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Nazir Vs. The State (Md. Nazrul Islam Talukder, J.)
67, Ayub Ali (Md) Vs. Abdul Khaleque, 56 DLR(HC)(2004) 489, 49 DLR (HCD) (1997) 630, Sher Ali(Md) and others Vs. State, 46 DLR (AD) (1994) 67 and Md. Khoka Mollah Vs. The State, 22 BLD (AD) (2002) 229, Abu Taleb Vs. The State, 59 DLR (AD) (2007) 93, Amir Hossain Hawlader Vs The State, 4 BLD (AD) (1984) 193, ref. Mr. Md. Shah Alam Dewan, Advocate ....... For the Petitioner Mr. Md. Shohrowardi, D.A.G with Mr. Md. Nazibur Rahman, A.A.G & Mr. Md. Monjur Kader, A.A.G. ....... For the Opposite party Judgment Md. Nazrul Islam Talukder, J: This Rule, at the instance of the convictpetitioner, was issued calling upon the opposite-party to show cause as to why the judgment and order of conviction and sentence dated 19.7.2006 passed by the learned Judge of the Special Tribunal No. 4, Dhaka in Special Tribunal Case No. 144 of 1999 arising out of Keranigonj Police Station Case No. 11 dated 4.12.1998 corresponding to G.R. No. 412 of 1998 convicting the convict-petitioner under section 4 of the Explosive Substance Act, 1908 and sentencing him thereunder to suffer rigorous imprisonment for 7 (seven) years and to pay a fine of Tk. 5,000/= in default to suffer rigorous imprisonment for 6 (six) months more should not be quashed and/or pass such other or further order or orders as to this Court may seem fit and proper. 2. Facts relevant for disposal of this Rule may be, briefly, stated as follows: Acting on a tipoff, in the morning of 4.02.1998, the informant came to know that a gang of dacoits would go at Rajarhat on Dhaka Mawa road for committing dacoity. The informant along with some Constables, on the basis of aforesaid information, went to the place of occurrence.
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After reaching the place of occurrence, the informant and others started searching out the different vehicles which were plying on the way. On the date of occurrence at around 7:15 a.m, a baby taxi being No. Dhaka Metro. 031289 was heading towards the place of occurrence from Dhaka. At the time of searching the baby taxi, 5 suspected persons tried to flee away from the baby taxi. However, the informant and others caught them redhanded and carried out a search and recovered a pipe gun loaded with one round bullet from the waist of the convict, namely, Akram, 9 Cocktails from the waist of present convictpetitioner, a Chapati of 15 inches long with a wooden bat from the waist of another convict, namely, Alamgir, 8 Cocktails from the waist of convict, namely, Babul and 5 Cocktails from waist of convict, namely, Safar Ali. The informant and others prepared a seizure list in presence of the local witnesses and took their signature on it. The convict-petitioner and other convicts could not offer any satisfactory account for keeping the alleged arms and explosive substance in their possession. Hence, the F.I.R was lodged against the convictpetitioner (hereinafter referred to as the petitioner) and others under section 4 of the Explosive Substances Act on 4.12.1998. 3. During investigation, the police recorded the statements of the witnesses under section 161 of the Code of Criminal Procedure. Having found prima-facie case, the police submitted charge sheet No. 2090 dated 7.6.1999 against the petitioner and others under section 4 of the Explosive Substance Act, 1908. After submission of the charge sheet, the case record was sent to the Special Tribunal for trial. 4. At the time of commencement of trial, the learned Judge of the Tribunal framed charge against the petitioner and others under section 4 of the Explosive Substance Act and the same was read over and explained to them who pleaded not guilty and claimed to be tried in accordance with law.
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Nazir Vs. The State (Md. Nazrul Islam Talukder, J.)
5. At the trial of the case, the prosecution examined as many as 11 witnesses to prove the case. The learned Judge of the Tribunal after recording the evidence from the witnesses and on perusal of the same found the petitioner and others guilty under section 4 of the Explosive Substance Act and sentenced them thereunder by the impugned judgment and order as aforesaid. 6. It is to be noted that the petitioner was arrested by the police on 5.12.1998 and he was enlarged on bail by the learned Judge of the Tribunal on 29.02.2000, but after enlarging on bail he was found absent from the proceeding and accordingly, the order of bail was cancelled by the learned Judge of the Tribunal on 23.10.2000. However, the petitioner remained absconding till delivery of judgment. 7. After delivery of judgment, the petitioner was arrested by the police in connection with another case and he was shown arrested in the present case on 11.02.2009 and produced before the learned Judge of the Tribunal, who sent him to jail to undergo the sentence. The petitioner thereafter submitted an application for certified copy of the impugned judgment and order and other relevant papers for preferring a miscellaneous case under section 561A of the Code of Criminal Procedure. After procuring the certified copy of the judgment and order, the petitioner approached this court with an application under section 561A or the Code of Criminal Procedure and obtained the present Rule. 8. At the very outset, Mr. Shah Alam Dewan, the learned Advocate appearing on behalf of the petitioner, submits that there is no sufficient legal evidence on record to connect the petitioner with the alleged offence under section 4 of the Explosive Substances Act and that the evidence adduced by the police
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personnel was not supported by the public witnesses. He next submits that P.W.4, a seizure list witness, has not supported and corroborated the prosecution story and the recovery of the Cocktails from the possession of the petitioner. He then submits that since the informant and Investigating Officer are same person, the evidence adduced by him appears to be doubtful and the impugned judgment and order, on the basis of doubtful evidence, is liable to be quashed. He empathically submits that though Cocktails allegedly recovered from the possession of the petitioner were not examined by any explosive expert to come to a decision as to whether the alleged Cocktails were really Cocktails or not and as such the impugned judgment and order of conviction and sentence is not based on satisfactory and reliable evidence and as such the same is liable to be quashed. The learned Advocate for the petitioner, in support of his submissions, relied upon the cases of Masud and others Vs. State, 3 BLC 107, State Vs. Sarowar Uddin, 5BLC 451, Delwar Hossain Vs. State, 16 BLC(2011) 32 and Md. Harun Bepari Vs. State, 5 MLR (2000) 395, Md. Sayem Islam Vs. State, 13 MLR 155, Aslam Jahangir Vs. State, 20 BLD 426, Pear Ali Vs. State, 7 BLT (HCD) 59 and Ashok Kumar Saha Vs. State, 2 BLT (HCD) 79. 9. On the other hand, Mr. Md. Shohrowardi, learned Deputy Attorney-General along with Mr. Md. Nazibur Rahman, learned Assistant Attorney-General and Mr. Md. Monjur Kader, learned Assistant Attorney-General appearing on behalf of the State, submits that there is sufficient legal evidence on the record of the case to connect the petitioner with the alleged offence under section 4 of the Explosive Substances Act. He next submits that the prosecution examined as many as 11 witnesses to prove the prosecution case and that there is
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Nazir Vs. The State (Md. Nazrul Islam Talukder, J.)
sufficient legal evidence on record to connect the petitioner with the offence under section 4 of the Explosive Substances Act. He then submits that this Court not being the Court of appeal has hardly any scope to sift and assess the evidence like a Court of appeal in its extraordinary jurisdiction under section 561A of the Code of Criminal Procedure. He emphatically submits that the convict-petitioner being enlarged on bail deliberately remained absconding at the time of cross-examining the prosecution witnesses and that he also remained absconding at the time of delivery of judgment. He lastly submits that since the petitioner has not come before this Court with clean hands, he is not entitled to get relief under section 561A of the Code of Criminal Procedure and as such the Rule should be discharged. 10. We have gone through the application under section 561A of the Code of Criminal Procedure and the materials annexed thereto. 11. Before we take up the question for consideration as to whether the impugned judgment and order of conviction and sentence should be quashed or not, it will be necessary to see the extent of power, scope, principles and categories of cases in which High Court Division may invoke its power and authority under section 561A of the Code of Criminal Procedure. 12. In the case of Abdul Quader Chowdhury Vs. The State, 28 DLR (AD) (1976) 38, it has been held that the High Court Division may quash a criminal proceeding invoking its jurisdiction under section 561A of the Code of Criminal Procedure in the following circumstances: (1) 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.
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(2) Where the institution and continuation of the proceeding amounts to an abuse of the process of the court. (3) Where there is a legal bar against the initiation or continuation of the proceeding. (4) In a case where the allegations in the F.I.R or the petition of complaint, even if taken at their face value and accepted in their entirety, do not constitute the offence as alleged. (5) 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. 13. Similar view on the principles and categories of cases for quashing the proceeding was, subsequently, followed in many cases including the cases of Ali Akkas Vs. Enayet Hossain and others, 17 BLD (AD) (1997) 44,and Bangladesh Vs. Tan Khen Hock, 31 DLR (AD) (1979) 69. 14. It is pertinent to note that the inherent power under section 561A of the Code of Criminal Procedure can be invoked at any stage of the proceeding even after conclusion of the trial, if it is necessary to prevent the abuse of the process of the court or otherwise to secure the ends of justice. In the case of Sher Ali (Md) and others Vs. The State, 46 DLR (AD) (1994) 67 it has been decided that the inherent power under section 561A of the Code of Criminal Procedure can be exercised to quash a proceeding or even a conviction on conclusion of a trial if the court concerned got no jurisdiction to hold the said trial or the facts alleged against the accused do not constitute any Criminal offence, or the conviction has
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Nazir Vs. The State (Md. Nazrul Islam Talukder, J.)
been based on ‘no evidence’ or otherwise to secure ends of justice. 15. Coming back to the present case, we want to address the submissions of the learned Advocates for the petitioner seriatim. 16. It is on record that in order to prove the prosecution case, the prosecution examined as many as 11 witnesses to prove the prosecution case. P.W.1 Rabindra Narayan Saha supported and corroborated the prosecution case in his deposition and cross-examination and claimed that 9 Cocktails were recovered from the possession of the petitioner. The aforesaid evidence given by the P.W.1 was also supported and corroborated by P.W.2, P.W.5,6 and 7. A reference to the evidence given by the prosecution witnesses clearly and manifestly shows that 9 Cocktails were recovered from the exclusive control and possession of the convict-petitioner. It should be borne in mind that the jurisdiction under section 561A can not be invoked for the purpose of examining the correctness, legality and propriety of any finding, sentence and order passed by the criminal Courts inferior to this Court. Section 561A may be invoked only for the specific purpose set out in this section and this Court may, in appropriate cases, exercise its extraordinary power under this section to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. Admittedly, the power of this Court under section 561A is very limited. This court not being the court of appeal is not in a position to re-assess and sift the evidence on record like the court of appeal in its extra-ordinary jurisdiction under section 561A of the Code of Criminal Procedure. 17. In order to address the submission of learned Advocate for the petitioner that since the informant and investigating officer is the
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same person, the informant is an interested witness and the impugned judgment and order based on the evidence of interested witness is not sustainable in the eye of law. 18. It is true that generally, an informant who is a police officer should not be an investigation officer in order to maintain the neutrality and acceptability of the trial of the case in the estimation of litigant public and the posture to appoint the informant as an investigating officer is normally deprecated and discarded. Practically, there is no bar on the part of the informant to act as an Investigating Officer in the eye of law. It is a well settled principle of law that the evidence of police personnel should not be discarded simply because they belong to police force as their evidence is also legal evidence within the meaning of section 3 of the Evidence Act. Section 134 of the Evidence Act contemplates that no particular number of witnesses shall, in any case, be required for the proof of any fact and as such conviction can be based on the evidence of a solitary witness if his evidence is full, complete and self-contained having no blemish and taint thereto. There is nothing on record to show that there was any enmity between the petitioner and the informant nor any suggestion was given to that effect. Under the circumstances, we do not find any material and circumstances which may lead us to hold that the evidence of informant and investigating officer is blemished and tainted one that may persuade us to keep the same out of consideration. Furthermore, this Court not being the Court of appeal has hardly any scope to sift and assess the evidence like the Court of appeal in its extra ordinary jurisdiction and the aforesaid view has been reflected in the case of Ayub Ali (Md) Vs. Abdul Khaleque, 56 DLR(HC)(2004) 489. Against this backdrop of the case, the submission made by the learned
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Nazir Vs. The State (Md. Nazrul Islam Talukder, J.)
Advocate does not hold good and the same falls through. 19. Considering the above facts and circumstances of the case and the evidence of record, it can not be said that there is no legal evidence against the petitioner to connect him with the offence levelled against him and for insufficiency of the evidence if any, it can not be said that the petitioner may escape from the conviction and sentence on the ground of insufficiency of evidence of the case under the Jurisdiction of section 561A of the Code of Criminal Procedure. 20. Precisely speaking, it is not the case of the petitioner that the trial of the case was a coram non-judice. So, we would not like to embark upon that aspect of the case for our consideration and decision. 21. Now, we want to consider as to whether the petitioner has come before this Court with clean hands or not. It appears from the record of the case that the petitioner was enlarged on bail by the learned Judge of the Tribunal on 29.2.2000 which is very much evident from the annexure-E to the application. However, the petitioner being admitted to on bail remained absconding during cross examination of the prosecution witnesses. Accordingly, during trial, the learned Judge of the Tribunal cancelled the order of bail of the petitioner on 23.10.2000. Admittedly, the petitioner remained absconding during trial of the case and as such he could not cross examine the prosecution witnesses. Any way, the trial was held in absence of the petitioner. The learned Judge of the Tribunal, after taking evidence and on perusal of the evidence and other materials on record, found the petitioner guilty under section 4 of the Explosive Substances Act and sentenced him thereunder to suffer rigorous imprisonment for 7 (seven) years and to pay a fine of Tk. 5,000/-, in default, to suffer rigorous imprisonment for 6 (six) months more. Admittedly, the petitioner was found absent at the time of delivery of judgment.
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However, after delivery of judgment the petitioner was arrested in connection with another case and sent to jail to suffer the sentence. Subsequently, the petitioner filed this application under section 561A of the Code of Criminal Procedure before this Court and obtained this Rule. 22. In this connection, it may be mentioned that this Court has always disfavored to grant relief in its extraordinary jurisdiction under section 561A of the Code of Criminal Procedure to an absconder who does not approach the Court with clean hands. In the case of Alamgir Hossain Vs. State reported in 49 DLR (HCD) (1997) 630, it has been decided that: “A convict may invoke the jurisdiction of this Division under section 561A of the Code of Criminal Procedure if he can make a case of Coram non judice of the trial Court or that the facts alleged do not constitute any criminal offence or the conviction has been passed on no evidence or other wise to secure the ends of justice and with that we add that he should approach the Court with clean hands.� 23. The aforesaid view has been reflected and endorsed by the Appellate Division in the cases of Sher Ali(Md) and others Vs. State, 46 DLR (AD) (1994) 67 and Md. Khoka Mollah Vs. The State, 22 BLD (AD) (2002) 229. 24. It is an indisputable fact that after being admitted to bail on 29.2.2000, the petitioner remained absconding till delivery of judgment on 19.7.2006 and he was also on the run for a long time till he was shown arrested in the present case on 11.2.2009. Section 27(6A) of the Special Powers Act, 1974 provides that if the accused being enlarged on bail remains absconding , there is no necessity for issuing a further direction directing the accused to appear in the proceeding. The aforesaid view finds support in the case of Abu Taleb Vs. The State, 59 DLR (AD) (2007) 93. Since the petitioner was enlarged on bail and he,
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Zahida Ahmed (Liza) Vs. Syed and another Mahmud Nazir Vs.Noor TheUddin State Ahmed (Md. Nazrul Islam (Syed Talukder, J.) Hossain, J.)
deliberately, avoided the proceeding keeping himself in abscondence which disentitles him to get relief under section 561A of the Code of Criminal Procedure. In view of section 8 of the Evidence Act, abscondence of an accused lends support to the direct evidence of eye witnesses connecting the accused with the crime. The aforesaid view has been reflected in the case of Amir Hossain Hawlader Vs The State, 4 BLD (AD) (1984) 193. 25. However, the petitioner could not offer any plausible explanation as to his abscondence from proceeding jumping bail. Taking this aspect of the matter in view, we feel constrained to hold that the convict-petitioner has not approached this court with clean hands. 26. Considering the facts and circumstances of the case and the settled proposition of law as discussed above, the decisions cited by the learned Advocate for the petitioner do not fit in the facts and circumstances of the present case as the facts, purpose and scope of those decisions are quite different and distinguishable from the present case and as such those decisions have no manner of application in the instant case.
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HIGH COURT DIVISION (Special Original Jurisdiction) Mr. Syed Hossain, J.
Mahmud } }
Zahida (Liza)
...Petitioner.
And Mr. Quamrul Siddiqui, J.
Islam
Judgment 16.3.2009
Vs.
}
}
Ahmed
Syed Noor Uddin Ahmed and another ...Respondents.
Constitution of Bangladesh, 1972 Article 102 It appears that the detenu was illegally removed from the custody of his mother while living in the U.K. The law of U.K does not permit such removal of a child from the custody of his mother without her consent. Before adjudication of the family suit the detenu must be restored to the custody of the petitioner. Removal of the detenu from the custody is without lawful authority and that he is being held in the custody of the respondents in an unlawful manner. Moreso, the age of the detenu cannot be the sole basis for deciding the question of custody. ... (12 and 17)
27. Considering the above facts and circumstances of the case and the evidence on record, it cannot be said that there is no legal evidence on the record of the case to connect the convict-petitioner with the offence levelled against him under section 4 of the Explosive Substances Act.
Md. Abu Baker Siddique Vs. S.M.A Bakar and Others, 38 DLR (AD) 106; Rumana Afrin Vs. Fakir Ashrafuddin Ahmed and Others (1996) 1 BLC 517 and Abdul Jalil Vs. Sharon Laily Begum Jalil (1998) 50 DLR (AD) 55, ref. Mr. Sara Hossain
...For the Petitioner.
28. On the facts and in the circumstances of the case and the stated decisions discussed above, we are of the view that the present case is not a case of ‘no evidence’; rather it is a case of ‘evidence’, however insufficient it may be.
Mr. M. Ashraful Ali
... For respondents.
29. Having considered all aspects of the case, we do not find any merit in this Rule. 30. Accordingly, the Rule is discharged. Communicate this judgment to the concerned Tribunal immediately. Ed.
Judgment Sayed Mahmud Hossain, J: In this application under Article 102 of the Constitution of the People’s Republic of Bangladesh, a Rule Nisi has been issued calling upon the respondents to show cause as to why the detenu Syed Shafin Ahmed (Ayon), aged 10 Writ Petition No. 1344 of 2009.
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Pubali Bank Ltd. Vs. M/S Amin Iqbal Corporation and others, (Khondker Musa Khaled, J.)
HIGH COURT DIVISION (Civil Appellate Jurisdiction) Mr. Khondker Musa } Pubali Bank Ltd, Khaled, J. Agarabad, Chittagong And } ...Appellants. Mr. S.H. Md. Nurul Vs. Huda Jaigirdar, J. } M/S. Amin Iqbal Judgment Corporation and 22.5.2012 others } ...Opposite parties
455
the trial of the civil suit without having any jurisdiction. Keeping consistency with the section 50(2) of the Artha Rin Adalat, 2003 simple interest was awarded at the rate of 12% per annum on the principal amount from the date of filing the suit till realization subject to maximum payable under section 47 of the Artha Rin Adalat Ain, 2003 meaning thereby the simple interest payable shall not exceed 200% of the original claim.
The plaint of the Other Suit no. 2 of 1994 shows that the defendants set up a counter claim of Tk. 57,08,529.17 due to their loss in the Artha Rin Adalat Ain (VII of 2003) business and damages for a period of 15 years. Sections 18(2), 47 and 50(2) Apparently the nature of claims were baseless Code of Civil Procedure (V of 1908) and there is hardly any foundation in the Section 9 evidence as well. But unfortunately, the In view of the overwhelming evidence learned Judge of the trial court accepted the regarding the arrival of the goods and after contentions of the defendants in an arbitrary releasing the same kept in the Bank’s godown manner and decreed their suit in part awarding for 9 years had to sell the same in public compensation for on amount of Tk. 15,00,000/auction and Bank informed his client regularly , 0ur considered view is that the defendants' > in each stage, it can not be accepted the suit for compensation and damages as set up in contention that the defendants were not aware Other Suit no. 2 of 94 has no merit to succeed. of all these things. The plaint of other Suit No. … (15). 2 of 1994 shows that the defendants set up a counter claim of more than Taka Fifty Lac and Apart from the merit of the suit, the learned some odds. Apparently nature of claims were Judge of the Artha Rin Adalat has no baseless and there is hardly any foundation in jurisdiction to entertain Other Suit no. 2 of 94 the evidence as well. The defendants’ suit of and give hearing of the said suit under general compensation and damages as set up in other law alongwith the Money Suit filed by the Suit No. 2 of 94 has got no merit. The learned financial institution under the special law. It is Judge of the Artha Rin Adalat has no jurisdic- legally barred and he cannot hold trial of any tion to entertain other Suit No. 2 of 1994 under other suit of the Civil Court unless it is filed by general law along with the Money Suit filed by any financial institution for recovery of loan under the Artha Rin Addalat Ain. ... (16). the financial institution under the Special law. Under the Artha Rin Adalat Ain, 2003, Section Under the existing Artha Rin Addalat Ain 2003 18 (2) also stands as a clear bar to entertain section 18 (2) also stands as a clear bar to any suit or counter claim against the claim of entertain any suit Or counter cliam against the .... (16). the financial institution. The learned Judge of claim of the financial institution. the Artha Rin Adalat assumed illegal It transpires from the L.C.Rs. that the other suit jurisdiction over the said other suit and held No. 25 of 1992 was filed before the 2nd court subordinate judge, Chittagong under the First Appeal No. 219 of 1996.
456
Pubali Bank Ltd. Vs. M/S Amin Iqbal Corporation and others, (Khondker Musa Khaled, J.)
general law and it was not even filed before the Artha Rin Addalat or commercial court. Therefore, the learned Judge of the Artha Rin Adalat, appears to have assumed illegal jurisdiction over the said other suit and held the trial of the said civil suit without having any jurisdiction. .... (17). Keeping consistency with the section 50(2) of the Artha Rin Adalat Ain, 2003, we are inclined to award simple interest at the rate of 12% per annum on the principal amount from the date of filing the suit till realisation subject to maximum payable under section 47 of the Artha Rin Adalat Ain, 2003. It means that the simple interest payable shall not exceed 200% of the original claim. ... (20). Sultana Jute Mills Ltd. and others -Vs- Agrani Bank and others 14 BLD(AD)- 196, 22 BLD(HCD)-127, ref. Mr. Zakir Hossain Mazumder, Advocate. ‌..For the appellant None appears
... For Respondent Judgment
Khondker Musa Khaled, J: This First Appeal is directed against a common judgment and decree dated 18.5.96 passed by the learned Subordinate Judge (now Joint District Judge) Artha Rin Adalat, and Commercial Court No. l, Chittagong, in Money Suit no. 1 8 1 of 1988 filed by Pubali Bank Ltd. against the M/S. Amin Iqbal Corporation and others for realization of Tk. 15,77,113.50 and Other Suit no. 2 of 1994 filed by M/S Amin Iqbal Corporation against the Pubali Bank Ltd. for a counter claim of Tk. 57,08,529.17 over the same dispute, which were heard analogous. 2. Precisely, the relevant facts are that the Pubali Bank Ltd. instituted the Money Suit no. 181 of 1988 alleging in the plaint that the
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defendant No. 1/S. Amin Iqbal Corporation was Proprietary firm dealing with Sewing Machine and the defendants 2-3 used to carry on business through it, and they maintained a current account in the name of defendant No. l with the plaintiffBank. The defendant No. 3 being operator of the account, approached the Bank for opening Letters of Credit (L.C.) to import 457 packages of household Sewing Machine from Taiwan. Accordingly, the plaintiff-Bank, opened two Letters of Credit on 16.4.75 and 1.12.75 in the name of the defendant No. l M/S. Amin Iqbal Corporation for the amounts of #3,672.30 and #2,849.25 British Pound respectively. The documents were executed by the defendant no.3 in the name of defendant No. l. The imported goods covered by the Letters of Credit duly arrived at the Chittagong Port. On receipt of the shipping documents, the plaintiff-Bank requested the defendant to retire the same on payment of the plaintiffs dues. But they did not respond. Subsequently, the defendants requested the plaintiff-Bank to retire the documents and clear the imported goods through its own clearing and forwarding agent. Thereafter, the plaintiff-Bank had to clear those goods on payment of necessary custom duty and other charges, and stored those imported items in the godown of the plaintiffs Bank. Against the expenditure on account of sales, tax, duties and other charges for clearance of the goods, the plaintiff opened two merchandise accounts namely, L.A.M account no. 21 of 1976 and 28 of 1976. Then it became obligatory on the part of the defendants to take delivery of the goods on payment of the outstanding dues in the said L.A.M. accounts. But inspite of repeated requests by personal approach and in writing, they failed to take delivery of those goods from the godown and adjust their liabilities. Since the value of the goods was deteriorate-
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Pubali Bank Ltd. Vs. M/S Amin Iqbal Corporation and others, (Khondker Musa Khaled, J.)
ing due to prolonged storage, the plaintiff Bank had to sell out those goods by public auction after observing necessary formalities for a total sum of Tk. 2,80,000,/ and credited the same in the respective L.A.M. accounts towards partial adjustment of the defendants' liabilities in accordance with Rules. Thereafter, the plaintiff-Bank started demanding the balance amount from the defendants and issued lawyer's notice demanding payment. On receipt of the notice, although the defendants made promise from time to time to adjust the liabilities, ultimately they did not pay any amount of money to the Bank. The defendants' total liabilities stood at Tk. 15,77,113.50 as calculated on 30.11.88 together with interest and incidental charges. At last on 16.8.87, the defendants were served with legal notice for payment, and on 5.12.88 an F.D.R. of the Defendant No. 2 available in the Bank was adjusted in the L.A.M. account no. 21 of 1976. The plaintiff -Bank thereafter, filed the suit for the realisation of remaining balance amounting to Tk. 15,77,113.50 and also prayed for penal interest thereon at the rate of 20% per annum from the date of filing the suit till realisation along with the cost of the suit. 3. The defendants 1-3 contested the suit by filing a written statement admitting that the defendant No. l was a Small industrial enterprise while the defendants 2-3 were its owner and Managing Director respectively. It is contented interalia that the defendant No. 2 being entrusted to operate the business of the defendant No. l, opened a current account bearing no. 2683 and
subsequently opened two Letter of Credits for 3,672.30 and 2,849.25 British pound for the purpose of importing goods from Taiwan and that the shipping documents and though the imported goods duly reached, the defendants were not informed anything about the same.
457
That the defendant No. 3 went to the Pubali Bank to get information about the consignment under the L.Cs, but the Bank maintained silence. The defendant No. 3 came to know that the two ships carrying those imported goods had already left the Chittagong Port and as such., he wrote letters including the letters dated 15.3.76 and 28.6.76 to the Bank to get the goods released, but the Bank did not make any reply. It is contended further that Mr. Bose an employee of the Bank misbehaved with him when he approached to the Bank personally. Subsequently, the defendants approached to the Bank to open another Letter of Credit for the years 1976-1977 to run the business, but the Bank refused and did not even return the import license of the defendants preventing them from operating their business by opening Letter of Credit in another Bank. The plaintiff at first sent a letter dated 6.11.86 to the defendants informing about the import consignment, auction sale of the goods and claimed an amount of Tk. 4,71,156.60. The defendants came to know that the imported goods were sold by the Bank on auction on 18.9.84. As the plaintiff-Bank failed to make any amicable settlement of the dispute on 22.7.91, the defendants instituted the Other Suit No. 25 of 1992(subsequently renumbered as Other Suit no. 2 of 1994) for a declaratory decree and compensation of Tk. 5,08,529.17 on different counts. So the suit of the plaintiffBank is liable to be dismissed. 4. The defendants 1-3 of the previously filed Money Suit also instituted Other Suit no. 25 of 1992 subsequently renumbered as Other Suit No. 2 of 1994 against the Pubali Bank for getting compensation of Tk. 57, 8,529.17 as a counter claimed as evident from the written statement filed in Money Suit no. 181 of 1988. The defendants being plaintiffs in the Money Suit also filed written statement in that
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Pubali Bank Ltd. Vs. M/S Amin Iqbal Corporation and others, (Khondker Musa Khaled, J.)
Other Suit denying the plaint case and narrating the same facts of their plaint as stated above. So, we do not feel it necessary to state elaborate same facts of the written Statement and plaint of the subsequent suit to avoid repetition.
