,00,000/-(fifty lacs) through a pay order to the plaintiff petitioner. Thereafter, this Court on 04.03.2018 passed the following order. "According to our order dated 19.02.2018, the leave petitioner has furnished a pay order bearing No.0098584 dated 26.02.2018 drawn in the name of A.K.M. Zakir Hossain issued by the Al-Falah Bank Ltd. The pay order is handed over to Dr. Muna Hossain, daughter of plaintiff-petitioner A.K.M. Zakir Hossain today." The leave petition is disposed of. The impugned judgment and decree of the High Court Division is modified accordingly. A.K.M. Zakir Hussain =VS= Roshanally Mohammad Hiriji, (Civil), 2018 (1) [4 LM (AD) 36]

Specific performance of contract– The High Court a submission was raised on behalf of defendant No.6 that the land has been acquired during the pendency of Regular Second Appeal, the decree of the specific performance cannot be maintained. The High Court agreeing with the submission of defendant No.6 modified the decree by ordering respondent Nos.2 to 6 to pay a sum of Rs.90,000/to the plaintiff with interest @ 9% per annum from the date of filing of the suit. The plaintiff through legal heirs aggrieved by the said judgment has come up in this appeal. Urmila Devi =VS= The Deity, Mandir Shree Chamunda Devi, (Civil), 2018 (1) [4 LM (SC) 96]

S.S.C Certificate authentic– Unless there is any compelling reason or unless better and more reliable documentary evidence is produced, the information appearing on the S.S.C Certificate must be taken to be authentic– An S.S.C. Certificate showing the date of birth of the candidate is a valid legal document and the information contained therein is deemed to be authentic. So much so that the date of birth given at the time of sitting for the S.S.C. examination and the date of birth shown in the S.S.C. Certificate is taken to be an official reliable record and such information cannot be readily changed. The S.S.C. certificate having been produced in 1997, the BADC should have questioned its genuineness, failing which they are bound to accept the information regarding the writ petitioner’s date of birth as stated in the said certificate. We are of the view, therefore, that unless there is any compelling reason or unless better and more reliable documentary evidence is produced, the information appearing on the S.S.C Certificate must be taken to be authentic. Bangladesh Agriculture Development Corporation =VS= Md. Abdus Salam, (Civil), 2018 (1) [4 LM (AD) 63]

See also:

State Acquisition and Tenancy Act, 1950, Section 92 [4 LM (AD) 216]

The Supreme Court of Bangladesh (Appellate Division) Rules, 1988, Order XXVI [4 LM (AD) 270], [4 LM (AD) 319], [4 LM (AD) 275], [4 LM (AD) 266], [4 LM (AD) 261], [4 LM (AD) 11], [4 LM (AD) 118]

T

Title Suit– We are of the opinion that the trial court rightly dismissed the suit of the plaintiff, but the appellate court below most erroneously and illegally set aside the judgment and decree of the trial court and decreed the suit of the plaintiff and the High Court Division also most erroneously affirmed this judgment and decree of the appellate court below. Appeal be allowed without any order as to cost. The impugned judgment and order of the High Court Division and also the judgment and decree of the appellate court below are set aside and the judgment and decree of the trail court be restored. Younus Mia (Md.) =VS= Mosharaf Hossain, (Civil), 2018 (1) [4 LM (AD) 342]

Transaction between the  parties were fraudulent– As soon as the letters of credit are established between the issuing bank and negotiating bank, it becomes an independent agreement between the two banks, neither the seller nor the buyer has privity to that agreement. It is by nature a separate transaction from the sale agreement between the seller and the buyer. Any allegation of fraud has to be proved strictly by adducing evidence. View that the claim of fraud is somewhat belated and also that the petitioner has not been able to establish its claim of fraud having been practiced. Admitted that defendant Nos.2 and 3 are not the same person. The petitioner had claimed that defendant Nos.2 and 3 were one and the same person and, therefore, the transactions between them were fraudulent paper transactions. Moreover, evidently the petitioner accepted the genuineness of the instruments and encashed some of them. In view of the above discussion, we do not find any illegality or impropriety in the impugned order. Oriental Bank Ltd. =VS= Export Import Bank of Bangladesh Ltd., (Civil), 2018 (1) [4 LM (AD) 291]

The Tribunal is created as an ‘alternative’ forum of the High Court Division in respect of specific purposes– The observations made in Shaheda Khatun (supra) that if the action complained as is found to be coram non judice, without jurisdiction or malafide, the judicial review is available are based on the decisions on different premises and the said views cannot be applicable in service matters in presence of an alternative forum, and this forum is created as per provisions of the constitution. It is to be borne in mind that no case can be an authority on facts. The Tribunal is created as an ‘alternative’ forum of the High Court Division in respect of specific purposes. If any administrative action is found without jurisdiction or coram non judice or malafide, the Tribunal is competent to deal with the same and adjudicate these issues satisfactorily. These issues are within its constituents of the Administrative Tribunal. Government of Bangladesh =VS= Sontosh Kumar Shaha, (Civil), 2018 (1) [4 LM (AD) 143]

Transferred the suit land for legal necessity– Shushila transferred the suit land to Jagobandhu Shil on 28.10.1944 for her legal necessity and due to such transfer the title of the suit land vested upon Jagobandhu Shil– We have already held that Shushila transferred the suit land to Jagobandhu Shil on 28.10.1944 for her legal necessity and due to such transfer the title of the suit land vested upon Jagobandhu Shil. In such circumstances, we are of the view that the subsequent deed dated 29.04.1947 executed by Shushila in favour of the plaintiff Monmohan did not confer any title to him. Considering the aforesaid facts and circumstances of the case, we are of the view that the courts below committed error of law in decreeing the suit in respect of the land as described in the schedule to the deed dated 29.04.1947. The Courts below without properly considering the entire evidence and the laws connected thereto erroneously decreed the suit as prayed for. Paresh Chandra Shil =VS= Kali Bala Shil, (Civil), 2018 (1) [4 LM (AD) 294]