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Advocate appearing on behalf of the appellant-
Bank, submits that the trial Court being Artha Rin Adalat had no jurisdiction to entertain Other Suit no. 2 of 1994 filed in the Court of Subordinate Judge and hold trial of the same together with the suit filed by the financial institution. Because a case pending 5. The trial Court appears to have framed the in the Artha Rin Adalat under the special following issues for adjudication of both the law cannot be heard analogous with a suit suits:pending in any Court created by the general law. (1) Are the suits of the plaintiffs maintainable In support of his submission , the learned in the represent form? Advocate has relied upon the case of Sultana (2) Whether the plaintiffs have cause of action Jute Mills Ltd. and others -Vs- Agrani Bank and others reported in 14 BLD(AD)- 196 and for filing the suits? another case decision reported in 22 (3) Are the plaintiffs of the respective suits BLD(HCD)-127. He submits that both the cited entitled to get decree? cases are related to Artha Rin Adalat Ain, (4) To what the relief are the plaintiffs 1990 under which the instant case of the Bank entitled? was dealt with at the earlier stage. It is further 6. At the trial, the plaintiff -Bank examined submitted that there is also specific bar 2 P.Ws. and the defendants M/S. Amin under section 18(2) of the existing Artha Rin Iqbal Corporation and others examined 1 Adalat Ain, 2003 to try a suit instituted under D.W., and series of documents submitted by the the general law by the Artha Rin Adalat. So, the both the parties were admitted in evidence trial Judge, according to him, exercised jurisdiction not vested on it by the law and the with exhibit marks. impugned judgment and decree so far it relates 7. Considering the facts, circumstances to Other Suit no. 2 of 94 is illegal, void and and evidence on the record, the learned without jurisdiction and as such, it is liable to be Subordinate Judge, First Court, Artha Rin set aside. Adalat, Chittagong passed the impugned analogous judgment and decree dated 18.5.96 10. As regards the judgment and decree dismissing the Money Suit no. 181 of 1988 dismissing Money Suit no. 181 of 1988, the without cost and decreed Other Suit no. 2 of learned Advocate submits that the trial Court did 92 with costs directing the defendant Pubali not consider series of exhibited documents Bank to pay Tk. 15,00,000(fifteen lac) to the submitted by the Bank and as such, erroneously plaintiff M/S. Amin Iqbal Corporation and found that the defendants were not informed about the consignment and that the suit was others as compensation within 6 months. barred by limitation. That the plaint has clearly 8. Being aggrieved, the Pubali Bank disclosed cause of action for filing of the suit (plaintiff in the Money Suit and the from which limitation should run. The learned defendant in the Other Suit) preferred this Advocate has referred to the Exhibit-l(Ga) to appeal. show that on 6.11.86 an elaborate letter was 9. Mr. Zakir Hossain Mazumdar, learned issued by the Bank to the plaintiff about the
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Pubali Bank Ltd. Vs. M/S Amin Iqbal Corporation and others, (Khondker Musa Khaled, J.)
consignment asking to clear dues of L.A.M. accounts with reference to the defendants’ letter dated 26.1.86 (Exhibit-5(Gha). It is submitted that so many correspondences were made with the defendants regarding the matter and as such, it is down right falsehood to say that the defendants were totally in the dark about the release of imported goods by the Bank. Rather on the request of the defendants, the Bank had to clear the goods on payment of custom duty, tax and other charges, and store the same in the godown for a long time. But the defendants, having full knowledge, did not come to release the goods on payment of dues payable to the Bank. As a result, those goods were sold in public auction to the highest bidder and after partial adjustment of the dues by the sale proceeds and F.D.R. money of the defendant No. 2; the Bank lawfully filed the suit for realisation of the remaining balance. It is submitted that there is no earthly reason to refuse the genuine claim of the Bank and dismiss the Money Suit. The learned Advocate has relied on the Bank statement (Exhibit-4) to prove the outstaynding dues and preyed for decree in Money Suit on setting aside the judgment of dismissal. He has also prayed for setting aside the judgment and decree so far it relates to Other Suit no. 2 of 1994. 11. None appeared on behalf of the respondents on several dates when hearing was going on. 12. We have gone through the impugned judgment, oral and documentary evidence available on record and considered other attending; facts and circumstances of this case. 13. Admittedly, the defendants opened two Letter of Credits (L.C.) in the Pubali Bank on 16.4.75 and 1.12.75 in the name of the defendant No. l for importing 457 packages of
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household Sewing Machine components from Taiwan, and those goods arrived at the Chittagong port in due time by two different ships. It appears that the plaintiff –Bank thereafter issued series of letters of addressing the defendants on various dates ranging from 1976 to 1987, which are in Exhibits1,2 and 5 series. Those documents show that the Pubali Bank requested the defendants to retire the L.C. documents on payment of the dues and receive the imported goods, but the defendants did not. Exhibit- l(Kha), a letter dated 11.9.85 and Exhibit-l(Cha), a letter dated 18.12.76 along with so many other letters in the exhibits show that the Bank requested the defendants time and again to take delivery of the consignment on payment of the bills.It transpires from the Exhibit- l(Ga), a letter dated 6.11.86 that the defendants also made a reply to the some letters of the Bank requesting it to clear the consignment by a letter dated 3.2.77 and keep the goods in the Bank's godown. It appears that they also assured the Bank to receive the goods on payment of the dues positively by 30.6.80, but ultimately they did not. A letter dated 26.1.1986 (Exhibit-S(Gha) page 57 of the P.B.) shows that the defendants also sent reply to the letter of the Bank regarding the subject matter in , disputes. So, it is not an acceptable contention that the defendants were not aware of the arrival of goods and subsequent release of the same by the Bank and after keeping in godown for about 9 years sold the same in public auction without their knowledge. In fact, after keeping the goods in the Bank's godown for a long time, the Bank was ultimately compelled to sell the same on auction. 14. Exhibit-3 series are tender notices published in the daily Ittefaque on 1.6.82 and the particulars of the imported goods for auction
460
Pubali Bank Ltd. Vs. M/S Amin Iqbal Corporation and others, (Khondker Musa Khaled, J.)
sale were also made known to all concern and those were sold to the highest bidder in accordance with law, as the importer did not turn up to receive the goods from the Bank's godown. It is evident that the imported goods arrived in Chittagong Port in the year 1975 and it was disposed of by open public auction in the year 1984 i.e. after about 9 years. It also transpires that the sale proceed of the goods .were duly adjusted in the L.A.M. accounts no. 21 of 1976 and 28 of 1976. Exhibit-4 is the Bank statement of those L.A.M. accounts and it shows that on 30.11.88, the balance in the L.A.M. account no. 21 of 1976 and 28 of 1976 stood at Tk. 8,90,542.50 and 6,86,571/- respectively in total balance amount was Tk. 15,77,113.50 and accordingly, the plaintiff-Bank appears to have instituted the suit for realization. of the said amount along with interest thereon t i l l realisation. 15. The learned Judge of the Court below could not detect any mistake in calculating the balance as shown in statement of the Bank (Exhibit-4). The defendants contested the Money Suit in the Court below, but could not specifically identify any mistake in calculating the balance payable amount, for which, the suit was filed by the Bank. The learned Judge of the Court below appears to have avoided in taking consideration of the pleadings and evidence available in favour of the plaintiff-Bank. If those are considered properly, there is no reason to dismiss the suit. In case, the Money Suit succeeds, the defendants cannot get any compensation in the Other Suit tiled by them. The plaint of the Other Suit no. 2 of 1994 shows that the defendants set up a counter claim of Tk. 57,08,529.17 due to their loss in the business and damages for a period of 15 years. Apparently the nature of claims were baseless and there is hardly any
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foundation in the evidence as well. But unfortunately, the learned Judge of the trial court accepted the contentions of the defendants in an arbitrary manner and decreed their suit in part awarding compensation for on amount of Tk. 15,00,000/-, our considered view is that the defendants' suit for compensation and damages as set up in Other Suit no. 2 of 94 has no merit to succeed. 16. Apart from the merit of the suit, the learned Judge of the Artha Rin Adalat has no jurisdiction to entertain Other Suit no. 2 of 94 and give hearing of the said suit under general law alongwith the Money Suit filed by the financial institution under the special law. It is legally barred and he cannot hold trial of any other suit of the Civil Court unless it is filed by any financial institution for recovery of loan under the Artha Rin Addalat Ain. In this respect we rely upon the case of Sultana Jute Mills Ltd. and othersVs- Agrani Bank and others reported in 14 BLD(AD)-196 wherein it was decided that the Artha Rin Adalat Ain 1990 d oes no t gi v e Art ha Rin A dal at any juri sdi cti on t o adjudicate upon any matter other than that provided in section 5(l) of the said Ain. It has been well settled that the defendants cannot also claim a set-off and make out a case of counter claim in a suit filed under the Artha Rin Adalat Ain, 1990. Under the existing Artha Rin Addalat Ain 2003 section 18 (2) also stands as a clear bar to entertain any suit Or counter cliam against the claim of the financial institution. The relevant subsection 2 section 18 runs as follows: †Kvb FYMÖnxZv, †Kvb Avw_©K cÖwZôv‡bi wei“‡×, GB AvB‡bi Aaxb Av`vj‡Z, mswk−ó FY nB‡Z D™¢‚Z †Kvb welq, †Kvb cÖwZKvi `vex Kwiqv gvgjv `v‡qi Kwi‡Z
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Pubali Bank Ltd. Vs. M/S Amin Iqbal Corporation and others, (Khondker Musa Khaled, J.)
cvwi‡eb bv, Ges FYMÖnxZv-weev`x, ev`x- Avw_©K cÖwZôvb KZ©…K `v‡qiK…Z gvgjv wjwLZ Reve `vwLj Kwiqv, D³ wjwLZ Rev‡e cÖwZMYb (Set-Off) ev cvëv`vex (counter claim) Aš—f³ z© Kwi‡Z cvwi‡eb bv 17. It transpires from the L.C.Rs. that the other suit No. 25 of 1992 was filed before the 2 nd court subordinate judge, Chittagong under the general law and it was not even filed before the Artha Rin Addalat or commercial court. Therefore, the learned Judge of the Artha Rin Adalat, appears to have assumed illegal jurisdiction over the said other suit and held the trial of the said civil suit without having any jurisdiction. 18. Generally if a suit is tried by a Court without having jurisdiction, the same is required to be sent to a competent Court having jurisdiction to hold trial and make disposal of the suit afresh. But in the instant Other Suit no. 2 of 94, we have already considered merit of the suit and seen that when the Money Suit no. 181 of 1988 succeeds, the Other Suit no. 2 of 1994 must fail having no other third course. Since we have reached to such a finding, sending back Other Suit no. 2 of 1994 to the appropriate Civil Court for retrial would be useless and unnecessary time consuming and a mere futile exercise. So, the Other Suit no. 2 of 94 is also going to be dismissed in the appeal. 19. The learned trial Judge appears to have dismissed the Money Suit of the Bank on another ground that it was berred by law of limitation, though no such issue was raised by the parties and framed before trial. However, it is true that the Money Suit was not filed within
461
three years from the date of auction sale of the imported goods in the month of September, 1984. But it appears that subsequently FDR. -money of the defendant 2 was adjusted with the balance and several correspondences were going on to settle up the dispute amicably. Paragraph -11 of the plaint has clearly disclosed cause of action for the Money Suit. It appears that on 5.12.88, the F.D.R.-money belonging to the defendant 2 was at last adjusted with the balance amount. So the matter was not closed before that date. Moreover, last correspondence with the defendant was made on 6.11.88 and as the defendant did not comply with the request to pay the balance amount of money, the plaintiff-Bank had to file the Money Suit on 24.12.88. Therefore, the question of barring the suit by article 57 of the Limitation Act, as found by the trial Court does not arise. It is a wrong finding of the trial Court. As such, we are inclined to hold that the money suit was not barred by the law of limitation. 20. It appears that in money suit No. 181 of 88 the plaintiff-bank also has prayed for interest at the rate of 20% per annum on the principal amount from the date of filing of the suit till realisation. But we are not inclined to impose such an exorbitant rate of interest as claimed by the plaintiff. Keeping consistency with the section 50(2) of the Artha Rin Adalat Ain, 2003, we are inclined to award simple interest at the rate of 12% per annum on the principal amount from the date of filing the suit till realisation subject to maximum payable under section 47 of the Artha Rin Adalat Ain, 2003. It means that the simple interest payable shall not exceed 200% of the original claim. 21. Having due regard to the aforesaid
462
Pubali Bank Ltd. Vs.Vs. M/SThe AminState Iqbal Corporation and Islam others, Talukder, (Khondker Musa Nazir (Md. Nazrul J. Khaled, J.)
observations and findings, we are inclined to hold that the impugned judgment and decree suffers from gross mistake and legal infirmity, and as such, the same is liable to be set aside. Consequently, the impugned analogous judgment passed in the two suits may be reversed. 22. Consequently, the First Appeal succeeds. 23. Court fees paid on the memorandum of the appeal is sufficient. 24. In the result, the First Appeal no. 219 of 1996 is allowed without any order as to costs. The impugned judgment and decree dated 18.5.96 passed analogous in Money Suit no. 181 of 1988 and Other Suit no. 2 of 1994 are set aside. The Money Suit no. 181 of 1988 is decreed on contest with cost. The plaintiff-Pubali Bank is entitled to get Tk. 15,77,1 13.50 from the defendants alongwith simple interest thereon at the rate of 12% per annum from the date of filing the suit till realisation subject to the restriction imposed under section 47 of the Artha Rin Adalat Ain, 2003. The interest amount shall not exceed 200% of the Principal amount in any case. Accordingly, the defendants Are directed to pay the said amount to the plaintiff- Bank within 60(sixty) days from this date, failing which The plaintiff shall be entitled to get the same the same through the court in accordance with law. 25. The Other Suit No. 2 of 1994 is dismissed without any order as to costs. The analogous judgment and decree so far it relates to that suit are hereby set aside. Send down the L.C.Rs. along with a copy of the judgment to the Court below immediately. Ed.
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HIGH COURT DIVISION (Criminal Miscellaneous Jurisdiction) Mr. Moyeenul Islam Chowdhury, J.
} }
And Mr. Md. Nazrul Islam } Talukder, J. Judgment 07.06.2011
Nazir ...Petitioner. Vs. The State ...Opposite party
}
Code of Criminal Procedure (V of 1898) Section 561A Considering the evidence on record, it cannot be said be said that there is no legal evidence against the petitioner and for the insufficiency the petitioner is not entitled to invoke the jurisdiction of section 561A of the Code. Moreso, the petitioner after being enlarged on bail remained absconding till delivery of judgment and he was arrested in connection with another case and then he was shown arrested in the present case. Since the petitioner deliberately avoided the proceeding keeping himself abscondence, he has not approached this court with clean hands, he cannot get any relief under section 561A of the Code. ‌ (19, 21, 24 and 25). Masud and others Vs. State, 3 BLC 107, State Vs. Sarowar Uddin, 5BLC 451, Delwar Hossain Vs. State, 16 BLC(2011) 32 and Md. Harun Bepari Vs. State, 5 MLR (2000) 395, Md. Sayem Islam Vs. State, 13 MLR 155, Aslam Jahangir Vs. State, 20 BLD 426, Pear Ali Vs. State, 7 BLT (HCD) 59 and Ashok Kumar Saha Vs. State, 2 BLT (HCD) 79, Ali Akkas Vs. Enayet Hossain and others, 17 BLD (AD) (1997) 44,and Bangladesh Vs. Tan Khen Hock, 31 DLR (AD) (1979) 69, Sher Ali (Md) and others Vs. The State, 46 DLR (AD) (1994)
Criminal Miscellaneous Case No. 19601 of 2009.
484
Dr. Abdur Rahman Vs. The State and another, (Siddiqur Rahman Miah, J)
HIGH COURT DIVISION (Criminal Miscellaneous Jurisdiction) Mr. Siddiqur Rahman } Dr. Abdur Rahman Miah , J. } ...Petitioner And Vs. Ms. Krishna Debnath, J.
Judgment 26.05.2010
}
}
The State and another ...Opposite Parties
Code of Criminal Procedure (V of 1898) Section 561A Negotiable Instruments Act (XXVI of 1881) Section 138(1) (b) General Clauses Act (X of 1897) Section 27 Non disclosure of the date of receipt of notice under section 138 (1) (b) of Negotiable Instruments Act is a question of fact which will be decided at the time of trail after taking evidence and non disclosure of date of receipt of notice in the petition of complaint and consequently the failure to disclose the cause of action cannot render the proceedings under section 561A, Cr.P.C liable to be quashed. The notice was issued through registered post with acknowledgement due. Hence it can be legally presumed that the notice has been served properly as per section 27 of General Clauses Act. ‌ (23 and 26)
Nizamuddin Mahmood vs. Abdul Hamid Bhuiyan 60 DLR(AD)195, Ali Akkas vs. Enayet Hossain and others 17 BLD (AD) 44, ref. None appears
....For the petitioner.
Mr. Bakir Uddin Bhuiyan ... For respondent No. 1 Mrs. Syed Mizanur Rahman ‌ For opposite party No. 2 Criminal Miscellaneous Case No. 16182 of 2006.
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Judgment Siddiqur Rahman Miah, J: This Rule on an application filed under section 561 A of the Code of criminal Procedure was issued calling upon the opposite parties to show cause as to why the proceedings of Metro. Sessions Case No. 1494 of 2006 arising out of CR Case No. 3247 of 2005 under section 138 of the Negotiable Instruments Act, now pending before Metropolitan Assistant Sessions Judge, 5th court, Dhaka should not be quashed. 2. The prosecution case, in short, is that the complainant is a businessman; that the accused for payment of outstanding money on 02.10.2005 issued a cheque bearing No. 1526509 for an amount of Taka 2,20,000.00 ( Two lac and twenty thousand) to be drawn from an account being Account No. 1425 lying with Janata Bank, Mugdhapara Branch, Dhaka maintained by the accused; that the complainant presented the said cheque for encashment on 03.10.2005 but returned unpaid due to insufficiency of fund and that thereafter the complainant through his engaged Lawyer served a legal notice on 12.10.2005 upon the accused and thereby requested the accused to repay the cheque amount within 15 days but the accused did not pay the said amount of money. Hence the case. 3. The Magistrate examined the complainant on 10.11.2005 and issued summons against the accused-petitioner under Section 138 of the Negotiable Instruments Act, 1881 fixing the next date on 23.01.2006. 4. The accused petitioner appeared and voluntarily surrendered before the Magistrate on 23.01.2006 and prayed for bail. After hearing the Magistrate enlarged accused petitioner on bail on 23.01.2006. Thereafter the case record was transferred to learned
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Dr. Abdur Rahman Vs. The State and another, (Siddiqur Rahman Miah, J)
Metropolitan Sessions Judge, Dhaka by order dated 08.03.2006 for trail. 5. The learned Metropolitan Sessions Judge, Dhaka received the case record and took cognizance against the accused petitioner on 15.06.2006 and transferred the case record to learned Metropolitan Assistant Sessions Judge, 5th Court Dhaka for disposal. 6. Learned Assistant Metropolitan Sessions Judge, 5th Court, Dhaka received the case record on 18.06.2006 and fixed the next date on 22.08.2006 for charge hearing. 7. The petitioner appeared before the learned Assistant Metropolitan Sessions Judge, 5th Court Dhaka on 22.08.2006 and filed an application under Section 265(c) of Code of Criminal procedure praying for discharge on the ground that the petition of complaint does not disclose any cause of action under clause (c) of proviso to Section 138 of the Negotiable Instruments Act 1881 and as such the charge is groundless and therefore the petitioner is entitled to be discharged. 8. After hearing upon both sides, the learned Assistant Metropolitan Sessions Judge, Dhaka rejected the application for discharge by order dated 22.08.2006 and fixed the next date on 03.09.2006 for charge hearing. 9. Being aggrieved by and dissatisfied with the proceedings of the Metropolitan Sessions No. 1494 of 2006 the petitioner moved this application before this court and obtained Rule. 10. Mr. Md. Bakir Uddin Bhuiyan, the learned Advocate for the petitioner submits that there being no assertion in the petition of complaint as to when the notice for payment of money sent by the complainant was actually received by the accused and as such the countdown of 15 days has not yet been begun for a cause of action, the petition of complaint ,
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in the instant case and the proceedings suffer for patent illegality and thus on the face of the petition of complaint even if it is accepted in its entirety, it does not constitute any offence or no offence shall be deemed to have been committed as alleged and as such it would be manifestly unjust to allow. 11. He further submits that under section141 of the Negotiable Instruments act, 1881 it has been provided that no court shall take cognizance of any offence punishable under section138 of the act except on a complaint in writing and such complaint is to be made within one month form the date on which the cause of action arises under clause (c) of proviso to section 138 of the Negotiable Instruments Act, 1881 but in the instant case there is no cause of action and as such the cognizance taken by the learned Metropolitan Sessions Judge , Dhaka is on the face of it is unjust and as such the continuance of the proceedings of the instant case is an abuse of the process of the court and therefore liable to be quashed. 12. Mr. Syed Mizanur Rahman the learned Advocate for the opposite party No.2, on the other hand, submits that the contention of the petitioner is subject to prove; that impugned proceedings is legal and the complainant categorically described the very arising out of cause of action having no ambiguity in it and therefore there is no legal flaws in the impugned proceedings and the learned Assistant Metropolitan Sessions Judge, 5th court, Dhaka on appreciating the said legal aspect rightly framed charge. He further submits that there is no legal ground in the instant Rule by which this court can at all interfere with the impugned proceedings initiated and pending for trial and as such, the
486
Dr. Abdur Rahman Vs. The State and another, (Siddiqur Rahman Miah, J)
Rule is liable to be discharged and stay be vacated. 13. In order to appreciate the contention of the accused petitioner and the submission made by the learned Advocate for the opposite party No.2, let us now see whether the complainant opposite party No.2 has filed the case before the learned Metropolitan Magistrate strictly complying with the provision of law envisaged under section 138 and 141 of the Negotiable Instruments Act and whether the proceedings under section 561A of the Code of Criminal Procedure is liable to be quashed. Now let us see the provision of section 138 of the Negotiable Instruments act which reads as follows: “138. Dishonour of cheque for insufficiency, etc. of funds in the account –(1). Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to dis-honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to (thrice) the amount of the cheque, or with both; Provided that nothing contained in this section shall apply unless(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
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(b) The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and (c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within (fifteen days) of the receipt of the said notice. 14. On a careful analysis of section 138 of the Negotiable Instruments Act, it is seen that its main part creates an offence when a cheque is returned by the bank unpaid for any of the reasons mentioned therein. The significant fact , however, is that the proviso lays down three conditions precedent to the applicability of the above section and, for that matter, creation of such offence and the conditions are: (i) the cheque should have been presented to the bank within six months of its issue or within the period of its validity whichever is earlier; (ii) payee should have made a demand for payment by registered notice after the cheque is returned unpaid; and (iii) that the drawer should have failed to pay the amount within 15 days of the receipt of notice. It is only when all the above three conditions are satisfied that a prosecution can be launched for the offence under section 138. 15. Now let us see the provision of section 141 of the Negotiable Instruments Act which runs as follows: “141. Cognizance of offences– Notwithst-anding any thing contained in the Code of criminal Procedure 1898.
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Dr. Abdur Rahman Vs. The State and another, (Siddiqur Rahman Miah, J)
(a) No court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) Such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138. (C) no court inferior to that of a court of sessions shall try any offence punishable under section 138.” 16. From the plain reading of the above section it is manifest that a competent court can take cognizance of a written complaint of an offence under section 138 if it is made within one month of the date on which the cause of action arises under clause ( c) of the proviso of section 138. (Emphasis supplied). 17. From the above provisions, we find the following three different propositions which have been supported by our apex court. i)
a cheque can be presented for encashment on any number of occasions within the period of its validity and its dishonour on every occasion will give rise to a fresh’ Cause of action’ within the meaning of clause (b) of section 141 of the Negotiable Instruments Act so as to entitle the payee to institute prosecution under section 138 on the basis of the last cause of action;
ii)
A cheque can be presented for encashment on any number of occasions within the period of its validity but there can be only one
487
cause of action under section 141(b) arising from its last dishonour and iii)
Only for the first dishonour and not subsequent dishonours can a prosecution under section 138 be instituted as per section 138 (c) read with section 141(b) envisages only one cause of action in respect of one and the same cheque.
18. Now the point for determination is (1) whether the petitioner filed the case satisfying the provisions of law and (II) whether taking cognizance of the offence in this case is in contravention of law and (III) whether framing of charge and the continuation of the case is legal. 19. On the critical analysis of the facts and circumstances of the case, it appears that the complainant opposite party No. 2, Khalilur Rahman as per proviso (a) of sub-section (1) of section 138 has presented the cheque to the Bank with 6(six) months of its issuance or within the period of its validity. As per proviso (b) of subsection (1) of section 138, the complainant opposite party No.2 also made a demand for the payment of the said amount by giving registered notice, in writing, to the accused petitioner within 15 days after the cheque is returned unpaid. Thus the complainant opposite party No.2 has fulfilled two conditions out of above mentioned 3(three) conditions. The third condition is whether he has filed the case within 15(fifteen) days as per proviso (c) sub-section (1) of section 138 of Negotiable Instruments Act. 20. Since the date of receipt of notice was not mentioned in the complaint petition and thus the cause of action of this case cannot be ascertained.
488
Dr. Abdur Rahman Vs. The State and another, (Siddiqur Rahman Miah, J)
21. On perusal of the record, it appears that the notice for demand of money was issued on 12.10.2005. It is alleged that said notice was not received by the accused petitioner. But the accused petitioner alleged that he did not receive the notice. The case of the opposite party No.2 is that the legal notice under section 138 (1) (b) of the Negotiable Instruments act was issued on 12.10.2005 through registered post with AD; that it is presumed as per the provision of law that the said notice has been duly served upon the accused petitioner but the accused petitioner did not turn up to clear up the dues after getting notice as per the provision of law. 22. The only contention of the accused petitioner is that no notice was served upon him and thus no cause of action arose in the instant case and as such the proceedings of the instant case is liable to be quashed. 23. Since the notice was issued through registered post with AD and thus it is deemed to be served on and received by the accused petitioner, So it can be legally presumed that the notice has been served properly as per article 17 of General Clauses Act. The accused petitioner no where in his entire petition mentioned that he did not receive the legal notice. There is nothing in the four corners of section 138 or of section 141 of the Negotiable Instruments Act that for non mentioning of receiving date of the legal notice in the petition of complaint, the case will render illegal when all other ingredients in filling the case is very much available in the materials on record. We find support of above view in the case of Nizamuddin Mahmood vs. Abdul Hamid Bhuiyan reported in 60 DLR(AD)195. 24. More so the very correctness of serving legal notice under section 138 (1)(B) of the act by the opposite party No.2 and receiving so by the drawer of the cheque can only be adjudicated in the trial and as such the
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proceeding can not be quashed for factual aspect of a case. Whatever the defence case might be, that cannot be the basis of quashing the proceedings initiated against the petitioner when it is proved that the alleged cheque has been issued by him and it was bounced from his Bank. 25. In this connection we may profitably refers the decision in the case of Nizamuddin Mahmood vs. Abdul Hamid Bhuiyan and another reported in 60 DLR (AD) 195 wherein their Lordships held “Since the date of receipt is a question of fact to be ascertained at the time of trial, non-disclosure of such fact in the complaint petition cannot render the proceeding liable to be quashed to the great prejudice of the complainant who is entitled to prove his case on evidence.� 26. In view of the decisions of our apex court, we are of the view that non disclosure of the date of receipt of notice under section 138 (1) (b) of the Negotiable Instruments Act is a question of fact which will be decided at the time of trial after taking evidence and thus nondisclosure of date of receipt of notice and consequently the failure to disclose the cause of action can not render the proceedings under section 561A of the Code of Criminal Procedure liable to be quashed. 27. In this connection we may also profitably refer the decision in the case of Ali Akkas vs. Enayet Hossain and others reported in 17 BLD (AD) 44 wherein their lordship held� the settled principle of law is that to bring a cause within the purview of section 561A of the purpose for quashing a proceedings one following conditions must bee fulfilled. 1. 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;
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The State Vs. Milon alias Md.State Milon others (Syed Md. ZiaulMiah, Karim, Dr. Abdur Rahman Vs. The andand another, (Siddiqur Rahman J) J.)
2. Where the institution and continuation of the proceeding amounts to an abuse of the process of the court; 3.
Where there is a legal bar against the initiation or continuation of the proceeding;
4. 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 entirely, do not constitute the offence alleged; and 5. The allegations against the accused although constituted 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.� 28. In the light of the above decision and considering the facts and circumstances of the case, we are of the view that since there is no legal bar against the initiation and continuation of the proceedings and as such the proceedings do not amount to an abuse of the process of the court. We could safely presumed that the proceedings shall not be quashed and the accused petitioner is not therefore entitled to get relief as prayed for and as such the Rule should be discharged. 29. In the result, the Rule is discharged and the proceedings in Metro. Sessions Case No. 1494 of 2006 under section 138 of the Negotiable Instruments Act which is now pending in the court of Metropolitan Assistant Sessions, Judge, 5th court, Dhaka should not be quashed. The order of stay granted earlier shall stand vacated. Let a copy of this judgment be sent to the learned Metropolitan Assistant Sessions Judge, 5th Court, Dhaka for compliance. Ed.
489
HIGH COURT DIVISION (Criminal Appellate Jurisdiction) Mr. Syed Md. Ziaul Karim, J. And Mr. A.N.M. Bashir Ullah, J. Judgment 05-01-2012 and 08-01-2012
} The State Vs. } Milon alias Md. } Milon, and others ...CondemnedPrisoners. } Milon alias Md. } Milon and others ...Convict-Appellants. } Vs. } The State ...Respondent }
Code of Criminal Procedure (V of 1898) Sections 164, 342 and 364 Evidence Act (I of 1872) Sections 3 and 137 The confessing accused Milon at the time of recording confession did not raise any objection regarding its truth and voluntariness but at the time of examination under section 342 of the Code, he offered an explanation to the effect that the confession was extracted under coercion and torture and he made out a new story of torture, which are inconsistent with that of the evidence on record and no attention was drawn to the I. O. at the time of cross-examining him which was left out of consideration. ... (61 and 62)
Code of Criminal Procedure (V of 1898) Section 164 Evidence Act (I of 1872) Section 24 The confessing accused implicated himself in commission of rape and murdering and his confession was proved not only as voluntary and true but also inculpatory in nature and as Death Reference No. 43 of 2006 with Criminal Appeal No. 2185 of 2006 with Jail Appeal Nos. 407 of 2006 to 412 of 2006.
452
Agrani Bank Ltd. Vs. Kazi Mustafizur Rahman, (Sheikh Abdul Awal, J.)
HIGH COURT DIVISION (Civil Revisional Jurisdiction) } Agrani Bank Ltd.
Mr. Sheikh Abdul Awal, J.
….Petitioner
}
Judgment 16.02.2012
Vs.
} }
Kazi Mustafizur Rahman. …Opposite Party
Code of Civil Procedrue (V of 1908) Order VII, rule Order IX, rule 13 Artha Rin Adalat Act (IV of 1990) Sections 6 and 7 It appears that under the Ain of 1990, if any party is aggrieved by the ex-parte decree of the Artha Rin Adalat two remedies are available to judgment debtor or aggrieved party. One, a petition under Order IX, rule 13 of the Code of Civil Procedure and the other, an appeal before the High Court Division. In both the cases deposit of half of the decreetal amount is a positive requirement and mandate. The plaintiff-opposite party without taking the remedies available to him challenged the rightness of the judgment and decree in a suit before a Court of ordinary civil jurisdiction. The suit, thus is clearly barred by law justifying rejection of plaint. … (14 and 17) 49 DLR(AD)-135, 16 MLR-97, 12 MLR-73, 9 MLR-17, 18 BLD (AD)-268, 56 DLR-695, 8 MLR(AD)-01, 49 DLR (AD) 135, ref. Mr. Md. Kamruzzaman, Advocate …For the Petitioner No one appears
… For the opposite party. Judgment
Sheikh Abdul Awal, J. This Rule was issued calling upon the opposite party to show cause as to why the Civil Revision No. 07 of 1996.
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order dated 28.9.95 passed by the learned Subordinate Judge, 1st Court, Barisal in Title Suit No. 30 of 1995 should not be set aside and / or such other or further order or orders passed as to this Court may seem fit and proper. 2. Facts necessary for disposal of the Rule are that the opposite party as sole plaintiff brought the aforesaid suit being Title Suit No. 30 of 1995 in the Court of learned Subordinate Judge, 1st Court, Barisal impleading the petitioner-Agrani Bank as defendant praying a decree declaring the exparte decree passed in Money Suit No. 3 of 1993 by the Artha Rin Adalat, Barisal is illegal, collusive and not binding upon the plaintiff. 3. The defendant Agrani Bank entered appearance in the Suit and filed an application under Order VII, Rule 11 read with section 151 of the Code of Civil Procedure for rejection of the plaint stating that: “AbÑGZ Bc¡m−al ¢X¢H²l ¢hl¦−Ü Aœ¡c¡m−al ®L¡e ®j¡LŸj¡ BCeax lre£u e−qz AbÑGZ Bc¡ma BCe, 1990 à¡l¡ Eq¡ pÇf§eÑ h¡¢la h−Vz HaàÉa£a ®j¡LŸj¡ a¡j¡¢c ®c¡−o J h¡¢la h−Vz” 4. The learned Subordinate Judge, 1st Court, Barisal by the impugned Order No. 12 dated 28.9.1995 rejected the application holding that if the plaintiff’s allegation of non service of summon is correct, his remedy of a separate suit is not barred. 5. Being aggrieved thereby the present defendant-petitioner-Agrani Bank moved this Court and obtained the present Rule. 6. Mr. Md. Kamruzzaman, the learned Advocate appearing for the petitioner Agrani Bank at the very outset upon referring a number of decisions reported in 49 DLR(AD)-135, 16 MLR-97, 12 MLR-73, 9 MLR-17, 18 BLD (AD)-268, 56 DLR-695 and 8 MLR(AD)-01 submits that the proposition of law is by now well settled that no separate suit lies against the
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Agrani Bank Ltd. Vs. Kazi Mustafizur Rahman, (Sheikh Abdul Awal, J.)
judgment and decree or order passed by the Artha Rin Adalat.
(c)
where the relief claimed is properly valued but the plaint is written upon insufficient stamp and the plaintiff on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so :
(d)
where the suit appears from the statement in the plaint to be barred by any law.