U

Unconditional apology– We are not inclined to uphold the order of cancellation of the allotment of land made in favour of the University or dislodge the university from Plot No.4 to an alternative site. However, considering the gravity of the situation and this being a matter of great public importance concerning the right of the people in general and the Musallies from home and abroad who are meeting in the huge congregation of Bishaw Istema twice in every year for the last 40 years to perform their prayer in the Bishaw Istema Math and therefore, invoking the power of complete justice this Division is of the opinion that in the interest of justice a 40 feet wide Approach Road (passage) should be kept open for the people in general and the Musallies of the Bishaw Istema of the Tabligue Jamat in particular. Accordingly, the respondent Nos. 1 to 3 be directed to demolish the wall and other structures which had been constructed on the land of the original 100 feet wide Approach Road (passage) for keeping open a 40 feet wide Approach Road for the use of the people in general and the Musallies of Bishaw Istema of the Tabligue Jamat which has been in use for more than 40 years. The unconditional apology tendered by the respondent Nos.1 and 2 are accepted and they are warned to be cautious in future while dealing with such order of this Court. RAJUK =VS= International University of Business, Agriculture and Technology, (Civil), 2018 (1) [4 LM (AD) 303]

V

The (Karnataka) Value Added Tax Rules 2005

Rule 3(2)(c)

All trade discounts are allowable as permissible deductions– It must be remembered that taxable turnover is turnover net of deductions. All trade discounts are allowable as permissible deductions. We direct that in computing the taxable turnover for the relevant years, the appellant would be entitled to a deduction of the trade discount, following the parameters laid down in paragraph 40 of the judgment in Southern Motors (supra) and as explained above. M/s Maya Appliances (P) Ltd =VS= Addl. Commissioner of Commercial Taxes, (Civil), 2018 (1) [4 LM (SC) 81]

See also:The VAT Act, 1991, Section 42 [4 LM (AD) 325]

W

The Warrant of Precedence of 1975

Civil awards holders and holders of gallantry awards of Bir Uttam should be included in the Warrant of Precedence– The Warrant of Precedence of the neighbouring countries include the holders of highest civil awards, however the impugned Warrant of Precedence of our country does not include such dignitaries, who are not constitutional or public functionaries. As such, it is expected that those dignitaries who have been honoured or decorated with civil awards, e.i., Shadhinata Padak, or Ekhushey Padak, and those valiant freedom fighters who have been honoured with gallantry awards of Bir Uttam should be included in the Table of the impugned Warrant of Precedence in such order as deemed appropriate.  Bangladesh =VS= Md. Ataur Rahman, (Civil), 2018 (1) [4 LM (AD) 40]

The Warrant of Precedence of 1975

The impugned Warrant of Precedence being based on utter irrationality and arbitrariness is to be modified and amended in the following manner–

1) As the Constitution is the supreme law of the land, all constitutional functionaries shall be placed first in order of priority in the Table of the impugned Warrant of Precedence.

2) Members of judicial service holding the posts of District Judges or equivalent posts of District Judges shall be placed at Serial No.16 in the Table along with the Secretaries to the Government and equivalent public servants in the service of the Republic.

3) Additional District Judges or holders of equivalent judicial posts shall be placed at the serial number 17 immediately after the District Judges. Bangladesh =VS= Md. Ataur Rahman, (Civil), 2018 (1) [4 LM (AD) 40]

Will– The Courts below have thoroughly assessed the material evidences and accordingly came to the right conclusion. Once the will is believed to be a genuine piece of document, there is no need for us to delve into the matter further. In such circumstances, we do not find any reason to disturb the concurrent findings recorded by the Courts below by reasoned judgments. Mohan Lal =VS= Nand Lal, (Civil), 2018 (1) [4 LM (SC) 64]

When the contract has become impossible with no fault of the plaintiff– we are of the view that ends of justice be served in awarding compensation of Rs.10 lakh in favour of the plaintiffappellants out of the compensation received consequent to the acquisition of the suit land. The rest of the compensation, if any, received towards land and shops in question has to be paid to the land owner that is defendant Nos.1 to 5 (respondent Nos.2 to 6 to this appeal) after deducting an amount of Rs.10 lakh out of the said compensation. We further direct in event compensation has not yet been disbursed, the compensation be disbursed to the appellants (legal heirs of the plaintiff) and respondent Nos.2 to 6 in the above manner and in the event the compensation has been received by defendant No.6 (respondent No.1), respondent No.1 shall return the compensation to the extent of Rs.10 lakh to the appellants and the rest of the amount to defendant Nos.1 to 5 (respondent Nos.2 to 6). The judgment and decree of the High Court dated 02.11.2012is modified to the above extent. Urmila Devi =VS= The Deity, Mandir Shree Chamunda Devi, (Civil), 2018 (1) [4 LM (SC) 96]

When judicial review is permissible– It is only in exceptional cases when the principles of audi alteram partem have not been followed or the affected Judge has not been afforded sufficient opportunity to examine witnesses or cross-examine the witnesses, judicial review against his removal is permissible but otherwise not. Idrisur Rahman (Md.) =VS= Syed Shahidur Rahman, (Civil), 2018 (1) [4 LM (AD) 231]

Without issuing any show cause notice the petitioners could not lawfully cancel the letter of appointment of the respondents– It is patent from the records that all the respondents went through the rigorous process of selection and were appointed in their respective post. They were served with notices cancelling their appointment without issuing any show cause notice. The respondents joined their posts and served accordingly for more than nine months at the time of filing their writ petition. We are of the view that without issuing any show cause notice the petitioners could not lawfully cancel the letter of appointment of the respondents. Non-Government Teacher’s Registration and Certification Authority (NTRCA) =VS= Lutfor Rahman, (Civil), 2018 (1) [4 LM (AD) 288]

See also:Will [4 LM (SC) 26]

 

 

 

 

Head Note

The Law Messenger

Volume– IV

2018 (1)

 

 

(CRIMINAL JURISDICTION)


A

Anti-Corruption Commission Act, 2004

Section 26(1)

We are of the view that the High Court Division erred in law in holding the view that the dispute as to non-service of notice cannot be looked into in writ jurisdiction. Police report clearly shows that no notice was served upon the petitioner, inasmuch as, she was away from the country. Accordingly, the High Court Division has committed fundamental error in not interfering with the matter. As the point is subtle one as to service of notice under section 26(1) for submission of wealth statement we are not inclined to drag the matter by granting leave and dispose of the petition summarily since both the parties are present before us. We direct the Durnity Daman Commission to issue proper notice upon the petitioner to her known address without delay and dispose of the matter in accordance with law. The judgment of the High Court Division and the proceedings initiated against the petitioner quashed. Syeda Iqbal Mand Banu =VS= Anti-Corruption Commission, (Civil), 2018 (1) [4 LM (AD) 338]

Anti-Corruption Commission Act, 2004

Section 32

Prior sanction for filing charge sheet– The sanction for filing charge sheet has been granted on the basis of which the investigating officer submitted the charge sheet and the Court took cognizance of the offence against the petitioner and, as such, the submission of the counsel that 'there is no prior sanction in this case' has no basis. Begum Khaleda Zia =VS= State, (Criminal), 2018 (1) [4 LM (AD) 359]

B

Bail– There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. We are concerned, is that during the entire period of investigations which appear to have been spread over seven months, the appellant was not arrested by the investigating officer. Even when the appellant apprehended that he might be arrested after the charge sheet was filed against him, he was not arrested for a considerable period of time. When he approached the Allahabad High Court for quashing the FIR lodged against him, he was granted two months time to appear before the trial judge. All these facts are an indication that there was no apprehension that the appellant would abscond or would hamper the trial in any manner. That being the case, the trial judge, as well as the High Court ought to have judiciously exercised discretion and granted bail to the appellant. It is nobody’s case that the appellant is a shady character and there is nothing on record to indicate that the appellant had earlier been involved in any unacceptable activity, let alone any alleged illegal activity. The appellant is granted bail on conditions that may be reasonably fixed by the trial judge. Dataram Singh = VS= State of Uttar Pradesh, (Criminal), 2018 (1) [4 LM (SC) 110]

See also:Bail [4 LM (AD) 522]

C

The Code of Criminal Procedure

Section 265 I (3)

Restricted the number of defence witnesses– The Court is required to issue process unless he considers, and gives his reasons in writing that the application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. In  the facts and circumstances of the instant case the trial Court opined that a list of 271 defence witnesses would cause vexation, delay the trial and the ends of justice would be defeated. And for that reason he restricted the number of defence witnesses to a maximum of 10. The High Court Division did not find any reason to interfere with that decision. Monirul Islam Khan =VS= Anti Corruption Commission, (Criminal), 2018 (1) [4 LM (AD) 389]

Code of Criminal Procedure (V of 1898)

Section 374 & 376

The nature of the offence it appears to us that the petitioner is not anyway entitled to get any sympathy. We do not find any mitigating or extenuating circumstances on record for commutation of the sentence of death. Delay in the disposal of this case cannot by itself be a ground for commuting the sentence of death to one of imprisonment for life since the crime committed by the petitioner was premeditated senseless, dastardly and beyond all human reasonings. We do not find any Substance in the petition. Thus, the review petition is dismissed. Shahidul Islam @ Shahid =VS= State, (Criminal), 2018 (1) [4 LM (AD) 428]

The Code of Criminal Procedure, 1898

Section 498

Bail– On consideration of the F.I.R., 161 statements of the witnesses and also 164 statement of a co-accused, found that the FIR story that this accused-respondent Faridul Alam murdered the deceased has not been supported by the confessional statement of the co-accused wherein it was stated that another accused Raza Mia killed the deceased-granted bail to this accused-respondent. This accused-respondent has already been released from the jail custody and is on bail since few days after passing of the impugned judgment and order. The State =VS= Faridul Alam, (Criminal), 2018 (1) [4 LM (AD) 522]

The Code of Criminal Procedure, 1898

Section 561A

High Court Division shall have the discretion to award costs against a party under a very extraordinary and exceptional circumstances in a judicious manner and not in contradiction with any of the specific provisions of the Code to meet the following situations: (i) to prevent abuse of the process of any Court or (ii) to give effect to any order passed under the Code or (iii) otherwise to secure the ends of justice. Costs may also be given to meet the litigation expenses or can be exemplary to achieve the aforesaid purposes. Khondker Latifur Rahman =VS= The State, (Criminal), 2018 (1) [4 LM (AD) 383]

Code of Criminal Procedure (v of 1898)

Section 561A

For quashing a proceeding under section 561A of the Code, the High Court Division has scope only to see whether there are materials on record showing that the allegations made in the FIR and the charge sheet, constitute an offence. If there be any such material the proceeding shall not be quashed, in that case the trial Court will decide the case on the basis of evidence to be adduced by the parties. This Division in the case of Ali Akkas vs Enavet Hossain, reported in 17 BLD (AD) 44 held to bring a case within the purview of section 561A of the Code for the purpose of quashing a proceeding, one of the following conditions must be fulfilled:

(I) Interference even at an initial stage may be justified where the facts are so preposterous that even on admitted facts no case stands against the accused;

(II) Where the institution and continuation of the proceeding amounts to an abuse of the process of the Court;

(III) Where there is a legal bar against the initiation or continuation of the proceeding;

(IV) In a case where the allegations in the FIR or the petition of complaint, even if taken at their face value and accepted in their entirety, do not constitute the offence alleged and

(V) The allegations against the accused although constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge.' Begum Khaleda Zia =VS= State, (Criminal), 2018 (1) [4 LM (AD) 359]

Code of Criminal Procedure (v of 1898)

Section 561A read with

The Penal Code

Sections 409/109 read with

The Prevention of Corruption Act, 1947

Section 5(2)