7. Drawing my attention to the provision of section 6 of the Artha Rin Adalat Ain, 1990, Mr. Md. Kamruzzaman submits that the impugned order does not reflect the true position of law and as such the same is liable to be set-aside. 8. No one has entered appearance to oppose the Rule. 9. I have considered the submission of the learned Advocate and perused the Revisional application along with other materials on record. It is found that the plaintiff-opposite party filed Title Suit No.30 of 1995 impleading the petitioner-Agrani Bank for declaration that the exparte decree passed in Money Suit No. 3 of 1993 is collusive, illegal, without jurisdiction and not binding upon the plaintiff. 10. Now, the only question calls for consideration in this Rule whether any separate suit lies against the judgment and decree passed by the Artha Rin Adalat. In order to resolve this point certain provisions of law are required to be referred to for having a better view of the dispute in question. 11. In this connection, I feel it proper to quote Order 7 Rule 11 of the Code of Civil Procedure at the outset which reads as follows :12. The Plaint shall be rejected in the following cases:(a)
where it does not disclose a cause of action.
(b)
where the relief claimed is undervalued , and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so:
453
(Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp paper shall not exceed twenty one days ). 13. From a plain reading of the aforesaid provision of law, I find that Clause (d) of Rule 11 of Order 7 is relevant for our purpose. Since, the defendant claims that the said suit is barred under the specific provision of law as contemplated under section 6 of Artha Rin Adalat Ain,1990. Therefore, I also feel it necessary to quote the aforesaid provisions of law. Section 6 of the Artha Rin Adalat Ain, 1990 reads as follows :“6| A_© FY Av`vj‡Zi wm×všÍ PyovšÍ| (1) aviv 7 Gi weavb mv‡c‡¶, A_© FY Av`vj‡Zi Kvh©¨aviv, Av‡`k, ivq I wWµx m¤c‡K© †Kvb Av`vjZ ev Ab¨ †Kvb KZ©„c‡¶i wbKU cÖkœ DÌvcb Kiv hvB‡e bv|Ô (2) DcÐaviv (1) G hvnv wKQyB _vKzK bv †Kb, †Kvb A_© FY Av`vjZ KZ©„K weev`xi wei“‡× cÖ`Ë †Kvb GKZidv wWµx i` Kivi Rb¨ weev`x Code of Civil Procedure, 1908 (Act V of 1903) Gi Order IX Gi rule 13 Gi weavb †gvZv‡eK Av`vj‡Z `iLv¯Í Kwi‡Z Pvwn‡j Zvnv‡K Zvnvi wei“‡× wWµxK…Z A‡_©i AšÍZt A‡a©K A_© ev Dnvi mgcwigvb A‡_©i e¨vsK RvgvbZ `iLv‡¯Íi mwnZ Av`vj‡Z Rgv Kwi‡Z nB‡e, Ges D³i“c Rgv Kiv bv nB‡j Zvnvi `iLv¯Í Mªnb †hvM¨ nB‡e bv|”
454
Agrani Bank Ltd. Vs. Kazi Mustafizur Rahman, (Sheikh Abdul Awal, J.)
14. From a plain reading of the above quoted provisions of the Artha Rin Adalat Ain, 1990, it appears that under the Ain of 1990, if any party is aggrieved by the ex-parte decree of the Artha Rin Adalat two remedies are available to judgment debtor or aggrieved party. One, a petition under Order IX, rule 13 of the Code of Civil Procedure and the other, an appeal before the High Court Division. In both the cases deposit of half of the decreetal amount is a positive requirement and mandate. 15. In this connection I must quote a passage from a case of Nur Islam (Md) Vs Agroni Bank reported in 49 DLR (AD) 135 for having a better view in the dispute in question which reads as follows: Mr. AKM Nurun Nabi Khan, learned Advocate appearing for the petitioner, contends that when the petitionerdefendant challenged the exparte decree on the ground of fraud his application under section 151 CPC is quite maintainable. We do not find any substance in this contention, for the Artha Rin Adalat Act specifically provides for only two remedies against an exparte decree. It is either by an application or by an appeal; but in both the cases deposit of 50% of decretal amount is necessary. To avoid this deposit, it appears, the petitioner has sought a short-cut by invoking section 151 CPC which is not applicable in such a situation. The application under section 151 is found to have been rightly dismissed. (The under linings are mine) 16. In the case being M. Tariqullah Sikder Vs. Sonali Bank reported in 56 DLR(2007)695 also provides similar feature to the effect that provision of Section 6 of the Artha Rin Adalat
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Ain 1990 bars instituting of separate suit to set aside exparte decree passed by Artha Rin Adalat. Only available scope for setting aside ex-parte decree passed by Artha Rin Adalat in Artha Rin case is to file miscellaneous case under Order IX rule 13 of the Code of Civil Procedure by deposit of 50% of decreetal amount or in the alternative in the appeal as contemplated under the said Ain. 17. As, I have already noticed that in this case the plaintiff-opposite party without taking the remedies available to him challenged the rightness of the judgment and decree in a suit before a Court of ordinary civil jurisdiction. The suit, thus is clearly barred by law justifying rejection of plaint. 18. For the reasons stated above, I am inclined to hold that the learned Assistant Judge seriously erred in law in passing the impugned order without properly applying his judicial mind into the facts and circumstances of the case and law bearing on the subject and the same has resulted in an error in the impugned decision occasioning failure of justice. 19. In the result, the Rule is made absolute. The impugned order dated 28.9.95 passed by the learned Subordinate Judge, 1st Court, Barisal in Title Suit No. 30 of 1995 refusing to reject plaint stands set-aside. Plaint of Title Suit No. 30 of 1995 of the said Court stands rejected. 20. The order of stay granted earlier by this Court so far it relates to Execution Case No. 19 of 1994 arising out of Money Suit No. 03 of 1993 pending in the 1st Court of learned Subordinate Judge, and Artha Rin Adalat, Barisal stands vacated. The Artha Rin Adalat concerned is directed to proceed with the Money Execution Case No. 19 of 1994 arising out of Money Suit No. 03 of 1993 expeditiously. Ed.
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Zahida Ahmed (Liza) Vs. Syed Noor Uddin Ahmed and another (Syed Mahmud Hossian, J.)
469
years son of Zahida Ahmed (Liza) now detained in the custody of the respondents should not be brought before this Court so that this Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner.
for his speech and language difficulties. He had been cared for and nurtured exclusively by his mother (petitioner), since his birth and had never been parted from her until his removal from her custody by respondent No. 1 on 29.12.2008.
2. The facts leading to the issuance of the Rule, in brief, are:
4. The petitioner is aggrieved by the deceitful removal of the detenu by the respondents from her custody without her consent. As a result, the detenu is being deprived of his right to access to his mother and also to appropriate and specialized healthcare, nutrition and education facilities. In September 2008, the petitioner and respondent No. 1 had a blazing argument after which respondent No. 1 forcibly prevented the petitioner from leaving the house stating that if she were to leave, he would take no responsibility for her or for the detenu child.
The petitioner was given in marriage to respondent No. 1 on 27.2.1998. The petitioner is the mother of the detenu child. She has been residing in London, England for the last 6 years. Currently, she has been enrolled in two years’ diploma course in business management and marketing at London Reading College, London, England. She has also been employed part time as a child care worker at City Literacy Institute. Respondent No. 1 is the father of the detenu. He had been employed in a number of jobs, most recently as a kitchen porter in Park Town Casino, London until his sudden departure from the U.K in December 2008. 3. On 6.11.1998, the detenu Ayon was born to the petitioner and respondent No. 1 and he is now ten years old. He has been living with his parents in London since he was three years old. After arrival in London, the detenu was diagnosed with significant psychological and physical health problems and had been suffering from chronically poor growth and difficulty in eating. He requires regular treatment and care for his condition and has been receiving such specialist treatment and care while living in London. The detenu has been enrolled in the reception class (nursery) at the Holy Trinity St. Sailors Primary School, Camden, London. He had been studying there for the past six years prior to his wrongful removal from the petitioner’s custody. The detenu had been receiving specialized support
5. In October 2008, the petitioner left the house with the detenu and started living in a rented house. By mutual agreement, respondent No. 1 had regular contact with the detenu, speaking to him daily on the telephone every weekend but did not make any payment towards his maintenance including food or clothing except for the fees for a coaching centre attended by the detenu. In November 2008, respondent No. 1 informed the petitioner that he wished to take the detenu child on a five days’ family visit to his relatives in Ireland. Respondent No. 1 also repeatedly assured the petitioner that the child would be returned to her custody within five days. 6. On 31.12.2008, the petitioner came to learn that respondent No. 1 left for Dhaka, Bangladesh on Ettihad Airlines accompanying by Mrs. Rokhsana Chowdhury, aunt of the detenu. On 31.12.2008, the petitioner’s sister telephoned respondent No. 2 who informed her that neither respondent No. 1 nor the child was there and that he did not know their
470
Zahida Ahmed (Liza) Vs. Syed Noor Uddin Ahmed and another (Syed Mahmud Hossian, J.)
whereabouts. On 1.1.2009, respondent No. 1 informed the petitioner over telephone that he is a Bangladeshi and that according to Bangladesh law the child was his and refused to let her to speak to the child. The petitioner made a missing child complaint with the Barnet Police Station, which was recorded as Case No. 08MIS031027. The police thereupon questioned Mr. Mamun Chowdhury, uncle of the detenu, and thereafter arrested Mrs. Rokshana Chowdhury who admitted that she accompanied respondent No. 1 and the detenu child to Bangladesh. The petitioner thereupon filed a petition before the High Court of Justice, Family Division, Principal Registry, in London (England) in respect of the detenu child and recovery of his custody against respondent No. 1 and Mr. Mamun Chowdhury. The petitioner’s Barrister in London on 23.1.2009 contacted the respondents by telephone but they refused to let the child speak to the petitioner. The High Court of Justice, Family Division, in London on 26.1.2009 was pleased to pass an order making the detenu child a ward of the Court and further directing respondent No. 1 to return him to the jurisdiction of England. 7. The petitioner returned to Bangladesh on 12.2.2009 after making all effort to take the detenu from the custody of the respondents but to no avail. Therefore, the petitioner had to file the instant Writ Petition and obtained the Rule Nisi. 8. Respondent Nos. 1 and 2 filed an affidavitin-opposition denying all the material allegations made in the Writ Petition. Their case, in short, is that the detenu was not diagnosed with psychological or mental disability. He had been studying at the school with other students for the last six years. The detenu successfully passed the exams in previous years after competing with the other
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students. After his coming to Bangladesh, the detenu was taken to the doctor who found no psychological or mental disability in the detenu. The detenu is about ten years old, who can form his own opinion. The petitioner was never subjected to torture or oppression. The detenu is a Muslim child who is above seven years of age. According to Muslim law his father (respondent No. 1) is entitled to retain the child in his custody. Moreover, according to section 17 of the Guardian and Wards Act, 1890 the paramount consideration will be the welfare of the minor. Since the petitioner is a lone mother in the U.K. and since she is on student visa there, she can only work limited hours. It would be difficult for her to maintain herself and the child. After attending class and doing the job, she would have a little time left for the child. The detenu child is now with his father who is the legal guardian of the child. The child is now growing up with care of his grandmother, uncle and aunty. So, the welfare of the child will be best protected if he is allowed to remain in the custody of his father. 9. Ms. Sara Hossain, learned Advocate appearing for the petitioner, submits that the detenu was illegally removed from the custody of her mother while he was in London and as such the removal of the detenu from the custody of the petitioner is without lawful authority. She further submits that though the detenu is aged about ten years, he cannot be removed from the custody of her mother without the consent of the petitioner. The learned Advocate lastly submits that the welfare of the child is the paramount consideration and that the petitioner being the mother is entitled to his custody till she remarries. 10. Mr. Md. Ashraf Ali, learned Advocate for respondent Nos. 1 and 2, on the other hand, submits that admittedly the child detenu is aged
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Zahida Ahmed (Liza) Vs. Syed Noor Uddin Ahmed and another (Syed Mahmud Hossian, J.)
about ten years and that according to the Mohammedan law, the father being the legal guardian is entitled to the custody of his son (detenu). He further submits that the mother is a student and that she has been working part time and therefore, it is not possible on her part to safeguard the welfare of the detenu. 11. Admittedly, the detenu was in the custody of the petitioner. It has not been denied in the affidavit-in-opposition that respondent No. 1 did not remove the detenu from the custody of the petitioner and that the detenu was brought to Bangladesh without her consent. From the statement made in Writ Petition, it appears that the petitioner made a missing child complaint with the Barnet Police Station, Camden, London, which was recorded as Case No. 08MIS031027. The detenu was taken from the custody of his mother while he was in U.K. The law of the U.K. does not permit such a removal. In addition, Islamic Sharia law does not have any application in the U.K although Dr. Rowan Williams, the Archbishop of Canterbury, suggested adopting parts of Islamic Sharia law to resolve martial disputes or financial matters of the Muslims living there. But the British Prime Minister Gordon Brown believed that British law should be based on British values. (Internet edition of BBC news dated 7.2.2008). Father is not even the natural guardian in U.K where Children Act, 1989 in section 2(4) provides that the rule of law that father is the natural guardian of the legitimate child is abolished. According to Mohammedan law of hizanat, it is no doubt that father is entitled to the custody of his minor son when he attains the age of seven years. But the law relating to the custody does not permit deceitful removal of the detenu from the custody of his mother while he was in a
471
foreign country where such removal is not at all permissible. The rule of hizanat has not given any unfettered right to the father to remove a minor son aged about 10 years from the custody of his mother at will. By resorting to deceptive means, respondent No. 1 took the temporary custody of detenu from his mother on pretext of going to a family visit to Ireland and then brought the detenu to Bangladesh. By doing so, respondent No. 1 has taken law in his own hand without waiting for adjudication of the custody and welfare of the child in an appropriate forum. 12. Meanwhile, on 1.3.2009 the petitioner filed Family Suit No. 126 of 2009 before the 3rd Court of Additional Assistant Judge, and Family Court, Dhaka praying for the custody of child under section 25(1) of the Guardian of Wards Act, 1890 read with section 5(ka) of the Family Court Ordinance, 1985. It is, of course, true that the question of welfare will be dealt with by the Family Court which will take into account in whose custody the welfare of the child will be best protected. After issuance of the Rule, we directed the learned Advocate for respondent Nos. 1 and 2 for production of the child as it is evident from the order dated 2.3.2009. Accordingly, the detenu was produced on 9.3.2009. Both of us had the occasion to speak to the detenu. We found that the detenu could not speak properly and that he was not looking healthy as well. Sitting here in the writ jurisdiction we cannot decide the welfare of the child but we have observed the physical condition of the child while deciding the question of illegal detention. The Family Court must take into account the physical condition of the child as well as the law involved for deciding the question of custody. The age of the detenu can not be the sole basis for deciding the question of custody. In this
472
Zahida Ahmed (Liza) Vs. Syed Noor Uddin Ahmed and another (Syed Mahmud Hossian, J.)
connection reliance may be made on the case of Md. Abu Baker Siddique Vs. S.M.A Bakar and Others, 38 DLR (AD) 106. The above case arose out of Guardian and Wards Act, 1890 and the boy was above seven years of age. The learned District Judge found that welfare of the boy would best served if he was allowed to live with his mother’s relations in preference to the father. The judgment of the learned District Judge was upheld upto the Appellate Division which, among other findings, held as under: “ Indeed, the principle of Islamic Law (in the instant case, the rule of hizanat or guardianship of a minor child as stated in Hanafi School) has to be regarded, but deviation therefrom would seem permissible as the paramount consideration should be the child’s welfare”. (Emphasis is ours) 13. In this connection we would like to refer to the case of Rumana Afrin Vs. Fakir Ashrafuddin Ahmed and Others (1996) 1 BLC 517 in which this Division held as under: “Thus, the Islamic law of hidnat is that the mother has absolute right against the father over the minor child till she remarries. It is to be noticed that the hadith quoted above does not specifically state that the right of hidnat will cease if she remarries. The hadith indicates that the right of hidnat of the mother then will be at par with that of the father and the case of the mother versus the father is to be decided vis-a-vis the minor’s welfare. 14. In this case Abdul Jalil Vs. Sharon Laily Begum Jalil (1998) 50 DLR (AD) 55 the Appellate Division has held that a Writ Petition at the instance of the mother in the form of habeas corpus is maintainable against wrongful removal of the children by the father from her custody during pendency of the
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Family Suit for guardianship. The Appellate Division has also held: “It is well settled that in matters concerning the custody of the minor children, the paramount consideration is the welfare of the minor and not the legal right of this and that particular party.” 15. The General Assembly of the United Nations adopted the International Convention of the Rights of the Child, 1989. The document is a binding treaty to which 176 nations including Bangladesh became “state parties”. Article 3(1) of the Convention provides “In all actions concerning children, whether undertaken by public or private social welfare institution, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” 16. We do not like to make any comment about the judgments and the convention discussed above. The Family Court will look into the cases referred to above and come to a finding in whose custody the welfare of the detenu will be better protected. In short, the child’s welfare is the supreme consideration, irrespective of the rights and wrongs of the contending parties. 17. But the fact remains that the detenu was illegally removed from the custody of his mother while he was in the U.K. We have already stated that the law of U.K. does not permit such removal of a child from the custody of his mother without her consent. Before adjudication of the Family Suit the detenu must be restored to his earlier custody, that is, in the custody of the petitioner. Therefore, we are of the view that removal of the detenu from the custody of his mother is without lawful authority and that he is being held in the custody of the respondents in an unlawful manner.
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State Vs. Md. Rafique another, (Zubayer Chowdhury, ZahidaThe Ahmed (Liza) Vs. Syed Noor And Uddin Ahmed and anotherRahman (Syed Mahmud Hossian,J.)J.)
18. Any delay in determining the question of custody is likely to prejudice the welfare of the child. Therefore, we are of the view that the Family Court should dispose of the Family Suit within a specified time. Till disposal of the suit, we would like to ensure that the mother shall remain in Bangladesh and she must deposit her passport with the concerned Family Court. 19. In this result, the Rule is made absolute and the detention of the detenu Syed Shafin Ahmed (Ayon), aged about 10 years in the custody of respondents is declared to be unlawful and he is being held in their custody in an unlawful manner. 20. Respondent No. 1 is directed to handover the detenu to the custody of the petitioner by 23.3.2009 in presence of the learned Advocates for both the sides. Before handing over the detenu in the custody of the petitioner, the petitioner shall deposit her passport with the concerned Family Court which shall retain the passport till disposal of the suit. The Family Court is directed to dispose of the Family Suit within one month from the date of receipt of this judgment. The Family Court is also directed not to allow adjournment to either of the parties. During pendency of the suit in the Family Court, the father (respondent No. 1) shall have the right to visit his son at a conveniently agreed time, place and period twice a week. 21. Let a copy of the judgment be communicated to the 3rd Court of Additional Assistant Judge, Family Court, Dhaka by a special messenger of this Court.
473
HIGH COURT DIVISION (Criminal Appellate Jurisdiction) Mr. Mohammad Anwarul Haque, J.
} }
And Mr. Zubayer Rahman Chowdhury, J. Judgment 27.03.2008
}
} }
The State Vs. Md. Rafique and another ...CondemnedPrisoners.
}
Md. Idris Mia ...Appellant
}
Vs.
}
The State ...Respondent
Nari-o-Shishu Nirjatan (Bishesh Bidhan) Ain ( XVIII of 1995) Sections 8 and 12 The ingredients or elements necessary for invoking sections 8 and 12 of the Ain of 1995 are missing in the instant case. There is no evidence on record to show that the victims were transferred to the custody of some other persons nor any documents like passport, airline ticket were recovered showing that there was any intention to send the victim to Pakistan, as alleged by the victims themselves. The statement of the victims made under section 164 of the code of Criminal Procedure, reveal that they are not abducted by the accused persons; rather they went away on their own volition. There is no evidence whatsoever to indicate that they were “bought” or “sold” or “exported” or “imported” or “transferred” for any such illegal or immoral act, as contemplated in section 8 of the Ain of 1995. The preconditions for application of the aforesaid two sections were not fulfilled in the instant case and as such the order of conviction and sentence appears to be without any legal basis.
There is no order as to costs. Ed.
Death Reference No. 128 of 2004 with Criminal Appeal No. 3520 of 2004. .
490
The State Vs. Milon alias Md. Milon and others, (Syed Md. Ziaul Karim, J)
such the Tribunal very rightly convicted and sentenced the accused Milon under section 9 (3) of he Ain of 2000. ....(63 and 64)
Code of Criminal Procedure (V of 1898) Section 164 Evidence Act, (I of 1872) Sections 3 and 24 The accused Rabiul alias Hubul confessed his guilt and complicity in commission of rape and murder of Sumi in presence of PWs. 1 to 8. His statement was also recorded in the cassette in their presence which was proved by P.W.6. The voice recorded in cassette was also proved by the above witnesses. The contents of Judicial confession of accused Milon and statement of accused Rabiul alias Hubul recorded in cassette are identical in respect of complicity of all accused with regards to rape and murder of Sumi. So the evidence of all these PWs regarding commission of offence by accused Rabiul alias Hubul are consistent, uniform and corroborative with each other with all material particulars. Hence the Tribunal rightly convicted the accused Rabiul alias Hubul. … (68)
Evidence Act (I of 1872) Section 30 It is well settled that the confession of an accused is not a substantive piece of evidence against co-accused who did not confess and such evidence alone without any substantive corroborative evidence cannot form basis of conviction of co-accused. There is no doubt that the above four appellants have been implicated in the murder in the confessional statement of two accused, but the said confessional statements cannot be taken into consideration unless there exists independent evidence, direct or circumstantial, to connect the appellants with the murder. There is no direct evidence in this case against them. So such confessions should not be used against them. … (70 and 77)
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Evidence Act (I of 1872) Section 8 Abscondence cannot always be a circumstances which should lead to an inference of guilt of the accused. Sometimes out of fear and self respect and to avoid unnecessary harassment even an innocent person remain absconding for sometime. … (89) Abdur Rouf Mollah Vs. The State 2 LG (2005)AD 105, Samim Vs. The State 27 BLD (AD) 74, A.B.M. Nazmus Sakib Ashik Vs. State 12 BLC (AD) 203, State Vs. Lalu Miah and another 39 DLR (AD) 118, Abu Taher Chowdhury and others Vs. The State 11 BLD (AD)-2, Lutfun Naher Begum Vs. The State 27 DLR (AD)-29, Uddin (Md.) alias Din Islam Vs. The State 13 BLC (AD)81, Abdur Rashid and others Vs. The State 3 BLD 206, Amir Hossain Vs. The State 6 BLD (AD)193, Gouranga Chandra Paul Vs. The State 59 DLR 17, 29 DLR (SC)27, Shajahan Ali (Md.) alias Md. Shahjahan Vs. The State 59 DLR 396, Hazrat Ali and others Vs. The State 44 DLR (AD) 51, The State Vs. Abul Kalam Azad and others 8 BLC 464, Mofazzal Hossain alias Mofa and others Vs. State 58 DLR-524, State Vs. Rafiqullah Khan 7 BLC-480, Ustar Ali Vs. State 3 BLC (AD)53, Lutfurnahar Vs. State 27 DLR (AD)29, Babor Ali Molla Vs. State 44 DLR (AD)10, State Vs. Lalu Mia 39 DLR (AD)117, Amir Hossain Vs. State 37 DLR (AD)179, Joygun Bibi Vs. The State 12 DLR (SC) 156, Bhuboni Sahu Vs. The King, L.R.76 147, Joygun Bibi Vs. The State, (1960) 12 DLR (SC)156, Maqbool Hussain Vs. The State, (1960) 12 DLR (SC) 217, AIR 1949 PC 257+ AIR 1952 SC 159, AIR 1957 SC 381+AIR 1964 AP 548, AIR 1967 , AIR 1952 SC 159+AIR 1964 SC 1184+AIR 1965 Orissa 170, AIR 1964 SC 1184+1977 Crl. LJ 1309, AIR 1956 SC 56+AIR 1968 SC 832, Monsur Ali Vs. The State 13 BLC 196, State Vs. Badsha Molla, 41 DLR 11, State Vs. Mofijuddin 4 BLD-481=10 BLC-93, State Vs. Lalu Mia, 39 DLR (AD)117, State Vs. Sree Ranjit Kumer Promanik, 45 DLR
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The State Vs. Milon alias Md. Milon and others, (Syed Md. Ziaul Karim, J)
660, Ali Vs. Crown 6 DLR (W.P.)52, Rahman Vs. The State of U.P. AIR 1972 (SC)110, Shajahan Vs. The State 46 DLR-575, Mojibur Rahman Vs. The State 13 MLR-88, ref. Mr. M. A. Mannan Mohan, D.A.G. with Mr. Md. Mahbub Ul Alam, A.A.G., Mr. Md. Osman Goni, A.A.G. and Mrs. Delwara Begum, A.A.G. …For the State Mr. S. M. Shahjahan, Advocate, with Mr. Muhammad Rezaul Kabir Khan, Advocate and Mr. Md. Mohinur Rahman, Advocate,
…..For the convict-appellants. Judgment Syed Md. Ziaul Karim, J: This reference under Section 374 of the Code of Criminal Procedure (briefly as the Code) has been made by learned Judge of NariO-Shishu Nirjatan Daman Tribunal no.2, Bogra (briefly as Tribunal), for confirmation of death sentences of condemned-prisoners. 2. By the above appeals the appellants have challenged the legality and propriety of the judgment and order of conviction and sentence dated 18-05-2006 passed by learned Judge of Tribunal in Nari-O-Shishu Case no. 288 of 2004 convicting the appellants under Section 9(3) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 (briefly as Ain 2000) and sentencing each of them to death by hanging and also to pay a fine of Tk.1,00,000/= each. 3. This death reference and all these appeals having arisen out of a common judgment, these have been heard together and are being disposed of by this judgment. 4. The prosecution case put in a nutshell are that on the night following 13-08-2000 victim Shahnaj Akhter Banu alias Sumi (since deceased) daughter of Abdus Sattar (P.W.1)
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was in asleep in her father’s dwelling hut. At about 11:00 p.m. the accused called her out of the house on a pretext to get meet with her paramour Alam. Later on she was raped to death at the hef¡¢al land belonged to father of Abdul Mannan. Later, dumped her body in a pond near the house. Subsequently the body was found floating in the pond and it was brought to its courtyard. The body bore multiple injuries having marks of sexual violence. On 14-08-2000 the incident was informed to her father who was then Station master at Adomdighi gate no.4, over telephone by Md. Belayet Hossain alias Nantu (P.W. 6). He, then rushed to his home and heard the occurrence from his wife Rowshan Ara Begum(P.W.2) to the effect that since 11:00 p.m. victim Sumi was found missing, son Sumon, domestic worker Md. Ashraful (P.W.7), neighbours Rafiqul, and Delbor (P.W.4) unsuccessfully searched her and on the following morning her dead body was found inside the pond by Rafiqul. The accused also took her ornaments. The prosecution was launched by lodging a first information report (briefly as FIR) by Abdus Sattar (P.W.1) as informant which was recorded as Adamdighi Police Station case no. 9 dated 14-08-2000 corresponding to G.R. no. 90 of 2000. 5. During investigation on 02-09-2000 accused Md. Milon was arrested by the Police and on the same day he made confession before the learned Magistrate(Exhbt.4) implicating himself along with five co-accused namely Rabiul alias Hubul, Helal, Aslam, Musaddek and Mannan. Rabiul alias Hubul being arrested on 08-09-2000 made extra judicial confession before the locals implicating himself along with aforesaid persons.
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The State Vs. Milon alias Md. Milon and others, (Syed Md. Ziaul Karim, J)
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6. The Police after investigation submitted charge sheet accusing the appellants under section 9(3) of the Ain 2000.
support of his contentions he refers the case of Abdur Rouf Mollah Vs. The State 2 LG(2005)AD 105 held:
7. Eventually the accused were called upon to answer the charge under Section 9(3) of the Ain 2000 to which the accused on dock pleaded not guilty and claimed to be tried.
“It is now well settled that the confessional statement if it is found to be true and voluntary may form the sole basis of conviction as against the maker even if it is subsequently retracted. In this case the confessional statement was not retracted immediately after making the same. It is only at the time of examination of the condemned prisoner under Section 342 of the Code of Criminal Procedure, he at a belated stage retracted the same and such belated retraction has not made the confessional statement, which is voluntary and true, unworthy of making basis for conviction.”
8. In course of trial the prosecution in all examined thirteen witnesses out of twenty charge sheeted witnesses. The defence examined none. 9. After closure of prosecution case, the accused were examined under Section 342 of the Code, again they repeated their innocence and led no evidence in defence. 10. The defence case as it appears from the trend of cross-examination of the prosecution witnesses are that of innocence and false implication. It was divulged in defence that some unknown assailants kidnapped the victim. Subsequently raped her to death and due to internal feud between the accused and the informant, they were falsely implicated in this case. 11. After trial the accused were convicted as aforesaid. 12. The learned Deputy Attorney General appearing for the State supports the reference and submits that soon after the occurrence arrestee Md. Milon made confession. Later on another co-accused Rabiul was nabbed by his father and locals who then made extra judicial confession. He adds that both the accused implicated themselves aswellas other coaccused. He adds that confession of Milon was true and voluntary, and there are corroborative evidence against all the accused. So the Court below rightly convicted them. He adds that the confession if it is found true and voluntary, may form the sole basis of conviction. In
13. In the case of Samim Vs. The State 27 BLD (AD)74 held: “The appellant went to the place of occurrence and on the request of other accused he asked the night guard of the school to go out and then other accused came and killed the deceased but he did not disclose the same to anybody. Thus it appears that his confessional statement is not wholly exculpatory rather the same is partly exculpatory and partly inculpatory. It is true that he did not directly participate in the murder of the deceased but he participated in the occurrence by asking the night guard of the school to go out and thereby facilitating the murder of the deceased by other accused as narrated by him in his confessional statement. It is on record that the appellant retracted his confession in writing subsequently
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The State Vs. Milon alias Md. Milon and others, (Syed Md. Ziaul Karim, J)
which clearly goes to show that he made the judicial confession. In the opinion of recording Magistrate the confession is true and voluntary. The confessional statement of the appellant is sufficient for his conviction and in addition there is circumstantial evidence also and the High Court Division rightly maintained his conviction and sentence and dismissed the appeal. The High Court Division upon correct assessment of the materials on record arrived at a correct decision and as such there is no cogent reason to interfere with the judgment of the said Division.” 14. The learned Counsel next refers the case of A.B.M. Nazmus Sakib Ashik Vs. State 12 BLC (AD)203 held: “ It appears that the confessional statement can never be treated to be false or not voluntary but the same is statement of fact depicting vividly the occurrence and does not suffer any infirmity so as to render the same illegal due to certain allegation alleged in violation of any provision of law regarding the recording of the same. Moreover, at no point of time during trial the alleged allegation was raised against the confessional statement and the said allegation is an afterthought. The High Court Division has observed that “ On careful scrutiny of the confessional statement of the accused ABM Nazmus Sakib alias Ashik, it appears that the Magistrate put to him six questions including the question that he was not bound to admit his guilt and make confessional statement and if he
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confessed, it would be used as evidence against him. He also gave him more than three hours’ time for reflection of mind and deciding about giving confession independently keeping him in seclusion as provided under law and thereafter started recording confession at about 6-15 PM. The Magistrate appears to have recorded his satisfaction as to the voluntariness and spontaneous nature of the confession of the accused. It appears that the confession has not been vitiated by any illegality on the alleged ground. Through the police apprehended the accused on 18-092000 but he was produced before the Magistrate for recording confession on 19-09-2000 at 12-15 hours and there is nothing on record that he was allegedly produced after more than 30 hours of the apprehension before the Magistrate for recording his confession. The alleged ground is as a measure of afterthought and assumed as not tenable in law.” 15. He lastly submits that the case was proved by evidence and based on materials/evidence on record which calls for no interference by this Court. 16. The learned Counsels appearing for the condemned-prisoners and appellants by their common contention seek to impeach the impugned judgment and order of conviction and sentence on the five fold arguments. 17. Firstly, the confession of Md. Milon was not true and voluntary inasmuch as it was extracted on the point of fear, torture and coercion.
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The State Vs. Milon alias Md. Milon and others, (Syed Md. Ziaul Karim, J)
18. Secondly, the accused and the victim are inter-related so it was impossible for them to commit such offence. 19. Thirdly, the Court below convicted the co-accused on the basis of confession of Md. Milon without any substantive corroboration. 20. Fourthly, the Tribunal most erroneously considered the absconsion of accused Mannan, Musaddek and Aslam an incriminating matter which is not a correct view. 21. In support of their contention they refer the case of State Vs. Lalu Miah and another 39 DLR (AD)118 held: “ Absconsion by itself is not an incriminating matter, for, even an innocent person, if implicated in the ejahar for a serious crime, sometimes absconds to avoid harassment during investigation by the police. But in some cases a person with guilty knowledge also absconds. It is the facts and circumstances of the case which decide whether the absconsion is due to any guilty knowledge or to any intention to avoid police harassment.” 22. Fifthly, the Tribunal without appreciating the evidence on record convicted the accused on suspicion which cannot be sustained in the eye of law. 23. In support of their contention the learned Counsels refer the case of Abu Taher Chowdhury and others Vs. The State 11 BLD(AD)-2 held: “ Suspicion Suspicion, however, strong it might be, is not a substitute for evidence on which to base a conviction. In a gruesome murder when the accused cannot be brought to book for
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lack of evidence beyond reasonable doubt the prosecution, instead of bewailing on an order of acquittal, should take heed to improve its quality of investigation.” 24. The learned Counsel lastly submits that the conviction of non-confessing accused based on the confession of accused Md. Milon without any substantive corroboration which cannot be sustained. 25. In support of their contention they refer the case of Lutfun Naher Begum Vs. The State 27 DLR(AD)-29 held: “ Confession of an accused cannot be treated as substantive evidence against another accused but that it can only be used "to lend assurance to other evidence." 26. In order to appreciate their submissions we have gone through the record and given our anxious consideration to their submissions. 27. Let us now weigh and sift the evidence on record as adduced by the prosecution to prove the charge. P.W.1, Md. Abdus Sattar is the informant and father of the deceased Sumi. He deposed that the occurrence took place on 13-08-2000 at 10:00 p.m. He was then attached to Gate no.4, Adamdighi Rail Station. On 14-08-2000 Nantu informed him over telephone about the murder of his daughter Shahnaj Akter alias Sumi. He rushed to home and found the dead body at the out yard, which bore marks of reddish injuries. He heard the incident from his wife Roushan Ara to the effect that at 11:00 p.m. she wokeup and found the door open but her daughter was found missing. She found a ladder attached to wall. His son Sumon, domestic worker Ashraf, locals Rafiqul, Delbor searched her but to no avail. On the following day Rafiqul found
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The State Vs. Milon alias Md. Milon and others, (Syed Md. Ziaul Karim, J)
the dead body of Sumi inside the pond. On being informed his wife, Delbor, Sadrul and other locals brought the dead body to their out yard, who was strangulated to death and her wearing ornaments were also taken by the accused. His daughter had an affairs with Alam (a Police personnel). He suspected accused Milon and Hubul for committing murder. He lodged the FIR. On 02-09-2000 accused Milon was nabbed by the Police who confessed his guilt and disclosed the names of accused Helal, Aslam, Rabiul, Mannan, Musaddek. They called her out on a pretext to get meet with Alam. Later rapped her to death and dumped her body in a pond. On 08-09-2000 accused Rabiul was nabbed by locals who also confessed his guilt and the same was recorded in a Cassette. The statements of Milon and Rabiul were identical, both of them implicated aforesaid six persons. He proved the FIR as Exhbt. 1 and his signature on it as Exhbt. 1/1. On 14-08-2000 at 6:45 hours some materials were seized and seizure list was prepared. He proved the same as (Mat. Exhbts. i-v). He signed on it. Abdus Sattar and Lukman Hossain were also witnesses of seizure list. 28. In cross-examination he stated that he received information about the incident from his cousin Nantu at 9:00 a.m. He rushed to home at 10:30 a.m. and came to learn about the incident from his wife. He knew about the confession of accused Milon. I.O. knew about the tape record. hef¥¢a land was situated 200 yards south east. Rafiqul and Muklesh resided adjacent to his house. Mubarak, Taslim, Nazrul, Hamid, Mokbul and others were not his relations. He denied the suggestion that some unknown kidnappers murdered the victim and by influencing police confession of Milon was extracted and deposing falsely.
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29. P.W. 2, Most. Roushan Ara mother of deceased Sumi and wife of informant. She deposed that on 13-08-2000 at 10:00 p.m. she along with her inmates were in asleep. At 1112:00 p.m. Victim Sumi was found missing. Her domestic worker, Ashraf, Rafiqul, Baby, Muslem, Delbor and Khoka happened at the scene to whom she disclosed about missing. They unsuccessfully searched her. On the following morning Rafiqul found the dead body of Sumi in the pond. She along with Delbor and Sabdul brought the body to their out yard. She suspected Ranju, Milon, Rabiul alias Hubul. She informed the incident to her husband. On 02-09-2000, Police arrested Milon who himself confessed before the Magistrate and disclosed the complicity of accused Rabiul alias Hubul, Aslam, Helal, Musaddek and Mannan. Deceased Sumi had an affairs with Alam. The accused called victim out with a pretext to get meet with Alam and raped her to death by strangulation. On 08-09-2000 accused Rabiul alias Hubul was arrested who admitted his guilt to the locals which was recorded in Cassette. 30. In cross-examination she stated that she did not see the occurrence but knew about the confession of Milon. She stated to the I.O. about the recovery of scarp of victim, suspected accused and accused Hubul was nabbed by his father. She denied the suggestion that unknown miscreants raped the victim to death. 31. P.W.3 Md. Yar Ali Sarder maternal uncle of informant. He deposed that on 13-08-2000 victim Sumi was raped to death. She found her dead body sustaining multiple injuries with sexual violence at the out yard. He suspected Milon, Rabiul alias Hubul with the occurrence. Accused Milon, confessed before the Magistrate and disclosed the complicity of accused Rabiul, Helal, Aslam, Musaddek and
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The State Vs. Milon alias Md. Milon and others, (Syed Md. Ziaul Karim, J)
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Mannan. Rabiul’s father nabbed him (Robiul) with the help of locals who disclosed about identical events.
victim. He denied the suggestion that due to internal conflict the accused were falsely implicated in this case and deposing falsely.
32. In cross-examination he stated that victim Sumi had an affairs with Alam. Accused Robiul confessed his guilt in presence of him, Satter and other locals. He stated to I.O. about the dead body found beside the pond. He denied the suggestion that accused Robiul was not nabbed by his father and deposing falsely.
38. P.W.6 Md. Belayet Hossain alias Nantu, a local witness. He deposed that on 14-08-2000 he informed the incident to victim’s father. He found the body bore sexual violence. He heard that accused Milon confessed his guilt to the Magistrate, Rabiul alias Hubul was nabbed by his father who confessed his guilt and disclosed the complicity of accused Helal, Musaddek, Aslam, Milon and Mannan about rape and murder of Sumi. The accused Rabiul alias Hubul told that victim Sumi was rapped to death and left her beside the pond. His statement was recorded in a cassette in presence of him(P.W.6). He proved the cassette as Mat. Exhbt.VI. He identified all the accused on dock.
33. P.W.4 Md. Delbor Pramanik a local witness. He deposed that on the night following 13-08-2000 he searched victim Sumi but to no avail. On the following morning Rafiqul found the dead body in the pond. He along with Sabdul and Rafiqul brought the dead body at the courtyard. He had no knowledge how the victim Sumi died. He was declared hostile by the prosecution. 34. In cross-examination by the prosecution he denied the suggestion that he was deposing falsely. 35. In cross-examination by the defence he stated that he did not see the occurrence rather heard about the torture of accused Milon. 36. P.W.5 Md. Ayub Hossain a local witness. He deposed that on 13-08-2000 at 10:00 p.m. the accused raped the victim to death at Samad’s hef¡¢a land and left her body beside the pond. On the following morning he found the dead body at courtyard sustaining marks of sexual violence. On 02-09-2000 accused Milon was nabbed and he made confession about rape and murder of victim. On 08-09-2000 accused Robiul alias Hubul was nabbed. On interrogation he disclosed the complicity of accused Musaddek, Helal, Aslam, Milon and Mannan in presence of him. The statement was recorded. 37. In cross-examination he stated that he stated to I.O. about the sexual violence upon
39. In cross-examination he stated that he did not see the occurrence. He was present at the time of recording the statement of accused Hubul in Cassette. He denied the suggestion that in Cassette the voice was not the voice of Hubul and deposing falsely. 40. P.W.7 Md. Ashraful was the domestic worker of informant. He deposed that on13-082000 at 11:00 PM. Victim Sumi was found missing. He unsuccessfully searched her. On the following morning, Rafiqul found her dead body beside the pond and brought it to courtyard, and heard that victim Sumi was rapped to death at hef¡¢a land by accused Milon, Hubul, Mannan, Aslam, Helal and Musaddek. After arrest accused Hubul also confessed his guilt which was recorded in Cassette in his presence. 41. In cross examination he stated that he did not see the occurrence. He denied the suggestion that he was deposing falsely.
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The State Vs. Milon alias Md. Milon and others, (Syed Md. Ziaul Karim, J)
42. P.W.8 Md. Taslim Uddin colleague of informant. He deposed that on 14-08-2000 at 4:00 p.m. he found many people assembled at the house of informant who were whispering that victim Sumi was rapped to death. Subsequently accused Milon confessed that he (Milon) along with Helal, Hubul, Aslam, Musaddek, Mannan raped Sumi at hef¡¢a field to death leaving her beside the pond. Later Hubul was nabbed by his father who confessed his guilt about rape and murder of victim Sumi which was recorded in a Cassette. 43. In cross-examination he stated that he did not see the occurrence however heard it. He denied the suggestion that he was deposing falsely. 44. P.W.9 Md. Shakawat Hossain a local witness. He deposed that he heard that on 1308-2000 at 10/11 p.m. victim Sumi was rapped to death. On the following morning he found her dead body sustaining multiple marks of sexual violence. Later, accused Milon being arrested confessed before the Magistrate about rape and death of victim. Later Hubul was nabbed by his father who also confessed his guilt, which was recorded in a Cassette. 45. In cross-examination he stated that he did not see the occurrence. He denied the suggestion that he was deposing falsely. 46. P.W.10 Md. Mosharraf Hossain is a local seizure list and inquest witness. He deposed that on 13-08-2000 at 10:00 P.M. the victim Sumi was raped to death and Police seized articles and prepared seizure list (Exhbt.2). The Police held inquest report (Exhbt.3). 47. In cross-examination he stated that he did not see the occurrence but heard it. He denied the suggestion that he was deposing falsely. 48. P.W.11 Muhammad Al Amin, Magistrate, first Class. He deposed that on 02-09-2000 he
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was attached as first Class Magistrate, Bogra. He recorded the confession of accused Milon after complying mandatory provisions of law. He proved the same as Exhbt. 4 and his signatures on it as Exhbts. 4/1 – 4/10. 49. In cross-examination he denied the suggestion that he recorded the confession at the instance of Police. 50. P.W.12 Dr. Nihar Ranjan Majumder, held autopsy upon the cadaver of Shahnaj Akter Banu alias Sumi. He deposed that on 15-082000 he was attached as a lecturer of Bogra Mohammad Ali Medical College, Forensic Department. He held autopsy upon the cadaver of the deceased Shahnaj Akter Sumi and found the following injuries: “ 1. One continuous, transverse ligature mark present below the thyroid cartilage, breadth ½". 2. One bruise on the tip of nose, size ¾" x ½ ". 3. One bruise on the back of left elbow joint, size 1"x ½" . 4. Multiple bruises on the upper and medial aspect of both thighs of various sizes. 5. Multiple serach abrasions on the upper and medial aspect of both thighs and genitalia of various sizes. 6. Extensive bruise in the labia magora and minora of both side and vaginal canal. On detailed dissection extravasations of clotted blood found present at the side of the injuries. The skin, soft tissue, muscles, trachea were found highly congested. Hyoid bone both corner was found fractured. Uterus empty. Stomach contains semi digested food. All the visceras were
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The State Vs. Milon alias Md. Milon and others, (Syed Md. Ziaul Karim, J)
found highly congested . High vaginal swab was taken for pathological examination and sent to the department of pathology. S.Z.M.C. Bogra, as per memo. No. SZMC/PM /200 /265. Dated 16.8.2000. Death in my opinion: Was due to asphyxia as a result of strangulation by ligature following forceful sexual act on her which was ante mortem and homicidal in nature.” 51. He proved the post mortem report as Exhbt.5 and his signature on it as Exhbt.5/1. 52. In cross-examination he denied the suggestion that he prepared a perfunctory report. 53. P.W.13 S.I. Md. Shamsul Alam, investigated the case. He deposed that on 1408-2000 he was attached as S.I. of Adamdighi Police Station. The case was entrusted to him for investigation. He visited the place of occurrence. Prepared sketch map, seized alamats, recorded the statements of the witnesses under Section 161 of the Code. He arrested the accused Milon who made confession before the Magistrate. During investigation he received a post mortem report wherein it was opined that the victim was raped to death by strangulation. After investigation he submitted charge sheet under section 9(3) of the Ain 2000 accusing accused Milon, Aslam, Robiul alias Hubul, Musaddek, Helal and Mannan. 54. In cross-examination he denied the suggestion that after arrest the accused Milon was put to inhuman torture and extracted confession from him. He further denied that he held a perfunctory investigation and submitted charge sheet. 55. These are all of the evidence on record adduced by the prosecution to prove the charge.
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56. It is indisputable that slain Shahnaj Akter Banu Sumi was raped to death. 57. On going to the materials on record it transpires that prosecution in all examined thirteen witnesses out of twenty charge sheeted witnesses. Of whom, P.W.1 is the informant and father of deceased. P.W.2 is the mother of the deceased, P.W. 3 is the maternal uncle of the informant, P.Ws. 4, 5, 6 are the local witnesses, who heard the occurrence. Of the locals, PW-4, was declared hostile. P.W.7 domestic worker of informant. P.W.8 colleague of informant. P.Ws.9 and 10 are the local witnesses, of whom P.W.10 is the witness of seizure list and inquest report. P.W.11 Md. Al Amin, Magistrate, first Class who recorded confession of accused Milon (Exhbt.4), P.W. 12 Dr. Nihar Ranjan Majumder who held autopsy upon the cadaver, P.W. 13 S.I. Md. Shamsul Alam investigated the case and submitted charge sheet. 58. It is true that there is no eye witness to the occurrence but the case is absolutely rests upon the confession of accused Milon (Exhbt.4) and extra-judicial confession of accused Rabiul alias Hubul. The material excerpt of confession of Milon( Exhbt. 4) reads as hereunder:
“B¢j Bfe¡l ¢S‘¡p¡h¡−c S¡e¡¢µR ®k, Na 13-08-2000 a¡¢l−M ¢ch¡Na l¡−a l¢hEm ¢fa¡ q¡h¤, ®qm¡m ¢fa¡ B−mg, Bpm¡j ¢fa¡ eSl²m Jl−g eS¤, j¤p¡−ŸL ¢fa¡ je−pl, j¡æ¡e ¢fa¡ p¡j¡c Hhw B¢j l¡a Ae¤j¡e 11 V¡l ¢c−L Bj¡−cl fË¡ee¡bf¤l NË¡−jl p¡š¡−ll h¡¢sl ®M¡m¡−e k¡Cz ®qm¡m J l¢hEm p¡š¡−ll ®j−u n¡qe¡S ®k O−l b¡−L ®pC O−ll S¡e¡m¡u q¡a ¢c−u ®V¡L¡ j¡−l Hhw n¡qe¡S−L h−m a¡l ®fË¢jL Bmj H−p−Rz n¡qe¡S a¡l Ol ®b−L ®hl qu Hhw jC ¢c−u h¡¢sl fË¡Q£−ll Ef−l E−W Hhw Bpm¡j n¡qe¡S−L q¡a ¢c−u d−l fË¡Q£−ll h¡C−l e¡j¡uz Bj¡−cl p−‰ AÒf ¢LR¤ c§−l Ae¤j¡e 20/25 q¡a k¡Ju¡l f−l n¡qe¡S Bm−jl Lb¡ ¢S−‘p L−l z Bmj f¤L¥l f¡−s h−m ®qm¡m S¡e¡uz Bpm¡j L¡fs ¢c−u n¡qe¡−Sl j¤M ®Q−f d−l Hhw ®qm¡m
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The State Vs. Milon alias Md. Milon and others, (Syed Md. Ziaul Karim, J)
n¡qe¡S−L fy¡S¡−L¡m¡ L−l n¡qe¡S Jl−g p¤¢jl ¢fa¡l h¡¢sl f§hÑ ¢c−L Ah¢Øqa j¡æ¡−el ¢fa¡l hef¡¢al S¢j−a ¢e−u k¡u z B¢j ¢eLVhaÑ£ f¤L¥−ll f¡−l h−p f¡q¡s¡u ¢Rm¡j k¡−a AeÉ ®m¡LSe ®Vl e¡ f¡u zfËb−j ®qm¡m, a¡l fl Bpm¡j, a¡lfl j¤p¡−ŸL, a¡lfl l¢hEm, a¡lfl j¡æ¡e Hhw phÑ−n−o B¢j n¡qe¡S Jl−g p¤¢j−L doÑZ L¢lz doÑ−el pju n¡qe¡S h¡d¡ ®cu z n¡qe¡−Sl q¡a f¡ ®S¡l L−l d−l ®l−M Hhw j¤−M L¡fs ®Q−f d−l doÑZ Ll¡ quz doÑ−el f−l Bpm¡j J ®qm¡m n¡qe¡−Sl Jse¡ ¢c−u JM¡−eC n¡qe¡−Sl Nm¡u gy¡p m¡N¡u Nm¡u ®fy¢Q−u j¡l¡l pju j¡eÓÀ¡e n¡qe¡−Sl f¡ J l¢hEm q¡a d−l ¢Rm z j¤p¡−ŸL Bj¡−L HC OVe¡ fËL¡n Ll−a ¢e−od L−l z ®qm¡m Bj¡−L h−m ®k HC OVe¡ g¡p Ll−m ®a¡−L j¡lh z ®qm¡m, Bpm¡j J l¢hEm HC ¢ae Se n¡qe¡−Sl m¡n f¤L−¥ ll f§hÑ f¡−s ¢e−u B−p q¡a ¢c−u a¥−m d−l z n¡qe¡−Sl m¡n a¡l¡ f¤L¥−ll f§hÑ f¡−s l¡−M f¡¢e−a, j¡b¡¢Vl ¢LR¤ Awn f¡¢el Ef−l f¤L−¥ ll f¡−s j¡¢V−a ¢Rm z Bjl¡ ph¡C Q−m ®Nm¡j z B¢j h¡¢s−a ®Nm¡j z fl¢ce ¢h−L−m B¢j ¢hl¡jf¤−l k¡C z 59. We find that the occurrence took place on 13-08-2000 and accused Milon was arrested on 02-09-2000 and on the same day his confession was recorded. 60. P.W.11 Md. Al Amin, Magistrate, first Class, recorded the confession of accused Milon (Exhbt. 4) after complying all legal formalities as laid down in Section 364 of the Code. He was cross-examined by the defence but nothing could be elucidated to shake its credibility in any manner whatsoever. 61. It is pertinent to point out that at the time of recording confession by P.W.11 accused Milon did not raise any objection regarding its truth and voluntariness but later on, at the time of examination under section 342 of the Code, he offered an explanation to the effect that the confession was extracted under coercion and torture. The relevant excerpt of the said statement reads as hereunder:
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“ −Sm¡ h…s¡l e¡l£ J ¢nö ¢ekÑ¡ae cje ¢houL Bc¡ma ew -2 −j¡LŸj¡ ew -288/04 (e¡l£ J ¢nö) l¡ø --------------------------------- h¡c£ -he¡j−j¡x ¢jme --------------------------Bp¡j£ ¢houx ®g±Sc¡l£ L¡kÑÉ ¢h¢d fl£r¡L¡−m
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500
The State Vs. Milon alias Md. Milon and others, (Syed Md. Ziaul Karim, J)
a¡q¡l ¢LR¤C q−h e¡ j−jÑ fË−m¡ie ¢c−a b¡−Lz h¡c£ Hhw f¤¢mn HC i¡−h Bp¡j£−L h¢m−a b¡−L z Bp¡j£l Ef−l Aj¡e¤¢pL ¢ekÑ¡a−el g−m Bp¡j£ a¡q¡l p|Å¡i¡¢hL ‘¡e h¤¢Ü ®m¡f f¡u Hhw ®p a¡q¡l i¡mj¾c Ae¤d¡he Ll¡l rja¡ nvivBqv ®g−m Hhw f¤¢m−nl ¢eLV Hhw jÉ¡¢S−ø|ÊV p¡−qhl ¢eLV ®p ¢L h¢mu¡−R a¡q¡ a¡q¡l pÈlZ e¡C z fËL«af−r HC Bp¡j£l ü£L¡l E¢J² ®üQR¡ fË−e¡¢ca ¢Rm e¡ Hhw HC dl−el ®L¡e Lb¡C ®p −L¡b¡J h−m e¡z ®p Aœ qaÉ¡L¡ä ¢Lwh¡ do®ÑZl p¡−b S¢sa ¢Rm e¡ z h¡c£l LeÉ¡−L qaÉ¡ L¢lu¡−R a¡q¡ ®p ¢LR¤C S¡−e e¡ z HC Bp¡j£ ¢e−S−L pÇf§eÑ l²−f ¢e−cÑ¡o c¡h£ L−l Ef−l¡J² hJ²hÉ fËc¡e L¢lm z paÉf¡W HC clM¡−Øal k¡ha£u ¢hhlZ paÉ S¡¢eu¡ ¢eS e¡j ü¡rl L¢lm¡j z
Bj¡l
¢jme z ” 62. We have gone through the above contents. It appears to us that he made out a new story of torture, which are inconsistent with that of the evidence on record and attention to those facts were not drawn to the investigating officer(P.W.13) at the time of cross-examining him who earlier arrested him and produced before the Magistrate for recording confession. So the same should be left out of consideration. 63. It further appears to us that above confessing accused implicated himself in commission of rape and murdering. The materials on record shows that his confession was shown as voluntary and inculpatory in nature. So it is well established that confessional statement if found inculpatory in nature and also true and voluntary it can be used against its maker and conviction can solely be based on it without any further corroborative evidence. 64. In the instant case the confession made by accused Milon (Exhbt.4) was not only
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inculpatory in nature, but also true and voluntary and as such the Tribunal very rightly based solely on the confession and correctly convicted and sentenced the above accused by the impugned judgment and order, having duly found him guilty for the offence committed under Section 9(3) of the Ain 2000. 65. In the case of Islam Uddin (Md.) alias Din Islam Vs. The State 13 BLC(AD)81 held: “It is now settle principle of law that Judicial confession if it is found to be true and voluntary can form the sole basis of conviction as against the maker of the same. The High Court Division has rightly found the judicial confession of the condemned-prisoner true and voluntary and considering the same, the extra judicial confession and, circumstances of the case, found the condemned-prisoner guilty and accordingly imposed the sentence of death upon him. ” 66. Similar views were taken in the cases of Abdur Rashid and others Vs. The State 3 BLD 206, Amir Hossain Vs. The State 6 BLD(AD)193, Gouranga Chandra Paul Vs. The State 59 DLR 17, 29 DLR(SC)27, Shajahan Ali (Md.) alias Md. Shahjahan Vs. The State 59 DLR 396, Hazrat Ali and others Vs. The State 44 DLR(AD) 51, The State Vs. Abul Kalam Azad and others 8 BLC 464. Therefore we hold that the Court below rightly convicted the condemned prisoner Md. Milon after considering the evidence on record. 67. We should bear in mind, credibility of testimony oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. When dealing with the serious question of guilt or innocence of persons charged with crime, the following principles should be taken into consideration.
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The State Vs. Milon alias Md. Milon and others, (Syed Md. Ziaul Karim, J)
a) The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecutor. b) The evidence must be such asto exclude to a moral certainty every reasonable doubt of the guilt of the accused. c) In matters of doubt it is safer to acquit than to condemn, for it is better that several guilty persons should escape than that one innocent person suffer. d) There must be clear and unequivocal proof of the corpus delicit. e) The hypothesis of delinquency should be consistent with all the facts proved. Inspite of the presumption of truth attached to oral evidence under oath if the Court is not satisfied, the evidence inspite of oath is of no avail. 68. It further appears to us that accused Milon in his Judicial confession (Exhbt.4) disclosed the complicity of accused Rafibul alias Hubul along with other accused particularly in respect of direct participation of commission of rape and murder. Accused Rabiul alias Hubul was arrested on 08-09-2000 with the help of his father and locals. Later he confessed his guilt and complicity of above co-accused in commission of rape and murder of deceased Sumi in presence of PWs.1-8. His statements was also recorded in the cassette in their presence which was proved by P.W.6 as Mat. Exhbt. VI. The voice recorded in cassette was also proved by the above witnesses. The contents of Judicial confession of accused Milon (Exhbt.4) and statement of accused Rabiul alias Hubul recorded in cassette (Mat. Exhbt. VI) are identical in respect of complicity of all accused with regards to rape and murder of deceased Sumi. So the evidence
501
of all these PWs. regarding the commission of offence by accused Rabiul alias Hubul are consistent uniform and corroborative with each other with all material particulars. There is absolutely no reason to disbelieve the consistent and corroborative evidence of those competent witnesses having no reason whatsoever to depose falsely against him. The defence extensively cross-examined them but nothing could be elicited to shake their credibility in any manner whatsoever. So the same are invulnerable to the credibility. Therefore, considering the evidence on record and substantive corroborative evidence, the Tribunal rightly convicted the accused Rabiul alias Hubul. 69. It appears to us that there is absolutely no evidence against other four accused namely Helal, Aslam, Musaddek, and Mannan alias A. Mannan, save and except their names were disclosed by other two co-accused, viz Milon and Rabiul alias Hubul. We also find that there is no substantive corroboration with the Judicial and extra-Judicial confessions of coaccused Milon and Rabiul alias Hubul. So such confessions should not be used against them. 70. It is well settled that the confession of an accused is not a substantive piece of evidence against co-accused who did not confess and such evidence alone without any substantive corroborative evidence cannot form basis of conviction of co-accused. With this regard reliance is being placed in this case of Mofazzal Hossain alias Mofa and others Vs. State 58 DLR-524. This view receives support in the cases of State Vs. Rafiqullah Khan 7 BLC-480, Ustar Ali Vs. State 3 BLC (AD)53, Lutfurnahar Vs. State 27 DLR(AD)29, Babor Ali Molla Vs. State 44 DLR(AD)10, State Vs. Lalu Mia 39 DLR(AD)117, Amir Hossain Vs.
502
The State Vs. Milon alias Md. Milon and others, (Syed Md. Ziaul Karim, J)
State 37 DLR(AD)179, Joygun Bibi Vs. The State 12 DLR(SC) 156.
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72. The explanation given under the section includes within the term “ offence” used in the section, the abetment or attempt to commit the offence. The language of the section does not render the confession of a co-accused as evidence within the definition of section 3 of the Evidence Act. It simply says that the Court may “take into consideration such confession”. In the case of Bhuboni Sahu Vs. The King, reported in L.R.76 Indian Appeals page 147, the Privy Council stated as follows:
whether it can be used to fill in missing gaps. The questions were considered by the Supreme Court of India in the case of Kashmira Singh Vs. State of Madhya Pradesh, reported in 1952 S.C.R.(India) 526. After referring approvingly to the observations made by Sir Lawrence Jenkins in the case of Emperor Vs. Lalit Mohan Chockerbutty, reported in (1911)I.L.R.38 Calcutta, 559 at 588 where it was said that such a confession can only be used to “ led assurance to other evidence against a co-accused” and to the observation of Reilly, J. in re Periyaswami Moopan reported in (1931) I.L.R. 54 Madras, 75 at 77 that “where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in section 30 may be thrown into the scale as an additional reason for believing that evidence”, the Supreme Court of India held as follows:
“But a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of “evidence” contained in section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case; it can be put into the scale and weighed with the other evidence.”
“The proper way to approach a case of this kind is first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise when the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.”
73. In view of the observation above, the questions arose in what way can a confession be used in support of other evidence and
74. We may as well refer to the views expressed by the Supreme Court of Pakistan is two cases. In the case of Joygun Bibi Vs. The
71. Therefore we hold that the Tribunal without considering the settled principle of law and the materials and evidence on record most erroneously convicted them which cannot be sustained.
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The State Vs. Milon alias Md. Milon and others, (Syed Md. Ziaul Karim, J)
State, reported in (1960) 12 DLR(SC)156 it was held that the High Court was not justified in discarding the confession of co-accused Abdul Majid, in connection with the question of the guilt of the appellant Joygun Bibi. It was found that confession of Abdul Majid was by no means the only material against Joygun Bibi but that there was other evidence which, along with the confession of Abdul Majid, pointed to her guilt. 75. In the case of Maqbool Hussain Vs. The State, reported in (1960) 12 DLR (SC) 217 the Supreme Court of Pakistan made the following observations regarding the use of a confession under Section 30 of the Evidence Act“The language of the section is very guarded and lends no warrant to the inference that such a statement made by a co-accused could be treated as substantive evidence against the other person sufficient to sustain his conviction. It is well settled that there ought to be other evidence, whether direct or circumstantial, linking such a person with the crime. Before a confession made by a co-accused could be adverted to, in adjudging the guilt of that person.” 76. The upshot of the discussions above is that confession of an accused cannot be treated as substantive evidence against another accused but that it can only be used “ to lend assurance to other evidence.” 77. In the instant case, there is no doubt that the above four appellants have been implicated in the murder in the confessional statement of two accused, but the said confessional statements cannot be taken into consideration unless there exists independent evidence, direct or circumstantial, to connect the appellants with the murder. There is no direct evidence in
503
this case against them. So such confessions should not be used against them. 78. In Indian Jurisdiction we find that while dealing with a case as regards the confession of co-accused affecting himself and some other persons who were being tried jointly with him for the same offence, their Lordships of the Supreme Court of India have laid down the law as follows: “ In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the Court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the Court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right, AIR 1964 SC 1184. In a case it has been observed as follows: “In dealing with a case against an accused person, the Court can not start with the confession of a co-accused person; it must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in section 30, AIR 1949 PC 257+ AIR 1952 SC 159.