On perusal of the statements made in the FIR and the charge sheet it appears that there are some materials which may constitute offence punishable under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947 conside-ring which the High Court Division held that `there is clear and strong prima facie case of dishonest misappropriation of public property or otherwise disposal of public property in violation of law constituting offence punishable under sections 409/109 of the Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947'. Begum Khaleda Zia =VS= State, (Criminal), 2018 (1) [4 LM (AD) 359]

Constitution of Bangladesh

Article 47A (2)

A review petition filed by those subject to regimentation clogged by Article 47A (2) of the Constitution, the Appellate Division is to ensure that in the pretext of review, re-hearing of the whole matter is not initiated. Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes Tribunal, Dhaka, (Criminal), 2018 (1) [4 LM (AD) 392]

The Constitution of Bangladesh

Article 104

In exceptional cases the highest court of the country could invoke its inherent powers. It is conceived to meet the situations which cannot be effectively and appropriately tackled by the existing provisions of law. The Court is not powerless to undo any injustice caused to a party– The Constitution is a social document, and Article 104 is not meant for mere adorning the Constitution. The Constituent Assembly felt that a provision like the one should be kept in the Constitution so that in exceptional cases the highest court of the country could invoke its inherent powers. It is conceived to meet the situations which cannot be effectively and appropriately tackled by the existing provisions of law. Apart from the powers given to this Division by the Constitution, a Court of law always retains some inherent powers. It is, therefore, said, the Court is not powerless to undo any injustice caused to a party. Shutting of judicial eyes even after detection of palpable injustice is in one sense denial of justice. If the Judges do not rise to the occasion to which they are oath bound to do justice, they would commit the similar illegality as the one committed by a litigant. Court’s practical approach would be towards doing justice without bothering too much about any one’s perception. We should never compromise to do justice. ... (Surendra Kumar Sinha, J) (Minority view). State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430]

The Constitution of Bangladesh

Article 104

The exercise of the power of doing 'complete justice– The exercise of the power of doing 'complete justice′ under article 104 is circumscribed by two conditions, (i)that it can be exercised only when Supreme Court otherwise exercises its jurisdiction and (ii) that the order which Supreme Court passes must be necessary for doing “complete justice” in the cause or matter pending before it. Obviously the matter pending before us in this appeal is the acquittal of two accusedrespondents Dafader Marfoth Ali Shah and L.D. (Dafader) Abul Hashem Mridha of the charges under sections 302/34 and 302/109 of the Penal Code. Leave to file this appeal was granted to consider only whether the acquittal of the present two accusedrespondents from the charges under sections 302/34 and 302/109 of the Penal Code was correct and justified. So, obviously, the question whether the acquittal of all the accused persons from the charge of criminal conspiracy-is not at all a matter pending before us. It has already been pointed out above that the present State-appellant or any other aggrieved person had opportunity to challenge the acquittal of accused persons from the charge of criminal conspiracy as per statutory provisions, but they did not avail that opportunity and allowed a long period to be elapsed rendering that opportunity to appeal time-barred and conferring the accused persons a right to be treated acquitted from the charge of criminal conspiracy-as ordered by a court of law. In the name of doing 'complete justice′ this right of the accused persons now cannot be ignored.... (Nazmun Ara Sultana, J) (Majority view).  State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430]

The Constitution of Bangladesh

Article 104

Considering the above stated facts and circumstances and the legal position we do not find that there is any scope now to convict the accused persons or any of them on the charge of criminal conspiracy by exercising the inherent power of this Division under article 104 of the Constitution.... (Nazmun Ara Sultana, J) (Majority view)  State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430]

Constitution of Bangladesh

Article 111

To succeed a postulant must show that the Appellate Division resorted to a fundamental error of law, which remains apparent on the face of the judgment. One of the most striking examples would be where the Appellate Division acted per incuriam or  overlooked one or more statutory provisions. As the doctrine of stare decisis does not bind the Appellate Division under Article 111 of the Constitution, a review petitioner can not invoke that doctrine. There are authorities for the proposition that fresh evidence, which has bearing on the event under consideration, but despite best efforts, could not be obtained during the original or appellate hearing, can have effect on review hearing. Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes Tribunal, Dhaka, (Criminal), 2018 (1) [4 LM (AD) 392]

The Constitution of India

Article 137 read with

The Supreme Court Rules, 2013

Order XLVII Rule 1

Review– The petitioner was convicted and awarded death sentence by Additional Sessions Judge (Special Fast Track Court) Saket Court Complex New Delhi. Delhi High Court confirmed the death reference and dismissed the criminal appeal filed by the petitioner challenging his conviction and sentence. Judgment of the Delhi High Court dated 13.03.2014, Criminal Appeal No. 607 of 2017 was filed by the petitioner which appeal was dismissed by this Court on 05.05.2017. Now, this application is filed to review the judgment dated 05.05.2017 dismissing the Criminal Appeal of the petitioner. This court had cautiously gone into and revisited the entire evidences on record and after being fully satisfied had dismissed the appeal. By the review petition the petitioner cannot be allowed to re-argue the appeal on merits of the case by pointing out certain evidences and materials which were on the record and were already looked into by the trial court, High court and this Court as well. Review petition does not disclose any ground, on which review jurisdiction can be exercised by this Court under Article 137 read with Order XLVII Rule 1 of the Supreme court Rules, 2013. Consequently, the review petition is rejected. Mukesh =VS= State of NCT of Delhi, (Criminal), 2018 (1) [4 LM (SC) 101]

The Constitution of India

Article 137 read with

The Supreme Court Rules, 2013

Order XLVII

When the review will be maintainable:–

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason. The words “any other sufficient reason” have been interpreted in Chhajju Ram v. Neki and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius to mean “a reason sufficient on grounds at least analogous to those specified in the rule”. The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. Mukesh =VS= State of NCT of Delhi, (Criminal), 2018 (1) [4 LM (SC) 101]