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The State Vs. Milon alias Md. Milon and others, (Syed Md. Ziaul Karim, J)
79. Under section 30, Evidence Act, confession of a co-accused can only be taken into consideration but is not in itself substantive evidence. AIR 1957 SC 381+AIR 1964 AP 548. 80. Where such statement is exculpatory it cannot be used against another accused in support of his conviction. It would be dangerous to do so. AIR 1967. Goa 31 at p.25. 81. It has been laid down that confessions of co-accused are not evidence as defined in section 3 and no conviction can be founded thereon. But, if there was other evidence on which a conviction be based, they can be referred to as lending assurance to that conclusion and for fortifying it. AIR 1956 SC 56. 82. The law is well-settled that the confession of a co-accused is not substantive evidence in the sense that conviction on that alone must stand and section 30 has merely given the Court a discretion to call it in aid inappropriate case. It can be used only for lending assurance and is to be merely an element in considering the evidence in the case. If there is no other evidence or if the other evidence in the case is insufficient to establish the case against the accused, the confession cannot betaken into consideration against the co-accused. It cannot be called in aid to supplement evidence otherwise insufficient and in no case can it be used to fill up gaps in the prosecution evidence. AIR 1957 A.P. 758 + AIR 1952 SC 139+AIR 1956 SC 56+AIR 1957 Orissa 172. 83. The confession of a co-accused person can be pressed into service only when the Court is inclined to accept other evidence and feels the necessity of seeking for an assurance
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in support of its conclusion deducible from the said evidence. AIR 1952 SC 159+air 1964 SC 1184+AIR1965 Orissa 170. 84. A confession can only be used to “lend assurance to other evidence against a coaccused AIR 1966 Pat. 448. 85. Their Lordships held that one of the conditions in section 30 of the Evidence Act is that the confession must implicate the maker substantially to the same extent as the other accused against whom it is sought to be taken into consideration. Where he was really trying to throw the main blame on the other accused and make out that he was an unwilling spectator to the crime committed by the other accused, the confession cannot be used at all against the other accused. But because there was differences between his confession and the confessional statement of the other accused, the confessional statement cannot be condemned in limini. AIR 1957 SC 216+(1966) 142 Cut LT 1140. 86. The confessional statement made by one accused could only be taken into consideration against other co-accused if there is other acceptable evidence against the other coaccused for the purpose of lending further assurance which the Court may need. Hence in the absence of any other evidence in this case the confessional statement made by any one of the appellants cannot be used against the other appellants AIR 1964 SC 1184+1977 Crl.LJ 1309. 87. The confessions of co-accused are not evidence but if there is other evidence on which a conviction can be based, they can be referred to as lending some assurance to the verdict. AIR 1956 SC 56+AIR 1968 SC 832.
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The State Vs. Milon alias Md. Milon and others, (Syed Md. Ziaul Karim, J)
88. The Tribunal convicted those accused considering their absconsion for certain period of time, and the prosecution also tried to make nexus between the absconsion and the crime of murder. 89. According to the submissions from prosecution and observations made by the Tribunal, it indicate that some accused remained absconding from the place of occurrence for certain period, which is a circumstances leading to the inference of guilt. In our view it is mere submissions and observation of the Court below. The prosecution measurably failed to establish by evidence that soon after the occurrence, the accused had any responsibilities to discharge their duties towards the occurrence. It is well settled that mere abscondence cannot always be a circumstances leading to the inference of guilt of the accused. In this case, there is no evidence against the accused. Hence their subsequent abscondence cannot be treated as a circumstances leading to the inference of involvement in the crime. Mere abscondence cannot always be a circumstances which should lead to an inference of guilt of the accused. Sometimes out of fear and self respect and to avoid unnecessary harassment even an innocent person remain absconding for sometime. 90. With this regard reliance are being placed in the cases of Monsur Ali Vs. The State 13 BLC 196. Similar views were taken in the cases of State Vs. Badsha Molla, 41 DLR 11, State Vs. Mofijuddin 4 BLD-481=10 BLC-93, State Vs. Lalu Mia, 39 DLR(AD)117, State Vs. Sree Ranjit Kumer Promanik, 45 DLR 660, Ali Vs. Crown 6 DLR(W.P.)52, Rahman Vs. The State of U.P. AIR 1972(SC)110, Shajahan Vs. The State 46 DLR-575, Mojibur Rahman Vs. The State 13 MLR-88.
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91. In the light of discussions made above and the preponderant judicial views emerging out of the authorities referred to above, we are of the view that the prosecution successfully proved the charge against accused Milon and Rabiul alias Hubul beyond all reasonable doubt but failed to prove the charge against accused Aslam, Musaddek, Helal, Mannan alias A. Mannan. In the result:(A) Death reference no. 43 of 2006 is accepted in part. (B) The impugned Judgment and order of conviction and sentence dated 18-05-2006 passed by learned Judge of Nari-O-Shishu Nirjatan Daman Tribunal no.2, Bogra in NariO-Shishu Case no. 288 of 2004, so far as it relates to the accused Milon and Rabiul alias Hubul is maintained. Sentences imposed upon them stand confirmed. Sentence of death shall be executed in terms of the Judgment recorded in Nari-O-Shishu Case no. 288 of 2004. (C) The impugned judgment and order of conviction and sentence dated 18-05-2006 so far as it relates to accused Aslam, Musaddek, Helal and Mannan alias A. Mannan is set aside, they are acquitted from the charge. They be set at liberty if not detained in any other case. D) Accordingly Criminal appeal no. 2185 of 2006 is allowed in part. E) Jail appeal nos. 407 of 2006 and 409 of 2006 are dismissed. F) Jail appeal nos. 408 of 2006, 410 of 2006, 411 of 2006, and 412 of 2006 are allowed. The Office is directed to send down the records at once. Ed.
506
M/S Saudi-Bangladesh Services Company Ltd. Vs. Saudi Arabian Airlines Corp. (Zubayer Rahman Chowdhury, J)
HIGH COURT DIVISION (Original Statutory Jurisdiction) Mr. Zubayer Rahman } M/S SaudiChowdhury, J. Bangladesh } Services Company Judgment Limited, Orchard 05.01.2009 Plaza, 71, } Nayapaltan (VIP Road), Dhaka, } represented by its Managing } Director. ...Petitioner Vs. } Saudi Arabian Airlines } Corporation, represented by its Country Manger, } Dhaka Office, Pan Pacific Sonargaon Hotel, 107, Kazi } Nazrul Islam Avenue, P.S. Tejgaon, Dhaka. } ...Respondent Arbitration Act (I of 2001) Sections 23, 25, 42 and 43 (1)(a)(v) United Nations Commissions on International Trade Law Articles 34 (2)(a)(iv)and 36 (1)(a)(iv) The provisions of section 43(1)(a)(v) of the Act of 2001 as well as Articles 34(2)(a)(iv) and 36(1)(a)(iv) of the UNCITRAL Model Law are attracted in the instant case, both of which provides for setting aside an Award on the ground that “the arbitral procedure was not in accordance with the agreement of the parties”.
Arbitration Case No. 02 of 2006.
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Evidently, the final deliberation that took place leading to the making and signing of the Award was only between the Chairman and the 2nd Arbitrator to the total exclusion of the 3rd Arbitrator, although the parties had referred the matter to a Tribunal comprising of three members. In my view, this is not what the Act or the Model Law contemplates and this is certainly not what the parties intended. Consequently, upholding the Award would be against the spirit and intendment of the Act and that, no doubt, would be contrary to public policy. Accordingly, the Award dated 08.06.2006 is set aside. ...(52, 58 and 61)
Sheik Abdulla v. M.V.R.S. Firm and Sons and another, 1924 Rangoon 153, XXII CWN (191718), 301 (Abu Hamid Zahira Ala v. Golam Sarwar), European Grain v. Johnston, Lloyd’s Law Reports (1982) Vol. 2, 551, Dewan Singh v. Champat Singh, reported in AIR 1970 SC 967, S.L. Kapoor v. Jagmohan, reported in AIR 1981 SC 136, Industries and Others v. United Republic of Cameroon, (1986) XI Yearbook of Commercial Arbitration, 161, Nand Ram v. Fakir Chand, reported in ILR 7 (1885) All 523, Hindustan Petroleum Corporation Limited v. Environmental Engineers Ltd. and another, (2001) 2 Comp 79 (Bom), Murlidhar Agarwal and another v State of Uttar Pradesh and others, AIR 1974 SC 1924, Oil and Natural Gas Corporation Ltd v. SAW Pipes Ltd, AIR 2003 SC 2629, ref. Mr. Rafique-ul Huq, Senior Advocate with Mr. Ajmalul Hossain, Advocate …For the Petitioner Mr. A. J. Mohammad Ali, Senior Advocate with Mr. Md. Ashanur Rahman and Ms. Verbeena Huda, Advocates
…For Respondent
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M/S Saudi-Bangladesh Services Company Ltd. Vs. Saudi Arabian Airlines Corp. (Zubayer Rahman Chowdhury, J)
Judgment Zubayer Rahman Chowdhury, J. This is an application under section 42 read with section 43 of the Arbitration Act, 2001 for setting aside the Award dated 08.04.2006 passed by the Arbitral Tribunal in an arbitration proceeding between Saudi Arabian Airlines Corporation (the claimant) and M/S. Saudi-Bangladesh Services Company Limited (the respondent). 2. In the arbitration proceeding before the Arbitral Tribunal (hereinafter referred to as the Tribunal), the respondent, as claimant, made a claim of Tk. 32,27,50,566.51, while the present petitioner, as respondent, not only denied the claim, but made a counter claim for Tk. 161,15,29,583.00 along with interest @ 16% per annum on the awarded sum. 3. The three member Tribunal comprising of Mr. Justice M. H. Rahman, a former Head of the Caretaker Government and former Chief Justice of Bangladesh, Mr. M. Amirul Islam, Senior Advocate, Supreme Court of Bangladesh and Dr. M. Zahir, Senior Advocate, Supreme Court of Bangladesh, upon hearing the parties, by a majority decision, made an Award of Tk. 31,27,50,566 in favour of the claimant (the respondent herein) and dismissed the counter claim of the respondent (the petitioner herein). 4. The dissenting opinion was given by Mr. M. Amirul Islam, who allowed the claim of the claimant for the amount of Tk. 4,88,72,217.43 and also allowed the counter-claim of respondent no.1 for Tk. 57,26,92,897.67. 5. Since the instant application was filed challenging the legality and propriety of the Award on the ground of non-compliance as well as violation of the provisions of the Arbitration Act, 2001 by the Tribunal, and that
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too, at the stage of making and signing the Award, this Court is not inclined to enter into a discourse regarding the claims and counter claims of the parties or, for that matter, the merit of the case. 6. Mr. Ajmalul Hossain, the learned Advocate appearing for the petitioner submits at the outset that he will not press ground numbers I, II, III, IV and V which relate to jurisdiction of the Tribunal, but would rely on the other grounds, particularly ground numbers VI, VII and XI stated in his application. 7. Giving a factual background of the entire arbitration proceeding, Mr. Hossain submits that in the instant case, the majority decision of the Trubunal is not legal and binding upon the parties in view of the fact that one of the Arbitrators, namely, Mr. M. Amirul Islam (hereinafter referred to as the 3rd Arbitrator) was completely left out of the process of consultation before finalizing and making the Award. Mr. Hossain submits that the spirit and intent of the Arbitration Act, 2001 (hereinafter referred to as the Act) is to ensure that the arbitration proceeding including the making and signing of the Award is conducted by effective participation of all the members of the Tribunal, but in the instant case, there was a clear deviation therefrom. Mr. Hossain accepts the position that there are may be an Award by the majority, but contends that such an Award has to be made after taking due consideration of the views and opinion of the dissenting Arbitrator. 8. Referring to Annexures I and II, annexed with the dissenting opinion marked as Annexure F, Mr. Hossian submits that upon conclusion of the hearing on 05.04.2006, the 3rd Arbitrator had written to both the Chairman and the 2nd Arbitrator (Dr. M. Zahir) on the following day expressing his view that the
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Tribunal should meet and deliberate on the issues before making the Award. 9. Referring to the respective endorsements made by the Chairman and the 2nd Arbitrator on the letter sent by the 3rd Arbitrator, Mr. Hossain submits that the 3rd Arbitrator was led to believe that the members of the Tribunal would meet at BILIA (the venue of the Arbitration proceeding) for holding deliberation before making the Award. However, when the 3rd Arbitrator went to BILIA at the appointed date and time, ie., on 08.04.2006 at 10:00 a.m., he was given a one hundred page typed Award, which had already been signed by both the Chairman and the 2nd Arbitrator. Upon receiving the same, the 3rd Arbitrator put the following endorsement on the Award : “I just now saw the opinion this morning at 10.20 a.m. Since I differ with the opinion given herein I will submit my separate opinion.” Sd/-(M. Amir-Ul-Islam) Barrister-at-Law, Senior Advocate 10. Mr. Hossain contends that without paying any heed to the aforesaid request and without even affording an opportunity to the 3rd Arbitrator to participate in the deliberation and express his views before the Award was made, the Chairman and the other member of the Tribunal finalized and signed the Award. Therefore, on this ground, the Award is liable to be set aside. 11. Substantiating his argument, Mr. Hossain has referred to the opening paragraph of the dissenting opinion given by the 3rd Arbitrator, as evidenced by Annexure-F, which reads as under : “At the outset I express my discomfort with the statement in paragraph 45 of
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the award opinion of my fellow conarbitrators, Mr. Justice M.H. Rahman, Chairman and Dr. M. Zahir that “Mr. M. Amir-Ul Islam, Barrister-at-Law, Senior Advocate, co-arbitrator, has been consulted ...”. On the contrary, I wrote letters to both of my coarbitrators on April 06, 2006 stating that our very brief discussion on the date of the close of the hearing was not enough and we should discuss at length with regard to each of the issues before we make up our mind. In response to my letters both the learned co-arbitrators were pleased to fix a meeting on April 08, 2006 in the morning. But with utter surprise both my co-arbitrators without allowing time for the proposed discussion signed the award at 10.20 on the same date before I could even have a look at the award which was produced in a finished and conclusive form typed on a stamped paper, already signed by my two co-arbitrators.” 12. Mr. Hossain submits that it is evident from the aforesaid statement made by the 3rd Arbitrator that he was neither consulted nor was he given any opportunity, as was requested by him on the previous day, to discuss the issues before the Award was made. 13. Referring to section 43(v) of the Act, Mr. Hossain contends that although the law requires the arbitration proceeding to be conducted in accordance with the agreement of the parties, there was a clear deviation from the agreement in as much as, the 3rd Arbitrator was totally excluded from the deliberation process before making and signing the Award. In doing so, according to Mr. Hossain, the Tribunal had not only acted in utter disregard to the requirement of section 23 of the Act, but had
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M/S Saudi-Bangladesh Services Company Ltd. Vs. Saudi Arabian Airlines Corp. (Zubayer Rahman Chowdhury, J)
also acted contrary to the provisions of section 25 of the Act. Consequently, Mr. Hossain submits, the Award is liable to be set aside. 14. Mr. A. J. Mohammad Ali, Senior Advocate appearing with Ms. Verbeena Huda, Advocate for the respondent (Saudi Arabia Airlines Corporation) submits that the Award under challenge was passed by the Tribunal upon holding a lengthy hearing in presence of both the parties, who were duly represented by their learned lawyers. Mr. Ali further submits that the arbitration proceeding lasted for about three years and, therefore, it cannot be said that the parities did not have adequate opportunity to place their respective case before the Tribunal. Mr. Ali further submits that the agreement between the parties provides for an Award by the majority and in the instant case, the Award having been so made, it does not call for any interference by this Court. 15. Mr. Ali submits categorically that the entire proceedings took place before the Tribunal comprising of the Chairman and the two Arbitrators who had ample opportunity to discuss the issues amongst themselves when the hearing took place and, therefore, the allegation of excluding the 3rd Arbitrator from the deliberation process before making the Award is not tenable. Mr. Ali further submits that if any member of a Tribunal decides to give a dissenting opinion, he can very well do so. Mr. Ali lastly submits that if the instant application is allowed, it will open a floodgate and frustrate the purpose and spirit of the Act, which is primarily intended to settle disputes between the parties outside the Court. 16. Undoubtedly, there is a great deal of force in the contention of Mr. Ali that the purpose of the Arbitration Act, 2001 is to minimize the duration of litigation between the parties by
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affording a forum for settling their dispute outside the Court. 17. When an arbitration proceeding is conducted before an Arbitral Tribunal, there may very well be an Award by the majority. This is an undisputed position. At the same time, the arbitration proceeding must also conform to certain well established principles and norms of legal rules and conduct. Upon conclusion of hearing, the members of the Tribunal must hold proper deliberations amongst themselves covering all the issues of the proceeding before making and signing the Award. This is not an idle formality, but a judicial requirement designed to ensure that the matter is heard and deliberated by each and every member of the Tribunal before making and signing the Award. 18. Although a good number of cases have been cited by Mr. Hossain, I shall only refer to those which are relevant for the purpose of disposal of the instant case. On the other hand, Mr. Mohammad Ali has lightened the burden of the Court by not referring to any decision. 19. In Sheik Abdulla v. M.V.R.S. Firm and Sons and another, reported in 1924 Rangoon 153, both the parties nominated five Arbitrators and agreed that the Award of the majority of the Arbitrators would prevail. Nevertheless, the Court held : “In this view of the reference each party was entitled to have the benefit of the opinion and decision of all the five arbitrators and not only some of them. From the fact that the three arbitrators who actually made the award happened to hold the same opinion it cannot be assumed that even if the other two had acted, the opinion of the former three would not have been affected. It is not impossible that a
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discussion among all the five might have produced a different award.” 20. In another case, reported in XXII CWN (1917-18), 301 (Abu Hamid Zahira Ala v. Golam Sarwar), the Court held : “……. It is essential that there should be a unanimous participation by the arbitrators in consulting and deliberating upon the award to be made ; the operation of this rule is in no way affected by the fact that authority is conferred upon the arbitrators to make a majority award ; even where less than the whole number of arbitrators may make a valid award, they cannot do so without consulting the other arbitrators.” 21. Mr. Hossain refers to the widely followed work of “Rusesell on Arbitration”, 28th Edition, where it has been stated : “All the arbitrators must act together. As they must all act, so they must all act together. They must each be present at every meeting ; and the witnesses and the parties must be examined in the presence of them all. All must make award together. Where there are two or more arbitrators, all should execute the award at the same time and place. If they do not, the award may be invalidated, but as the objection is one of a formal character, if no other objection is shown, the court may remit the award to the arbitrators for correction.” 22. The aforesaid statement was cited with approval in the case of European Grain v. Johnston, reported in Lloyd’s Law Reports (1982) Vol. 2, 551, where the Court held :
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“What I think the authorities show, as must be right, is that an arbitration conducted by a tribunal of several arbitrators necessarily requires a joint process of full and complete adjudication by all of them, so that the ultimate award represents the state of mind of all of them at the time when they sign it”. (Per Lord Justice Kerr). 23. It appears from Annexure I and Annexure II of Annexure F, that upon conclusion of the hearing on 05.04.2006, the 3rd Arbitrator sent a letter on the following day to the Chairman and the 2nd Arbitrator of the Tribunal requesting for a meeting to discuss and deliberate on the issues before making the Award. It is perhaps pertinent to quote the said letter in full, which reads as under : “April 6, 2006 Dear Hon’ble Chairman Mr. Justice Habibur Rahman and Co Arbitrator Dr. M. Zahir Ref: Saudia Corporation
Arabian
Airlines
-VersusSaudia Bangladesh Services Company Ltd. I refer to our discussions yesterday after the close of the hearing. I thought this was not adequate to discuss the proposed award, not allowing any opportunity to discuss the issues and the underlying legal principles involved both on question of fact and law. While we accepted the obligation to hear and determine the dispute between the parties it will not be proper to rush for an award without discussing each of the issues. You
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M/S Saudi-Bangladesh Services Company Ltd. Vs. Saudi Arabian Airlines Corp. (Zubayer Rahman Chowdhury, J)
proposed Saturday, 08.04.2006 I hope you will not close your mind and take a view before we have had opportunity to share our thoughts and reasoning. I invite you to arrange a mutually convenient time when we can discuss the issues between the parties and deliberate our reasoning for resolution of those issues. You suggested Saturday but before signing the award there has to be enough time, opportunity and willingness to share the reasoning before taking a view and finalizing the Award. Since this matter is of the greatest importance to the parties, I feel that it is incumbent upon us to properly and judicially approach the issues with a view to resolving them and the material and legal principles have to be considered before the Award is finalized. Kindly inform me of a convenient date and time for proper deliberations with adequate opportunity to deal with each of the issues before the award is made. If there is such an opportunity prior to finalizing the Award, then, I shall certainly make myself available to deliberate upon these issues and consider the proper Award to be made in this case. Yours sincerely, M. Amir-Ul Islam Co Arbitrator” 24. Upon receiving the aforesaid letter, the Chairman of the Tribunal made the following endorsement : “The matter was heard for days. The parties have given their written
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submission extensively. I shall be at the Bilia at 10-10 AM on next Saturday.” Signed (eligible) 6.30 p.m. 06.04.06 25. The 2nd Arbitrator made the following endorsement : “We have already exchanged opinion, pl. contact Chairman. Friday 7th April, 06 we can meet. Alternatively you can give your opinion later. But whatever the Chairman says is OK with me.” Signed (M. Zahir) 6 April 2006 26. The following day, i.e., 7th April was a holiday, being Friday. On 08.06.2006 (Saturday), when the 3rd Arbitrator went to BILIA at 10:00 a.m., he was given the 100 page typed Award, which had already been signed by the Chairman and the 2nd Arbitrator. 27. Immediately thereupon, the 3rd Arbitrator made the following observation, which appears at page 100 of the Award : “I just now saw the opinion this morning at 10.20 a.m. Since I differ with the opinion given herein I will submit my separate opinion.” Sd/-(M. Amir-Ul-Islam) Barrister-at-Law, Senior Advocate. 28. Furthermore, at page 53 of the dissenting opinion, the 3rd Arbitrator made the following observation : “Though it is a dissenting award, I wish, I could share my views as expressed in this opinion with my coarbitrators before they signed their
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award which I did not have the opportunity to see before they were signed by them.” 29. From the sequence of events noted above, it is apparent that the 3rd Arbitrator was not provided with any scope or opportunity to deliberate on the issues with the other members of the Tribunal and express his views before the Award was made. Moreover, there is no indication in the endorsement made by the Chairman that he had already discussed the matter with the 2nd Arbitrator. Rather, from his endorsement, it appears that the 3rd Arbitrator was asked to be present at BILIA on Saturday at 10:00 in the morning, thereby giving him an impression that there would be a deliberation before making the Award, as was requested for by the 3rd Arbitrator in his letter dated 06.04.2006. 30. At the penultimate page of Award made by the two Arbitrators, there is a statement to the effect that the 3rd Arbitrator had been consulted. Paragraph 45 at page 99 of the Award reads as under : “Mr. M. Amir-Ul-Islam (sic), Barrister-at-Law, Senior Advocate, coarbitrator, has been consulted. He differs from the above finding and has stated that he will give his opinion later on. This award is given on the basis of agreement between the Chairman and another arbitrator, that is, a majority of two in a panel of three arbitrators.” 31. However, the endorsement made by the 3rd Arbitrator at page 100 of the Award as well as the opening and concluding remarks made by him in his dissenting opinion, quoted above, clearly demonstrate that the 3rd Arbitrator was neither consulted nor given any opportunity to deliberate on the issues with the other two
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Arbitrators before the Award was finalized and signed. In other words, the Award was made and signed by the Chairman and the 2nd Arbitrator without even the participation, let alone any input, of the 3rd Arbitrator. Evidently, there was an omission or failure on the part of the Chairman of the Tribunal to deliberate on the issues with the 3rd Arbitrator or, at least, provide an opportunity to him to express his views on the issues before making the Award, moreso, when he had expressed such intention immediately after conclusion of the arbitration proceeding, as is evident from the letter dated 06.04.2006, referred to above. 32. Having discussed the factual aspect and back-ground of the matter, I now intend to deal with the legal aspect of the case. 33. Section 23 of the Act, which deals with the general responsibilities of the Tribunal, stipulates that the Tribunal shall deal with the dispute submitted to it “fairly” and “impartially”. 34. Section 25 of the Act provides that subject to the Act, the Tribunal shall follow the procedure “to be agreed on” by the parties in “conducting its proceedings”. A similar provision appears in the ‘United Nations Commission on International Trade Law’ (briefly UNCITRAL), Model Law on International Commercial Arbitration (hereinafter referred to as the ‘Model Law’). Article 28(4) of the Model Law stipulates that in all cases, the arbitral tribunal shall decide in accordance with the terms of the contract. 35. Section 36(3) of the Act mandates that the Tribunal shall decide in accordance with the terms of the contract. 3 6. Upon a combined reading of the sections and articles referred to above, the conclusion that flows therefrom is that the Tribunal, meaning all the me mbe r s a nd not j ust t h e
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The State Vs. Md. Rafique and another, (Zubayer Rahman Chowdhury, J)
Even if the statements made by the victims are taken to be true and correct in their entirety, the only role played by appellant Idris Mia was that of taking the victims from one place to another. In the absence of any evidence to show that the fundamental requirements of section 8 and section 12 were fulfilled the conviction and sentence of Md. Idris Mia is not sustainable. The impugned order of conviction and sentence of death of the absconding condemned prisoners is not sustainable in law and consequently, the instant death reference is rejected. ...(44, 45,62 and 65)
No one
--For the appellant.
Mr. Md. Habibullah Chowdhury ...State Defence Advocate Mr. Hassan Foiz Siddique, Additional Attorney General with Mr. Md. Shamsul Haque, D.A.G. and Mrs. Israt Jahan, A.A.G … For the state Judgment Zubayer Rahman Chowdhury, J: Condemned prisoners Md. Rafique and Most. Shahida Khanun, husband and wife and both absconding, were tried in Nari-O-Shishu Case No. 26 of 1999 under sections 8 and 12 of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 and sentenced thereunder to death by the learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal No. 2, Chandpur who has submitted Death Reference No. 128 of 2004 under section 374 of the Code of Criminal Procedure for confirmation of the sentence of death imposed upon both the absconding condemned prisoners. 2. Criminal Appeal No. 3520 of 2004 is at the instance of Md. Idris Mia, who was tried along with condemned prisoners in the aforesaid case and convicted thereunder and sentenced to imprisonment for life.
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3. Briefly stated, the relevant facts are as under: On 29.01.99, an FIR was lodged by one Md. Mostafa Kamal alleging, inter alia, that his wife Marzina Begum and his 4 year old son Jony were rescued along with Shahid Mia, Md. Kamal Hossain and Nazma Begum from the house of one Hamid Ali in village Paragaon under Kachua Police Station in Chandpur District. The informant’s wife had left home 10 days earlier following an altercation with him and went to Chittagong to her aunt’s house, but finding no one there, she returned home. On her way back, she met condemned prisoner Rafique who enticed her to go with him on the assurance of being sent to Pakistan with a job. Rafique also obtained her thumb impression on some blank papers in order to secure her divorce from the informant. During the next 10 days, she was kept in confinement at different places. The informant came to know that his wife, along with some others, were being detained in the said house of Hamid Ali at Paragaon village whereupon, being accompanied by the local Chowkider Md. Abdul Hakim (PW 2), Md. Momtaz Uddin (PW 6), Rakhal Chandra Shil (PW 5) and other local elites, he went to the said house of Hamid Ali and rescued his wife along with three other persons from there. However, on getting scent of their arrival, condemned prisoner Rafiq, Hashem and 2/3 other unknown persons made good their escape, while one Shahid Mia was arrested, who made a confessional statement under section 164 of the Code of Criminal Procedure before the Magistrate, 1st Class, Chandpur. Appellant Md. Idris Mia was subsequently apprehended by the police. 4. The learned Judge of the Nari-O-Shishu Nirjatan Daman Bishesh Adalat No. 1, Chandpur framed charge against four accused persons, namely, Md. Shahid Mia, Md.
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The State Vs. Md. Rafique and another, (Zubayer Rahman Chowdhury, J)
Rafique, Most. Shahida Khatun and Md. Idris Mia under sections 8/12 of the Nari-O-Shishu Nirjatan (Bishesh Bidhan) Ain, 1995 (briefly the Ain, 1995) in presence of Md. Shahid Mia and Md. Idris Mia, since the other two accused persons remained in abscondence. The charge was read over to the accused persons present in the dock to which they pleaded not guilty and claimed to be tried. However, the absconding accused persons remained unrepresented, although on the following day, a State Defence lawyer was appointed to defend them. 5. At the trial, the prosecution examined 15 witnesses in support of their case, while the defence examined none. On conclusion of recording of evidence, the incriminating part of the evidence adduced by the prosecution at the trial and the confessional statement of accused Shahid Mia was brought to the notice of the persons facing the trial to which they pleaded their innocence and claimed to be tried. Upon consideration of the material evidence on record, the learned Judge of the Nari-O-Shishu Nirjatan Daman Tribunal No. 2, Chandpur acquitted Md. Shahid, but sentenced both the condemned prisoners and the appellant Md. Idris Mia in the manner noted above. 6. Mr. Md. Shamsul Haque, the learned Deputy Attorney General appearing in support of the Reference has placed the FIR, the deposition of the witnesses and the impugned judgment. The learned Deputy Attorney General (briefly, the learned DAG) submits that the impugned judgment and order of conviction and sentence has been rightly passed and calls for no interference in view of the recovery of the victims from the custody of the condemned prisoners. 7. On the other hand, Mr. Md. Habibullah Chowdhury, the learned Advocate appearing as State Defence lawyer for both the absconding condemned prisoners, has challenged the
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impugned judgment on two grounds ; technical and substantive. As to the technical ground, the learned Advocate submits that although the charge was framed on 17.08.99 by the learned Judge of the Special Tribunal, on that date, the condemned prisoners remained unrepresented in Court. On the following day after framing of charge, a State Defence lawyer was appointed for the condemned prisoners and in such view of the matter, the framing of the charge, vis-avis the condemned prisoners, was improper and invalid in the eye of law. On the substantive ground, the learned Advocate submits that although the conviction of the accused persons was secured under sections 8 and 12 of the Ain, 1995, the basic elements or requirements of the aforesaid two sections are missing in the instant case and on such ground, the impugned judgment and order of conviction and sentence is liable to be set aside. 8. In order to appreciate the submissions advanced at the Bar, we are called upon to review the evidence on record. 9. PW 1, the informant, is the former husband of the victim Marzina (PW 13). He narrated the incident as disclosed in the FIR and further stated that on reaching the village haat, he found condemned prisoner Rafique and another person in a restaurant and upon seeing him, they fled from there, but their accomplice Shahid Mia was apprehended by the public. Subsequently, the victims were recovered from the house of said Hamid Ali, but condemned prisoner Rafique, his wife Shahida Khatun and Md. Idris Mia managed to escape. 10. In his cross-examination, he stated that two criminal cases were pending against him. He further stated that he was acquainted with Idris Mia who was present at the hotel along with Shahid, Rafique and some other persons. He denied that accused Shahid was implecated in
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The State Vs. Md. Rafique and another, (Zubayer Rahman Chowdhury, J)
this case due to previous enmity and also denied that the accused persons did not commit any offence. 11. PW 2 Abdul Hakim, the village policeman, stated that he accompanied Rakhal Chowkider, Momtaj and others and recovered the victims from Paragaon village. In his crossexamination, he stated that he did not see any accused persons when the victims were rescued.
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16. PW 5 Rakhal Chandra Shil is the village policeman of No. 10 Kachua Union Parishad. On 29.01.99, he found many persons at the bazaar and the local elites called him there and handed over the accused persons to him while Chowkider Abdul Halim and some other persons went to Hamid Ali’s house and rescued the victims. He took the accused-persons as well as the victims to the Thana and handed them over to the police.
12. PW 3 Abul Hossain is a journalist as well as a teacher of Nurpur Laboratory High School. He deposed that on 29.01.99, while he was at Rahimpur bazaar, he found three persons including two women being detained by the public, who identified themselves as Morzina, Nazma and Kamal. He further deposed that upon query from the aforesaid persons, he came to learn that Rafique and his associates were attempting to send them to Pakistan on the pretext of providing them with jobs there, but the victims were rescued from village Paragaon from the house of one Abdul Hamid, the father-in-law of condemned-prisoner Rafique.
17. In his cross-examination, he stated that he did not give any statement to the I/O. He identified Malek at the dock.
13. In his cross-examination, he stated that he did not go to Paragaon and that he did not see the victims being rescued, but found them near the bus-stand surrounded by the public.
20. PW 7 Abul Kashem is a Member of the Rahimanagor Bazar Committee. He deposed that on 29.01.99 at about 6:30 p.m. upon hearing hue and cry near the bus-stand, he went there along with others and the informant (PW 1) informed them that his wife and child and two other women were being detained in the house of Abdul Hamid for the purpose of trafficking. Upon hearing this, PW 7 along with Rakhal Chowkider, Hakim Chowkider and Shajahan Member and others went to the said place and rescued the victims and handed them over to the Chowkider. The informant’s wife Marzina informed them that appellant Shahid Miah and some others brought them there on the assurance of providing well-paid jobs in Pakistan.
14. PW 4 Helal Uddin runs a medicine store in Rahimanagor Bazar. On 29.01.99 at about 5:30 p.m., he saw a crowd near the bus-stand and heard that some traffickers had been detained. He saw appellant Shahid, who was a baby-taxi driver, along with two other women. The victims were sent to the Thana and the police questioned him during investigation. 15. In his cross-examination, he stated that he did not go to Hamid Ali’s house at Paragaon village and also stated that Shahid was not detained from that village.
18. PW 6 Momtaj Uddin is another village policeman in Ward No. 10. On the day in question, he heard that some traffickers had been detained at Hamid Ali’s house and Hakim Chowkider and the informant rescued Morzina, Nazma Akter, Kamal Hossain and others from the said house and they were subsequently handed over to the police. 19. In his cross-examination, he stated that he did not find the others except appellant Shahid present there.
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The State Vs. Md. Rafique and another, (Zubayer Rahman Chowdhury, J)
21. In his cross-examination, he stated that he did not find any accused person at Rafique’s in-law’s house since they had already fled from the scene. He further stated that the informant disclosed the name of appellant Shahid Miah, but denied that the informant was known to him from before. 22. PW 8 Md. Safiullah was tendered by the prosecution. In his cross-examination, he stated that he heard that appellant Idris was innocent. 23. PW 9 Kong Kham Neel Moni Singh was working as the Magistrate, 1st Class, Chandpur. He recorded the statements of victim Nazma Akter and Morzina Begum and identified the same as Exhibit 2 and his signature thereon as Exhibits 2/1 and 2/2. He also recorded the statement of the informant. 24. In his cross-examination, he denied that the victims made their respective statements at the dictation of the police. 25. On being re-called, PW 9 deposed that he recorded the statement of victim Kamal under section 164 of the Code of Criminal Procedure and identified the same as Exhibit 7 and his signature thereon as Exhibit 7/2. 26. In his cross-examination, he stated that he recorded the statements as stated by the victims themselves. 27. PW 10 Miah Md. Shahid was the OfficerIn-Charge of Kachua Thana at the relevant time and upon receiving the written ejhar from PW 1, he initiated the P.S. case. He stated that SI Abbas Ali was entrusted with the investigation of the case. 28. PW 11 Md. Jahangir Alam, Magistrate, 1st Class, Sylhet Sadar recorded the confessional statement of Md. Shahid under section 164 of the Code of Criminal Procedure. He complied with all the legal formalities and allowed three hours time to the accused person for reflection. He identified the same as Exhibit 4.
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29. In his cross-examination, he stated that appellant Shahid made an exculpatory confessional statement. 30. PW 12 Sikder Akkas Ali was the S/I of Kachua Thana at the relevant time and he was entrusted with the investigation of the case. He visited the place of occurrence, prepared sketch map with index and recorded the statement of the victims and appellant Shahid under section 161 of the Code of Criminal Procedure and filed charge sheet against the accused persons. He identified the accused persons present at the dock. In his cross-examination, he denied that he did not conduct the investigation properly and also denied that the accused persons were not involved with the alleged offence. 31. PW 13 Morzina is one of the victim. She deposed that she was initially married to the informant, but their marriage ended in divorce and subsequently she married one Abdur Rashid. She stated that at the relevant time when she was still married to the informant, she left their rented house following a quarrel with him and went to her sister’s house at Chittagong. As she did not find her sister, she returned to Chandpur. As she did not find her husband at home, she went to the landlord’s house. He offered to send her abroad and introduced her to Idris and Raifque. Idris took her to his house and kept her there and both Rafiq and Idris brought some papers and asked her to put her LTI on those papers for the purpose of going abroad. However, after obtaining her LTI on the blank-papers, she was told that her divorce had taken place. Thereafter, Idris took her to another house along with her son from where they were brought to Paragon in a baby-taxi which was driven by appellant Shahid. She further stated that they were scheduled to be sent abroad on 29.01.99, but they were rescued on that date at
478
The State Vs. Md. Rafique and another, (Zubayer Rahman Chowdhury, J)
about 5:00 in the evening by her husband (the informant) and although Idris and Shahid were apprehended, Rafique and his wife managed to escape. She further stated that the accused persons were planning to send her abroad along with her child in the name of providing a wellpaid job. 32. In her cross-examination, she stated that she married Abdur Rashid about two years back. She further stated that she was first taken by Idris to his house and from there to Rafique’s in-laws house at Rahimanagor, where she was kept for five days before being rescued by the informant. 33. PW 14 Nazma Akter is also a victim. She stated that she used to reside in Comilla along with her parents and Rafique and his wife used to stay in the neighbouring house. Rafique’s wife Shahida proposed to send her abroad (Pakistan) in exchange of Tk. 2,000/- and some ornaments. Accordingly, she paid Tk. 2,000/and also gave a pair of ear-rings to Rafique and his wife and she was brought to Rahimanagor from where she was subsequently rescued. She further stated that during her confinement, she became scared and requested Shahida to refund the money, but Shahida refused to do so. She further stated that Rafique and his wife Shahida were engaged in the business of trafficking women. 34. In her cross-examination, she stated that she did not know any one else other than Rafique and his wife, whom she knew for about 10/12 years. She categorically stated that it was Raifque’s wife who had enticed her to leave home. 35. PW 15 Md. Kamal Hossain, another victim, stated that condemned-prisoner Rafique convinced his (victim’s) father to send him to Pakistan for Tk. 7,000/-. On 25.01.99, Rafique brought him to Shahidpur village in Baghmara
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from where he was taken to Rahimanagor to Rafique’s in-law’s house where he saw Nazma and her child. He further stated that if he was not rescued by the informant on that day, he would have been sent to Pakistan. 36. During cross-examination, he stated that Rafique took him to his in-law’s house. He denied that Rafiq and his wife were innocent. 37. We may now refer to the confessional statement of accused Md. Shahid (since acquitted) made before the Magistrate, 1st Class, Chandpur, which reads as under : “Bj¡l e¡j ®j¡x nq£c, ¢fa¡- Be¤ ¢ju¡z B¢j m¡Lp¡j b¡e¡l ®h¢au¡ f¡s¡ NË¡−j h¡p L¢lz B¢j HLSe ®hh£ VÉ¡¢„ XÊ¡Ci¡lz Na öH²h¡l ®i¡l 6 V¡u B¢j ®h¢h ¢eu¡ Bj¡l h¡s£ ®b−L ®hl qCz aMe ®b−L S¤j¡l e¡j¡−Sl BS¡e ®cu¡l pju fkÑ¿¹ m¡Lp¡j- h¡Nj¡l¡ Hm¡L¡u N¡s£ Q¡m¡Cz B¢j N¡s£¢V h¡Nj¡l¡ S¡−j jp¢S−cl p¡j−e N¡s£ l¡¢Mu¡ S¤jBl e¡jS f¢s−a k¡Cz B¢j e¡j¡S f¢su¡ N¡s£l L¡−R k¡Cu¡ ®c¢M l¢gL, j¡Ce¤m Bl C¢âp HC 3 S−e HL¢V Be¤x 5 hR−ll h¡µQ¡pq HLSe j¢qm¡−L p¡−b L−l c¡s¡Cu¡ B−Rz B¢j e¡j¡S f−s N¡s£l L¡−R ®N−m l¢gL Bj¡−L ¢S‘¡p¡ L−l, “a¥¢j l¢qj¡ eNl k¡C−a f¡lh¡¢e”? 2 O¾V¡l j−dÉ ®f±R¡Cu¡ ¢c−a f¡l−m 2 q¡S¡l V¡L¡ ®chz” A¡j¡l p¡−b l¢gL, j¡Ce¤m J C¢â−pl f§hÑ ®b−L f¢lQu ¢Rmz J−cl Lb¡u l¡¢S qCz Jl¡ ®k ¢h−c−n ®m¡L f¡W¡u a¡ B¢j S¡ea¡jz Jl¡ ¢h−c−n j¡e¤o−L Q¡L¥l£ ®cu a¡ S¡ea¡jz Hl j−dÉ a¡l¡ AeÉ¡u Ll−a¡- HCV¡ S¡ea¡j e¡z Jl¡ ¢e−S−cl j−dÉ Bm¡f L−l ®hh£−a E−Wz j¡Ce¤m ¢fR−e ®q¡ä¡u B−pz a¡−cl Lb¡u B¢j k¡ h¤T−a f¡lm¡j a¡ qCm l¢qj¡eN−l J a¡−cl B−l¡ L−uLSe ®m¡L B−Rz H−cl p¡−b a¡−cl−LJ a¡l¡ ¢h−c−n f¡W¡Cu¡ ¢c−hz B¢j- Be¤j¡¢eL ®hm¡ 4 V¡u l¢qj¡eN−l
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The State Vs. Md. Rafique and another, (Zubayer Rahman Chowdhury, J)
a¡−cl−L ¢eu¡ ®f±R¡Cz B¢j l¢qj¡eNl h¡S¡−ll Ešl ¢c−L ®jCe ®l¡−Xl Efl c¡s¡Cu¡ B¢Rz a¡l¡ N¡s£ −b®L e¡¢ju¡−Rz B¢j a¡−cl−L hmm¡j, “i¡s¡ ®cez” l¢gL hm−m¡, “a¥¢j h¡S¡−l h−p Q¡ M¡JB¢j Bp−a¢R HMeCz HC h¢mu¡ ®p Q¢mu¡ ®Nmz aMe B¢j l¢qj¡eNl h¡S¡−l B¢pz Be¤j¡¢eL Bd¡ O¾V¡ fl l¢gL J j¡Ce¤m h¡S¡−l ¢g−l B−pz Hl ¢LR¤rZ B−N HLSe (−Rs¡) (HMe B¢j S¡¢e a¡l e¡j ®j¡Ù¹g¡ L¡j¡m Hhw ®p (j¢qm¡) k¡−L B¢j ®h¢h−a m¡Lp¡j ®b−L B¢e a¡l ü¡j£) Bj¡−L ¢S‘¡p¡ L−l, “a¥¢j ®L¡b¡ ®b−L B¢pu¡R? B¢j hmm¡j, m¡Lp¡−jl h¡Nj¡l¡ ®b−L B¢pu¡¢R ®p h−m “®a¡j¡l N¡s£−a HLSe h¡µQ¡ ®R−mpq −L¡e j¢qm¡ B¢pu¡−R ¢Le¡? ” B¢j hmm¡j “Bj¡l N¡s£−a h¡µQ¡pq HLSe j¢qm¡ HLSe f¤l¦−ol p¡−b B¢pu¡−Rz” aMe I j¡e¤o¢V Bj¡−L NË¡j f¤¢mn ¢cu¡ dl¡uz B¢j a¡−cl−L hmm¡j “B¢j fÉ¡−R”¡l ¢eu¡ B¢pu¡−Rz Bj¡l ¢L ®c¡o? Hlfl a¡l¡ Bj¡−L b¡e¡u f¡W¡Cu¡ ¢cu¡−Rz B¢j L¡æ¡L¡¢V L¢lz ¢L¿º l¢qj¡eN−ll Bj¡−L ¢Q−e e¡z Bl I j¢qm¡l ü¡j£ ®j¡Ù¹g¡ Bj¡−L e¡l£ f¡Q¡−ll ®m¡L hm¡u h¡S¡−ll ®m¡−Ll¡J Bj¡l f−r Lb¡ h−m e¡z Bp¡j£l¡ AeÉ¡u L¡S L¢l−a−R” HC Lb¡ S¡e−a f¡l−m B¢j a¡−cl−L N¡s£−a EW¡Ca¡j e¡z Bp¡j£ jCe¤m J l¢gL q¡C-g¡C Q−mz Bj¡l d¡le¡ ¢Rm a¡l¡ ¢h−c−n j¡e¤o f¡W¡Cu¡ Ha V¡L¡ f¡uz a¡l¡ j¡e¤−ol EfL¡l L−l- HC V¡C S¡ea¡jz a−h I¢ce HC OVe¡l fl−b−L B¢j S¡e−a f¡lm¡j ®k a¡l¡ e¡l£ f¡Q¡l L−lz a¡−cl L−W¡l n¡¢Ù¹ qJu¡ clL¡lz Bj¡l HL¢V h¡µQ¡pq Bj¡l f¢lh¡l AaÉ¿¹ L−ø pju L¡V¡C−a−Rz HC Bj¡l hJ²hÉz” 38. The learned Judge of the Nari-O-Shishu Nirjatan Daman Tribunal No. 2, Chandpur acquitted Md. Shahid, but sentenced both the
479
condemned prisoners and the appellant Md. Idris Mia in the manner noted above. 39. For proper understanding and appreciation of the relevant law, we may now refer to section 8 and section 12 of the Ain, 1995. Section 8 reads as under : “8z e¡l£ f¡Q¡l CaÉ¡¢cl n¡¢Ù¹z(1) ®L¡e hÉ¢J² k¢c ®hnÉ¡hª¢š h¡ A®~hd pqh¡p h¡ ®h-BCe£ J e£¢a¢hN¢qÑa L¡−S ¢e−u¡¢Sa Ll¡l E−Ÿ−nÉ ®L¡e e¡l£ Bjc¡e£, lç¡e£, H²u h¡ ¢hH²u¡ L−le h¡ i¡s¡u h¡ AeÉ ®L¡ei¡−h qÙ¹¡¿¹l L−le, a¡q¡ qC−m EJ² hÉ¢J² k¡h‹£he L¡l¡c−ä cäe£u qC−he Hhw Cq¡l A¢a¢lJ² AbÑc−ä cäe£u qC−a f¡−lez (2) ®L¡e hÉ¢J² k¢c ®hnÉ¡hª¢š h¡ A®~hd pqh¡p h¡ ®h-BCe£ J e£¢a¢hN¢qÑa L¡−S ¢e−u¡¢Sa Ll¡l E−Ÿ−nÉ ®L¡e e¡l£ Bjc¡e£ h¡ lç¡e£ i¡s¡u h¡ AeÉ ®L¡ei¡−h qÙ¹¡¿¹l Ll¡l SeÉ ®L¡e e¡l£−L a¡q¡l cM−m, ¢SÇj¡u h¡ ®qg¡S−a l¡−Me, a¡q¡ qC−m EJ² hÉ¢J² 14 hvp−ll pnËj L¡l¡c−ä cäe£u qC−he, Hhw Cq¡l A¢a¢lJ² AbÑc−äJ cäe£u qC−a f¡−lez” 40. Section 12 of the Ain, 1995 states as follows : “k¢c ®L¡e hÉ¢J² ®h-BCe£i¡−h ¢nö Bjc¡e£, lç¡e£ h¡ ¢hH²u L−le, h¡ k¢c Bjc¡e£, lç¡e£ h¡ ¢hH²−ul E−Ÿ−nÉ ®L¡e ¢nö−L ®L¡e hÉ¢J² ¢eS ®qg¡S−a l¡−Me h¡ EJ² E−Ÿ−nÉ ®L¡e ¢nö−L ®L¡e hÉ¢J²l ¢eLV f¡Ju¡ k¡u, a¡q¡ qC−m EJ²hÉ¢J² jªa¥Éc−ä Abh¡ k¡h‹£he L¡l¡c−ä cäe£u qC−hez” 41. From a plain reading of the aforesaid two sections, it appears that section 8 (1) relates to “Bj¡c¡e£, lç¡e£, H²u h¡ ¢hH²u” or the transfer by way of hire or otherwise of any woman for the purpose of prostitution or unlawful
480
The State Vs. Md. Rafique and another, (Zubayer Rahman Chowdhury, J)
intercourse or engaging her in illegal and immoral activities. Section 8 (2) contemplates the situation where any woman is kept under the control or custody of any person for any of the above mentioned purposes. 42. It is apparent that section 8 relates only to women and not children. However, when the offence involves children, section 12 will come into play in determining the quantum of punishment. 43. The learned Deputy Attorney General has referred to a decision, reported in 59 DLR 314, where a Division Bench of this Court had an occasion to decide a criminal appeal involving sections 8 and 12 of the Ain, 1995. However, this aspect was not addressed by the Court in that decision. The learned Deputy Attorney General submits that despite his best efforts, he could not lay his hands on any other decision in respect of sections 8 and 12 of the Ain, 1995. 44. The ingredients or elements necessary for invoking sections 8 and 12 are missing in the instant case. There is no evidence on record to show that the victims were transferred to the custody of some other persons nor any documents like Passport, airline ticket etc were recovered to show that there was any intention to send the victims to Pakistan, as alleged by the victims themselves. The statement of the victims, made under section 164 of the Code of Criminal Procedure, reveal that they were not abducted by the accused persons; rather, they went away on their own volition. 45. As per the statement of the victims, they paid some money and gave ornaments to the accused persons for sending them abroad, who subsequently refused to return back the same, but assured the victims of providing them with jobs. But there is no evidence whatsoever to indicate that they were “bought” or “sold” or “exported” or “imported” or “transferred” for
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any such illegal or immoral act, as contemplated in section 8 of the Ain, 1995. We fail to understand how, in the face of such statement from the victims themselves, the learned Judge of the Tribunal could find the accused persons guilty under sections 8 and 12 of the Ain, 1995 when, apparently, the preconditions for application of the aforesaid two sections were not fulfilled in the instant case. In the absence of such evidence, the order of conviction and sentence appears to be without any legal basis. 46. It is to be noted that there is a substantive or fundamental difference between section 8 and section 12 with regard to imposition of punishment. While section 8 provides for a maximum punishment of imprisonment for life, section 12 stands for capital punishment. 47. We have noticed, albeit with some astonishment, that the learned Judge, on a clear misconception of law and gross misreading of evidence, awarded capital punishment to the condemned prisoners finding them guilty under section 8, although the prescribed maximum punishment under that section is imprisonment for life. Furthermore, as noted earlier, section 8 deals with women (e¡l£), while section 12 deals with children (¢nö). It appears that the learned Judge, being totally oblivious of the definition of “e¡l£” and “¢nö” as provided in section 2(O) and 2(R) of the Ain, 1995, proceeded to try the case without splitting up the respective charges involving woman and children and passed the impugned order of conviction and sentence of death under section 8 and section 12, when section 8 has no such provision. This, in our view, is enough to make the conviction of the condemned prisoners unsustainable.
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The State Vs. Md. Rafique and another, (Zubayer Rahman Chowdhury, J)
48. The operative word used in section 8 of the Ain, 1995 is “n¯—vš—i”. While section 8 (1) deals with actual “n¯—vš—i” or “transfer”, section 8(2) contemplates the situation where the victim is kept in the control or custody of the accused person for the purpose of “n¯—vš—i” or “transfer”. But nowhere within the four corners of the FIR or the statements of the victims do we find any evidence that there was any “n¯—vš— i” or “transfer” of the victims. All the victims were in the company of condemned prisoner Rafique and his wife Shaheda and appellant Idris from the moment they left their respective homes till their recovery from Rafique’s inlaws house. They were not handed over to any third person and therefore, there was no “n¯—vš— i” or “transfer”, for the purpose of export or import or sale or purchase, as contemplated in section 8 and consequently, there is hardly any scope for application of the aforesaid section in the instant case. 49. Similarly, section 12 of the Ain, 1995 deals with the situation where there is, in the words of the section “illegal import, export or sale of a child” or keeping in custody of a child by a person for the purpose of “import, export or sale”. Once again, we do not find any evidence on record to indicate that there was any “export, import or sale” of the victims. 50. When the essential ingredients required for invoking sections 8 and 12 are wanting in the instant case, the order of conviction and sentence based on the aforesaid two sections would obviously become unsustainable. 51. We now turn to the other, yet, more significant aspect of the case. The terms “lç¡e£”, “Bjc¡e£”, employed in sections 8
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and 12 of the Ain, 1995 appears to us, primafacie, to be misconstrued. The words “export” and “import” generally relate to commercial transaction of commodities or goods which is either sent to another country or brought in from another country, primarily for the purpose of trade and commerce and they signify a very important aspect of trade and commerce in today’s commercial world. Both the process of export and import usually involves several Government agencies and departments, not to mention commercial Banks. 52. It is, perhaps, pertinent at this stage to refer to the meaning of some of the relevant terms central to the issue before us. The Chambers Dictionary defines the terms export and import as under : “export – the act of exporting ; something which is exported ; a commodity which is or may be sent from one country to another as a business transaction”. “import – to bring in from an outside source ; to bring in from abroad”. 53. In Black’s Law Dictionary (Sixth Edition), the terms export and import have been defined as under : “Export, n. Products manufactured in one country, and then shipped and sold in another. A thing or commodity exported. More commonly used in the plural.” “Import. A product manufactured in a foreign country, and then shipped to and sold in this country.”
482
The State Vs. Md. Rafique and another, (Zubayer Rahman Chowdhury, J)
54. The Law Lexicon provides the following definition : “EXPORT. ………………….. to send out from one country to another ; to send goods and merchandise from one country to another ; to send or carry out of the state, for the purpose of sale, trade, or disposition. ‘Import means bringing or entry of any goods into the Octrori limits of Board from any place outside such limits.” 55. According to The Concise Oxford Dictionary, the term “commodity” means : “Commodity, n. Useful thing ; article of trade (staple c.); of trade.” 56. In Chambers 21st Century Dictionary, the terms “goods” and “commodity” have been defined as follows : “Commodity. Noun (commodities) something that is bought and sold, especially a manufactured product raw material. Goods. Plural noun 1 articles for sale; merchandise”. 57. From the definitions quoted above, it is evident that the terms ‘goods’ and ‘commodities’ do not, by any strech of imagination, include “human beings”, more particularly “woman” and/or “child”. 58. We find, much to our surprise and dismay, that section 8 contemplates the “Avg`vbx ev ißvbx” of bvix, while section 12 contemplates “†e-AvBbxfv‡e wkï Avg`vbx, ißvbx…….”. The process of export and import generally involves
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goods or commodities. However, the export or import of “bvix” and “wkï”, as contemplated in the aforesaid two sections, is not only unheard of, but novel too in the field of legislation, which is neither desirable, nor acceptable. We are not aware of any civil society in today’s world that allows or provides for, and that too by legislation, the export or import of “woman” and “child”. The very terms “Bjc¡e£” and “lç¡e£” are legal terms and the prefix of the word “®h-BCe£i¡−h” before the terms “Bjc¡e£” or “lç¡e£” cannot render the aforesaid two terms “illegal”. 59. Mr. Hassan Foiz Siddique, the learned Additional Attorney General appeared at our instance to address us on these issues. Having gone through the provisions of both sections 8 and 12 of the Ain, 1995, he frankly conceded that the terms “Bjc¡e£” and “lç¡e£” are quiet inappropriate in the context of the spirit and intent in which the law was promulgated by the Legislators. The learned Additional Attorney General submits that the primary objective of the Ain, 1995 was to prevent the trafficking (f¡Q¡l) of women and children which was assuming an alarming proportion during the relevant period. However, the learned Additional Attorney General concedes that the words used in the section are neither appropriate nor satisfactory. 60. In our view, the tenor and sprit of the legislation is quiet clear, as has been rightly canvassed by the learned Additional Attorney General. However, the choice of words used in sections 8 and 12 of the Ain, 1995 is far from satisfactory ; rather, they are inappropriate and out of context, to say the least.
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The State Vs. Md. Rafique and another, (Zubayer Rahman Chowdhury, J)
483
61. We are constrained to observe with regard to the Ain, 1995 that the concerned officials, who were entrusted with the task of drafting this particular law, have not only demonstrated an utter lack of common sense, but were also callous and inept, to say the least.
evidence to show that the fundamental requirements of section 8 and section 12 were fulfilled, the conviction and sentence of Md. Idris Mia under the aforesaid two sections is not sustainable. In such view of the matter, there is considerable merit in the appeal.
62. The observation made by us hereinabove is intended for the information and guidance of all concerned, particularly the officials of the Ministry of Law, Justice and Parliamentary Affairs who are entrusted with the task of drafting laws and ordinance so as to ensure that repetitions of such nature do not occur in future.
66. Having regard to the foregoing discussion, we are of the view that the impugned judgment and order of conviction and sentence passed by the learned Judge, Nari-O-Shishu Nirjatan Daman Tribunal No. 2, Chandpur in Nari-O-Shishu Case No. 26 of 1999 under sections 8 and 12 of the Nari-OShishu Nirjatan (Bishesh Bidhan) Ain, 1995 warrants interference from this Court.
63. The logical inference from the above discourse is that the impugned order of conviction and sentence of death of the absconding condemned-prisoners is not sustainable in law and consequently, the instant Death Reference is liable to be rejected. 64. This bring us now to Criminal Appeal No. 3520 of 2004, which is at the instance of Md. Idris Mia. Although one Farida Yeasmin, a learned Advocate of this Court, filed power, she did not turn up when the matter was taken up for hearing. Be that as it may, we propose to dispose of the criminal appeal on merit. 65. It appears that the learned Judge of the Court below found the complicity of appellant Idris Mia in the alleged offence for taking victim Marzina from her house to another house in the village and from there to condemned prisoner’s Rafique’s father-inlaw’s house. However, the aforesaid evidence is not enough to bring the offence within the ambit and scope of sections 8 and 12 of the Ain, 1995. Even if the statements made by the victims are taken to be true and correct in their entirety, the only role played by appellant Idris Mia was that of taking the victims from one place to another. In the absence of any
67. Resultantly, Criminal Appeal No. 3520 of 2004 is allowed. The order of conviction and sentence of imprisonment for life passed in respect of Md. Idris Mia is hereby set aside. 68. Let Md. Idris Mia, son of late Joynal Abedin, be set at liberty if not wanted in connection with any other case. 69. Death Reference No. 128 of 2004 stands rejected. The orders of conviction and sentence of death passed in respect of Md. Rafique (absconding), son of Korban Ali and Most. Shahida Khatun (absconding), wife of Md. Rafique is hereby set aside. 70. The warrant of arrest of Md. Rafique and Most. Shahida Khatun be recalled at once. 71. Let a copy of this judgment be sent to the Secretary, Ministry of Law, Justice and Parliamentary Affairs for information and guidance. Let a copy of the judgment along with the lower Court’s records be sent down for information and necessary action. Ed.
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Professor Muhammad Yunus and another Vs. Bangladesh and others (S.K. Sinha, J.)
APPELLATE DIVISION (CIVIL) Mr. A.B.M. Khairul Haque, CJ. Mr. Md. Muzammel Hossain. J Mr. Surendra Kumar Sinha, J.. Mr. M. Abdul Wahhab Miah, J. Madam Nazmun Ara Sultana, J. Mr. Syed Mahmud Hossain, J. Mr. Muhammad Imman Ali, J.
} } } } } } } } } } }
Judgment 3rd, 4th and 5th May, 2011
} }
Professor Muhammad Yunus, Petitioner (In C.P. No. 640 of 2011) Rahima Begum and others: Petitioners, Petitioners (In C.P. No. 641 of 2011). VS Bangladesh represented by the Secretary, Bank and Financial Institutions Division, Ministry of Finance, and others: ....Respondents (In both the cases)
}
Constitution of Bangladesh, 1972 Article 102 Grameen Bank Ordinance (XLVI of 1983) Sections 5(2),6(3),7(2),9(1)(a),10(1),14(1)(4) and 15 MĂ–vgxb PvKix wewagvjv, 1993 wewa 2 (3), 2 wb, 2(GK), 7(4), 49, 50 Ges 51 It is undisputed that Professor Muhammad Yunus undertook "Rural Economics Programme" at village Jobra being sponsored by the Department of Economics, University of Chittagong in 1976, while he was a professor of the said University. There is no gainsaying the fact that this Grameen Bank could not have been established unless professor Muhammad Yunus came forward with the ideas which he dreamt of providing 'micro credit' facilities to the rural poor while he was CIVIL PETITION FOR LEAVE TO APPEAL NOS. 640 AND 641 OF 2011. (Arising out of Writ Petition Nos. 1890 and 1892 of 2011)
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a professor of the Chittagong University. He is the precursor for the establishment of the Bank and its founder Managing Director. Professor Muhammad Yunus was appointed as Managing Director initially as per terms and conditions of the Implementation Division's memo dated 11.09.1980 of the Ministry of Finance and Planning Division, Government of Bangladesh. He was reappointed on 25.08.1990, in the said post by the Board of Grameen Bank. The Managing Director will not be elected but be appointed by the Board with prior approval of the Government under section 14(1) of the Grameen Bank Ordinance. The petitioner has come in Court for judicial review of the orders/decisions of the Bangladesh Bank intimating the Chairman of the Board of Directors of the Bank that as Professor Yunus has been continuing as Managing Director even after surpassing the retirement age of 60 years violating the service Regulations, his continuation as per decision of the Board for indefinite period without approval of the Bangladesh Bank is not legal and that he has not been legally working as Managing Director of the Bank. A judicial review differs from an appeal. The Court conducting a review is concerned to determine the lawfulness, but not the merits of the decision under review. Though the Court could quash the impugned decision, it could not substitute its own decision for that of the concerned Authority, the original decision maker. There is no dispute that the terms of appointment of Professor Yunus cover the provisions of Regulation of 1993. The petitionner is not in service of a private Bank, rather, he is in the service of a statutory Bank established under an Ordinance being controlled and regulated by the Government and therefore, the Board has no authority to fix his tenure of service for an indefinite period without approval of the Bangladesh Bank. The submission that the Prof. Muhammad Yunus was remo-
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Professor Muhammad Yunus and another Vs. Bangladesh and others (S.K. Sinha, J.)
ved without affording any opportunity of being heard is contrary to the materials on record, specially when, in the eye of law, he was not ‘removed’ rather, he ceased to hold his office of Managing Director of Grameen Bank by operation of law, on his attaining the age of his superannuation for which it cannot be said that he was dealt with unfairly. Though Appellate Division do not approve of all the findings and observations of the High Court Division but the Appellate Division fully agree with its ultimate decision that there are no merits in the writ petitions. ... (16 to 18, 20, 27, 29, 50 and 56) General Medical Council V. Spackman (1943) AC 644-645, Kanda V. Government of Malaya (1962) AC Privy Council, 322,337, Bibi Quamrunnessa V. Bandar Building Co. Ltd. (unreported), Civil Appeal No.190 of 2003, Exen Industries V. CCIE, AIR 1971 SC 1025, Century Spinning V. Ulhasnagar Municipal Council AIR 1971 SC 1021 and Veerappa V. B.P. Dalal AIR 1975 SC .778, Council of Civil Service Unions V. Minister for the Civil Service (1984) 3 All ER 935, 949, Mati Ram Deka V. NEF Railways, AIR 1964 S.C. 600 and Chief Justice of A.P. V. LVA Dixitulu, AIR 1979 S.C. 193, Russell V. Duke of Norfolk (1949 1 All E R 109), Uma Nath Pandey V. State of U.P., AIR 2009 SC 2375, Rajendra Singh V. State of M.P. (1996) 5 SCC 460, M.C. Mehta V. Union of India (1999) 6 SCC 237, Lloyd V. Mc Mohan (1987) 1 All ER 1118, Rex V. Local Government Board (1914) 1KB 160, Kanda V. Government of Federation of Malaya, 1962(AC) 322, Century Spinning and Manufacturing Company Case AIR 1971 SC (1021), Veerapa Rachappa Saboji, (AIR 1975 SC 773), ref. Dr. Kamal Hossain, Senior Advocate, with Mr. Mahmudul Islam, and Mr. Rokan Uddin Mahmud, Senior Advocate. …For the Petitioner: (In C.P. No .640 of 2011) Ms. Sara Hossain, Advocate, instructed by Mr. Md. Zahirul Islam, Advocate-on-Record. …For the Petitioners: (In C.P. No. 641 of 2011)
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Mr. Mahbubey Alam, Attorney General, instructed by Mrs. Sufia Khatun, Advocateon-Record. …For Respondent No.1: (In both the cases) Mr. Tawfique Nawaj, Senior Advocate, instructed by Mr. Md. Aftab Hossain, Advocate-on-Record. ....For Respondent No. 2: (In both the cases) Mr. Ajmalul Hossain, QC, Senior Advocate, instructed by Mr. Mvi. Md. Wahidullah, Advocate-on-Record. …For Respondent No. 3: (In both the cases) Not Represented. …Fore Respondent Nos.4-11: (In both the cases)
Judgment S.K. Sinha, J: Though these petitions arise out of two separate judgments, the writ petitions out of which these petitions arise have been instituted challenging the self-same orders over the same subject matter and the questions involve in these petitions being identical, these petitions are disposed of analogously. 2. Before entering into the merit of the matter we would like to dispose of the application filed by Prof. Muhammad Yunus (petitioner) in Civil Petition No. 640 of 2011 for recalling the unsigned order dated 5th April, 2011. The leave petitions upon hearing the parties at length were dismissed in open Court on 5th April, 2011. Soon thereafter, the petitioner filed an application for rehearing of the matters after recalling the unsigned orders on the ground that all the learned counsel for the petitioner could not complete their submitssions and therefore, for ends of justice the learned counsel may be afforded opportunity to make further submissions. The Supreme Court of Bangladesh (Appellate Division) Rules, 1988 does not provide any provision for
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Professor Muhammad Yunus and another Vs. Bangladesh and others (S.K. Sinha, J.)
rehearing of a matter which has been dismissed upon hearing the parties on merit other than hearing of a review petition under Order XXVI Part IV. What is more, the prayer for rehearing is not in conformity with Order XXVI Rule XI of Rules of 1988. As such, this petition is misconceived one. However, on consideration of the fact that three senior most learned counsel expressed their desire to make further submissions, we treat this case as an exceptional one and recall the unsigned orders in exercise of inherent powers of this Division. 3. Short facts relevant for the disposal of these petitions are succinctly narrated thus: Grameen Bank Ordinance, 1983 (Ordinance No.XLVI/83), was promulgated on 4th September, 1983 with a view to establishing a Grameen Bank for providing credit facilities and other services to landless persons in rural areas and other matters connected there with. Section 14 authorizes the Government to appoint a Managing Director of the Bank. Accordingly Prof. Muhammad Yunus was appointed by Notification dated 13th September, 1983 as its Managing Director on the terms and conditions regulated by the Implementation Division's O.M. No. MF./ID/ V/N(A)-16/78/1199 dated 11th September, 1980. 4. The Ordinance was amended on 31st July, 1990, and by this amendment the Board of Directors (the Board) has been given the power to appoint the Managing Director "with prior approval of the Bangladesh Bank". In pursuance thereof as per proposal of the Bank by letter under memo dated 14th August, 1990 Prof. Muhammad Yunus was reappointed on certain terms and conditions, and one of which was to frame Regulations. Accordingly the Bank promulgated "MÖvgxb e¨vsK PvKzix wewagvjv" which was published in the Official Gazette on 1st March, 1993.