The Constitution of India

Article 137 read with

The Supreme Court Rules, 2013

Order XLVII

When the review will not be maintainable:–

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.” Mukesh =VS= State of NCT of Delhi, (Criminal), 2018 (1) [4 LM (SC) 101]

See also:

The Code of Criminal Procedure, 1973, Section 482 [4 LM (SC) 101]

Cr.P.C., Section 544-A [4 LM (SC) 139]

Culpable homicide [4 LM (AD) 374], [4 LM (AD) 523]

D

See also:Dying declaration[4 LM (SC) 101]

E

The (Indian) Evidence Act, 1872

Section 32(1)

Dying declaration– Considering all the three dying declarations, in the light of well-settled principles, this Court held that all the three dying declarations are true, voluntary and consistent. Insofar as third dying declaration, this Court, in paras (408) to (412) held that the dying declaration made through signs, gestures or by nods are admissible as evidence and that proper care was taken by PW-30 Pawan Kumar, Metropolitan Magistrate and the third dying declaration recorded by in response to the multiplechoice questions by signs, gestures made by the victim are admissible as evidence. In the third dying declaration, the victim also wrote the names of the accused persons “Ram Singh, Mukesh, Vinay, Akshay, Vipin, Raju”. So far as the name of accused Vipin written by the prosecutrix in the third dying declaration has been elaborately considered by this Court in paras (150) and (188) of the judgment.Mukesh =VS= State of NCT of Delhi, (Criminal), 2018 (1) [4 LM (SC) 101]

Evidence Act, 1872

Section 57

Courts can take judicial notice of the ordinary course of events– Courts can take judicial notice of the ordinary course of events. That a matter is judicially noticed means that it is taken as true without the necessity of being formally proved on evidence. Taylor in his Law of Evidence states that a man is not the father of a child, where non-access is already proved until within six months of the woman’s delivery. Nor is it necessary to prove the course of the heavenly bodies, or the like, that a matter is judicially noticeable means that it is taken without offering of evidence by the party who should ordinarily have done so. This is because the court assumes that the matter is so notorious that it will not be disputed. A proclamation of emergency is a matter of general information of which a court can take judicial notice. A matter of public history may be such a fact (Wigmore section 2567). Facts of which judicial notice may be taken are not limited to those of the nature specifically mentioned in clauses (1) to (13) of section 57 of the Evidence Act.... (Surendra Kumar Sinha, J). State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430]

The Evidence Act

Section 106

Section 106 of the Evidence Act said “When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. M.A.Kader =VS= The State, (Criminal), 2018 (1) [4 LM (AD) 408]

The Evidence Act

Circumstances evidence– If motive is a circumstance put forward in a criminal case, it must like any other incriminating circumstance be fully established. The prosecution has totally failed to prove the motive. Therefore, it failed to establish any additional support to the complicity of the appellants in the killing of the victim. The absence of motive is also a circumstance which is relevant for assessing the evidence. The motive has not been established.     M.A.Kader =VS= The State, (Criminal), 2018 (1) [4 LM (AD) 408]

Evidence– Discrepency always occurs even in the evidence of the truthful witnesses– The learned Counsel has contended that these contradictory statements of these P.Ws. reasonably make these witnesses untrustworthy. But we are unable to accept this argument of the learned Counsel in this present case. Considering the very facts and circumstances of this case we rather, are of the view that it was very much natural on the part of the witnesses to make discrepent statements regarding colour of the wearing clothes and the weapons of the assaillants and that these discrepent or contradictory statements of the P.Ws. are so trifling in nature that these cannot raise any suspecion about the truthfulness of the witness or about the occurrence they narrated. The learned Counsel for the accused-respondents has pointed out some other alleged minor discrepent or contradictory statements also in the evidence of the prosecution withnesses, but we do not find any of these alleged discrepent or contradictory statemetns of the prosecution witnesses fatal at all to raise any suspicion about the truthfulness of these witnesss. Discrepency always occurs even in the evidence of the truthful witnesses. It is also settled that one part of evidence of a witness even if is rejected the other part of the evidence of the same witness may be accepted.... (Nazmun Ara Sultana, J).  State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430]

See also:

The Emergency Powers Rules, 2007, Rule 15 [4 LM (AD) 353]

Evidence Act, 1872, Section 10 [4 LM (AD) 430]

F

F.I.R– The case is to be assessed on merit on the basis of the evidence adduced before it– Where there is no F.I.R. or where the F.I.R. cannot be proved in accordance with law in that case also the court will not detract the testimony of the witnesses which will have to be assessed on its own merits and the case is to be assessed on merit on the basis of the evidence adduced before it.... (Nazmun Ara Sultana, J).  State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430]

N

The Narcotic Drugs and Psychotropic Substances Act

Section 20

The prosecution has failed to establish the commission of alleged offence by the accused—respondents beyond reasonable doubt. The evidence is scanty and lacking support to establish that the contraband was really recovered from the possession of the respondents in the manner alleged by the prosecution on the said date and time. Explained circumstances, the prosecution story cannot be believed to award conviction to the accused— respondents. They deserve benefit of doubt. We are, therefore, in complete agreement with the view taken by the High Court and see no reason to interfere with the order impugned herein. State of Himachal Pradesh =VS= Trilok Chand, (Criminal), 2018 (1) [4 LM (SC) 118]

The Nari-O-Shishu Nirjatan (Bishes Bidhan) Ain, 1995

Section 6(4)

Sentence of death commuted to life imprisonment– The High Court Division committed serious error of law in discarding the confessional statement and the finding that ‘the confessional statement of the condemned prisoner is neither voluntary nor true and it is liable to be rejected as a whole’ is also erroneous and as such the order of acquittal of the accused respondent herein is thus also erroneous and illegal. This criminal appeal is allowed. But the sentence of death passed by the trial Court is commuted to life imprisonment relying on the principle laid down in BLAST Vs. Bangladesh(67 DLR(AD)185). The State =VS= Haris, (Criminal), 2018 (1) [4 LM (AD) 517]