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5. Bangladesh Bank Inspection Division-2 inspected the affairs of the Grameen Bank and in its report submitted on 31st December, 1999 it was pointed out in paragraph 20.4 that Prof. Muhammad Yunus and Mr. Md. Khaled Shams had been performing as Managing Director and Deputy Managing Director respectively who had attained the age of superannuation as they had exceeded the age of 60(sixty) years as per Regulations and that they had been performing their responsibilities as per decision of the Board for indefinite period. This probably prompted the Bank to promulgate another Regulations regulating the terms and conditions for the appointment of Managing Director, which was published in the Official Gazette on 19th November, 2001. Under such circumstances, the Bangladesh Bank by its letter under memo dated 27th February, 2011 annexure-M to Writ Petition No.1890 of 2011, wrote to the respondent No.3 intimating that despite exceeding the retirement age of 60 years, Prof. Muhammad Yunus had been continuing as Managing Director of the Bank as per decision of the Board without approval of the Bangladesh Bank in accordance with section 14(1) of the Ordinance, that his continuation in such office was not legal and that he was not legally holding the office of Managing Director. On 2nd March, 2011 the Bangladesh Bank intimated the Chairman of the Grameen Bank that the continuation of Prof. Muhammad Yunus as the Managing Director was violation of section 14(1) of the Ordinance. 6. Prof. Muhammad Yunus challenged these two orders in Writ Petition No. 1980 of 2011 in the High Court Division claiming that he was appointed as Managing Director as per resolution of the Board in accordance with section 14(1) of the Ordinance, that the Grameen Bank Ordinance having not conferred
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Professor Muhammad Yunus and another Vs. Bangladesh and others (S.K. Sinha, J.)
any power upon the Bangladesh Bank to dictate or determine the terms and conditions under which the Managing Director would serve Grameen Bank, the impugned orders are unlawful, that the Grameen Bank Service Regulations, 1983 have no manner of application to Prof. Muhammad Yunus, that the Bangladesh Bank has not been invested with any authority to pass any order relieving the Managing Director of the Grameen Bank from service and that the removal was in violation of the principle of natural justice. 9(nine) Directors of Grameen Bank, the petitioners in Civil Petition No.641 of 2011, moved another petition being Writ Petition No.1891 of 2011 in 7the High Court Division challenging the aforesaid two letters raising self-same grounds. 7. The High Court Division upon hearing the parties by two separate judgments dismissed the writ petitions summarily. While dismissing the petition of Prof. Muhammad Yunus, the High Court Division noticed section 14(4) of the Ordinance and the Regulations of 1993, and came to the conclusion that he was performing as an officer of the Bank and therefore, his Service would be regulated by the Regulations of 1993, that after expiry of 60 years he was not legally entitled to continue as Managing Director of the Bank, that the resolution of the Board dated 28th July, 1999 allowing him to continue as Managing Director until the Board decides otherwise without prior approval of the Bangladesh Bank provided in section 14(1) of the Ordinance is illegal, that as Prof. Muhammad Yunus had been holding the office beyond the age of superannuation, the principle of audi alteram partem would not be applicable and that the other petitioners had no locus-standi to maintain the writ petition challenging the impugned orders. 8. We have perused the writ petitions along with annexures, the impugned judgments, the Ordinance and the Service Regulations. We have heard the learned counsel at length for
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days together. Dr. Kamal Hossain, learned counsel appearing for Prof. Muhammad Yunus argued: a) the petitioner had effectively been denied access to justice by the summary rejection of the Writ Petition and no affidavit-in-opposition was filed controverting averments made in the writ petition; b) this Division in exercising appellate jurisdiction should have examined the judgment, and the petitioner should have been given opportunity to point out the errors in the judgment of the High Court Division; c) a summary rejection by the High Court Division of the writ petition denied the petitioner an opportunity of having an 9 effective hearing at that level and also deprived the petitioner of having an effective hearing at the appellate level since in the judgment of the High Court Division all relevant materials had not been considered; d) the grounds taken in the writ petition challenging the legality of the impugned orders are based on issues relating to interpretation of law and where the construction of law is to be considered, a proper adjudication as required by all constitutions can not be done in a vacuum or without consideration of the factual context; e) the summary rejection of the writ petition in the circumstances is contrary to stablished norms of constitutional jurisprudence; and f) the mode of exercise of judicial power by the High Court Division is manifestly erroneous and amounts to a
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Professor Muhammad Yunus and another Vs. Bangladesh and others (S.K. Sinha, J.)
denial of access to justice to the petitioner. 9. In support of his contention, the learned counsel has cited the cases of General Medical Council V. Spackman (1943) AC 644-645, Kanda V. Government of Malaya (1962) AC Privy Council, 322,337, Bibi Quamrunnessa V. Bandar Building Co. Ltd. (unreported), Civil Appeal No.190 of 2003, Exen Industries V. CCIE, AIR 1971 SC 1025, Century Spinning V. Ulhasnagar Municipal Council AIR 1971 SC 1021 and Veerappa V. B.P. Dalal AIR 1975 SC .778. 10. Mr. Mahmudul Islam while endorsing the submissions of Dr. Hossain contended: a) even if the petitioner had no legal right to continue as Managing Director of the Bank, the principle of natural justice had to be followed before removing him from such office; b) this being an essential principle when a quasi-judicial body embarks on determining disputes between the parties, it should not be denied to a person even if he had no legal right; c) there are inconsistent findings and observations in the judgment of the High Court Division and for correcting gross error committed by it, leave should be granted; d) in the Regulations of 1993 the expression 'e¨ve¯nvcbv cwiPvjK' and 'Kg©x' having been separately defined in clause 2.0 (O) and (P) respectively, there is no scope to apply the Regulations for deciding the terms and conditions of the office of the Managing Director, inasmuch as, Prof. Muhammad Yunus is not an employee but the Managing Director, who has
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been appointing the workers and officers of the Bank as per Regulations; and e) the Bangladesh Bank having not raised any objection in the petitioner’s performing as Managing Director since 1999, such 12 inaction indicates that there is tacit consent by implication to continue such office. 11. Mr. Rokanuddin Mahmud took us to the resolutions of the Board of Directors dated 28th July, 1999 and 31st December, 1999, the para wise reply of Grameen Bank in pursuance of Bangladesh Bank’s letter under memo dated 12th February, 2001, annexure-J, particularly paragraph 50.0 and the representation of the Grameen Bank in pursuance of the report of the Bangladesh Bank, annexure-M to the writ petition, and paragraph 3.0 including annexuresC and D and submitted; a) the last sentence of annexure-C is not applicable to the petitioner, inasmuch as, the petitioner’s terms of service will be regulated as per Regulations of 2001; b) since Prof. Muhammad Yunus has been holding the office of Managing Director for more than 10 years even after exceeding 60 years of age, his removal from office without proper notice is violative of the principle of natural justice, particularly when a stigma has been given to him in the impugned orders; and c) the petitioner having been appointed by the Board in accordance with section 14(1) of the Ordinance and approval having been sought by letter dated 14th August, 1990 and Bangladesh Bank having accorded approval by its letter dated 14th August, 1990,
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Professor Muhammad Yunus and another Vs. Bangladesh and others (S.K. Sinha, J.)
the impugned orders are without jurisdiction. 12. Ms. Sara Hossain, learned counsel appearing for the petitioners in Civil Petition No.641 of 2011 took us to the various provisions of the Ordinance and submitted: a) the petitioners who constitute the majority of the Board of Directors being borrowers and share holders of Grameen Bank have their right to challenge the impugned orders, inasmuch as, they improved their own lives and those of their family and children as a result of their involvement with Grameen Bank and thus, they are certainly aggrieved persons within the meaning of Article 102 of the Constitution; b) the High Court Division acted illegally in rejecting their petition in-limine, inasmuch as, they filed the writ petition in their personal capacity and even though they have no personal interest in the post of Managing Director, they have the right to prevent the interference in the internal affairs of the Bank; c) the petitioners as Directors of the Bank filed the writ petition to protect their statutory right under the Grameen Bank Ordinance, it being not a public institution, the majority shares held by private citizens have the right to prevent usurpation of their statutory right with regard to the management and control of the Grameen Bank and to safe-guard their organization; d) the petitioners have been denied their right of hearing and thus the High Court Division committed fundamental
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error in dismissing their writ petition summarily, and e)
Grameen Bank being a specialied Bank, Sui generis in the manner of its establishment and functioning, its operation is different from other Banks-the Board of the Bank, not the Government is the competent decisionmaking body.
13. Mr. Mahbubey Alam, learned Attorney General, on the other hand, supported the judgments of the High Court Division. According to the learned Attorney General, (a) Grameen Bank being a statutory Bank, the petitioner is a public servant within the meaning of Public Servants (Retirement Act) 1974, therefore, the Act of 1974 will be applicable to the case of the petitioner; (b) since the petitioner has already attained the age of 60 years, he has been holding the office of Managing Director illegally and therefore, no show cause notice is required to be served upon him; and (c) Rules of 2001 will not be applicable to the petitioner, which will be applicable for those who will be newly appointed as Managing Director. 14. Mr. Tawfiq Nawaz while endorsing the submissions of the learned Attorney General added: (a)
the petitioner having attained the age of 60 years before promulgation of Regulations of 2001, does not deserve a show cause notice before taking action against him, and the Regulations of 2001 will not be applicable to him;
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(b)
(c)
(d)
Professor Muhammad Yunus and another Vs. Bangladesh and others (S.K. Sinha, J.)
section 14(1) of the Ordinance clearly provides for approval of the Bangladesh Bank for appointment of a Managing Director and the petitioner having not challenged section 14, there is no scope to declare the impugned orders illegal since no prior approval of the Bangladesh has been taken; the impugned orders are in fact not actions taken by the Bangladesh Bank; rather by these orders an intimation has been given to the Bank that Prof. Muhammad Yunus has been holding the office of Managing Director even after attaining the age of superannuation; the Grameen Bank being a statutory Bank, it comes within the definition of “statutory public authority� within the meaning of Article 152 of the Constitution and the petitioner having admitted in his affidavit that his profession is service, he is a public servant and therefore, he can not continue as Managing Director of the Bank even after crossing the age of 70 years;
(e)
when a public servant attains the age of superannuation, the authority is not required to issue any show cause notice for his removal other than to intimate him the correct position of his service and the same has been done in case of the petitioner; and
(f)
even if it is assumed that no action has been taken against Prof. Muhammad Yunus even after expiry the age of 60 years that does
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not mean that the provisions of law which are applicable to the Bank and its employees have no force of law. 15. Upon hearing the parties and on consideration of the materials on record the following points have emerged for our consideration: a) What is the status of Grameen Bank? b) What is the status of its Managing Director? c) What is the tenure of the Managing Director as per existing law? d) What are the terms and conditions regulating the office of the Managing Director? e) Whether the Board of Directors of the Bank can allow the Managing Director to continue for indefinite period without approval of the Bangladesh Bank, and f) Whether the principle of audi alteram partem is applicable while removing an officer of a statutory organization who has been holding such office beyond the age of superannuation. 16. There is no dispute that Grameen Bank has been established by a statute with 60% paid-up share capital subscribed, managed or controlled by the Government and 25% by borrowers. The above ratio of share capital has been reduced to 25% and 75% respectively by an amendment by the Grameen Bank (Amendment) Ordinance, 1986. Be that as it may, this reduction of holding share capital will not make any difference regarding its status and the Government's power in the affairs of this statutory Bank. Section 5(2) of the Ordinance shows that the Board has no power to open
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Professor Muhammad Yunus and another Vs. Bangladesh and others (S.K. Sinha, J.)
regional or other offices without approval of the Bangladesh Bank. Even in case of increase of its authorized capital, prior approval of the Government is necessary under section 6(3). It is also provided in section 7(2) that the Government may increase the paid up capital of the Bank from time to time in its sole discretion. Section 10(1) provides that the Chairman of the Board will be appointed by the Government, and three persons shall be appointed as Directors of the Bank by the Government under section 9(1)(a). The Managing Director will not be elected but be appointed by the Board with prior approval of the Government under section 14(1). Even the resignation of the Managing Director will not be effective until such resignation is accepted by the Government. These provisions undoubtly spel out that it is a statutory Bank and though the Board of Directors have been authorized to manage its affairs including the power to appoint the Managing Director but the Government and/or Bangladesh Bank is its ultimate controlling authority. 17. However, there is no dispute that Professor Muhammad Yunus undertook "Rural Economics Programme" at village Jobra being sponsored by the Department of Economics, University of Chittagong in 1976, when he was a professor of the said University. This project was adopted by the Bangladesh Bank which is evident from the 'Explanation' added at the bottom of the Ordinance. But at the same time, there is no gainsaying the fact that this Grameen Bank could not have been established unless professor Muhammad Yunus came forward with the ideas which he dreamt of providing 'micro credit' facilities to the rural poor while he was a professor of the University and approached the Government to set up Grameen Bank by an Ordinance. In view of the above admitted facts, we find no substance in
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the submission of the learned counsel that Professor Muhammad Yunus is the founder of the Bank and that Grameen Bank is a Private Bank. It may be said that he is the precursor for the establishment of the Bank and its founder Managing Director. 18. Admittedly Professor Muhammad Yunus was appointed as Managing Director initially in accordance with the terms and conditions of the Implementation Division's memo dated 11th September, 1980 of the Ministry of Finance and Planning Division, Government of Bangladesh. He was reappointed on 25th August, 1990 on the following terms and conditions: a) his service conditions will be regulated as per Regulations to be framed in accordance with section 14(4) of the Ordinance; b) the Regulations will be effective after publishing them in the Official Gazette; c) Grameen Bank has been advised to take effective steps in this regard; and d) if the Regulations are inconsistent with the existing ones prior approval of the Bangladesh Bank will be necessary. 19. The petitioner did not file the Implementation Divisions memo dated 11th September, 1980, though in his reappointment letter there was clear stipulation that his terms and conditions of service would be regulated as per 'existing terms' until the Regulations are framed in exercise of powers under section 36, i.e. the Implementation Division's memo dated 11th September, 1980. In course of hearing we drew the attention of Dr. Hossain repeatedly about this letter for appraising us the initial terms and the status of the Managing Director. Dr. Hossain avoided to meet the query saying
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Professor Muhammad Yunus and another Vs. Bangladesh and others (S.K. Sinha, J.)
that Mr. Rokanuddin Mahmud would meet all those queries on facts. When Mr. Rokanuddin Mahmud argued on facts, he was asked to produce this memorandum or at least to intimate us the terms and conditions on which he was appointed as Managing Director. Mr. Mahmud’s response was that he would reply to our query later on but to our utter surprise, Mr. Mahmud concluded his submissions without meeting our query. 20. The petitioner has come in Court for judicial review of the orders/decisions of the Bangladesh Bank intimating the Chairman of the Board of Directors of the Bank that as Prof. Yunus has been continuing as Managing Director even after surpassing the retirement age of 60 years violating the service Regulations, his continuation as per decision of the Board for indefinite period without approval of the Bangladesh Bank is not legal and that he has not been legally working as Managing Director of the Bank. 21. Judicial review is different from an appeal. The Court hearing an appeal will normally have the right to decide the whole case again and, if it wishes, to substitute its own decision for that of the Court below. This is precisely where a judicial review differs from an appeal. The Court conducting a review is concerned to determine the lawfulness, but not the merits of the decision under review. The natural corollary to this is that though the Court could quash the impugned decision, it could not substitute its own decision for that of the concerned Authority, the original decision maker. 22. The governing principles of judicial review adopted by Lord Diplock in Council of Civil Service Unions V. Minister for the Civil
89
Service (1984) 3 All ER 935 at 949 commands considerable respect. "Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality', the second irrationality' and the third 'procedural impropriety". 23. Lord Diplock, explained the meaning of the expression 'illegality' in determining the lawfulness of the decision as under: "By illegality as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable." 24. This test is two fold, as the decision maker (a) 'must understand' the relevant law orrectly, and (b) 'must give effect to it'. The decision- maker i.e. the Bangladesh Bank must comply with both these conditions. Failure under either head will presumably be enough to entitle the Court to quash the decision. It is also pointed out by Lord Diplock that it is for the Court to decide whether the decision-maker has indeed complied with these conditions. Now the question is essentially whether the authority entrusted with the decision-making power has the right to decide the case 'wrongly' or whether any error of law automatically takes the decision outside the authority's jurisdiction.
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Professor Muhammad Yunus and another Vs. Bangladesh and others (S.K. Sinha, J.)
This takes us to consider the relevant provisions of law. 25. Section 14(1) of the Ordinance states that the Managing Director of the Bank shall be appointed by the Board with prior approval of the Bangladesh Bank. Sub-section (4) provides that the Managing Director shall be the wholetime officer and Chief Executive of the Bank and shall serve under the Bank on such terms and conditions as may be prescribed by Regulations. Section 15 also provides that the Managing Director shall perform functions as may be prescribed by the Regulations. The letter of reappointment dated 25th August, 1990, annexure-C, was issued in accordance with 27 sections 14(4) and 15. It has been specifically mentioned that till such Regulations are framed, the 'existing terms' will hold the field. Existing terms means the terms fixed in his initial appointment letter on 13th September, 1983. It is also seen that the Board made Regulations under the heading "MÖvgxb PvKzix wewagvjv" which had been published in the Gazette on 1st March, 1993. 26. Though it has been termed as Service Regulations, it is seen that apart from terms and conditions of service of the workers, staff and officers, this Regulations also provide the powers, the performance of functions and discharge of duties by the employees, staff and officers of the Bank. The inclusion of these provisions sufficiently indicate that the Regulations have been made for 'efficient conduct of the affairs of the Bank' as well. It may be said that it is a complete Code promulgated in accordance with the Ordinance for running the affairs of the Bank and that being the position, it can safely be concluded that this Regulations are applicable to all the employees including the officers of the Bank.
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27. What's more, this Regulations have been promulgated within less than three years of the direction given by the Bangladesh Bank in annexure-C. Besides, in paragraph 2.0 of the re-appointment letter of the petitioner, annexure-D, it was pointed out that he would be treated as a regular 'officer' of the Bank, and in paragraph 3.0 it was clearly mentioned that he would draw monthly '‡eZb' (salary), and would also be provided with pension, gratuity along with other benefits as per prevailing rules. Pension benefits are given to the employees of the Government and other statutory bodies including a bank. Clause 2(P) defines 'Kg©x' (worker/employee) means all permanent and temporary officers and employees. Clause 2(X) defines '‡eZb' (salary) means monthly salary received by an employee sanctioned against his post or other equal financial benefits sanctioned. In paragraph 3.0, his monthly salary was fixed which is in accordance with clause 2(P). Clause 49.0 relates to gratuity and clause 51.0 relates to pension etc, which the petitioner is entitled to as per paragraph 9.0 of his appointment letter. Clause 50.0 states that the retirement age of an employee of the Bank is 60 years. There is, therefore, no dispute that the terms of appointment of Professor Yunus cover the provisions of this Regulations. 28. It is argued that in the Regulations the expressions 'Managing Director' and 'Employee' having been separately defined in paragraphs 2(O) and 2(P) respectively, and as the Managing Director being the employer of the employees and officers, he should not be treated in the category of an employee. This submission is devoid of substance because, as mentioned above, Professor Yunus had not been elected Managing Director but appointed Managing Director with the status of a regular officer of the Bank and he had acquiesced to
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Professor Muhammad Yunus and another Vs. Bangladesh and others (S.K. Sinha, J.)
his such status as an officer of the Bank. Further, his power to appoint officers is a part of the functions of his job provided in section 15 read with clause 7.4 of the Regulations which will not make any difference in his status. This power of appointment was also given to other officers of the Bank before 30coming into force of the Regulations and powers of those officers had been retained in the proviso to clause 7.4 of the Regulations. This being the position if we accept the submission of the learned counsel, then the Regulations will not be applicable to them as well. Similar job descriptions and functions have also been allocated to branch managers, area managers, programme officers etc. in appendix-3 to the Regulations. 29. There is no dispute that Professor Muhammad Yunus was reappointed by the Board with prior approval of the Bangladesh Bank on 25th August, 1990. The question then turns to be decided as to the tenure of such appointment. On this point there are inconsistent submissions from the Bar. It is firstly submitted, there is no fixed tenure and on the next breath, it is contended that the Board is the authority to decide the tenure, and at its 52nd meeting it has been decided that Professor Yunus would continue to perform as Managing Director until contrary is decided. Alternatively, it is argued that the terms and conditions including the tenure will be regulated as per Regulations of 2001 published in the Gazette on 19th November, 2001, annexure-H. We find fallacy in the submissions in view of the fact that the petitioner is not in service of a private Bank; rather, he is in the service of a statutory Bank, established under an Ordinance, being controlled and regulated by the Government and therefore, the Board
91
has no authority to fix his tenure of service for an indefinite period without approval of the Bangladesh Bank. 30. This resolution, according to the learned counsel, is in accordance with law and the Bangladesh Bank illegally interfered with the internal affairs of the Bank. The tenure including the terms and conditions will be governed by section 14 read with the Regulations made in exercise of powers under section 36. Assuming that the Regulations of 1993 will not be applicable to the petitioner, as argued, then the Implementation Division's memo dated 11th September, 1980 will hold the field since it was clearly pointed out in his reappointment letter that until the Regulations are framed the ‘existing terms’ would govern his service, and if the Regulations as may be framed conflicts with the existing ones, prior approval of the Bangladesh Bank would be necessary. The Regulations of 2001 were framed long after the expiry of the retirement age of 60 years. 31. We are of the view that since the petitioner seeks judicial review of the impugned orders of the Bangladesh Bank removing him from the post of Managing Director, he ought to have filed the Implementation Division’s memorandum which is relevant for deciding his status and the terms and conditions of his service. 32. The said memorandum was issued by the Ministry of Finance fixing the pay scales of the Governor/Deputy Governor of Bangladesh Bank and Managing Directors of the Nationalised Banks and Financial Institutions and providing other related facilities and benefits, the relevant portion is reproduced below: "GOVERNMENT OF THE PEOPLE'S REPUBLIC OF BANGLADESH
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Professor Muhammad Yunus and another Vs. Bangladesh and others (S.K. Sinha, J.)
MINISTRY OF FINANCE IMPLEMENTATION DIVISION No. MF(ID)V/N(A)-16/78/1199 11.9.80 33
Dated
OFFICE MEMORANDUM
Sub: Pay scales of the Governor/Dy. Governor of Bangladesh Bank and Managing Directors of the Nationalised Banks & Financial Instts. The undersigned is directed to say that the Government have been pleased to decide that the posts of Governor/Deputy Governor of Bangladesh Bank and the Managing Directors of Nationalised Banks and Financial Institutions named below will be placed in the New scales of pay and receive other allowances/facilities as shown below ..............." 33. The petitioner had been given the status of the Managing Director of a Nationalised Bank and therefore, the terms and conditions applicable to the Managing Director of a Nationalised Bank would apply to him. These terms and conditions have not been changed by the Bank by the Regulations or by the Board with the approval of the Bangladesh Bank. Therefore, we can safely infer that the petitioner has been performing as Managing Director for a tenure equivalent to those Managing Directors of Nationalised Banks. The petitioner did not claim that he was not appointed on contract basis as per paragraph 7 of this memorandum, in which case, his service would have been "governed by their own terms of contract". He is a public servant plain and simple, and the age limit for retirement of a public servant will be applicable to him. In his appointment letter it was clearly pointed out that he would be
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treated as wbqwgZ Kg©KZ©v (regular officer) and that there would be a continuity of service. A public servant's retirement age has been fixed by statute and after expiry of his age of superannuation, he cannot continue in such office as of right, unless, the tenure of his service is extended by the authority. There is nothing on record to show that his service has been extended by the concerned authority. 34. There is no explanation as to why the Grameen Bank did not frame separate Regulations determining the terms and conditions of the Managing Director at the time of framing the Regulations of 1993 if they are not applicable to him despite direction given by the Bangladesh Bank. Mr. Tawfiq Nawaz submitted that the Regulations of 2001 would not be applicable to the petitioner as he had already attained the age of 60 years on 28th June, 2000, long before coming into force of this Regulations on 19th November, 2001 and secondly, these Regulations have been made providing the terms and conditions for those Managing Directors who will be appointed later on. In this connection, the learned counsel has drawn our attention to the preamble. In the preamble it has been stated “MÖvgxb e¨vsK Ordinance No.XLVI, 1983 Gi 14 avivi weavb †gvZv‡eK e¨e¯nvcbv cwiPvjK wb‡qv‡Mi kZ©vejx msµvšÍ wbgœ ewY©Z wbgœwjwLZ †i¸‡jkb cÖYxZ n‡jv|” (emphasis added) 35. The preamble of a statute is a prefactory statement at the beginning, following the title and preceding the enacting clause; it explains the policy and purpose, the reasons and motives for, and the objects sought to be accomplished by the enactment of the statute. Preamble has been regarded as of great importance as guides to construction. In the preamble of the Regulations it has been stated in clear terms that those have been framed for
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Professor Muhammad Yunus and another Vs. Bangladesh and others (S.K. Sinha, J.)
regulating the terms of appointment of the Managing Director. While Professor 36 Yunus was performing as Managing Director these Regulations were framed. In view of the above, we find merit in the contention of Mr. Tawfiq Nawaz. 36. Even if it is assumed that these Regulations are applicable, the petitioner will not derive any benefit from them. The petitioner has not been reappointed after promulgation of the same with prior approval of the Bangladesh Bank. Secondly, clause 4.00 provides that the tenure of the office will not be more than five years, and the Board can reappoint the Managing Director for a fixed term on such new terms as will be decided at the time of reappointment. The tenure of five years expired in November, 2006 from the date of coming into force of these Regulations even if it is taken that the same are applicable to the petitioner. But the petitioner was neither appointed nor reappointed fixing his terms after coming into force of the said Regulations. Learned counsel for the petitioner fails to explain how these Regulations will regulate the terms and conditions of Professor Yunus? In view of the above, there is no doubt that Bangladesh Bank removed the petitioner in exercise of its power in accordance with law. 37. It is submitted that the Bangladesh Bank issued the impugned orders without affording Prof. Muhammad Yunus an opportunity of being heard and thus there is procedural impropriety in the impugned orders. This principle of natural justice has been laid down by Courts as being minimum protection of rights of the individual against the arbitrary decision taken by the quasi-judicial and administrative authority when making an order affecting ones rights. There is no dispute that whenever justice fails to achieve solemn
93
purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality. There is also no denial of the fact that the adherence to principle of natural justice is recognized by all civilized States which is of supreme importance when quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving penal consequence is in issue. It is now well recognized that no one should be condemned unheard and a notice has to be served before any action is taken. 38. First it has to be decided as to whether he was entitled to a notice when he ceased to hold office on attaining the age of retirement, on the operation of law. He was not terminated from service or retired compulsorily or removed from service for which he was entitled to a show cause notice. He was informed that as he had surpassed the age of uperannuation, he had no right to hold the office. This principle would apply only when the action was attended with penal consequences, which constituted punishment. In the facts of the given case it would not attract this principle. It is contended that an express stigma was attached to the order of removal and thus, the orders were violative to the principle of natural justice. As observed, as the petitioner was neither removed nor discharged or retired compulsorily it could have been inferred that the orders constituted no penal consequences so as to attract a notice. There is no aspersion or reflection on the conduct, efficiency or the like, made in the orders, which would adversely affect his social status and therefore, we find no substance in the contention that a stigma was attached to the impugned orders. 39. Provisions of Article 135(2) of the Constitution can be invoked by a person who
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Professor Muhammad Yunus and another Vs. Bangladesh and others (S.K. Sinha, J.)