The Negotiable Instrument Act, 1881

Section 138

The order of conviction passed by the trial Court was in accordance with the law as by adducing evidence the complainant succeeded in proving that a cheque for Tk.7,00,000.00 given to him was, when duly presented, dishonoured and that before filing the complaint petition, he complied with the procedural requirements laid down in section 138 of the Act. So, this leave petition is dismissed as it is bound to be. The petitioner has in fact paid all the money due to the complainant. The complainant admitted that he had received the full amount of the cheque from the accused petitioner and that he had no further claim against him. In view of the fact that the leave petitioner has paid the full amount of the cheque, he is exonerated from paying any more and as he has already spent 3 months in prison, he need not go back to prison and the sentence of imprisonment is thus modified to the period already undergone by him in prison. Biplob (Md.) =VS= The State, (Criminal), 2018 (1) [4 LM (AD) 364]

The Negotiable Instruments Act, 1881

Section 138

Realization of fine to be paid to the payee– Complaint petition filed by an aggrieved person, i.e. the payee, not at the instance of the ‘State’; the State is not a ‘necessary’ party though it may be ‘proper’ party in case under the Act, 1881; the cheque bears the proprietary and pecuniary interest of the payee and the law provides for realization of fine to be paid to the payee, vide sub-section (2) of section 138; by way of amendment, done by Act No. III of 2006 (09.02.2006), section 138A has been inserted making provisions to deposit not less than 50% of the amount of the dishonoured cheque, in the trial Court, as a precondition to prefer appeal; there is no similar provision for preferring appeal by a person convicted under any other law; apparently, the Act, 1881 is a piece of beneficial legislation and distinct from other penal law; hence, in appropriate case, costs may be awarded in case under the Act, 1881. Khondker Latifur Rahman =VS= The State, (Criminal), 2018 (1) [4 LM (AD) 383]

No error detected to warrant review– We have narrated above the review petition reveals nothing to say that any error is apparent in our appellate judgment. Indeed Mr. Khandakar, quite candidly submitted that he is aware of the limitations that a review petition faces. Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes Tribunal, Dhaka, (Criminal), 2018 (1) [4 LM (AD) 392]

O

See also:Offence of abetement [4 LM (AD) 430]

P

The Penal Code, 1860

Section 34 read with

The Evidence Act, 1872

Section 10

The ‘common intention’ which is a constituent of proving an offence of criminal conspiracy is different from the one ‘common intention’ used in section 34 of the Penal Code. The expression ‘common intention’ used in section 10 of the Evidence Act signifies a common intention existing at the time when the thing was said, done or written by one of the conspirators but the ‘common intention’ referred to in section 34 is doing of separate acts similar or diverse, by several persons; if all are done in furtherance of a common intention. ... (Surendra Kumar Sinha, J).  State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430]

The Penal Code, 1860

Section 34

If that being the position, the sentence being the same, the question of injustice or prejudice does not arise at all. The respondents cannot be fastened with vicarious criminal liability within the meaning of section 34 of the Penal Code– The High Court Division on a misconception of law held that the prosecution has failed to prove the conspiracy. From the evidence as discussed above, if there be any doubt about the conspiracy, it would be difficult to find out a suitable case to prove such charge. The facts found from the materials on record, the barbarity revealed in the commission of the crime and the seriousness of nature of the offence perpetrated by the accused, it would be a travesty irony if the accused persons are not convicted on the charge of conspiracy. With due respect I am unable to endorse the majority opinion that the accused-respondents cannot be convicted on the charge of criminal conspiracy. The question of the benefit of law does not arise at all for simple reason that they were charged with and defended of the charge of criminal conspiracy. If that being the position, the sentence being the same, the question of injustice or prejudice does not arise at all. The respondents cannot be fastened with vicarious criminal liability within the meaning of section 34 of the Penal Code but their conviction would be one under sections 120B read with 302, not under sections 302/34 of the Penal Code.... (Surendra Kumar Sinha, J) (Minority view). State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430]

The Penal Code, 1860

Section 107, 109 and 120B

In order to constitute the offence of abetment by conspiracy, there must be a combining together of two or more persons in the conspiracy– Offences created by sections 109 and 120B of the Penal Code are quite distinct though in both, the element of conspiracy is present. There is analogy between these two sections and there may be an element of abetment in a conspiracy but conspiracy is something more than an abetment. Second clause of section 107 states that a person abets the doing of a thing who engages with one or more other persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place inpursuance of that conspiracy. So, in order to constitute the offence of abetment by conspiracy, there must be a combining together of two or more persons in the conspiracy. Secondly, an act or illegal omission must take place in pursuance of that conspiracy, and in order to the doing of that thing, it is not necessary that the abettor should concert in the offence with the persons who committed it.... (Surendra Kumar Sinha, J).  State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430]

The Penal Code, 1860

Section 109

Offence of abetement– In order to implicate a person of an offence as abettor it has to be proved the actus reus he has abetted with the necessary mens rea. To establish the charge of abetement theremust be evidence that an act was abetted and that it was abetted by the person chargedwith. The act abetted must, moreover, amount to a crime, and in order to connect theabettor with the crime, it is not sufficient to prove that he had taken part in those stepsof the transaction which are innocent, but it must also be proved that he haddeliberately taken part in those steps of the transaction which constituted an offence.Section 109 may be attracted even if the abettor is not present when the offence abettedis committed, provided that he has instigated the commission of the offence or hasengaged with one or more other persons in a conspiracy to commit an offence andpursuant to that conspiracy some act or illegal omission takes place or has intentionallyaided the commission of an offence by illegal omission.... (Surendra Kumar Sinha, J).  State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430]

The Penal Code, 1860

Section 120A and 120B

The conspiracy consists not merely in the intention of two or more persons, but in the agreement of those persons to do such acts– The essence of criminal conspiracy is an agreement to commit an illegal act by some persons. A criminal conspiracy by its nature is hatched up in secrecy and direct evidence to prove conspiracy is seldom available. The offence of conspiracy being a making of an agreement to do an unlawful act, it is a matter of inference to be drawn from direct or circumstantial evidence. It can be inferred from the acts and conduct of the parties in agreement of conspiracy that there was an agreement between two or more persons to do one or the other of the acts described in the section. The conspiracy consists not merely in the intention of two or more persons, but in the agreement of those persons to do such acts. So long as such a design rests only in intention, it is not punishable. ... (Surendra Kumar Sinha, J).  State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430]

The Penal Code, 1860

Sections 302/34

Sentence of death– The appellant is a threat to law and order and a menace to society. He would do away with anyone, who stands for upholding law and order. In view of the way the victim was murdered, we do not find that the sentence of death is at all disproportionate to the crime alleged. We, therefore, do not find any illegality or infirmity in the judgement and order of the High Court Division confirming the sentence of death. Kamal alias Exol Kamal =VS= The State, (Criminal), 2018 (1) [4 LM (AD) 369]

The Penal Code, 1860

Sections 302/35 read with sections 34 & 304

High Court Division fell in an error in finding the accused guilty under sections 302/35 and it committed further error in awarding imprisonment for life to all the accused. If section 35 attracts, their sentences will be different. The conviction of the appellants is altered to one under section 304, part I read with section 34 of the Penal Code, and thereby he is sentenced to 12 years rigorous imprisonment with a fine of taka fifty thousand each to be paid within three months from date, in default, to suffer rigorous imprisonment for two years more. The fine if realized would be paid to the victim’s widow or in her absence to the children. The appeals are dismissed with the above modification of the conviction and sentence. Khalil Peada =VS= The State, (Criminal), 2018 (1) [4 LM (AD) 374]

The (Pakistan) Penal Code

Sections 302, 324, 380 & 411 read with

Cr.P.C.

Section 544-A

Converted the death sentence into life imprisonment, maintaining the fines and other punishment– The evidence that has come on the record was sufficient to lead both the courts below to reach the conclusion that it was the appellant who had committed murder. In view of what has been discussed above, charge against the appellant has been proved beyond any shadow of reasonable doubt. This appeal having no merit is thus dismissed. Muhammad Saleem =VS= The State, (Criminal), 2018 (1) [4 LM (SC) 139]

The Penal Code, 1860

Sections 304 (Part I, II) read with section 300

Culpable homicide– An offence of culpable homicide may or may not amount to murder but all murders are culpable homicide. Even if the culpable homicide attracts section 300, if any of the special exceptions provided in section 300 is attracted, then also the offence will be culpable homicide not amounting to murder punishable under either part I or Part II of section 304. It depends upon the facts and circumstances of each case. Khalil Peada =VS= The State, (Criminal), 2018 (1) [4 LM (AD) 374]

The Penal Code, 1860

Section 304(second part) read with 302/34

Culpable homicide– It is admitted by the informant in his deposition that there was land dispute. The High Court Division noted that accused Nayan gave only one blow to the left knee which is not a vital part of the body showing that he did not intend to kill the victim for which the killing cannot be termed as murder. The High Court Division concluded that it is not a case of culpable homicide amounting to murder, but one of culpable homicide not amounting to murder and, accordingly, altered the conviction to one under the second part of section 304 of the Penal Code. The State =VS= Nayan, (Criminal), 2018 (1) [4 LM (AD) 523]

The (Indian) Penal Code, 1860

Section 325 read with Section 34

The awarding of sentence for an offence punishable under Section 325 read with Section 34 IPC is concerned, the High Court was of the opinion that the respondents have already undergone some reasonable length of jail sentence as under-trials and the same, in our opinion, appears to be sufficient. It is more so because, in addition, a fine of Rs.50,000/- was also awarded. This would meet the ends of justice. We find no reason to interfere on this issue too for the following reasons. Subhash Chander Bansal =VS= Gian Chand, (Criminal), 2018 (1) [4 LM (SC) 121]

The Penal Code, 1860

Section 326 read with sections 149 and 304

We are of the view that conviction of the petitioner under section 326 read with sections 149 and 304 of the Penal Code was not justified. The evidence on record reveals that the leave-petitioner, in fact, committed the offence under section 323 of the Penal Code. Therefore, the leave-petitioner is acquitted of the charge under sections 149/326 and 324 of the Penal Code but he, is, however, convicted under section 323 of the Penal Code and his sentence is reduced to the period he has already undergone. Jaher Miah (Md.) =VS= The State, (Criminal), 2018 (1) [4 LM (AD) 366]

The (Indian) Penal Code, 1860

Section396

We are also of the view that the offence under Section396 IPC is to be viewed with seriousness, especially, when thedacoits are armed. But in the case in hand, the accused were notarmed. Accused Babu @ Nawab Sahib is alleged to have sat ondeceased Muthukrishnan and pressed his nose and mouth and isalleged to have tightened his neck with the rope. The occurrencewas of the year 2002. Considering the long lapse of time and thefacts and circumstances of the case, the sentence of imprisonmentfor life is modified as ten years as directed by the trial court. Shajahan =VS= State Rep. By Inspector of Police, (Criminal), 2018 (1) [4 LM (SC) 115]

The Penal Code, 1860

Sections 409/109 read with

The Prevention of Corruption Act, 1947

Section 5(2) read with

The Emergency Powers Rules, 2007

Rule 15

Re-calling the P.Ws for cross examination– In our view this observation of the learned Judges of the High Court Division is uncalled for and not contemplated by settled principles of criminal justice. Any individual accused person is liable to answer the charges brought against him and the prosecution is bound to prove the charges levelled against each individual accused beyond reasonable doubt, and hence, no individual can be compelled nor can it be suggested to any accused that he should adopt the cross-examination made on behalf of another accused. Accordingly, the following words-“Re-calling our earlier observation, however, we think that justice will meet to its end if the accused-petitioner exercises option, if thinks so, to adopt the cross-examination on behalf of the other accused-petitioners, specially of Tareq Rahman…………” are hereby expunged. However, for the reasons stated and in view of the discussion above we do not find any illegality in rejecting the accused petitioner’s application for re-calling the witnesses already examined and cross-examined. Begum Khaleda Zia =VS= The State, (Criminal), 2018 (1) [4 LM (AD) 353]