holds any civil post in the service of the Republic but the petitioner being an officer of a statutory Bank did not come in the said category. Article 135(2) provides that no person shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause why that action should not be taken. Similar provision is provided in Article 311(2) of the Constitution of India. It has been held in different cases that compulsory retirement of an officer who has completed 25 years of service before superannuation would not attract Article 311(2) even though it is, in fact, ordered on the ground of misconduct, inefficiency or the like because in compulsory retirement, the Government servant does not lose any retirement benefits. Reference in this connection is the cases of Mati Ram Deka V. NEF Railways, AIR 1964 S.C. 600 and Chief Justice of A.P. V. LVA Dixitulu, AIR 1979 S.C. 193. 40. We noticed that before the audit objection was raised by the Bangladesh Bank on 31st December, 1999, Prof. Muhammad Yunus had sufficient information that he would not eligible to continue as Managing Director as he would attain the age of superannuation in June 2000, as would be evident from annexureF, the 52th meeting of the Board held on 28th July, 1999, otherwise there was no reason behind to discuss and adopt a resolution to the effect that while appointing Prof. Muhammad Yunus the Board did not fix the tenure and he would be entitled to continue until otherwise decided. Besides, in his letter dated 15th March, 2010 addressed to the Minister for Finance, which was reproduced in his supplementary affidavit dated 6th March, 2011, he expressed his intention to retire by handing over charge to the second generation. This letter indicated that he was convinced that
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age is the barrier to continue as Managing Director and accordingly he wanted to become Chairman of the Bank, and desired an honourable transition of power. Therefore, he had sufficient knowledge that he had ceased to hold the office of Managing Director otherwise there was no reason for him to express his desire to handover the power. 41. Even if it is assumed that the impugned orders of removal visited professor Yunus with the loss of office, the maxim audi alteram partem can not have universal application. Rules of natural justice necessarily vary with the nature of the right and the attendant circumstances. Tucker L.J. said in Russell V. Duke of Norfolk (1949 1 All E R 109) “the requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.� It has been argued in Uma Nath Pandey V. State of U.P., AIR 2009 SC 2375 by Dr. Arijit Pasayat, J. "Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the frame work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be
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Professor Muhammad Yunus and another Vs. Bangladesh and others (S.K. Sinha, J.)
consistent with the rules of natural justice. Expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and nonpecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life." 42. After making above observation, the learned Judge travelled the globe to explore the principle and concluded: "We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the Courts can, in exercise of their 'discretion' refuse certiorari, prohibition, mandamus or injunction even though natural justice is not followed". 43. In Rajendra Singh V. State of M.P. (1996) 5 SCC 460 it is stated: "even in relation to statutory provisions requiring notice, a distinction is to be made between cases where the provision is intended for individual benefit and where a provision is intended to protect public interest. In the former case, it can be waived while in the case of the latter, it can not be waived". 44. There are cases in which it is argued that if this principle is followed it will be rather useless formality as no fruitful purpose will be served in such cases this principle can not be adhered to. In M.C. Mehta V. Union of India (1999) 6 SCC 237 it was observed: "Before we go into the final aspect of this contention, we would like to state that case relating to breach of natural justice do also occur where all facts
95
are not admitted or are not all beyond dispute. In the context of those cases there is a considerable case-law and literature as to whether relief can be refused even if the court thinks that the case of the applicant is not one of 'real substance' or that there is no substantial possibility of his success or that the result will not be different, even if natural justice is followed." 45. Lord Woolf in Lloyd V. Mc Mohan (1987) 1 All ER 1118 has also not disfavoured refusal of discretion in certain cases of breach of natural justice. One argument has been made in Mc Carthy V. Grant, 1959 NZLE 451014 "it is sufficient for the applicant to show that there is 'real-likelihood-not certainly -of prejudice". Wade, Administrative Law, 5th Edn. Page 526-530 it has been stated that while futile writs may not be issued, a distinction has to be made according to the nature of the decision. We found that Prof. Muhammad Yunus was not condemned unheard. He had sufficient notice that he was holding the office of Managing Director of Grameen Bank without sanction of law as he had attained the age of superannuation in June, 2000, 10 years prior to the making of the impugned orders. Therefore, we find no merit in the contention of the learned counsel. 46. In General Medical Council case (1943 AC 644), the question involved was "if any registered medical practitioner shall be convicted in England or Ireland of any felony or misdemeanour, or in Scotland of any crime or offence, or shall after due inquiry be judged by the General Council to have been guilty of infamous conduct in any professional respect, the General Council may, if they see fit, direct the registrar to erase the name of such medical practitioner from the register". Section 29 of
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Professor Muhammad Yunus and another Vs. Bangladesh and others (S.K. Sinha, J.)
the Medical Act, 1858 empowers the medical council to convict for felony or misdemeanour with a criminal conviction. In case of infamous conduct which is not connected with a criminal conviction, the decision of the council, if adverse to the practitioner, must be arrived at "after due inquiry". The question is whether the council in that case can be regarded having reached its adverse decision "after due inquiry" when it has refused to hear evidence tendered by the practitioner with a view to showing that he has not been guilty of the infamous conduct alleged. In the facts of the given case Lord Wright following the case of Rex V. Local Government Board (1914) 1KB 160 argued on consideration of an observation made in that case "contrary to natural justice" as an expression "sadly lacking in precision". "So it may be, and perhaps, it is not desirable to attempt to force it into any procrustean bed, but the statements which I have quoted may, at least, be taken to emphasize the essential requirements that the tribunal should be impartial and that the medical practitioner who is impugned should be given a full and fair opportunity of being heard". In Kanda V. Government of Federation of Malaya, 1962(AC) 322, two men were charged in the Supreme Court at Penag with uttering forged lottery tickets. The prosecution failed? Police officers as witnesses gave false evidence in trial. The two accused men including inspector Kanda were acquitted. The commissioner of police ordered an inquiry to be held. It reported that false evidence had been fabricated for use at the trial. Article 135(2) of the Constitution of Federation of Malaya provides "No member of such a service as aforesaid (the police service is one of these) shall be dismissed or reduce in rank without being given a reasonable opportunity of being heard". Inspector Kanda was dismi-
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ssed on 7th July, 1958. In the context of the matter, it was observed "if the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other". 47. In Century Spinning and Manufacturing Company Case AIR 1971 SC (1021), the company set up a factory within the limits of Bombay Industrial area. On the representation of the company the Government of Bombay published a notification including the company's area in which the industrial area was set up proclaiming that the industrial area to be excluded from municipal jurisdiction and on the representation of the municipality, the Government withdrew the said notification on condition that the municipality would exempt existing factories from payment of octroi for 7 years. The municipality thereafter ignoring the advise of the government informed that it would consider on merits any representation of a tax prayer for exemption from payment of octroi. Thereafter the Municipality sought to levy octroi duty and to recover octroi duty from the company. In the context of the matter, the Supreme Court observed "the High Court may, in exercise of its discretion, decline to excise its extra-ordinary jurisdiction under Article 226 of the Constitution. But the discretion is judicial: if the petitioner makes a claim which is frivolous, vexatious, or prima facie unjust, or may not appropriately be tried in a petition invoking extra-ordinary jurisdiction, the Court may decline to entertain the
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41
Bangladesh Statutes
81
MORTGAGEE of a crop. Including any instrument evidencing an agreement to secure the repayment of a loan made upon any mortgagee of a crop. Where the crop is or is not in existence at the time of the mortgagee— (a) When the loan is repayable not more than three months from the date of the instrument— (i) For every sum secured not exceeding Taka 1,000; Ten Taka and (ii) For every Taka 1,000 or part thereof secured in Ten Taka. excess of Taka 1,000. (b) When the loan is repayable more than three months but not more than eighteen months from the date of the instrument— (i) For every sum secured not exceeding Taka 1,000; Ten Taka and (ii) For every Taka 1,000 or part thereof secured in Ten Taka excess of Taka 1,000.
42
NOTARIAL ACT, that is to say, any instrument, Two hundred Taka endorsement, note, attestation certificate or entry note being a protest made or signed by a Notary Public in the execution of the duties of his office, if by any other person lawfully action as a Notary Public. See also PROTEST BILL or NOTE (No. 50)
43
NOTE OR MEMORANDUM, sent by broker or agent to his principal intimating the purchase or sale on account of such principal— (a) Of any goods exceeds in value Taka 1,000; and
Twenty Taka
(b) Of any stock or marketable security exceeds in Twenty Taka for every Taka value 1,000 Taka but not being a Government 10,000 or part thereof the value of the stock security security; (c) Of a Government security. 44
As in (b)
NOTES OR PROTEST BY THE MASTER OF A Three hundred Taka SHIP. See also protest by the Master of a Ship (No. 51) ORDER FOR THE PAYMENT OF MONEY See Bill
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of Exchange (No. 13). 45
PARTITION- INSTRUMENT Of, as defined by section 2(15).
The same duty as a BOND (No. 15) for the amount of the value of the separated share or shares of the property N.B. The largest share remaining after the property is partitioned (or if there are two or more shares of equal value and not smaller than any of the other shares than one of such equal shares) shall be deemed to be that from which the other shares are separated. Provided always that— (a) When an instrument of partition containing an agreement to divided property in severally is executed and partition is effected in pursuance of such agreement the duty chargeable upon the instrument effecting such partition shall be reduced by the amount of duty paid in respect of the first instrument, but shall not be less than taka fifty; (b) Where land is held on revenue settlement for a period not exceeding thirty years and paying the full assessment, the value for the purpose of duty shall be calculated at not more than five times the annual revenue;
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(c) Where a final order for effecting a Civil Court or an award by an Arbitrator directing a partition, is stamped with the stamp required for an instrument of partition and an instrument of partition in pursuance of such order or award is subsequently executed, the duty on such instrument shall not exceed taka fifty. 46
A-INSTRUMENT OF—
One thousand Taka
(a) Where the capital of the partnership does not exceed Taka 50,000; and (b) In any other case.
Two thousand Taka
B-Dissolution of pawn or pledge.
One thousand Taka
See Agreement relating to deposit of title deeds, power pledge (No. 6) 47
POLICY OF INSURANCEA-Sea Insurance (see section 7)
(1)
For or upon any voyage(i) Where the premium or consideration does not One Taka; exceed the rate of twelve poisha or one-eighth (1/8) per centum of the amount insured by the policy; (ii) In any other case, for every One thousand five One Taka; hundred Taka or any part thereof of an insurance policy.
(2)
For time— (iii) For every One thousand Taka or for any part One Taka; thereof of an insurance policy made for any time not exceeding 12 (twelve) months. B-fire insurance and other classes of insurance, not elsewhere included in this Article, covering goods, merchandise personal effects, crops and other property
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Bangladesh Statutes against loss or damage-
(1)
In respect of an original policy(i) When the sum insured does not exceed Taka Twenty five Taka 10,000; and (ii) In any other case
(2)
Fifty Taka
In respect of each receipt for any payment of a One-half of the duty premium on any renewal of an original policy. payable in respect of the original policy in addition to the amount, if any, chargeable under No. 53 C- Accident and Sickness Insurance— (i) In any case of single accident or any sickness or (a) Taka 2 (two), where the death from accident. amount payable is 10,000 (ten thousand) Taka or less; (b) Taka 1(one), where the amount payable exceeds Taka 10,000 (ten thousand) for every Taka 2,500 (two thousand and five hundred) or part thereof; and (c) In case of a policy of insurance against death from accident, when the annual premium payable does not exceed Two Taka fifty poisha per 1,000 (one thousand) Taka, the stamp duty on such instrument shall be five poisha for every 1,000 Taka, or part thereof. D-Insurance by way of indemnity against liability to Two Taka pay damages on account of accidents to workmen employed by or under the insurer or against liability to pay compensation under the Workmen’s Compensation Act, 1923, for every Taka 100 or part thereof payable as premium. E-Life Insurance or other insurance not specifically provided for, except such a Reinsurance as is described
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in Division F of this Article— (i) For every sum insured not exceeding Taka 1,000;
Two Taka
(ii) For every sum insured exceeds Taka 1,000 but not Four Taka exceeding Taka 5,000; and (iii) For every sum insured exceeds Taka 5,000 but not Five Taka exceeding Taka 10,000 and also for every Taka 5,000 for part thereof in excess of Taka 10,000. EXEMPTION Policies of life insurance granted by the DirectorGeneral of Post-Offices in accordance with rules for Postal Life Insurance issued under the authority of the Government. F-Reinsurance by an Insurance Company which has granted a policy of the nature specified in Division A or Division B of this Article with another company by way of indemnity or guarantee against the payment on the original insurance of a certain part of the sum insured thereby.
One quarter of the duty payable in respect of the original insurance but not less than Taka Two.
GENERAL EXEMPTION Letter of cover or engagement to issue a policy of Insurance: Provided that, unless such letter or engagement bears the stamp prescribed by this Act for such policy, nothing shall be claimable there under, not shall it be available for any purpose, except to compel the delivery of the policy therein mentioned. 48
POWER OF ATTORNEY as defined by section 2(21) not being a proxy— (a) When executed for the sole purpose of procureing One hundred Taka the registration of one or more document in relation to a single transaction or for admitting execution of one or more such documents; (b) When authorizing one person or more to act in a Two hundred Taka single transaction other than the case mentioned, in clause (a); (c) When authorizing not more than five persons to act Four hundred Taka jointly and severally in more than one transaction or
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Bangladesh Statutes generally;
(d) When authorizing more than five but, not more Eight hundred Taka than ten persons, to act jointly and severally in more than one transaction or generally; (e) When given for consideration and authorizing the The same duty as a attorney to sell any immovable property; and Conveyance (No. 23) for the amount of the consideration. “Provided that in the case of a power of attorney given by a loanee while obtaining loans, advances or any other credit facilities from any scheduled bank or financial institution empowering such bank or institution to realize the loan amount from him, in the event of default by him, by selling his immovable property, no stamp duty will be payable. Explanation— clause—
In
this
(a) “Financial institution” means the Bangladesh Shilpa Bank established by the Bangladesh Shilpa Bank Order, 1972 (President’s Order No. 129 of 1972), the Bangladesh Shilpa Rin Sangstha Established by the Bangladesh Shilpa Rin Sangstha Order, 1972 (President’s Order No. 128 of 1972) and the Bangladesh House Building Finance. Corporation established under the Bangladesh House Building Fiance Corporation Order, 1973 (President’s
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Order No. 7 of 1973); and (b) “Scheduled bank” means a scheduled bank as defined in clause (j) (article 2 of the Bangladesh Bank Order, 1972 (president’s Order No. 127 of 1972)” (f) In any other case. 49
One hundred Taka for each person authorized.
PROMISSORY NOTE as defined by section 2(22)(a) When payable on demand(i) When the amount or value does not exceed Taka Ten Taka 2,000; (ii) When the amount or value exceeds Taka 2,000 but Twenty Taka does not exceed Taka 10,000; (iii) In any other case.
Fifty Taka
(b) When payable otherwise than on demand.
The same duty as a Bill OF EXCHANGE (No. 13) for the same and payable otherwise than on demand
50
PROTEST OF BILL, or Notes, that is to say, any Two hundred Taka declaration in writing made by a Notary Public, or other person lawfully acting as such attesting to dishonor of a Bill of Exchange or Promissory Note.
51
PROTEST BY THE MASTER OF A SHIP, that is to Three hundred Taka say, any declaration of the particulars of her voyage drawn up by him with a view to the adjustment of losses or the calculation of averages, and every declaration in writing made by him against the charterers or the consignors for not loading or unloading the ship, when such declaration is attested or certified by a Notary Public or other person lawfully acting as such. See also Note of Protest by the Master of a Ship (No. 44)
52
Proxy empowering any person to vote at any one Twenty Taka
88
Bangladesh Statutes election of the Commissioners of a Paurashava or at any one meeting of (a) members of an incorporated company or other body corporate whose stock of fund is or are divided into shares and transferable, (b) a local authority, or (c) proprietors, members or contributors to the funds of any institution.
53
Receipt as defined by section 2(23) for any money or Ten Taka other property the amount or value of which exceeds Taka 400. EXEMPTIONS Receipt(a) Endorsed on or contained in any instruments duly stamped or any instrument exempted under the proviso to section 3 (instrument excited on behalf of the Government) or any cheque or bill or exchange payable on demand acknowledging the receipt or the consideration money herein expressed or the receipt of any principal money, interest or annuity, or other periodical payment thereby secured; (b) For any payment of money without consideration; (c) For any payment of rent by a cultivator on account of land assessed to Government revenue; (d) For pay or allowances by non-commissioned or petty officers, soldiers, sailors or airman of military, naval or air forces when serving in such capacity or by mounted policy constables; (e) Given by holders of family certificates in cases where the person from whose pay or allowances the sum comprised in the receipt has been assigned is a non-commissioned or petty officer, soldier, sailor or airmen of any of the said forces and serving in such capacity; (f) For pensions or allowances by persons receiving such pensions or allowances in respect of their service as such non-commissioned or petty officers, solders, sailors or airmen and not serving the Government in any other capacity; (g) Given by a headman or lambardar for land revenue
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or taxes collected by him; (h) Given for money or securities for money deposited in the hands of any banker, to be accounted for. Provided that the same is not expressed to be received of or by the hands of, any other than the person to whom the same is to be accounted for. 54
RE-CONVEYANCE PROPERTY
OF
MORTGAGEED The same duty as a CONVEYANCE (No. 23) for a amount of such (a) If the consideration for which the property was consideration as set forth in mortgaged does not exceed Taka 1,000; and re-conveyance (b) In any other case.
55
Three hundred Taka
RELEASE that is to say, any instrument whereby a person renounces a claim upon another person or against any specified property(a) If the amount or value of the claim does not exceed The same duty as BOND Taka 2,000; and (No. 15) for such amount or value as set forth in the release
56
(b) In any other case.
Two hundred Taka
RESPONDENT A BOND that is to say, any instrument securing a loan on the cargo laden or to be laden or board a ship and making repayment contingent on the arrival of the cargo at the post of destination.
The same duty as a BOTTOMRY BOND (No. 16) for the amount of the loan secured
REVOCATION OF TRUST or SETTLEMENT See settlement (No. 58); Trust (No. 64) 57
SECURITY BOND OR MORTGAGEE DEED, executed by way of a liability, or for the due execution of an office or to account for money or other property received by virtue thereof, or excited by a surety. By a surety to secure the due performance of a contract(a) When the amount secured does not exceed Taka The same duty as a Bond 2,000; and (No. 15) for the amount secured. (b) In any other case.
Two hundred Taka
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Bangladesh Statutes EXEMPTIONS Bond or other instrument, when executed(a) By headman nominated under the rules framed in accordance with the Irrigation Act, 1876 (Act III of 1876) section 99 for the due performance of their duties under that Act; (b) By any person for the purport of guaranteeing that the local income derived from private subscriptions to a charitable dispensary of or hospital or any other object of public utility shall not be less than a specified sum per menases; (c) Excepted by persons taking advances under the Land Improvement Loans Act, 1883, or the Agriculturists’ Loans Act, 1884 or by their sureties, as security for the repayment of such advances; (d) Executed by servants of the Government or their sureties to secure the due execution of an office, or the due accounting for money or other property received by virtue thereof.
58
SETTLEMENTA-Instrument of (including a deed or of dower).
EXEMPTIONS Deed of dower executed on the occasion of a
The same duty as a BOTTOMRY BOND (No. 16) for a sum equal to the amount or value of the property settled as set forth in such settlement: Provided that where agreement to settle is stamped with the stamprequired for an instrument or settlement, and an instrument of settlement in pursuance of such agreement issubsequently executed the dutyon such instrument shall not exceed fifty taka. Nil;
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marriage between Muslims(i) Dower up to Taka Twenty thousand; (ii) Above Taka Twenty thousand. B - Revocation of See also Trust (No. 64)
59
S H A R E W A R R A N T S T O BEARER issued under the Companies Act, 1913-
1 2 % ad valorem The same duty as a BOTTOMRY BOND (No. 16) for a sum equal to the amount or value of the property concerned; set forth in the instrument of revocation. 4% of the value of the consideration
EXEMPT1ONS Share warrant when issued by a company in pursuance of the Companies Act, 1913. section 43 to have effect only upon payment, as composition for that duty, to the Collector of Stamp revenue of(a) One a half per centum of the whole subscribed capital of the company; or (b) If any company which has paid the said duty or composition in full, subsequently issues an addition to its subscribed capital one and a half per centum of the additional capital so issued. 60
SHIPPING ORDER for or relating to the conveyance of goods on board of any vessels.
Fifty Taka
61
SURRENDER OF LEASE
The duty with which such lease is chargeable
(a) When the duty with which the lease is changeable does not exceed Four hundred Taka; and (b) In any other case.
One hundred Taka
EXEMPTION Surrender of Lease when such lease is exempted from duty. 62
TRANSFER (whether with or without consideration)(a) Of shares in an incorporated company or other
1.5% of the value of the
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Bangladesh Statutes body corporate;
consideration
(b) Of debentures being marketable securities, whether the debenture is; liable to duty or not, except debentures provided for by section 8;
The same duty as prescribed under clause (a) of this Article for the value of the share equal to be face amount of the debenture
(c) Of any interest secured by bond, mortgagee-deed in respect of which duty has been paid under article No. 40 or policy of insurance(i) If the duty on such bond, mortgagee-deed or policy does not exceed Four hundred Taka; and
The duty with which such bond, mortgageedeed or policy of insurance is chargeable.
(ii) In any other case.
One hundred Taka
(d) Of any property under General's Act, 1913, section 25;
the Administrator
(e) Of any trust property without consideration from one trust to another trustee or from a trustee of a beneficiary.
One hundred Taka Fifty Taka
EXEMPTIONS (I)
Transfers by endorsement-
a) Of a bill of exchange, chease or promissory note; (b) Of a bill of landing, delivery order, warrant for goods, or there mercantile document of title to goods; (c) Of a policy of insurance; (d) Of securities of the Government See also section 8 (2) Transfer of shares and debentures of the public limited companies defined in the Companies Act, 1994 (Act No. 18 of 1994) and whose shares are listed in the stock exchange. 63
TRANSFER OF LEASE by way of assignment and not by way of under lease. EXEMPTION Transfer of any lease exempt from duty.
The same duty as “Conveyance (No. 23) a consideration equal the amount of consideration for
a for to the the
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trnasfer 64
TRUST A-Revocation of or concerning any property when made by any writing not being a will.
B-Revocation of or concerning any property when made by any instrument other than will.
The same duty as a BOTTOMRY BOND (No. 16) for a sum equal to the amount of value of the protperty concerned as act forth in the insturment. The same duty as a BOTTOMRY BOND (No. 16) for a sum equal to the amount or value of the propety concerned as act for in the instrument
Sell also SETTLEMENT (No. 58) VALUATION – Sec APARTMENT (No. 8) 65
WARRANT FOR GOODS, that is to say instrument evidencing the title of any person therein named, or his assigns or the holder thereof, to the property in any goods lying in or upon any dock, warehouse or wharf, such instrument being signed or certified by or on behalf of the person in whose custody such goods may be .
Fifty Taka
Z„Zxq Aa¨vq Customs Act, 1969 (Act IV of 1969) সংেশাধন
4ক। Act IV of 1969 e section 3 eর সংেশাধন । Customs Act, 1969 (Act IV of 1969), অতঃপর Customs Act বিলয়া uিlিখত, eর section 3 eর clause (i) eবং clause (j) eর পিরবেত িনmবিণত clause (i) eবং clause (j) pিতsািপত হiেব; যথাঃ“(i)
an Additional Commissioner of Customs or an Additional Director General or a Director (Central Intelligence Cell);
(j)
a Joint Commissioner of Customs or a Director or a Joint Director (Central Intelligence Cell) ;"
৫। Act IV of 1969 eর section 15 eর সংেশাধন । Customs Act, 1969 eর section 15 eর clauses (d), (g) I (h) eর পিরবেত h_vµ‡g wbgœiƒc clauses (d), (g) I (h) pিতsািপত হiেব; যথাঃ“(d)
goods having applied thereto a counterfeit trade mark within the meaning of the Penal Code ( Act XLV of 1860), or a false trade description
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within the meaning of the ডমাক আiন, 2009 (2009 সেনর 19 নং আiন) [Trademarks Act, 2009 (Act No. 19 of 2009) (g)
goods made or produced outside Bangladesh and intended for sale, and having applied thereto, a design in which copyright exists under the Patents and Designs Act, 1911 (Act No. II of 1911) and in respect of the class to which the goods belong and any fraudulent or obvious imitation of such design except when the application of such design has been made with the license or written consent of the registered proprietor of the design; and
(h)
goods or items produced outside Bangladesh involving infringement of কিপরাiট আiন , 2000 (2000 সেনর 28 নং আiন) [Copyright Act, 2000 (Act No. 28 of 2000)] or infringement of layout design of integrated circuit that are intended for sale or use for commercial purposes within the territory of Bangladesh.”
5K| Act IV of 1969 G section 179 Gi ms‡kvab|--Customs Act Gi section 179 Gi TABLE Gi cwie‡Z© wb¤œewY©Z TABLE cÖwZ¯’vwcZ nB‡e, h_vt"TABLE" Type of cases (1) 1. Adjudication of cases involving confiscation of goods or imposition of penalty or both
Designation of Officer (2)
Jurisdiction and powers (3)
(1) Commissioner of Customs 1) Value of goods or Commissioner of Customs exceeding Taka (Bond) or Director General (Duty 20,00,000.00 Exemption and Drawback). 2) Value of goods not (2) Additional Commissioner exceeding Taka of Customs 20.00,000.00 (3) Joint Commissioner of Customs
(3) Value of goods not exceeding Taka 15,00,000.00
(4) Deputy Commissioner of Customs
(4) Value of goods not exceeding Taka 10,00,000.00
(5) Assistant Commissioner of Customs
(5) Value of goods not exceeding Taka 5,00,000.00
(6) Revenue Officer
(6) Value of goods not exceeding Taka 2,00,000.00
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II. Adjudication of cases relating to Manifest clearance in custom houses and customstations involving only imposition of penalty under item 24 of the Table under sub-section (I) of section 156.
II. Deputy Commissioner of Customs or Assistant Commissioner of Customs in charge of manifest clearance in customhouses or customs-stations, as the case may be.
95
Value of good without limit.
6| Act IV of 1969 Gi section 192A Gi ms‡kvab|--Customs Act Gi section 192A †Z DwjøwLZ “exporter” k‡ãi ci “or Preshipment Inspection Agency” kã¸wj I nvB‡db mwbœ‡ewkZ nB‡e| 7| Act IV of 1969 eর section 192C eর সংেশাধন । Customs Act eর section 192C eর(ক)
Sub-section (1) e uিlিখত “levy, assessment” শbগুিল o কমাগুিলর পর “classification ” শb o কমা সিnেবিশত হiেব;
(খ)
Sub-section (2) eর clause (b) eর(a)
Sub-clause (iv) িবলুp হiেব,
(আ)
Sub-clause (v) e uিlিখত “H.S.Code,” বণগুিল , িচhগুিল, শb o কমা িবলুp হiেব।
8 । Act IV of 1969 eর section 192D eর সংেশাধন । Customs Act eর section 192D eর(ক)
Sub-section (2) ত uিlিখত “appointment” শb o কমার পর “fees” শb o কমা সিnেবিশত হiেব;
(খ)
Sub-section (3) ত uিlিখত “exporter ” শেbর পর "or Pre-shipment Inspection Agency” শbগুিল o হাiেফন সিnেবিশত হiেব;
9 । Act IV of 1969 eর section 192E Gi ms‡kvab|--Customs Act eর section 192E eর pারেm uিlিখত “exporter ”শেbর পর "or Pre-shipment Inspection Agency” শbগুিল o হাiেফন সিnেবিশত হiেব । 10 । Act IV of 1969 eর section 192F eর সংেশাধন । Customs Act eর section 192F e uিlিখত “exporter ”শেbর পর "or Pre-shipment Inspection Agency” শbগুিল o হাiেফন সিnেবিশত হiেব। 11 । Act IV of 1969 eর section 192H eর সংেশাধন । Customs Act eর section 192H eর(ক)
Sub-section (1) e uিlিখত “agreement” শb o কমার পিরবেত "agreement, including commitment to pay the duty and taxes or refund the same, as the case may be, in the agreed time limit," শbগুিল o কমা pিতsািপত হiেব;
(খ)
Sub-section (2) ত uিlিখত “exporter ” শেbর পর "or Pre-shipment Inspection Agency” শbগুিল o হাiেফন সিnেবিশত হiেব;
(গ)
Sub-section (7) e uিlিখত “exporter ” শেbর পর "or Pre-shipment Inspection Agency” শbগুিল o হাiেফন সিnেবিশত হiেব;
96
Bangladesh Statutes
I LNJ (2012)
12 । Act IV of 1969 eর section 192I eর সংেশাধন । Customs Act eর section 192I eর sub-section (3) eর পিরবেত িনmরূপ sub-section (3) pিতsািপত হiেব, যথাঃ“(3) If the dues, payable to either party as per agreement, are not paid and if the same including any penalty or interest for default in making payment of such sum, if not paid within one year, such sum may either be recovered or refunded with annually 10 percent interest, or as sums due to the Government under section 202 or the applicant under section 33 of this Act." । ১৩। ACT IV of 1969 eর section 192J eর সংেশাধন । Customs Act eর section 192I eর section 192J eর sub-section (1) uিlিখত “exporter ” শেbর পর "or Pre-shipment Inspection Agency” শbগুিল o হাiেফন সিnেবিশত হiেব । 14। ACT IV of 1969 eর FIRST SCHEDULE eর pিতsাপন । Customs Act eর
FIRST
SCHEDULE eর পিরবেত ei আiেনর তফিসল-1 e uিlিখত “FIRST SCHEDULE” (পৃথকভােব মুিdত) pিতsািপত হiেব। চতু থ aধ ায় Income-tax Ordinance, 1984 (Ordinance No. XXXVI of 1984) eর সংশাধন ১৫। Ordinance No. XXXVI of 1984 eর section 2 eর সংেশাধন । Income-tax Ordinance, 1984 (Ordinance No. XXXVI of 1984), aতঃপর uk Ordinance বিলয়া uিlিখত, eর section 2 eর(ক)
Clause (15) eর sub-clause (c) eর item (i) eর "'Dhaka, Narayanganj and Gazipur districts, Chittagong Development Authority (CDA)" শbগুিল, কমাগুিল, বণগুিল o বnনীগুিলর পিরবেত "Dhaka, Chittagong, Narayanganj, Gazipur, Narsingdi, Munshiganj and Manikganj districts" শbগুিল o কমাগুিল pিতsািপত হiেব;
(খ)
Clause (21) eর "the Co-operative Societies Act, 1940 (Beng. Act XXI of 1940)" শbগুিল, কমা, সংখ াগুিল, বণগুিল o বnনীগুিলর পিরবেত “সমবায় সিমিত আiন, 2001 (2001 সেনর 47 নং আiন) ((Co-operative Societies Act, 2001) (Act No. 47 of 2001)” শbগুিল, কমা, সংখ াগুিল eবং বnনীগুিলর pিতsািপত হiেব; ।
(গ)
Clause (23) eর "and includes a person appointed to be" শbগুিলর পিরবেত "and includes a person appointed to be a Transfer Pricing Officer," শbগুিল o কমাগুিল pিতsািপত হiেব;
(ঘ)
Clause (25AA) এর "any Additional Director General, Central Intelligence Cell or any Joint Director General, Central Intelligence Cell or Deputy Director General. Central Intelligence Cell ")" শbগুিল o কমাগুিলর পিরবেত “any Director, Central Intel iigence Cell or any Joint Director, Central Intelligence Cell or Deputy Director, Central Intelligence Cell or Assistant Director, Central Intelligence Cell” শbগুিল o কমাগুিল pিতsািপত হiেব;