See also:

The Penal Code, Sections 409/109 [4 LM (AD) 359]

The Prevention of Corruption Act, 1947, Section 5(2) [4 LM (AD) 359]

The Prevention of Corruption Act, 1947, Section 5(2) [4 LM (AD) 353]

R

See also:Review [4 LM (AD) 425], [4 LM (AD) 392]

S

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

Rule 13 of Order XXIII and rule 5 of Order XX

Rule 13 of Order XXIII, rule 5 of Order XX of the Appellate Division’s Rules are applicable to criminal appeals, and there is no legal bar to convict them even if no leave was granted on this point– The evidence on record proved beyond doubt that the killing was perpetrated in pursuance of a conspiracy and therefore, it is consonance to law and justice that the respondents should be awarded a legal conviction of an offence on the basis of the evidence on record. If a graver sentence is provided for murder in pursuance of conspiracy, the question of prejudice would have arisen. Here the respondents have not acquired any right against the acquittal on the charge of conspiracy. So, even without exercise of inherent power, this Division can alter the conviction of the respondents to one of murder in pursuance of the criminal conspiracy. The appellant has taken ground Nos.II and IV in its concise statement for convicting the accused on the charge of conspiracy. In view of rule 13 of Order XXIII, rule 5 of Order XX of the Appellate Division’s Rules are applicable to criminal appeals, and there is no legal bar to convict them even if no leave was granted on this point. This is a settled point and I need not make any observation on this question. In support of the charge, the prosecution has adduced evidence and the accused persons have defended the same. The trial court as well as the High Court Division discussed the evidence in support of this charge but disbelieved the charge on perfunctory grounds. Therefore, there is no legal bar to convict the respondents on the basis of the evidence on record.... (Surendra Kumar Sinha, J) (Minority view). State =VS= Dafader Marfoth Ali Shah & ors, (Criminal), 2018 (1) [4 LM (AD) 430]

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

Order XXVI, rule 1

Review– A Division Bench of the High Court Division hearing the criminal miscellaneous case by judgment and order dated 17.02.2009 made the Rule absolute and quashed the proceedings of Violation Miscellaneous Case No.234 of 2008 arising out of B.L.L. Case No.335 of 2008 pending before the First Labour Court, Dhaka. Against the judgment and order of the High Court Division, the petitioner filed Criminal Petition for Leave to Appeal No.233 of 2009 before this Division. This Division on hearing the leave petition by judgment and order dated 8th December, 2009 dismissed the leave petition, against which the instant review petition has been filed. In the review petition, the petitioner has failed to show that the view taken by this Division endorsing the view of the High Court Division was the result of an error apparent on the face of the record warranting review of the same as provided in Order XXVI, rule 1 of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988. It further appears that the grounds taken in the review petition were also taken in the leave petition but those not being relevant were not considered. The review petition accordingly, the same is dismissed. Nur-e-Alam =VS= Grameen Phone Limited, (Criminal), 2018 (1) [4 LM (AD) 425]

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

Order XXVI rules 1-6

The procedures provided in Order XXVI rules 1-6 of the Appellate Division Rules, which are not inconsistent with the Act and the Rules, would guide the procedure and practice of the Appellate Division for disposal of a review petition, that is to say, a review in a criminal matter can be made on the ground of an error apparent on the face of the record.  Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes Tribunal, Dhaka, (Criminal), 2018 (1) [4 LM (AD) 392]

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

Order XXVI

Review– Where the error is so apparent and patent that review is necessary to avoid miscarriage of justice– We reiterated that a review cannot be equated with an appeal. It does not confer a right in any way to a litigant. The Appellate Division unequivocally expressed that it is now well settled that a review of an earlier order is not permissible unless the Court is satisfied that material error, manifest on the face of the order, undermines it's soundness or results in miscarriage of justice. The Appellate Division observed that a review of judgment is a serious step and the Courts are reluctant to invoke their power except where a glaring omission or patent mistake or grave error have crept in earlier by judicial fallibility. Power of review is not an inherent power - it must be conferred by law either specifically or by necessary implication and that despite there being no provision in the Act or the Rules for review from the judgment of the Appellate Division on appeal, by fiction of law a review is maintainable from the judgment of the Appellate Division subject to the condition that where the error is so apparent and patent that review is necessary to avoid miscarriage of justice. Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes Tribunal, Dhaka, (Criminal), 2018 (1) [4 LM (AD) 392]

Some minor contradiction or inconsistency in evidence cannot affect the material evidence– It is a well settled principle of criminal law that some minor contradiction or inconsistency in evidence cannot affect the material evidence and such contradiction or inconsistency cannot be made basis to discard the whole evidence as unreliable. It is much more so when the two Courts below took note of the said evidence and discarded it being wholly immaterial. We find no merit in the appeal. The appeal thus fails and is accordingly dismissed. Gorusu Nagaraju =VS= State of Andhra Pradesh, (Criminal), 2018 (1) [4 LM (SC) 113]

See also:

Sentence of death [4 LM (AD) 369]

Supreme Court Rules, 2013, Order XLVII Rule 1[4 LM (SC) 101]

V

Victims' Right– Consideration of victims' rights now stand universally recognised. It is reckoned that the Court in sentencing an offender should not confine itself to the fundamental rights of the accused only, but must also take account of the victims' predicaments and rights. The Appellate Division is of view this concept is of particular importance in the context of the atrocities that were perpetrated during glorious war of liberation, as literally, the entire populace, save a handful of anti liberationists, were victims of those atrocities. Muhammad Kamaruzzaman =VS= Chief Prosecutor, International Crimes Tribunal, Dhaka, (Criminal), 2018 (1) [4 LM (AD) 392]

End.